250 R.I. Code R. 250-RICR-150-15-3.7

Current through November 7, 2024

Section 250-RICR-150-15-3.7 - Standards Applicable to Regulated Projects and Activities and Variance Procedures

§ 3.7 of this Part establishes freshwater wetlands and buffer standards, setback requirements and other required standards applicable to projects and activities as regulated pursuant to these Rules, except as provided in § 3.6 of this Part. Exempt Activities or except as governed by the provisions of § 3.13 of this Part for farmers conducting normal farming and ranching activities. The standards are intended to protect and enhance the functions and values of freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage.

3.7.1Freshwater Wetlands and Buffer Protection Standards

A. General Freshwater Wetlands Protection Standard All projects and activities subject to this Rule shall be designed and carried out to avoid alteration of freshwater wetlands.

B. Freshwater Wetlands Buffer Standard

1. § 3.7.1(B) of this Part establishes buffer standards for projects and activities carried out within a jurisdictional area. As defined herein, a buffer is an area of undeveloped vegetated land adjacent to a freshwater wetland that is to be retained in its natural undisturbed condition or an area of land that is to be created to resemble a naturally occurring vegetated area. Undeveloped vegetated land is an area of land that does not consist of buildings, impervious surfaces, bare gravel, lawn or landscaped areas.

2. Buffer Zones. The land areas contiguous to freshwater wetlands as specified in these Rules are designated as buffer zones (see § 3.23 of this Part). The width of a buffer zone is measured in accordance with the procedures in § 3.23 of this Part.

3. Protection of Existing Freshwater Wetland Buffers. All projects and activities shall be designed and carried out to avoid alteration of buffers within buffer zones, except as provided for in § 3.7.1(B)(5) of this Part, Residential Infill Lot Buffer Standard. The buffer within a designated buffer zone shall consist of:

a. All undeveloped vegetated land; and

b. Any area to be newly created to resemble buffer pursuant to § 3.7.1(B)(4) of this Part.

4. Creation of New Buffer on Existing Disturbed Property

a. When a project or activity is proposed within a buffer zone that does not consist entirely of undeveloped vegetated land, new buffer area may be required to be created within a portion of the buffer zone to resemble a naturally occurring vegetated area.

b. A project or activity that cannot, due to site constraints, avoid intrusion into the buffer zone shall be designed and carried out to avoid alteration of the existing buffer as well as meet the following minimum targets for creation of new buffer contiguous to freshwater wetlands or existing buffer on the subject property:

(1) For proposed projects or activities on property with no existing buildings, the minimum target for total buffer width (existing undeveloped vegetated land plus created buffer) is:

(AA) Fifty percent (50%) of the applicable buffer zone width from § 3.23 of this Part, not to exceed fifty feet (50'), on lots greater than or equal to one (1) acre; or

(BB) Fifteen feet (15'), on lots less than one (1) acre.

(2) For proposed projects or activities on property that is greater than or equal to three (3) acres, that is not a single-family residential lot of record, that contains one (1) or more existing structures, and where the proposed land disturbance total is greater or equal to ten thousand square feet (10,000'), the minimum target for total buffer width is:

(AA) Twenty-five feet (25') in the non-urban River Protection Regions 1 and 2 (see § 3.24 of this Part); or

(BB) Fifteen feet (15') in the urban region (see § 3.24 of this Part).

c. Creation of new buffer may be accomplished by the planting of vegetation or by allowing the area to naturally revegetate, at the discretion of the Department. The Department may require plantings as a condition of a permit, and such area shall be defined as buffer. When creating buffer, the Department may allow certain areas to remain clear in order to accommodate existing utilities, drainage easements, reasonable access to existing developed shoreline features, property accessories, or conditions where revegetation would require the removal or threaten the integrity of existing structures.

5. Residential Infill Lot Buffer Standard

a. This standard shall apply to proposed new construction on an individual residential lot of record, as of the effective date of these Rules, where the lot meets the following conditions:

(1) Has frontage on an existing road;

(2) Has adjacent lots on both sides that are developed;

(3) Is less than or equal to one (1) acre in size; and

(4) Is undeveloped vegetated land.

b. When the proposed new construction cannot meet the buffer and the setback standards for the freshwater wetlands of concern, the proposed structure foundation is to be located no closer to the edge of the subject freshwater wetland than the structure foundation on the adjacent lot which is farthest from the subject freshwater wetland edge. The project shall be designed to avoid alteration of the remaining buffer, and in no case shall the remaining buffer be less than that shown in Table 1 in § 3.7.1(B)(5)(c) of this Part:

c. Table 1. Minimum buffer and setback distances

Residential Infill Lot Size	Buffer Width	Setback
Less than 10,000 square feet	15 feet	Buffer plus 15 feet
Equal to or greater than 10,000 square feet and less than 20,000 square feet	25 feet	Buffer plus 15 feet
Equal to or greater than 20,000 square feet (and less than or equal to 43,560 square feet)	50 feet	Buffer plus 15 feet

6. Buffer Management and Maintenance. A buffer shall be retained in a natural vegetative, undisturbed condition to protect the functions and values of the freshwater wetlands and buffer. Certain activities related to buffer management may be authorized as exempt activities pursuant to the provisions and conditions in § 3.6 of this Part.

C. Setback Standards

1. Setback Standards for Primary Structures. Primary structures (e.g. residential dwellings, commercial/industrial structures, schools, churches, etc.) must be located to meet a setback distance of no less than the buffer width plus twenty feet (20'). Accessory structures must be located to meet a setback distance of no less than the buffer width plus five feet (5').

2. Setbacks for Onsite Wastewater Treatment Systems. The setback requirements for the components of an onsite wastewater treatment system are specified in the Department Rules Establishing Minimum Standards Relating to the Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems, Subchapter 10 Part 6 of this Chapter, in effect at the time of application. A leachfield and the required ten foot (10') cleared zone around it shall be located outside of the buffer.

D. Rare or Endangered Species Standard No project or activity may result in degradation of the natural characteristics of any rare freshwater wetland type; likewise, no project or activity may reduce the ability of a freshwater wetlands or buffer to ensure the long-term viability of any rare or endangered animal or plant species incorporated by reference in §§ 3.3(A) and (B) of this Part or under the Federal Endangered Species Act.

E. Flood Protection Standard

1. Flood storage capacity: Projects and activities taking place in a floodplain shall not result in any net reduction in flood storage capacity and shall not reduce the rate at which floodwater is stored by the floodplain.

2. Floodway obstruction: Projects and activities taking place within or adjacent to rivers or streams shall not encroach into floodway limits with any fill, structure or other development.

F. Surface Water and Groundwater Diversion Standard Projects and activities shall not adversely affect the flow of groundwater or surface water into or out of any freshwater wetlands and shall not result in obstruction of, or the reduction in storage capacity of, any area subject to flooding or area subject to storm flowage.

G. Stormwater Management Standard Projects and activities shall meet the minimum standards in the Stormwater Management, Design and Installation Rules, Subchapter 10 Part 8 of this Chapter, or for single-family lots of record, the "RI Stormwater Management Guidance for Individual Single Family Residential Lot Development" for the recommended and primary means to achieve this standard.

H. Erosion and Sedimentation Control Standard Projects and activities shall be designed and carried out in a manner that prevents soil erosion and sedimentation consistent with the Stormwater Management, Design and Installation Rules, § 10-8.16 of this Chapter.

I. Water Quality Standard Projects shall not cause or contribute to a violation of any State water quality standard for surface water or groundwater or contribute to significant degradation of surface water or groundwater resources.

3.7.2Review Criteria

A. The following review criteria will be used by the Department to determine the impacts of all projects and activities, either individually or cumulatively, upon the functions or values of freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage. All such projects shall be subject to all of the review criteria contained within this Part and must incorporate those best management practices, best available technologies, and any maintenance or inspection schedules necessary to comply with the applicable criteria.

1. A project or activity determined by the Department to meet the standards in § 3.7.1 of this Part is presumed to satisfy the review criteria in §§ 3.7.2(A) and (B) of this Part;

2. No project or activity shall result in the adverse impacts identified in the review criteria § 3.7.2(B) of this Part; and

3. No project or activity shall result in any random, unnecessary or undesirable alteration of a freshwater wetlands, buffer, floodplain, area subject to flooding or area subject to storm flowage.

B. Before issuing a permit, the Department must determine that a proposed project or alteration will not result in:

1. Significant reduction in the overall wildlife production or diversity of a freshwater wetland or buffer;

2. Significant reduction in the ability of a freshwater wetland or buffer to satisfy the needs of a particular wildlife species;

3. Significant displacement or extirpation of any wildlife species from a freshwater wetland or surrounding areas due to the alteration of the freshwater wetland or buffer;

4. Any reduction in the ability of the freshwater wetland or buffer to ensure the long-term viability of any rare animal or rare plant species;

5. Any degradation in the natural characteristic(s) of any rare freshwater wetland type;

6. Significant reduction in the suitability of any freshwater wetland or buffer for use by any resident, migratory, seasonal, transient, facultative, or obligate wildlife species, in either the short or long term as a travel corridor; feeding site; resting site; nesting site; escape cover; seasonal breeding or spawning area;

7. Any more than a minimal intrusion of, or increase in, less valuable, invasive or exotic plant or animal species in a freshwater wetland or buffer;

8. Significant reduction in the wildlife habitat functions and values of any freshwater wetland or buffer which could disrupt the management program for any game or non-game wildlife species carried out by State or Federal fish, game, or wildlife agencies;

9. Significant reduction in overall current or potential ability of a freshwater wetland or buffer to provide active or passive recreational activities to the public;

10. Significant disruption of any on-going scientific studies or observations performed by or in cooperation with Federal, State, or municipal agencies or educational institutions;

11. Elimination of, or severe limitation to traditional human access to, along the bank of, up or down, or through any rivers, streams, ponds, or other freshwater wetlands or buffers;

12. Any reduction in water quality functions and values or negative impacts to natural water quality characteristics, either in the short or long term, by modifying or changing: water elevations, temperature regimes, volumes, velocity of flow regimes of water; increasing turbidity; decreasing oxygen; causing any form of pollution; or modifying the amount of flow of nutrients so as to negatively impact freshwater wetland functions and values;

13. Any placement of any matter or material beneath surface water elevations or erection of any barriers within any ponds or flowing bodies of water which could cause any hazards to safety;

14. Significant loss of important open space or significant modification of any uncommon geologic or archaeological features;

15. Significant modification to the natural characteristics of any freshwater wetlands or buffer area of unusually high visual quality;

16. Any decrease in the flood storage capacity of any floodplain or area subject to flooding which could impair its ability to protect life or property from flooding or flood flows;

17. Significant reduction of the rate at which flood water is stored by any floodplain or any area subject to flooding during any flood event;

18. Restriction or significant modification of the path or velocities of flood flows for the one (1) year, ten (10) year, or one hundred (100) year frequency, twenty-four (24) hour, Type III storm events so as to cause harm to life, property, or other functions and values provided by freshwater wetlands, buffers or floodplain;

19. Placement of any structure or obstruction within a floodway so as to cause harm to life, property, or other functions and values provided by freshwater wetlands or their associated buffers;

20. Any increase in run-off rates over pre-project levels or any increase in peak flood elevations within freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage for the one (1) year, ten (10) year, or one hundred (100) year frequency, twenty-four (24) hour, Type III storm events which could impair their ability to protect life or property from flooding or flood flows;

21. Any increase in run-off volumes and discharge rates which could, in any way, exacerbate flooding conditions in flood-prone areas;

22. Significant changes in the quantities and flow rates of surface or groundwater to or from isolated freshwater wetlands (e.g., those freshwater wetlands without inflow or outflow channels);

23. Placement of any structural stormwater best management practices within freshwater wetlands, or proposal to utilize freshwater wetlands as a stormwater best management practice;

24. Any more than a short-term decrease in surface water or groundwater elevations within any freshwater wetlands;

25. Non-compliance with the Rhode Island Department of Environmental Management Water Quality Regulations, Subchapter 05 Part 1 of this Chapter; or

26. Any detrimental modification of the ability of a freshwater wetland or buffer to retain or remove nutrients or act as natural pollution filter.

3.7.3Variances from Standards Applicable to Regulated Projects and Activities

A. General Variance Criteria

1. Unless eligible as an exemption pursuant to § 3.6 of this Part, or eligible for approval under a Freshwater Wetlands General Permit (see § 3.10 of this Part), projects and activities that cannot meet the standards specified in §§ 3.7.1(A) through (F) of this Part may apply for a variance in order to receive a permit from the Department. Variances shall only be granted if the applicant demonstrates and documents that all of the following criteria have been met. No variance is available for standards specified in §§ 3.7.1(G) through (I) of this Part.

2. All reasonable alternatives to avoid and minimize impacts to freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage have been pursued and incorporated into the project design and application as follows:

a. Avoidance: All persons must satisfactorily demonstrate to the Department in the form of a written narrative that all probable impacts to freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage functions and values have been avoided to the maximum extent possible. The written narrative must describe what steps were taken to avoid impacts to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage. At a minimum, applicants must consider and address the following issues:

(1) Whether the primary proposed activity is water-dependent or whether it requires access to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage as a central element of its primary purpose;

(2) Whether any areas within the same property or other properties owned or controlled by the applicant could be used to achieve the project purpose without altering the natural character of any freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage;

(3) Whether any other properties reasonably available to, but not currently owned or controlled by, the applicant could be used to achieve the project purpose while avoiding freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage alterations. A property is reasonably available if, in whole or in part, it can be acquired without excessive cost, taking individual circumstances into account, or, in the case of property owned or controlled by the same family, entity, group of affiliated entities, or local, State or Federal government, may be obtained without excessive hardship;

(4) Whether alternative designs, layouts or technologies could be used to avoid freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage or impacts on functions and values on the subject property or whether the project purpose could be achieved on other property that is reasonably available and would avoid freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage;

(5) Whether the applicant has made any attempts (and if so what they were) to avoid alterations to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage by overcoming or removing constraints imposed by zoning, infrastructure, parcel size or the like; and

(6) Whether the feasible alternatives that would not alter the natural character of any freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage on the subject property or on property that is reasonably available, if incorporated into the proposed project would adversely affect public health, safety or the environment.

b. Minimization: For any impact to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage that cannot be avoided, the applicant must satisfactorily demonstrate to the Department in the written narrative that the impact to their functions and values have been reduced to the maximum extent possible. At a minimum, applicants must consider and address the following issues:

(1) Whether the proposed project is necessary at the proposed scale or whether the scale of the alteration could be reduced and still achieve the project purpose;

(2) Whether the proposed project is necessary at the proposed location or whether another location within the site could achieve the project purpose while resulting in less impacts to the freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage;

(3) Whether there are feasible alternative designs, layouts, densities or technologies, that would result in less impacts to the freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage while still achieving the project purpose; and

(4) Whether reduction in the scale or relocation of the proposed project to minimize impact to the freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage would result in adverse consequences to public health, safety or the environment.

3. All applicable review criteria specified in § 3.7.2 of this Part have been satisfied.

4. Due to the conditions at the project site, the applicable standard(s) cannot be met.

5. The relief requested by the applicant is the minimum variance to the applicable standard(s) necessary to allow a reasonable alteration or use of the site as required by §§ 3.7.3(A)(2)(a) and (b) of this Part.

6. The requested variance to the applicable standard(s) is not due to any prior action of the applicant or the applicant's predecessors in title.

7. Due to the conditions of the project site in question, the standard(s) will cause the applicant an undue hardship. In order to receive relief from an undue hardship an applicant must demonstrate inter alia the nature of the hardship and that the hardship is shown to be unique or particular to the site. Mere economic diminution, economic advantage, or inconvenience does not constitute a showing of undue hardship that will support the granting of a variance.

B. Variance Criteria for Public and Governmental Bodies

1. Unless eligible as an exemption pursuant to § 3.6 of this Part or eligible for approval under a Freshwater Wetlands General Permit (see § 3.10 of this Part), public or governmental projects or activities that do not meet the standards specified in §§ 3.7.1(A) through (F) of this Part are also required to obtain a variance in order to receive a permit from the Department. Variances shall be granted if the applicant demonstrates and documents that all of the following criteria have been met. No variance is available for standards specified in §§ 3.7.1(G) through (I) of this Part.

a. All reasonable alternatives to avoid and minimize impacts to freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage have been pursued and incorporated into the project design and application as required in §§ 3.7.3(A)(2)(a) and (b) of this Part;

b. All applicable review criteria specified in § 3.7.2 of this Part have been satisfied;

c. Due to the conditions at the project site, the applicable standards cannot be met; and

d. The proposed project serves a necessary public purpose that provides benefits to the public.

C. Alternative Configuration of Vernal Pool Buffer Zone Where an applicant is unable to meet the buffer standard associated with a vernal pool, the applicant may propose an alternative buffer zone configuration that is protective of the functions and values of the associated vernal pool. This alternative configuration will be reviewed on a case-by-case basis by the Department through the variance process.

D. In those instances where a variance would be obviated or reduced if a variance for a setback were acquired from a local municipality, the applicant must first exhaust his or her remedies before the local municipality prior to submitting an application for a permit to the Department.

E. Relief from a standard does not remove the applicant's responsibility to comply with all other requirements pursuant to the Act and this Part.

250 R.I. Code R. 250-RICR-150-15-3.7

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