New regulations for Rhode Island freshwater wetlands go into effect Friday, July 1, 2022. These regulations apply to both the R.I. Department of Environmental Management (RIDEM) and Coastal Resources Management Council (CRMC). Importantly, the new regulations expand the jurisdiction of RIDEM and CRMC over lands near freshwater wetlands. This means areas not previously subject to RIDEM or CRMC jurisdiction may now require permitting approvals before certain types of projects may be developed. All projects occurring within a jurisdictional area require a permit unless an exemption applies. While your project may not previously have required a freshwater wetlands permit, due to the expanded footprint of the jurisdictional areas, you may now need to apply before undertaking your project.
Expanded Areas of Jurisdiction
The new Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act, codified at 250-RICR-150-15-3 (“the Regulations”), designate “jurisdictional areas” subject to regulation by RIDEM or CRMC.[1] The jurisdictional areas include freshwater wetlands, buffers, floodplains, areas subject to storm flowage and flooding, and setbacks of 200 feet from the edge of a river, stream, or drinking water supply reservoir and 100 feet from any other freshwater wetlands. The Regulations eliminate certain minimum sizes that water bodies previously had to meet to trigger jurisdiction. For example, under the previous regulations, RIDEM had jurisdiction only over larger marshes, ponds, and swamps; now RIDEM or CRMC has jurisdiction regardless of the size.
Increased Protection for Wetland Buffers
The Freshwater Wetlands and Buffer Protection Standards stand at the center of the revised Rules. If a project satisfies the nine standards, the Regulations establish a presumption—in other words, an approval—that the project satisfies the review criteria for the issuance of a Freshwater Wetlands Permit (formerly a Preliminary Determination). If a project does not satisfy the standards, a project will require either a Freshwater Wetlands Permit with a variance, or the longer Application for a Significant Alteration (formerly an Application to Alter a Freshwater Wetland).
Critically, the Buffer Standard requires that projects must avoid alteration of buffers—areas of undeveloped vegetated land adjacent to freshwater wetlands—within “Buffer Zones.” The Regulations adopt a tiered approach to buffer zones, and their width varies from a minimum of 25 feet to a maximum of 200 feet, depending on the state region within which the buffer zone is located and the type of freshwater wetland feature it abuts. In addition to prohibiting alteration of buffers, the Regulations permit RIDEM or CRMC to require permit applicants to revegetate portions of buffer zones to resemble natural buffer. The Buffer Standard sets targets for the creation of new buffer depending on the size and location of proposed projects.
Additional Changes May Impact Projects
The Regulations make numerous additional changes that may impact upcoming projects. For example, they add new activities exempt from receiving a written permit, establish review and variance criteria for consideration of projects that do not satisfy the Freshwater Wetlands and Buffer Protection Standards, and create a pathway for the issuance of general permits for certain recurring activity types.
The Regulations also provide for the expanded involvement of and coordination with municipalities. In particular, the Rules allow municipalities to designate a contact person to receive notice when any application is filed within the municipality’s boundaries. Municipalities requesting such notice have an opportunity to provide written comment not just on applications for significant alterations, but on any application for a freshwater wetlands permit. The Regulations also now require that applicants for major land developments or major subdivision projects obtain local master plan approval before submitting an application for a state freshwater wetlands permit.
These new Regulations contain significant changes from past requirements applicable to freshwater wetlands and surrounding areas. If you own or operate land near freshwater wetlands that may fall within the new jurisdictional areas, please seek additional information before undertaking new activities that may now require approval from RIDEM or CRMC.
[1] Whether RIDEM or CRMC has jurisdiction depends on the land area’s distance from the coast.
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