250 R.I. Code R. 250-RICR-150-15-3.5

Current through November 7, 2024

Section 250-RICR-150-15-3.5 - Applicability and Regulated Activities

3.5.1General Applicability to Freshwater Wetlands

A. These Rules apply to all freshwater wetlands of the State and other jurisdictional area, as defined herein, except as provided for in §§ 3.5.3 and 3.5.4 of this Part.

B. For the purpose of these Rules, the following features are not considered freshwater wetlands or freshwater wetlands for farmers conducting normal farming or ranching activities:

1. Bermed spill containment areas;

2. Commercial or industrial ponds created for the purpose of providing cooling water;

3. Concrete or poly-lined ponds;

4. Construction dewatering basins;

5. Ditches which are stormwater channels that do not flow into, flow out of, or connect freshwater wetlands;

6. Ornamental or reflecting pools that are lined and were not created in freshwater wetlands;

7. Puddles which are small, shallow pools of water that form temporarily on pavement or uplands during or immediately after a precipitation event, and that do not contain hydrophytic vegetation or hydric soil typical of freshwater wetlands and do not meet the definition of vernal pool;

8. Stormwater control features excavated, constructed or installed to convey, store, or treat stormwater runoff, including detention basins, retention basins, bio-retention basins, bio-filtration areas, rain gardens, and wet vegetated treatment systems;

9. Wash ponds created for, and that have been in continuous use as part of, an existing or approved mining operation;

10. Lagoons created for the purpose of wastewater treatment; and

11. Ponds created for the purpose of recycling wastewater.

C. Notwithstanding § 3.5.1(B) of this Part, a freshwater wetland permit may be required for construction, modification or removal of any such feature that is located within a jurisdictional area specified in § 3.5.2 of this Part.

3.5.2Jurisdictional Area

These Rules establish the jurisdictional area in which projects and activities are subject to regulation by the Department. Jurisdictional area includes freshwater wetlands, buffers, floodplains, areas subject to storm flowage, areas subject to flooding, and contiguous areas that extend outward two hundred feet (200') from the edge of a river or stream, two hundred feet (200') from the edge of a drinking water supply reservoir, and one hundred feet (100') from the edge of all other freshwater wetlands, except as otherwise provided for in R.I. Gen. Laws § 2-1-22(k) for farmers conducting normal farming and ranching activities.

3.5.3Freshwater Wetlands in the Vicinity of the Coast

A. The Freshwater Wetlands Jurisdictional Boundary map (§ 3.22 of this Part) that depicts the jurisdictional boundary between freshwater wetlands and freshwater wetlands in the vicinity of the coast is available for review at the Department and on the Department website. Freshwater wetlands in the vicinity of the coast are under the exclusive jurisdiction of the Rhode Island Coastal Resources Management Council (CRMC), with these exceptions:

1. The Department shall retain authority over farming-related projects and activities undertaken by farmers, as defined herein, involving freshwater wetlands in the vicinity of the coast.

2. The Department shall retain authority over any permits issued prior to January 1, 2002, that are the subject of an outstanding compliance order or other formal administrative, civil or criminal legal action initiated by the Department for the purpose of litigating or settling that action.

3. The Department shall retain authority over any permits or permit applications acted upon by the Department prior to January 1, 2002, to permit the Department to defend or settle any legal proceedings brought against it as a result of those actions.

4. Any compliance order issued or other civil or criminal enforcement action taken by the Department prior to August 18, 1999, shall continue to be subject to the Department's authority and to be governed by the Rules and Regulations in effect at the time the order was issued or action taken.

5. Permits issued by the Department for projects that lie on or that straddle the jurisdictional boundary shall be administered by the Department in accordance with § 3.5.4 of this Part.

B. Projects and activities located within the DEM freshwater wetlands jurisdiction that are located within the boundary of the CRMC Narrow River Special Area Management Plan (650-RICR- 20-00-4) or the Salt Pond Region Special Area Management Plan (650-RICR- 20-00-3), and which constitute a watershed activity, as defined within the Special Area Management Plan, may be subject to CRMC requirements for larger buffers or setbacks.

3.5.4Projects that Lie on or Cross the Jurisdictional Boundary

A. Applications for linear projects such as road or utility rights of way lying on the jurisdictional boundary will be reviewed as follows:

1. If the project is located entirely or partially either within the CRMC Narrow River Special Area Management Plan (650-RICR- 20-00-4) or Salt Pond Region Special Area Management Plan (650-RICR- 20-00-3), or within two hundred feet (200') of a coastal or shoreline feature, as defined by CRMC, then CRMC shall be the freshwater review agency.

2. If the project is located entirely outside of the CRMC Narrow River Special Area Management Plan (650-RICR- 20-00-4) or Salt Pond Region Special Area Management Plan (650-RICR- 20-00-3) and beyond two hundred feet (200') of a coastal or shoreline feature, as defined by CRMC, then the Department shall be the freshwater review agency.

B. Applications for projects that cross or fall on both sides of the jurisdictional boundary will be reviewed as follows:

1. If the jurisdictional area is located seaward of the jurisdictional boundary, then CRMC shall be the reviewing agency.

2. If the jurisdictional area is located inland of the jurisdictional boundary, then the Department shall be the reviewing agency.

3. If the jurisdictional area lies on both sides of the jurisdictional boundary and the project is non-linear in character, then:

a. Where the project is located entirely or partially either within the CRMC Narrow River Special Area Management Plan (650-RICR- 20-00-4) or Salt Pond Region Special Area Management Plan (650- RICR- 20-00-3), or within two hundred feet (200') of a coastal or shoreline feature, as defined by CRMC, then CRMC shall be the reviewing agency; or

b. Where the project is entirely outside of the Narrow River Special Area Management Plan (650-RICR- 20-00-4) or Salt Pond Region Special Area Management Plan (650-RICR- 20-00-3) and is beyond two hundred feet (200') of a coastal or shoreline feature, as defined by CRMC, then the Department shall be the reviewing agency.

4. For linear projects that are on both sides of the jurisdictional boundary, the Department and CRMC shall jointly determine which agency will serve as the reviewing agency. This determination shall be made on a case-by-case basis in response to a written request from an applicant to CRMC, and be based on the following: the extent and location of the jurisdictional area, the area and proximity of potential land disturbance, and the guidelines set forth in any applicable watershed plan. Within ten (10) business days of the receipt of a request for clarification from an applicant, the agency that retains jurisdiction shall so inform the applicant. Upon written notice to the applicant, the agency may extend the ten (10) day deadline for up to an additional ten (10) business days for any reason. Although the goal of these provisions is to promote the designation of a single review agency, in the event that a project includes potential freshwater wetland, buffer or floodplain alterations on both sides of the jurisdictional boundary, the Department and CRMC reserve the right to jointly exercise their authority.

C. The permitting agency for a project that is on the jurisdictional boundary or on both sides of the jurisdictional boundary shall renew, modify, transfer and enforce the permit in accordance with the applicable agency Rules and Regulations that were in effect at the time the permit was issued.

3.5.5Prohibitions

A. Except as provided in § 3.6 of this Part, no person may excavate; drain; fill; place trash, garbage, sewage, road runoff, drainage ditch effluents, earth, rock, borrow, gravel, sand, clay, peat, or other materials or effluents upon; divert water flows into or out of; dike; dam; divert; clear; grade; construct in; add to or take from or otherwise alter the character of any freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage in any way, without first obtaining the approval from the Department; or

B. Undertake any project or activity within a jurisdictional area, that may alter the character of the freshwater wetland, buffer or floodplain without first obtaining the approval from the Department.

3.5.6Regulatory Applicability

A. Projects or activities within a jurisdictional area that may alter freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage are subject to regulation and are required to obtain approval from the Director in accordance with these Rules. Certain limited activities are exempt in accordance with § 3.6 of this Part.

B. Projects or activities as specified in §§ 3.5.6(B)(1) through (3) of this Part that are proposed outside of a jurisdictional area which in all likelihood, because of their close proximity to freshwater wetlands or buffers, or because the size or nature of the project or activity will result in an alteration of the natural character of any freshwater wetland or buffer, may not be undertaken without approval from the Department in accordance with these Rules. Such projects or activities generally are those that will:

1. Result in a change to the normal surface run-off characteristics which increases the rate or volume of water flowing into, or draining or diverting water away from, freshwater wetlands or buffers. For any such project or activity that involves land disturbance of one (1) acre or more of land area, approval may be obtained under the Department's General Permit for Stormwater Discharge Associated with Construction Activity without a separate application to the Freshwater Wetlands Program.

2. Result in diversion of groundwater into or away from freshwater wetlands or buffers.

3. Result in a modification to the quality of water reaching freshwater wetlands or buffers which could alter their natural character.

C. No project or activity that may or will alter a freshwater wetland, buffer, floodplain, area subject to flooding or area subject to storm flowage may be undertaken unless it conforms at all times to all applicable permits and permit terms and conditions, and all representations made in all applicable permit applications.

3.5.7Applicability to Farming and Ranching Activities

A. Normal farming and ranching activities conducted by a farmer, as defined herein, may be carried out in accordance with the provisions of § 3.13.3 of this Part.

B. The construction of new farm ponds, new drainage structures and new farm roads by a farmer, as defined herein, are subject to the provisions of § 3.13.4 of this Part.

C. Normal farming and ranching activities conducted within a jurisdictional area specified in § 3.5.2 of this Part by persons that do not meet the definition of farmer, as defined herein, shall be regulated in accordance with these Rules, including the permitting provisions of §§ 3.7 through 3.14 of this Part. Certain activities may be exempt in accordance with § 3.6.11 of this Part or deemed to be an existing condition in accordance with the definition of existing in § 3.4(A)(24) of this Part.

D. The construction of new farm ponds, new drainage structures and new farm roads within a jurisdictional area specified in § 3.5.2 of this Part, by persons that do not meet the definition of farmer, as defined herein, shall be regulated in accordance with these Rules, including the permitting provisions in §§ 3.7 through 3.14 of this Part.

E. Except as provided for in §§ 3.5.7(A) through (D) of this Part, proposed projects involving the construction of buildings, other structures or site improvements on property utilized for farming and ranching, within a jurisdictional area specified in § 3.5.2 of this Part or in other locations that may result in alteration of freshwater wetlands, buffers or floodplains are regulated in accordance with these Rules, including the permitting provisions in §§ 3.7 through 3.14 of this Part.

3.5.8Existing Conditions

A. The continued existing use of property located within a jurisdictional area as established by these Rules is not affected, provided the use conforms to the definition of existing in § 3.4(A)(24) of this Part, and provided such condition or activity does not otherwise constitute a violation of these Rules.

B. These Rules shall be liberally construed to permit the Department to effectuate the purposes of the Act.

250 R.I. Code R. 250-RICR-150-15-3.5

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