Section 250-RICR-150-15-3.4 - DefinitionsA. For the purposes of these Rules, the following terms shall have the following meanings: 1. "AAD" means the Department's Administrative Adjudication Division for Environmental Matters.2. "Accessory structure" means a structure that has an ancillary or supplementary function to the main use of the property. Accessory structures include, but are not limited to, amateur radio towers; flag poles; swing sets; slides; decks; patios; gardens; sheds; in-ground or aboveground swimming pools; fences that do not span or obstruct public access to rivers, streams, and other waterbodies (along and within boundaries or areas such as existing home lawns and driveways); treehouses; drinking water wells with a volume of withdrawal no greater than five hundred (500) gallons a day; walls; stairs; walks; and pervious driveways.3. "Act" means the Freshwater Wetlands Act as set forth in R.I. Gen. Laws §§ 2-1-18 through 2-1-27, as from time to time amended. 4. "Alter" or "alteration" means to change (act of changing) the character of a freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage as a result of activities within or outside of these resources. Such activities include, but are not limited to, the following: Excavating; draining; filling; placing trash, garbage, sewage, road runoff, drainage ditch effluent, earth, rock, borrow, gravel, sand, clay, peat, or other materials or effluents upon; diverting water flows into or out of; diking; damming; diverting; clearing; grading; constructing in; adding to or taking from; or other activities that individually or cumulatively change the character of any freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage.5. "Aquatic base flow" or "ABF" means minimum river or stream flow conditions necessary to sustain indigenous aquatic fauna and flora, as determined by one (1) of the following: a. Where a minimum of twenty-five (25) years of U.S. Geological Survey gauging records exist on a river or stream that is basically free-flowing, the ABF for all times of the year shall be equivalent to at least the median August flow for the period of record unless spawning and incubation requirements exceed the median August flow; orb. Where a river or stream lacks adequate flow data, or where it is regulated by a dam or upstream diversion, the ABF shall be at least one half (0.5) cubic feet per second per square mile of drainage (cfsm), unless spawning and incubation requirements exceed this minimum; orc. Where concerns exist regarding spawning and incubation flow requirements, the ABF shall be one (1.0) cfsm in October/November and four (4.0) cfsm in April/May for the entire applicable spawning and incubation periods of aquatic fauna; ord. Where a specific in-stream flow study identifies an ABF based upon the specific needs of aquatic fauna or flora, the ABF shall conform to the results of that study, provided the ABF is approved by the Department.6. "Area subject to flooding" or "ASF" means areas that include, but are not limited to, low-lying areas that collect, hold or meter out storm and flood waters from any of the following: rivers, streams, intermittent streams or areas subject to storm flowage.7. "Area subject to storm flowage" or "ASSF" means areas that include drainage swales and channels that lead into, out of, pass through or connect other freshwater wetlands or coastal wetlands, and that carry flows resulting from storm events, but may remain relatively dry at other times.8. "Best management practices" or "BMPs" means generally accepted practices, procedures and management techniques that include, but are not limited to, schedules of activities, prohibitions, maintenance procedures, structural and non-structural methods, and other management approaches to prevent or minimize any reduction of the functions and values associated with freshwater wetlands, buffers or floodplains.9. "Bog" means consistent with R.I. Gen. Laws § 2-1-20(3), a place where standing or slowly running water shall be near or at the surface during a normal growing season and/or where a vegetational community shall have over fifty percent (50%) of the ground or water surface covered with sphagnum moss (Sphagnum) and/or where the vegetational community shall be made up of one (1) or more of, but not limited to nor necessarily including all of the following: blueberries and cranberries (Vaccinium), leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea), sundews (Drosera), orchids (Orchidaceae), white cedar (Chamaecyparis thyoides), red maple (Acer rubrum), black spruce (Picea mariana), bog aster (Aster nemoralis), larch (Larix laricina), bog rosemary (Andromeda glaucophylla), azaleas (Rhododendron), laurels (Kalmia), sedges (Carex), and bog cotton (Eriophorum).10. "Buffer" means pursuant to R.I. Gen. Laws § 2-1-20(4), an area of undeveloped vegetated land adjacent to a freshwater wetland that is to be retained in its natural undisturbed condition or is to be created to resemble a naturally occurring vegetated area. For the purpose of defining buffer in these Rules, "adjacent to" means land area within the buffer zone.11. "Buffer zone" means an area of land within a jurisdictional area that is contiguous to a freshwater wetland and the width of which is designated in § 3.23 of this Part.12. "Completed application" means any application that, in the opinion of the Department, provides all of the requisite information necessary to process the application in accordance with R.I. Gen. Laws § 2-1-22(a) and these Rules.13. "CRMC" means the Rhode Island Coastal Resources Management Council.14. "CRMC regulations" means the Rules and Regulations Governing the Protection and Management of Freshwater Wetlands in the Vicinity of the Coast (650-RICR- 20-00-9) adopted by the Coastal Resources Management Council pursuant to R.I. Gen. Laws § 46-23-6.15. "Cumulative impact" means the combined impact on the freshwater wetland, buffer and floodplain environment and their functions and values which may result from past, present and future alterations to the same freshwater wetland, buffer and floodplain system, regardless of what agency or person undertakes such alterations.16. "Dam" or "damming" means any barrier made by humans, including appurtenant works, that impounds or diverts surface water. Damming means to impound water by means of a dam.17. "Department" means the Department of Environmental Management (DEM). When used in the context of an action, authorization or permit, it shall mean the agent of the Department duly authorized by the Director to take such action, grant such authorization or approve such permit.18. "Dike" means a berm or structure that impedes, redirects, diverts, or otherwise controls the flow or elevation of water.19. "Director" means, as defined by R.I. Gen. Laws § 2-1-20(6), the Director of the Department of Environmental Management or his or her duly authorized agent or agents.20. "Drain" means to lower the surface water or groundwater elevation, either temporarily or on a permanent basis.21. "Edge" means the line of intersection or division between:a. Any swamp, marsh, pond, bog, vernal pool or emergent and submergent plant communities and its associated buffer zone; or b. Any flowing body of water and its associated buffer zone; orc. Any floodplain, area subject to flooding or area subject to storm flowage and adjacent non-flooded or non-flowing areas.d. The edge shall be identified according to those procedures set forth in § 3.21 of this Part.22. "Emergent plant community" means a freshwater wetland characterized by erect, rooted, herbaceous hydrophytic vegetation that is present for most of the growing season in most years, and that may be persistent or non-persistent in nature.23. "Excavate" means to dig into, cut, quarry, uncover, remove, displace, relocate, or grade any earth, soil, sand, gravel, rock, peat, organic, inorganic or any other similar material.24. "Existing" means: a. A condition that was present as of the enactment of the Act (July 1971) or its applicable amendments and that has continually remained in the same condition; orb. A condition that is present and was approved under the Act (July 1971) or its applicable amendments; orc. A condition that was present on the effective date of these Rules that was in a previously non-regulated area and which is now, pursuant to these Rules, a regulated area; ord. A condition that has naturally occurred and is currently present. 25. "Facultative wildlife species" means wildlife that utilize freshwater wetlands or buffers as habitat, but generally do not require freshwater wetlands for survival or reproduction.26. "Farmer" means an individual, partnership or corporation that operates a farm and has filed a Form 1040F or comparable instrument with the U.S. Internal Revenue Service, has a State of Rhode Island farm tax number, and has earned ten thousand dollars ($10,000.00) gross income on farm products in each of the preceding four (4) years.27. "Feasible" means capable of being done, executed, accomplished or brought about by engineering standards.28. "Fill" means dirt, soil, stones, gravel, sand, sediment, tree stumps, brush, leaves, solid waste, debris, garbage, trash, grass clippings, pollutants, or any other material, substance, or structure placed in a freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage; or any action that places such material in a freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage.29. "Floodplain" means as defined in R.I. Gen. Laws § 2-1-20(7), that land area adjacent to a river or stream or other body of flowing water which is, on the average, likely to be covered with flood waters resulting from a one hundred (100) year frequency storm. A "one hundred (100) year frequency storm" is one that is to be expected to be equaled or exceeded once in one hundred (100) years; or may be said to have a one percent (1%) probability of being equaled or exceeded in any given year.30. "Floodway" means the channel of a river or stream and any immediately adjacent areas that must be kept free of encroachment to allow one hundred (100) year flood waters to be carried without increase in flood heights or flows and without endangering life or property.31. "Flowing body of water" means any river, stream, or intermittent stream that flows long enough during the year to develop and maintain defined channels, and generally has flowing water at times other than those periods immediately following storm events. Such watercourses have defined banks, a bed, and maintain visible evidence of flow or continued reoccurrence of flowing water.32. "Freshwater wetlands" means, as consistent with R.I. Gen. Laws § 2-120(8), except as specified in R.I. Gen. Laws § 2-1-22(k), and includes, but is not limited to: a. Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions including, but is not limited to, marshes, swamps, bogs, emergent and submergent plant communities, rivers, streams, ponds, and vernal pools or any combination thereof; orb. Any or all freshwater wetlands created as part of, or the result of, any activity permitted or directed by the Department after July 16, 1971 including, but not limited to: restored freshwater wetlands; value replacement freshwater wetlands created to compensate for wetland loss such as floodplain excavations; and any freshwater wetlands created, altered or modified after July 16, 1971. 33. "Freshwater wetlands for farmers conducting normal farming and ranching activities" means, pursuant to R.I. Gen. Laws § 2-1-22(k), for farmers undertaking activities specified in R.I. Gen. Laws §§ 2-1-22(i)(1) and (2), freshwater wetlands shall be defined as: c. Areas subject to storm flowage;d. Areas subject to flooding, as defined herein;e. The land area within two hundred feet (200') of a flowing body of water having a width of ten feet (10') or more during normal flow;f. The area of land within one hundred feet (100') of a flowing body of water having a width of less than ten feet (10') during normal flow; andg. The area of land within fifty feet (50') of a bog, marsh of one (1) acre or greater, swamp of three (3) acres or greater and pond not less than one quarter (1/4) acre in extent. 34. "Freshwater wetlands in the vicinity of the coast" means, consistent with the R.I. Gen. Laws § 46-23-6, freshwater wetlands and the associated jurisdictional area, as defined within this Part, seaward of the jurisdictional boundary that are regulated by the Coastal Resources Management Council in accordance with the Rules and Regulations Governing the Protection and Management of Freshwater Wetlands in the Vicinity of the Coast (650-RICR- 20-00-9).35. "Growing season" means the period from April 1st to November 15th of any calendar year.36. "Hydrophyte" or "hydrophytic vegetation" means a plant or plant life that grows in water, or in or on a substrate that is at least periodically deficient in oxygen as a result of saturation or flooding by groundwater or surface water.37. "Insignificant alteration" means in the opinion of the Department, a proposed alteration, limited in scope, area or duration, which appears to result in no more than a minimal change or modification to the characteristics, functions or values of any freshwater wetland(s), buffer(s), floodplain(s), area(s) subject to flooding or area(s) subject to storm flowage and is not random, unnecessary or undesirable.38. "Invasive species" means an alien species whose introduction does or is likely to cause economic or environmental harm, or harm to human health.39. "Jurisdictional area" means, pursuant to R.I. Gen. Laws § 2-1-20(9), the following lands and waters, as defined within this Part, except as provided for in R.I. Gen. Laws § 2-1-22(k), that shall be subject to regulation under these Rules: d. Areas subject to storm flowage;e. Areas subject to flooding; andf. Contiguous areas that extend outward: (1) Two hundred feet (200') from the edge of a river or stream;(2) Two hundred feet (200') from the edge of a drinking water supply reservoir; and(3) One hundred feet (100') from the edge of all other freshwater wetlands.40. "Jurisdictional boundary" means the line determined by the Department and the Coastal Resources Management Council, pursuant to R.I. Gen. Laws § 46-23-6, that designates areas of freshwater wetland-related authority as depicted on maps available by the Department (see § 3.22 of this Part).41. "Lentic" means a habitat or ecosystem characterized by standing water.42. "Lotic" means a habitat or ecosystem characterized by flowing water.43. "Low-flow period" means under normal conditions, the period from July 1st to October 31st of any calendar year.44. "Low hazard dam" means a dam where failure or misoperation results in no probable loss of human life and low economic losses.45. "Marsh" means, consistent with R.I. Gen. Laws § 2-1-20(10), a place wholly or partly within the State of Rhode Island where a vegetational community shall exist in standing or running water during the growing season and/or shall be made up of one (1) or more of, but not limited to nor necessarily including all of the following plants or groups of plants: hydrophytic reeds (Phragmites), grasses (Gramineae), mannagrasses (Glyceria), cutgrasses (Leersia), pickerelweeds (Pontederiaceae), sedges (Cyperaceae), rushes (Juncaceae), cattails (Typha), water plantains (Alismataceae), burreeds (Sparganiaceae), pondweeds (Zosteraceae), frog's bits (Hydrocharitaceae), arums (Araceae), duckweeds (Lemnaceae), water lilies (Nymphaeaceae), water-milfoils (Haloragaceae), water-starworts (Callitrichaceae), bladderworts (Utricularia), pipeworts (Eriocaulon), sweet gale (Myrica gale), and buttonbush (Cephalanthus occidentalis).46. "Mitigate" or "mitigation" means a process undertaken by single or cumulative actions to avoid or lessen the damaging effects of human activities upon freshwater wetlands and buffers and the functions and values that they provide prior to, during, or after the completion of any project or activity.47. "Near or at the surface" means, as defined in R.I. Gen. Laws § 2-1-20(11), within eighteen inches (18") of the surface.48. "Normal farming and ranching activities" means, consistent with R.I. Gen. Laws § 2-1-22(i)(1), projects and activities carried out by farmers, including plowing, seeding, cultivating, land clearing for routine agriculture purposes, harvesting of agricultural products, pumping of existing farm ponds for agricultural purposes, upland soil and water conservation practices, and maintenance of existing farm drainage structures, existing farm ponds and existing farm roads, and any other activity determined by the Division of Agriculture to constitute a normal farming activity.49. "Obligate wildlife species" means wildlife that depend upon freshwater wetlands for all or part of their life cycle.50. "Permit" means an authorization in the form of a document issued and signed by the Department, allowing a project or activity subject to specific terms and conditions in accordance with these Rules.51. "Person" means any individual; corporation; partnership; public utility; nonprofit organization; trust; unincorporated association; Federal, State, county or local government, or any agency or subdivision thereof; or any other entity; or any combination of the foregoing.52. "Pollutant" means any dredged material; solid waste; incinerator residue; sewage; garbage; sewage sludge; sediment; filter backwash; munitions; chemical wastes; biological materials; radioactive materials; heat; wrecked or discarded equipment; rock; sand; dirt; industrial or municipal or agricultural wastes or effluent; petroleum or petroleum products including but not limited to oil; or any material which will likely alter any one (1) or more of the following: the aesthetic, physical, chemical, biological or radiological characteristics or integrity of any freshwater wetland, buffer or floodplain.53. "Pollution" means the human-made or human-induced alteration of the aesthetic, physical, chemical, biological or radiological characteristics or integrity of any freshwater wetland, buffer or floodplain as a result of the introduction of any pollutant to any freshwater wetland, buffer or floodplain.54. "Pond" means, consistent with R.I. Gen. Laws § 2-1-20(12), a place, natural or manmade, wholly or partly within the State of Rhode Island, where open standing or slowly moving water shall be present for at least six (6) months a year. For the purpose of these Rules, ponds exclude those places within the State of Rhode Island that meet the definition of vernal pool.55. "Project" means planned or designed work or undertaking, and for the purpose of the Rules, the term project also indicates activities.56. "Random, unnecessary, or undesirable alteration" means:a. A random alteration is any alteration to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage for which the applicant does not specify in the application the entire project proposed or contemplated by the applicant or in which the purpose of the alteration cannot be determined. b. An alteration is unnecessary unless it is essential, vital, or indispensable to the project and cannot be avoided by exhausting all other non-wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage alternatives.c. An undesirable alteration is any alteration to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage that individually or cumulatively may reduce or degrade any functions and values as set forth herein, which does not avoid and minimize to the maximum extent possible any damaging effects on these functions and values, or does not satisfy the review criteria in § 3.7.2 of this Part. 57. "Rare" means when used in the context of species or freshwater wetland types, those invertebrate and vertebrate animals or plant species or those freshwater wetland types that are listed as threatened, endangered, of special interest or of special concern by the Department or under the Federal Endangered Species Act, 16 U.S.C. § 1531et. seq. For the purpose of these Rules bogs, fens, Atlantic white cedar swamps, floodplain forests and freshwater pond shores with coastal plain species are considered rare freshwater wetlands in Rhode Island.58. "Recreational activities" means activities that include, but are not limited to, the following: education or nature studies, hunting, fishing, boating, canoeing, camping, trapping, water-skiing, swimming, ice skating, hiking, bird watching or other wildlife observations, photography, cross-country skiing, harvesting of natural foods or plant materials, and visual/esthetic appreciation of natural environments as a whole or in part.59. "Restoration" means the result of actions that, in the opinion of the Department, reinstate or will reinstate, insofar as possible, the functions and values of a freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage that has been altered.60. "River" means, as defined in R.I. Gen. Laws § 2-1-20(13), a body of water that is designated as a perennial stream by the United States Department of Interior Geologic Survey on 7.5-minute series topographic maps, and that is not a pond as defined in this Part.61. "Rules" means these Rules and Regulations, 250-RICR- 150-15-3, which govern the administration and enforcement of the Act. Unless otherwise expressly stated, any reference herein to the Rules incorporates the relevant provisions of the Act.62. "Sediment" means any organic or inorganic material that is in suspension, has been deposited, is being transported, or has been moved from its site of origin by natural or human action.63. "Selective cut/cutting" means the cutting of trees, or the mowing or cutting of shrubs or emergent vegetation which would result in:a. At least sixty percent (60%) stocking of trees remaining in any forested wetland. Stocking shall be based upon the applicable northeastern tree stocking guide for the dominant tree type within the forested wetland;b. At least seventy-five percent (75%) crown cover of shrubs remaining within any shrub or forested wetland;c. At least eighty percent (80%) cover remaining in any emergent community.64. "Setback" means, pursuant to R.I. Gen. Laws § 2-1-20(14), the minimum distance from the edge of a freshwater wetland at which an approved activity or alteration may take place.65. "Significant alteration" means in the opinion of the Department, a proposed project which by its area, scope or duration, appears to represent more than a minimal change or modification to the characteristics, functions or values of any freshwater wetland(s), buffer(s), floodplains(s), area(s) subject to flooding or area(s) subject to storm flowage; may be detrimental to the basic natural capabilities or values associated with any freshwater wetland(s), buffer(s), floodplain(s), area(s) subject to flooding or area(s) subject to storm flowage; or appears to be random, unnecessary or undesirable.66. "Standing water" means non-flowing water of any depth inundating the ground surface.67. "Stream" means any flowing body of water or watercourse other than a river that flows long enough each year to develop and maintain a channel and that may carry groundwater discharge or surface runoff. Such watercourses may not have flowing water during extended dry periods but may contain isolated pools or standing water.68. "Submergent plant community" means a freshwater wetland characterized by plants that grow principally below the surface of the water for most of the growing season. Submergent plants are either attached to the substrate or float freely in the water.69. "Substantial alteration of a dam" means, consistent with the Rules and Regulations for Dam Safety, Part 130-05-1 of this Title, any physical modification to a dam that results in a permanent change in the water elevation of the reservoir or impoundment or in water flow downstream of the dam.70. "Surface water" means water inundating the substrate or soil surface, regardless of depth.71. "Swamp" means, consistent with R.I. Gen. Laws § 2-1-20(16), a place wholly or partly within the State of Rhode Island where groundwater shall be near or at the surface of the ground for a significant part of the growing season, or where runoff water from surface drainage shall collect frequently, and/or where a vegetational community shall be made up of a significant portion of one (1) or more of, but not limited to nor necessarily including all of the following: red maple (Acer rubrum), elm (Ulmus americana), black spruce (Picea mariana), white cedar (Chamaecyparis thyoides), ashes (Fraxinus), poison sumac (Rhus vernix), larch (Larix laricina), spice bush (Lindera benzoin), alders (Alnus), skunk cabbage (Symplocarpus foetidus), hellebore (Veratrum viride), hemlock (Tsuga canadensis), sphagnums (Sphagnum), azaleas (Rhododendron), black alder (Ilex verticillata), coast pepperbush (Clethra alnifolia), marsh marigold (Caltha palustris), blueberries (Vaccinium), buttonbush (Cephalanthus occidentalis), willow (Salicaceae), water willow (Decodon verticillatus), tupelo (Nyssa sylvatica), laurels (Kalmia), swamp white oak (Quercus bicolor), or species indicative of marsh. For purposes of this definition, "significant part of the growing season" means that period of the growing season when water is present long enough to support a plant community of predominantly hydrophytic vegetation.72. "Terms and conditions" means any requirements specified by the Department which it deems necessary to prevent any authorized or permitted project or activity from reducing the functions and values associated with any freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage; prevent any significant alteration which is not authorized; prevent the destruction of any freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage or portion thereof; or protect the health, welfare, and general well-being of the public.73. "Undeveloped vegetated land" means an area of land that does not consist of buildings, impervious surfaces, bare gravel, lawn or landscaped areas.74. "Undue hardship" means an inappropriate, unsuitable, unlawful, or excessive standard or requirement levied upon an applicant. This does not include economic diminution in value.75. "Utility" means any electricity, water, sewer, gas, oil or communication transmission line or pipe.76. "Vernal pool" means, pursuant to R.I. Gen. Laws § 2-1-20(17), a depressional wetland basin that typically goes dry in most years and may contain inlets or outlets, typically of intermittent flow. Vernal pools range in both size and depth depending upon landscape position and parent materials. Vernal pools usually support one (1) or more of the following obligate indicator species: wood frog (Lithobates sylvaticus), spotted salamander (Ambystoma maculatum), marbled salamander (Ambystoma opacum), and fairy shrimp (Eubranchipus spp.) and typically precludes sustainable populations of predatory fish.77. "Water quality improvement project" means a project whose sole purpose is to eliminate or minimize conditions that cause or contribute to water quality degradation.78. "Width during normal flow" means the distance between the opposite edges of the flow channel of a river or stream as determined by the criteria set forth in § 3.21.5 of this Part.79. "Wildlife" means any vertebrate or invertebrate animal species which may reproduce in, rest in, feed in, or otherwise utilize any freshwater wetland or buffer regulated by these Rules.80. "Wildlife habitat" means those freshwater wetlands or buffers that provide breeding, nursery, resting, travel or feeding areas for birds, fish, reptiles, mammals, amphibians, or invertebrates, as well as the biotic and abiotic characteristics of freshwater wetlands or buffers that may provide food, cover, breeding sites, or other support systems for these life forms.81. "Wildlife habitat project" means a project whose sole purpose is to create, restore or enhance wildlife habitat.250 R.I. Code R. 250-RICR-150-15-3.4
Adopted effective 1/13/2022
Amended effective 7/15/2022