250 R.I. Code R. 250-RICR-150-15-3.12

Current through November 7, 2024

Section 250-RICR-150-15-3.12 - Application for a Significant Alteration

3.12.1Purpose

A. An Application for a Significant Alteration will be required if a significant alteration is proposed. Such an application is subject to the application procedures and requirements as set forth in R.I. Gen. Laws § 2-1-22 and within these Rules.

B. A significant alteration results from a project that:

1. Because of its area, scope or duration, appears to represent more than a minimal change in or modification to the natural characteristics, functions or values of any freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage;

2. May be detrimental to the basic natural capabilities or values associated with such freshwater wetlands, buffers, floodplain, area subject to flooding or area subject to storm flowage; or

3. Appears to be random, unnecessary or undesirable.

C. Prior to filing an Application for a Significant Alteration, an applicant may file an Application for a Freshwater Wetlands Permit to determine whether or not a project appears to represent a significant alteration to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage.

3.12.2Application Submittal Requirements

A. An applicant seeking a permit for a significant alteration must adhere to the following requirements and submit all written evaluations and documentation as set forth in § 3.12.2(A)(3) of this Part.

1. Project Scope. An Application for a Significant Alteration must include and describe the entire project proposed by the applicant. A request for a partial review or a review of fewer than all phases of a project may be considered by the Department only if:

a. The Department has previously reviewed the entire project and considered all project impacts on freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage; or

b. As a condition of a prior determination, permit, or consent agreement, or consent judgment, the Department required separate applications for individual portions of an overall project.

2. Application Content. A completed Application for a Significant Alteration must comply with the general provisions set forth in § 3.8 of this Part as well as the following specific requirements:

a. An original completed application on forms provided by the Department (see §§ 3.8.2 and 3.8.3 of this Part);

b. Site plans prepared and stamped by a Rhode Island Registered Professional Engineer which accurately and clearly depict the project and provide, in the opinion of the Department, the correct location, extent, and type of all freshwater wetlands, buffers, buffer zones, floodplains, areas subject to flooding and areas subject to storm flowage within and near the project (§§ 3.8.4 and 3.8.5 of this Part);

c. A fee (§§ 3.8.8 and 3.8.9 of this Part);

d. Proof of ownership in the form of a current certified copy of the deed of the subject property;

e. A current list of the property owners whose properties lie within two hundred feet (200') of the proposed project. This list of property owners must contain the current mailing address of each property owner and must be accompanied by a separate map drawn to scale of not less than one inch (1") to one hundred feet (100') (1" = 100') showing the properties, lot numbers, and corresponding owners within a radius of two hundred feet (200') of the outermost boundary of the area of the proposed project. For the purposes of determining which properties are within two hundred feet (200') of the proposed project, the applicant shall measure from the outermost boundaries of the proposed wetland alterations. Such freshwater wetlands alteration boundaries must include at least the following:

(1) The extent of all physical disturbance in jurisdictional area;

(2) The extent of any impoundment or raising of water elevations of six inches (6") or more in freshwater wetlands, buffers or floodplain;

(3) The extent of drainage of freshwater wetlands, including lowering of surface and sub-surface water elevations;

(4) The relocation of flowing bodies of water or watercourses, including the original and proposed locations; and

(5) The expansion of any jurisdictional area into adjacent properties.

f. All written evaluations and documentation as set forth in § 3.12.2(A)(3) of this Part;

g. Following notification from the Department, the required number of full-size and reduced site plans, drawn to scale and legible, which are necessary to provide to the municipality, the abutters, and other interested parties;

h. Completed field work that includes field reference markers on the property and points on the site plans sufficient to outline the limits of the project and to identify the edge of the jurisdictional area within the project in a manner sufficient for the Department to properly complete its evaluation (see § 3.8.6 of this Part).

i. Applicants for major land development or major subdivision projects, as defined in R.I. Gen. Laws § 45-23-32, must submit, at the time the application is submitted to the Department, documentation of one (1) of the following:

(1) Local Master Plan approval; or

(2) Local conditional approval of a combined Master and Preliminary Plan; or

(3) A letter from an authorized municipal official (the Administrative Officer) certifying compliance with local low impact development site planning and design requirements as contained within the local zoning ordinance, land development and subdivision Regulations or other pertinent Regulations.

3. Written Documentation and Evaluation. All applicants must provide a written evaluation including all of the following elements:

a. A Table of Contents that lists all section titles and their corresponding page numbers.

b. A project description that includes:

(1) The project size, purpose, location, and type;

(2) A description of all applicable jurisdictional area;

(3) Site history and overall areas evaluated including nearby roadways and adjacent land uses; and

(4) A description of the documented occurrence of rare native plants, rare native animals or rare freshwater wetland types as specified on lists maintained by the Department.

c. A narrative description documenting how the proposed project will satisfy the variance criteria specified in § 3.7.3 of this Part.

d. A written Evaluation of Functions, Values, and Impacts (§ 3.12.2(A)(4) of this Part) that describes the evaluation methodology, qualifications of professional(s) performing the evaluation; identification of regulated jurisdictional area; description of freshwater wetland functions, values, and impacts, identification of the proposed measures to reduce such impacts; conclusions; and any literature citations as set forth in § 3.12.2(A)(4)(f) of this Part.

4. Evaluation of Functions, Values, and Impacts. All applicants must describe those functions and values provided and maintained by the subject freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage; describe and assess any anticipated impacts to their functions and values; and describe all structural or non-structural best management practices, best available technologies, schedules, and management plans which will be employed to avoid, or minimize impacts to freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage to the maximum extent possible. This written evaluation must clearly and fully explain how the proposed project complies with all applicable review criteria set forth or referred to in § 3.7.2 of this Part and must describe the evaluation methodology, the qualifications of persons involved in the evaluation, and must describe all jurisdictional area.

a. Evaluation Methodology: Identify the scientific techniques and methods which were used to complete the evaluation, including the dates and times of observations and field studies and the result of such observations and field studies. Identify each specific evaluation methodology that was used, and identify, describe, and explain any deviation from the methodology, and any assumptions made with a specific methodology. Identify and describe any limitation placed upon the study or evaluation which could affect the outcome of the results.

b. Qualifications: List the names and qualifications of each person involved in the evaluation. Assessment of functions and values and impacts may require input by more than one (1) qualified professional consultant or more than one (1) individual familiar with the specific functions or values of the freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage. The names, addresses and backgrounds of any individuals consulted for the evaluation must be submitted as well as a description of the extent of their participation.

c. Jurisdictional Area: Describe all jurisdictional area on-site as well as any off-site freshwater wetlands that are hydrologically connected to the on-site freshwater wetland(s) and identify all freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage evaluated, including any areas of potential impact associated with the project within a jurisdictional area.

d. In addition to the evaluation elements required above, the applicant must address the following requirements in the written evaluation:

(1) Wildlife and Wildlife Habitat

(AA) Characteristics. Provide the size of the freshwater wetland(s), and describe the topography, microtopography (i.e., leaf litter, mound and pool, exposed soil, rocks), soils, hydrology, dominant plant communities and vegetation in each stratum (i.e., tree, shrub, and herbaceous layers) of the freshwater wetlands and buffer or, if a pond, vernal pool or watercourse, the dominant aquatic vegetation; identify and describe any standing or flowing water bodies, water quality, nearby land uses within one hundred fifty feet (150') of the edge of the subject freshwater wetlands and buffers; and identify other freshwater wetland(s) which are hydrologically connected to the on-site freshwater wetland(s) with distances between freshwater wetlands provided;

(BB) Wildlife Indicators. Detail and describe the indications of wildlife use (e.g., direct observation of wildlife or indicators such as burrows, scat, tree cavities, tracks, trails, nests, scrapes, and any other observable signs or vocalizations). Detail those species known to be present or that can be anticipated to use the habitat that is present. Note the presence of wildlife habitat which is likely to be used by game or non-game species;

(CC) Values. Identify and describe the current and potential ability of the freshwater wetlands and buffers to provide or maintain the functions and values relating to wildlife and wildlife habitat; and

(DD) Proposed Impacts. Identify and describe the physical, chemical and biological impacts, both short-term and long-term, to the wildlife habitat associated with the freshwater wetlands and buffers resulting from the project which include, but are not limited to: impacts to travel, nesting, feeding, spawning, resting, nursery or brood rearing, escape cover, seasonal breeding, migration, and over-wintering for resident, seasonal or transient species; impacts to any rare species; impacts to any game or non-game species managed by State or Federal fish and game agencies; impacts to wildlife habitat functions and values due to changes associated with lighting, noise, temperature, water quality, air quality, water velocity, flow patterns, water elevations, water temperature, fragmentation of habitat, predator/prey relationships, composition of plant or animal communities, intrusion of exotic or invasive species; whether the project may result in displacement, reduction or extirpation of any wildlife species; and whether the project will result in any cumulative loss of wildlife habitat, wildlife species or wildlife populations.

(2) Recreation and Aesthetics

(AA) Characteristics. Provide the size of the freshwater wetland(s), and describe topography, soils, hydrology, dominant plant communities and vegetation in each stratum (i.e., tree, shrub, and herbaceous layers) of the freshwater wetlands and buffers, or if a pond, vernal pool or watercourse, the dominant aquatic vegetation; identify and describe any standing or flowing water bodies, water quality, nearby land uses within one hundred fifty feet (150') from the edge of the subject freshwater wetland(s) and buffers, and identify other freshwater wetland(s) which are hydrologically connected to the on-site freshwater wetland(s) with distances between freshwater wetlands provided. Also, identify and describe the location of the freshwater wetland(s) and buffers and the availability of public access and viewing sites;

(BB) Values. Identify and describe the current and potential ability of the freshwater wetlands and buffers to provide or maintain the functions and values as defined herein relating to recreation and aesthetics; and

(CC) Proposed Impacts. Describe the probable individual and cumulative impacts of the project on the recreational and aesthetic values of the freshwater wetlands and buffers, and any potential reduction in the current or potential ability of the freshwater wetlands and buffers to provide aesthetic values and active or passive recreational activities to the public. Consider the impacts to: wildlife habitat; rare species; vegetation and plant communities; water quality; water temperature, water velocity, water volume and water elevation; wildlife which can be fished, hunted, trapped, observed, heard, studied, or photographed; open space value; public access and public's view of the wetland; the freshwater wetlands' or buffer's prominence as a distinct feature in the local area; the use and enjoyment of watercourses or water bodies within, adjacent to, or nearby the project; and the freshwater wetlands' functions and values as a rare freshwater wetland type.

(3) Flood Protection

(AA) Drainage Characteristics. Identify and describe the drainage characteristics of the site of the project, including any areas contributing stormwater runoff to freshwater wetlands or buffers; describe the drainage characteristics of any surface water flows, including any flowing bodies of water or areas subject to storm flowage within the project site, or within any freshwater wetlands on or off-site that may be impacted by the project; and identify and describe the extent of flooding up to and including a one hundred (100) year frequency storm flood event. Include a map which delineates the watershed of: the site of the project; any freshwater wetlands or buffers receiving water from the site of the project; and any off-site freshwater wetlands or buffers which may be impacted by the project.

(BB) Values. Identify and describe the functions and values of the freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage relating to their ability to temporarily store or meter out flood waters from storm events, and to accommodate surface water and drainage into, out of, between, through or within these jurisdictional area under preproject conditions.

(CC) Analysis of Proposed Impacts.

(i) Projects proposing changes in run-off towards freshwater wetlands and buffers: Submit a stormwater analysis for pre and post-project runoff rates based upon the one (1) year, ten (10) year, and one hundred (100) year, twenty-four (24) hour, Type III storm events. The analysis must be performed using the methodologies as allowed and contained in the Stormwater Management, Design and Installation Rules, Subchapter 10 Part 8 of this Chapter. In the event that the stormwater analysis reveals any increase above preproject runoff rates, or any increase in peak flood elevations within receiving waters/wetlands, identify and describe the impact such proposed increase may have upon all functions and values as defined herein. Describe the anticipated impacts to the freshwater wetlands and buffers using supporting calculations, data, diagrams, graphs, and observations.

(ii) Projects proposing changes in drainage characteristics of freshwater wetlands, buffers, floodplains, areas subject to flooding or area subject to storm flowage or affecting their ability to store, meter out, or reduce the impacts of flooding and flood flows: Identify and describe all project components that may decrease the ability of freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage ability to meter out flood waters or decrease their ability to maintain surface flows and natural drainage characteristics. Such project components include, but are not limited to: changes in topography from filling or excavation; changes in vegetative characteristics; additions of buildings or structures; and piping, culverting, bridging, excavating, channelization, relocation, filling, damming or diking. Identify and describe the impacts the project may have upon all freshwater wetlands functions and values. Describe the anticipated impacts of all projects using supporting calculations, data, diagrams, figures, graphs or observations as appropriate. Such impact evaluation must be supported by a flood flow analysis based upon the one (1) year, ten (10) year, and one hundred (100) year, twenty-four (24) hour, Type III storm event for pre and post-project conditions.

(DD) Compensation for Loss of Flood Storage. Projects which propose filling or placement of structures in a floodplain or area subject to flooding may provide compensatory flood storage in order to comply with the review criteria as set forth in § 3.7.2 of this Part by excavation or by permanently eliminating structures which currently displace flood waters; however, compensatory storage may not be proposed beneath or within the confines of any building or structures. Where applicable, compensatory flood storage must be proposed in accordance with the following requirements:

(i) The volume of compensatory flood storage must be equal to or greater than the volume of floodwaters displaced by the project on a foot-by-foot elevation basis unless otherwise specified by the Department;

(ii) The compensation area must have an unrestricted hydraulic connection to the affected floodplain and provide the same rate of flood storage capture and discharge over the course of the flood event as in pre-project conditions;

(iii) Compensatory storage must be located within the same reach of the river or flowing body of water (i.e., between the nearest features controlling the flood water elevations upstream and downstream from the proposed displacement area) as the project involving flood water displacement, and must be located as close to the proposed displacement area as possible;

(iv) Creation of compensatory storage must precede or occur simultaneously with the construction of any portion of the project which displaces flood waters;

(v) Where the applicant proposes a compensatory storage area on property owned by others, the applicant must submit a written agreement between such landowner and the applicant wherein the landowner agrees to convey an easement or other property interest or right to the applicant allowing compensatory storage, and to permanently maintain such area for flood storage purposes in the event that the Department approves the applicant's project; and

(vi) The design must include all features and best management practices to ensure that impacts to the functions and values of other freshwater wetlands and buffers have been mitigated.

(4) Groundwater and Surface Water Supplies

(AA) Hydrologic Characteristics. Identify and describe the current hydrologic characteristics, including both surface and groundwater flows, within and to any freshwater wetlands or buffers that may be affected by the project. Identify the pre-project elevation range of the surface or groundwater on a seasonal and annual basis in the freshwater wetlands and buffers and in the vicinity of the proposed alteration. Describe the extent to which the surface or groundwater levels deviate from long-term ranges and averages. Include a map delineating the watershed of: the site of the project; any freshwater wetlands or buffers receiving water from such site; and any off-site freshwater wetlands or buffers which may be impacted by the project.

(BB) Functions and Values. Identify and describe the functions and values of the freshwater wetlands and buffers relating to surface water or groundwater supplies.

(CC) Proposed Impacts. Identify and describe all components and activities of the project that may directly or indirectly divert, reduce or contain surface or groundwater flow to, away from, or within any freshwater wetlands or buffers, including a description of the volumes of water which may be diverted, reduced or contained, and the rate and duration of such diversion, reduction or containment. Identify and describe the impacts the project may have upon all functions and values. Describe the anticipated impacts using supporting calculations, data, figures, diagrams, graphs and observations as appropriate.

(5) Water Quality

(AA) Drainage Characteristics. Identify and describe the current drainage characteristics of the area of the project, including any on or off-site freshwater wetlands that may be impacted by the project.

(BB) Functions and Values. Identify and describe the functions and values of the freshwater wetlands and buffers relating to water quality; and describe the present water quality classification and impairment status of any water body as set forth by the Department. Include a description of the water quality conditions of all freshwater wetlands within the project area, as well as any off-site freshwater wetlands that may be affected by the project. Identify how the project will avoid contributing to a violation of the standards or contributing to any further degradation of currently degraded surface or groundwater resources.

(CC) Water Quality Analysis

(i) As may be required in accordance with the Stormwater Management, Design and Installation Rules, Subchapter 10 Part 8 of this Chapter, submit a pollutant loading analysis which quantifies the pollutants in stormwater runoff for both pre and post-project conditions by utilizing the methodology contained in the Stormwater Management, Design and Installation Rules, Subchapter 10 Part 8 of this Chapter, or by another widely accepted method. If the methods used incorporate the best available technology, but are different from those in the manual or deviate from its guidelines, the applicant must describe why they were used and submit and document all data, calculations, and methods used. The acceptance of these alternative methods is subject to Department approval; and

(ii) Submit a water quality analysis which quantifies the pollutant concentrations or loadings from Land Uses with Higher Potential Pollutant Loads (LUHPPLs) as defined in the Stormwater Management, Design and Installation Rules, Subchapter 10 Part 8 of this Chapter, as well as plant nurseries and other land uses involving use of fertilizers, herbicides, pesticides, for both pre and postproject conditions by utilizing one (1) or more accepted and scientifically supported methodologies. The acceptance of the method(s) utilized for such calculations is subject to Department approval.

(DD) Proposed Impacts. Identify and describe all components and activities of the proposed project that may result in any degradation of water quality associated with freshwater wetlands by increasing pollutant sources; nutrient loading; increasing turbidity; decreasing oxygen; altering temperature regimes; reducing stream or river flows; altering the freshwater wetlands' or buffer's ability to retain or remove nutrients; or by withdrawing water from or near any freshwater wetlands. Identify and describe the impacts the proposed project may have upon all functions and values as defined herein. Describe the anticipated impacts to the freshwater wetlands and buffers using supporting calculations, data, figures, diagrams, graphs and observations.

(6) Soil Erosion and Sediment Control

(AA) Identify and describe all proposed land disturbance activities; current site conditions, including soil conditions and topography; drainage characteristics of the site of the proposed project; any critical erosion areas; and all proposed non-structural and structural temporary and permanent erosion and sediment control methods. Further, describe how and why such erosion and sediment control measures will protect functions and values and meet the review criteria as set forth in § 3.7.2 of this Part. The written evaluation must include supporting calculations, data, figures, diagrams, graphs and observations. For projects involving one (1) acre or more of land disturbance, this requirement must be satisfied with the submittal of a Soil Erosion and Sediment Control Plan as outlined in the Department's General Permit for Storm Water Discharge Associated with Construction Activity.

e. Conclusion. Identify and detail how the project meets all review criteria as set forth in § 3.7.2 of this Part. Describe any measures to reduce impacts which were considered and rejected and indicate why they cannot or should not be employed.

f. Literature Citations. Provide citations for all literature used to support the evaluation.

3.12.3Completeness Determination

Prior to the public notice of any Application for a Significant Alteration, the Department will review the application to determine whether or not it is a completed application for public notice purposes only (see § 3.12.2(A)(2) of this Part). Once an application is determined to be complete for public notice purposes, no further information may be submitted by the applicant in support of the application unless such information is requested by the Department.

3.12.4Public Notice and Participation - Public Hearings

A. Public Notice

1. Notice: An Application for a Significant Alteration shall be publicly noticed in accordance with R.I. Gen. Laws § 2-1-22(a).

2. Public Comment - Period of Time: Within fourteen (14) days after the receipt of an application that has been determined by the Department to be complete, the Department shall send a notice of the application to the appropriate parties, as defined in R.I. Gen. Laws § 2-1-22(a). The public notice period shall commence upon the day of mailing of the notice and end forty-five (45) calendar days thereafter, or as extended to accommodate weekends or holidays.

3. Notice for Public Comment - Delivery: Notice of the application shall be made by first class mail or, if available and appropriate, e-mail. The Department will rely upon those names and addresses provided by the applicant to notify abutting property owners. Prior to the notice, the applicant must ensure that the list of abutters is current and accurate.

4. In the case of a full or partial removal of a dam as described in § 3.8.3(D) of this Part, impounding a flowing body of water, proposed for the purpose of habitat improvement, restoration, or dam safety, the Department may require the applicants to place, at their own expense, a public notice of the proposed project in a daily or weekly newspaper with circulation in the area of the project. This notice must allow at least a thirty (30) day period for comment to the Department, ending no later than the end date of the notice specified in accordance with § 3.12.4(A)(2) of this Part.

B. Content

1. Notice for Public Comment:

a. The notice shall include the name of the applicant seeking permission to alter, the applicant's address, the purpose of the project as described by the site plans, the jurisdictional area to be altered, the proposed alterations, a reduced set of site plans provided by the applicant, and the date upon which the forty-five (45) day comment period shall end.

b. The Department shall furnish the notice and one (1) full-size copy of the site plans to the city or town council and the city or town clerk within whose borders the project is proposed. The Department shall request that the city or town clerk maintain the notice, site plans and application within that office for public viewing during the forty-five (45) day notice period.

2. Public Notice - Disclaimer: Notice of the application is not a notice of approval or any intent by the Department to approve or issue a permit for the project.

3. Review During Public Notice: The Department will not make a decision on an application as to whether any alteration is random, unnecessary, or undesirable during the public notice period.

C. Public Comments

1. Comments filed with the Department will be considered and reviewed if they are in writing, are legible, contain a discernable name and address of the objector, are signed and are received during the forty-five (45) day notice period. The commenter must identify the application number noted in the public notice or must otherwise identify or reference the project about which they are objecting. The Department will not consider or review comments to projects which do not contain sufficient information to properly relate the objection to a specific application.

2. A comment will be considered timely filed if received within the forty-five (45) day public comment period. If the last day of the forty-five (45) day notice period ends on a weekend or holiday, the end of the public notice period will be extended through the next working day.

3. The Department shall determine whether a comment is an objection of a substantive nature. Pursuant to R.I. Gen. Laws § 2-1-22, a determination that a comment is a substantive objection will necessitate a public hearing. All comments received by the Department will remain part of the application file. An objection of a substantive nature is any written comment offered in opposition to a project that:

a. Relates to the functions and values of the freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage;

b. Has not been clearly addressed by the applicant in his or her application;

c. Has not been assessed by the Department during its review of the application; and

d. Cannot be resolved by the Department's evaluation of the application.

4. The applicant will be notified by certified mail if a comment is determined to be a substantive objection. The applicant may then withdraw the application or, if the applicant wishes to proceed, must authorize the scheduling of a public hearing in writing and must submit a fee to cover the costs of the public hearing (§§ 3.8.8 and 3.8.9(D) of this Part). The Department will schedule the public hearing under the provisions of R.I. Gen. Laws § 2-1-22 following receipt of the fee and authorization from the applicant. The written authorization and fee must be received by the Department within thirty (30) days following the receipt of notification from the Department of a substantive objection. If written authorization and the required fee are not received within the thirty (30) days following notification of a substantive objection, the Department will consider the application withdrawn. The Department will terminate any further action on the subject application and will not re-open the application at a later date. In this case, a new application would be required.

5. An objector may withdraw, in writing, the objection any time prior to the scheduling of a public hearing. The Department will notify the applicant if any substantive objection is withdrawn. If all substantive objections are withdrawn in sufficient time to prevent the notice of a public hearing, the public hearing will not be held, any remaining hearing fees will be refunded to the applicant, and the Department will proceed with a decision on the application.

6. An applicant may withdraw, in writing, the authorization for a public hearing any time prior to the scheduling of a public hearing. Upon receipt of notification from the applicant that authorization for a public hearing has been withdrawn, the Department will consider the application withdrawn and shall terminate any further action on the application. Any remaining hearing fees will be refunded to the applicant.

D. Public Hearings

1. When necessary, in accordance with R.I. Gen. Laws § 2-1-22, the Department will hold public hearings on proposed alterations to freshwater wetlands when a request for such hearing is made in accordance with § 3.12.4(C)(4) of this Part. The purpose of such hearings shall be to elicit comments from the public regarding the impact of the proposed alteration on the functions and values provided by the subject freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage. Such hearings are not adjudicatory, evidentiary hearings, but they are held to obtain comments to assist the Department in its review of the application.

2. Public hearings will be held at a place designated by the Department. When a public hearing is required, such place shall be reasonably convenient to the site of the project.

3. The time of hearing shall be designated by the Department.

4. The presiding officer of a public hearing shall be the Department's or the Director's designee.

3.12.5Decision on Application for a Significant Alteration

A. General

1. Consistent with R.I. Gen. Laws §§ 2-1-22(b) and (c), the Department insofar as possible will issue a decision in response to an Application for a Significant Alteration forty-two (42) days after the end of the public comment period or, if applicable, the public hearing.

2. Applicants shall be notified in writing of the Department's decision by certified mail. The Department shall notify the applicant's attorney or other designated representative, if any, by first class mail or e-mail. Any person who objects in writing during the forty-five (45) day public comment period shall be notified of the decision by first class mail or e-mail if the objector provides the Department with a mailing address.

B. Decision to Deny

1. Approval of a proposed alteration to any freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage will be denied by the Department if the project as proposed does not satisfy the review criteria (§ 3.7.2 of this Part) contained herein or would result in a random, unnecessary, or undesirable alteration of a freshwater wetland, as those terms are defined herein, since such alterations are not in the best public interest. Such projects are therefore inconsistent with R.I. Gen. Laws §§ 2-1-18 and 2-1-19 and these Rules, and the Department will deny such applications in accordance with R.I. Gen. Laws § 2-1-21.

2. The decision to deny approval shall be in the form of a letter which will state the reasons for denial.

C. Decision to Permit and Grant Variance. The Department shall issue a permit and grant applicable variances from standards for an application which, in the opinion of the Department, does satisfy the review criteria (§ 3.7.2 of this Part) contained herein, does not represent a random, unnecessary, or undesirable alteration of freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage, and satisfies all variance criteria or requirements as specified in § 3.7.3 of this Part. All permits shall be in the form of a letter which makes detailed reference to the subject application and the plans submitted in support of the application.

3.12.6Permit Requirements and Conditions

A. Conditions and terms of the permit may require modification of portions of the project, as described by plans provided by the applicant.

B. Plans referenced within the permit letter shall be stamped "approved with conditions" by the Department and shall contain the application number, date of the permit letter, and signature of an authorized agent of the Department.

C. A copy of the permit letter and one (1) set of the approved site plans must be maintained at the project site at all times during construction and up to the time of project completion. Prior to commencement of site alterations, the permittee shall erect or post a sign, resistant to the weather and at least twelve inches (12") wide and eighteen inches (18") long, which boldly identifies the initials "DEM" and the application number of the permit. The sign must be maintained at the site in a conspicuous location until such time that the Department issues a Notice of Completion of Work for the project.

D. When required by permit condition, the permit letter shall be recorded at the expense of the owner, in the land evidence records of the city/town where the subject property is located within ten (10) days of receipt of the permit letter. The applicant must submit written documentation from the city or town showing that the permit letter was received for recording immediately upon recordation.

E. Unless otherwise ordered by the Department, or renewal of a permit is obtained, all permits issued under an Application for a Significant Alteration are limited to a period of one (1) year from the date of issuance and shall expire thereafter.

F. The maximum period of years for a permit to remain valid consists of the original one (1) year permit period and three (3) additional one (1) year renewal permit periods, which must be consecutive and thus total four (4) consecutive years from the original date the permit was issued. Any renewal must be requested by Application for Renewal that meets the requirements of § 3.14.2 of this Part.

G. Construction activities affecting freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage occurring or ongoing at the expiration deadline of any permit or any renewal permit must cease until such time that a new permit has been issued by the Department in accordance with these Rules.

H. The original permittee or subsequent transferee is required to notify the Department in writing prior to the commencement of the work described or referenced in the permit, indicating the anticipated date of commencement. Additionally, the permittee or subsequent transferee is required to notify the Department in writing upon the completion of the permitted activities.

I. After receipt of notification of the completion of work described or referenced in the permit, the Department shall issue to the original permittee or subsequent transferee a Notice of Completion of Work, in the form of a letter, provided that an on-site inspection of the project by the Department determines that the work has been completed in accordance with the permit and any conditions of approval or renewals thereof. The Department may first require the permittee or subsequent transferee to provide written certification from the appropriate regulated professional attesting to the completion of the approved project that is described or referenced in the permit or on the approved site plans.

J. When required by the Department, the original permittee or subsequent transferee shall record, at his or her expense, the Notice of Completion of Work in the land evidence records of the city/town where the subject project is located. Immediately upon recordation, the permittee or subsequent transferee must submit written documentation from the city or town showing that the Notice of Completion of Work was received for recording.

3.12.7Permit Compliance

The applicant may only proceed with the approved project within freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage in strict compliance with such terms and conditions, including time of completion, as the Department may require to ensure the protection of freshwater wetlands, buffers or floodplains and the functions and values they provide. Any non-compliance with a permit term or condition or these Rules represents a violation of the permit, the Act and these Rules and constitutes grounds for enforcement action.

3.12.8Appeal of Decisions

A. Request for Appeal. Within thirty (30) days of the receipt of a decision from the Department regarding an Application for a Significant Alteration, the applicant may request an adjudicatory hearing to appeal the decision, or portions thereof. The request for an adjudicatory hearing must be in writing, must comply in form and content for such requests as required by the Rules and Regulations for the Administrative Adjudication Division, Part 10-00-1 of this Title, and must be filed directly with the AAD. A copy of such request must also be forwarded to both the Freshwater Wetlands Program and the Office of Legal Services. Any request for an adjudicatory hearing on an application must be accompanied by a fee as specified in §§ 3.8.8 and 3.8.9(D) of this Part. A request for an adjudicatory hearing will not be considered timely filed unless accompanied by the full required fee. A request for an adjudicatory hearing automatically stays any permit issued.

B. Adjudicatory Hearings

1. Applicable Rules: Following an appeal of a decision regarding an Application for a Significant Alteration, all adjudicatory hearings shall be held in accordance with R.I. Gen. Laws § 42-35-1et seq. [hereinafter the Administrative Procedures Act (APA)], the Rules and Regulations for the Administrative Adjudication Division, Part 10-00-1 of this Title, and other governing laws, Rules and Regulations adopted by the Department.

2. Burden of Proof: It shall be the applicant's burden to demonstrate by a preponderance of the evidence that the project, as proposed and sent out for public comment pursuant to R.I. Gen. Laws § 2-1-22, is consistent with the purposes of the Act, complies with these Rules, and is protective of the environment and the health, welfare and general well-being of the populace.

C. Permit Issuance Following Exhaustion of Legal Remedies. After exhaustion of available legal remedies the Department, when ordered, will issue a permit with terms and conditions as established by the Department in accordance with the requirements set forth in the Act and these Rules to ensure the protection of freshwater wetlands, buffers and floodplains, and the functions and values they provide.

3.12.9Negotiated Settlements - Consent Agreements

A. Following denial of an application, the Department and the applicant may enter into settlement negotiations in only those cases where the proposed resolution does not represent, in the opinion of the Department, a substantial modification of the original project.

B. A proposed resolution will be considered a substantial modification of the original project when the freshwater wetlands, buffer or floodplain alterations contemplated by such resolutions are:

1. Proposed in different areas of the jurisdictional area so as to require public notice to additional or new parties as set forth in R.I. Gen. Laws § 2-1-22; or

2. Proposing impact(s) which were not evaluated by the Department pursuant to its review of the original application.

C. When a proposed resolution represents only a reduction or elimination of freshwater wetlands, buffer or floodplain alterations from those proposed in the original application, such proposed resolution will not be considered a substantial modification.

D. Any request by the applicant to submit revised plans in accordance with settlement negotiations shall require a fee §§ 3.8.8 and 3.8.9(A)(10) of this Part. As a result of settlement negotiations, a Consent Agreement may be executed by the parties whereby a permit is issued. Such an agreement is deemed a final order of the Department and is enforceable by resort to Superior Court.

3.12.10Application Closure

A. An Application for a Significant Alteration shall be considered closed under the following circumstances:

1. The applicant fails to answer any notification of application deficiency or any request for additional information by the Department within a period of one (1) year from the date the deficiency letter is issued;

2. A permit or a letter of denial is issued and the applicant fails to appeal the decision within thirty (30) days of receipt of the decision;

3. The Department is notified in writing of a change of ownership during the processing of the application and the new owner does not comply with § 3.8.3(F) of this Part within sixty (60) days;

4. The applicant is notified in writing that a substantive objection related to the subject application was received and fails to provide a written authorization and fee for a public hearing within thirty (30) days following receipt of such notification; or

5. Upon receipt of notification from the applicant that authorization for a public hearing has been withdrawn (§ 3.12.4(C)(6) of this Part).

250 R.I. Code R. 250-RICR-150-15-3.12

Adopted effective 1/13/2022
Amended effective 7/15/2022