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Bar Journal - December 1, 2001

The Impacts of Environmental Permitting & Enforcement on Real Estate Development

By:
I. INTRODUCTION

Real estate development cannot escape being affected by environmental laws. Whether putting posh houses or yet another retail outlet on large lots of previously-undeveloped land or trying to re-establish a viable commercial concern on previously-contaminated urban property, a developer must come to terms with the environmental impacts of the proposed project and must obtain the requisite permits.

Many factors come into play when determining the extent of the permitting requirements: is the property within a protected shoreland zone? does the land need to be subdivided? will it first be logged? does the site include jurisdictional wetlands? how much area will be disturbed? is the property served (or can it be served) by a public sewer system and/or public water supply? For commercial projects, will the enterprise include a public bathing facility? will it need underground or above-ground storage tanks for petroleum products? will it withdraw more than 57,600 gallons per day from groundwater? will it emit regulated air pollutants? And for contaminated sites, how much work must be done to clean up the property before redevelopment can commence? In New Hampshire, all of these considerations involve some kind of permit or approval from the N.H. Department of Environmental Services ("NHDES").1 

If the requisite permits are not obtained, or are obtained but not complied with, some kind of enforcement action is likely to ensue. The degree to which the enforcement action impacts the timing and cost of the development project depends on a number of factors, including (but not limited to) the willfulness of the violation(s), the harm caused or threatened by the violation(s), and how quickly the developer corrects the violation(s) and any damage caused thereby.

This article offers a review of the permits or other approvals issued by the NHDES that are most likely to be implicated when real estate is developed.2  The article then discusses the link between permitting and enforcement and the types of responses likely to be taken by NHDES when violations are discovered, and explains the new "Chronic Violator" rules.

The discussion of permitting in this article is intended as a general overview, not as specific legal advice. Questions about which permits and approvals are needed for a specific project should be discussed with the NHDES Public Information and Permitting Office.

II. WHAT ACTIVITIES ARE AFFECTED?

A. Land Development - First Steps

1. Shorelands

One of the first issues that should be settled is whether any part of the property to be developed is within a protected shoreland zone as defined by RSA 483-B, the Comprehensive Shoreland Protection Act ("CSPA"). The protected shoreland extends 250 feet from the reference line (water line) of natural or impounded fresh water bodies, coastal waters, and rivers.3  The CSPA establishes minimum shoreland protection standards, including in particular requirements to maintain any existing natural woodland buffer (i.e., to not clear-cut shoreland property), limits on the placement of primary structures and the placement and size of accessory structures (essentially, anything impermeable), and limits on the density of development.4  No permits are required under CSPA, but the CSPA does provide that "[s]tate and local permits for work within the protected shorelands shall be issued only when consistent with the policies of this chapter."5  Thus, plans that are submitted to NHDES for subdivision, septic system, wetlands, or Site Specific permits (discussed below) are reviewed for compliance with the provisions of the CSPA and the rules adopted to implement the CSPA, N.H. Code Admin. R. Env-Ws 1400.

2. Subdivision

Prior to subdividing land for sale or lease into lots of less than five acres in size where public (off-site) wastewater treatment is not available, plans and specifications must be submitted to NHDES.6  Subdivision approval also is required if any lot (regardless of size) is within a protected shoreland area7  and prior to developing recreational campgrounds or condominiums, including converting one or more existing buildings to condominiums. The plans and specifications must demonstrate that each proposed lot (or the project as a whole) has sufficient capacity, based on lot size, soil types, and placement of drinking water wells, to absorb and treat the wastewater that will be disposed thereon, as required N.H. Code Admin. R. Env-Ws 1000. This review is wholly independent of local review for conformity with local zoning or other development requirements.

3. Logging

While it may be possible to find forested areas in New Hampshire that do not contain wetlands or surface waters, it is unlikely that many such areas exist that are otherwise desirable for development. Logging operations thus frequently need a wetlands permit in order to construct logging roads and crossings.8  Logging operations also may need a permit under RSA 485-A:17, I, which requires, inter alia, anyone "proposing to dredge, excavate, place fill, mine, transport forest products or undertake construction in or on the border of the surface waters of the state" to obtain a permit. If there is no other reason to obtain a permit under RSA 485-A:17, I, then the "Intent to Cut" form required by the Department of Revenue Administration serves as the permit. Both the wetlands permit and the RSA 485-A:17, I, permit require the logger to comply with Best Management Practices for Erosion Control on Timber Harvesting Operations in New Hampshire, dated April 1996. Also, as noted above, property within the protected shoreland area cannot be clear-cut; no more than 50% of the basal area of trees and no more than 50% of the total number of saplings can be removed for any purpose in a 20-year period, and "[a] healthy, well-distributed stand of trees, saplings, shrubs and ground covers and their living, undamaged root systems" must remain in place.9 

4. Alteration of Terrain

Prior to undertaking earth-moving activities that will "significantly alter the characteristics of the terrain, in such a manner as to impede the natural runoff or create an unnatural runoff," a person must first obtain a "Site Specific" permit from NHDES.10  Under the rules adopted to implement these provisions,11  any disturbance of more than 100,000 square feet of contiguous non-shoreland area requires a Site Specific permit; in any area subject to the CSPA (see above), a Site Specific permit is required for a disturbance of more than 50,000 square feet. The Site Specific process is designed to ensure that appropriate erosion control measures are designed and implemented both during and after construction.

5. Wetlands

A permit must be obtained under RSA 482-A prior to excavating, removing, filling, dredging, or constructing any structures "in or on any bank, flat, marsh, or swamp in and adjacent to any waters of the state ... ."12  Wetlands jurisdiction in tidal areas applies "to all lands submerged or flowed by mean high tide as locally determined, any sand dune or vegetation thereon in the state of New Hampshire, and, in addition, to those areas within 100 feet of the highest observable tide line which border on tidal waters, such as, but not limited to, banks, upland areas, bogs, salt marsh, swamps, meadows, flats or other low-lands subject to tidal action."13  Wetlands jurisdiction in other areas applies to "great ponds or lakes of 10 acres or more in natural area" as well as to "those portions of great ponds or lakes created by the raising of the water level of the same, whether by public or private structure, and to all surface waters of the state as defined in RSA 485-A:2 which contain fresh water, including the portion of any bank or shore which borders such surface waters, and to any swamp or bog subject to periodical flooding by fresh water including the surrounding shore."14  Due to these definitions, much of the land in New Hampshire contains jurisdictional wetlands of some kind. A wetlands permit thus is needed for anything from installing a culvert for a driveway to filling an area for development to dredging an area so as to create a pond to building a dock. The permitting process will vary depending on whether the proposed impact is considered to be a major, minor, or minimum impact project;15  certain (limited) projects in jurisdictional wetlands can be done without a permit.16 

6. Stumps

Most land development activities generate stumps and brush. In New Hampshire, the management and disposal of brush and uprooted stumps are regulated as solid waste activities under RSA 149-M and the New Hampshire Solid Waste Rules.17 

Stumps can be chipped or shredded and used as is, for example as mulch or biomass fuel, or can be chipped or shredded and then composted. Either treatment produces a usable product and so is encouraged by NHDES. While composting does require a permit, no permit is required for chipping/shredding provided certain conditions are met.18  Clean chips, shavings, and sawdust produced from stumps and other virgin wood are pre-certified by the Solid Waste Rules for distribution and use as fuel, mulch, animal bedding, and a bulking agent for composting.19  This means that virgin wood chips, shavings, and sawdust are considered a product when actively managed for the identified purposes, rather than a waste, and so are not regulated by the Solid Waste Rules.

Stumps generated from clearing land can be buried on the same land without a permit, provided that the burial site is at least 75 feet from any drinking water supply and any required local approval is obtained.20  A solid waste permit is required prior to taking stumps off-site for burial. The type of permit required (permit-by-notification or standard permit), and so the cost of the permit and amount of time needed to obtain it, will depend on the size and scope of the burial activity.21 

B. Beyond the Basics: Infrastructure, Groundwater Protection, and More

1. Water Supplies

a. Public Water Systems

A public water system is "a system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year."22  If the land being developed will be connected to a public water system, approval must be obtained from the owner/operator of the public water system. Approval from NHDES also is required, unless exempted "because it will have no effect on public health or welfare"23  ó which is usually the case. NHDES typically only reviews new connections if concerns have been noted about the systemís capacity to serve existing customers. It is possible for a new development to convert a water system from a private system to a public system by pushing it over the regulatory threshold; if this happens, the full water system will come under the jurisdiction of NHDES. If the development will be served by its own water system and will qualify as a public water system once built, approval must be obtained from NHDES prior to siting the well that will be used or otherwise developing the public water system.24 

Public water systems are classified as community, transient non-community, or non-transient non-community depending on the population served. Applicable requirements for treatment (such as filtration and chlorination), monitoring (including testing for bacteria and organic and inorganic chemicals), and reporting vary depending on the classification of the water system and the quality and source (surface water or groundwater) of the water.25  In New Hampshire, approximately 63% of the population is served by public (community) water systems.

b. Private Wells

If the development will be served by a private well, no prior approval is required from NHDES for the well. However, the person hired to install the well (or to install a pump in the well) must be licensed by the N.H. Water Well Board (Board).26  The Board has established requirements for obtaining a license as well as for construction practices, 27  and NHDES shares authority to enforce the requirements with the Board.28 

Private wells must be located a minimum of 75 feet from any wastewater disposal system to create a protective well radius; the required radius increases as the total flow of the well increases.29  Water lines also must be set back from wastewater disposal system components.30  If a well can not be installed 75 feet or more from a property boundary in an area where on-site waste disposal occurs or will occur, the property owner must execute and record a release form acknowledging that the required set-back has not been met and the potential consequences thereof.31 

2. Wastewater Disposal

a. Surface Water Discharges

No one may discharge "sewage or waste" to a surface water without a permit from NHDES.32  Discharges from a "point source" (pipe, ditch, or similar conduit) require a state discharge permit that is similar to the federal National Pollutant Discharge Elimination System ("NPDES") permit issued by the U.S. Environmental Protection Agency. While most non-point source discharges are not regulated directly, overland or sheet flow of water that carries pollutants, including sediment and nutrients, into surface waters or other wetlands is prohibited.

b. Public Wastewater Systems; Sludge/Biosolids

If a development will be connected to a pre-existing public wastewater treatment system (sewer system), a request to discharge more than 5,000 gallons per day ("GPD") of additional domestic sewage or any amount of commercial or industrial wastewater must be submitted to NHDES through the affected municipality.33  A request to install a pretreatment system for industrial wastes must also be submitted to NHDES through the affected municipality. The plans and specifications for any components that will be connected to the sewer system, including pump stations, force mains, interceptors, and treatment and discharge facilities, must be prepared by a licensed professional engineer and must be submitted to and approved by NHDES prior to construction.34  The plans and specifications must be submitted and approved regardless of whether any state or federal money will be used on the project.

While most developers will not be concerned about the "far end" of the wastewater treatment process, any additional sewage loading will impact that end of the process and so may be taken into consideration by the owner/operator of the treatment plant when reviewing the application to allow additional loading. The solid or semisolid material produced by wastewater treatment processes is "sludge";35  the term "biosolids" refers to sludge that is derived from a sewage treatment facility that meets the standards for beneficial reuse specified by NHDES.36  NHDES regulates sludge management and disposal under a permit system, which covers sludge haulers and management/disposal facilities (including storage, composting, and land application sites).37 

In order for sludge to qualify for land application, an extensive program of testing must be undertaken in order to obtain a Sludge Quality Certification (SQC) from NHDES. NHDES estimates that approximately 86,000 wet tons of sludge are generated annually by municipal wastewater treatment facilities, of which approximately 34% is incinerated by the City of Manchester, approximately 34% is landfilled at one of three New Hampshire facilities, approximately 18% is converted to Class A compost, and approximately 14% is land applied as Class B biosolids. Recently, there has been a trend away from land application due to public acceptance issues, local restrictions, and regulatory and testing requirements, as well as a decreasing amount of available farmland. Sludge management is thus of increasing concern for most public wastewater treatment systems.

c. Septic Systems; Septage

If a public sewer system is not available, a development will have to be served by an on-site waste disposal system ("septic system"). Prior to constructing any structure from which wastewater will be discharged to a septic system and prior to constructing any septic system, plans and specifications for the septic system must be submitted to NHDES for review.38  Unless the plans and specifications are prepared by a homeowner for his or her own domicile, they must be prepared by a licensed septic system designer.39  For systems designed for more than 2,500 GPD, or for more than 600 GPD on a lot with less than four feet of soil above bedrock, the plans and specifications must be prepared by a licensed designer who is also a licensed professional engineer.40  The submittal is reviewed to ensure that the standards of N.H. Code Admin. R. Env-Ws 1000 relating to design (including size, location, and construction materials) are met. If the septic system will be designed for a flow of 20,000 GPD or more or if the aggregate design flow for a single lot is 1,000 GPD or more and the minimum nitrate set-backs to property lines cannot be maintained,41  a groundwater discharge permit also must be obtained.42  In order to obtain approval for a septic system, the lot on which the septic system is proposed to be built must have a subdivision approval unless it is exempt based on when it was created as provided in N.H. Code Admin. R. Env-Ws 1004.05.

Once approved, the septic system must be constructed by a licensed septic system installer (unless the homeowner installs it personally).43  Prior to the system being backfilled and placed into service, it must be inspected by NHDES and approved for operation.44 

Approval also must be obtained prior to increasing the load on an existing septic system, whether by enlarging (or in some cases changing the nature of) a commercial enterprise or by enlarging a residential structure to include additional bedrooms, or by converting the use of the structure, either from part-time to full-time/year-round or from residential to commercial.45 

Building an approved system may be the end for the developer, but not for the ultimate owner of the system. Septic systems comprise a septic tank and an effluent disposal area. In order to function properly, the septic tank must be pumped out periodically. The material removed from the septic tank is called "septage" and must be properly managed and disposed. Septage also includes the liquids and solids pumped from domestic wastewater holding tanks, boat toilets, and portable privies. In New Hampshire, NHDES regulates septage management, including septage haulers, vehicles, holding tanks, and disposal sites, through a permit system.46  Septage can be taken to a permitted wastewater treatment facility or can be disposed of in a permitted lagoon or by land application at a permitted site. Approximately 70 to 75 percent of homes and businesses in New Hampshire are served by septic systems, and NHDES estimates that over 83 million gallons of septage are generated annually. As with sludge, appropriate septage management is a growing concern for most areas of the state, and efforts are underway to support and encourage regional solutions.

3. Dams

If any part of the development project calls for constructing or reconstructing a dam (including certain lagoons), approval must first be obtained from NHDES under RSA 482. A dam is defined as "any artificial barrier ... which impounds or diverts water, and which has a height of 4 feet or more, or a storage capacity of 2 acre-feet or more, or is located at the outlet of a great pond ... [or] which create surface impoundments for liquid industrial or liquid commercial wastes or municipal sewage, regardless of height or storage capacity... ."47  Dams are classified depending on their potential threat (or hazard) to life and property, with Class C being the highest potential hazard and Class A being the lowest.48  NHDES also reviews plans for non-hazard, or Class AA, dams, and tracks changes in ownership or configuration thereof.49 

4. Groundwater Protection

As noted previously, a groundwater discharge permit must be obtained for septic systems in certain situations. Groundwater discharge permits also are required for unlined wastewater, septage, or sludge lagoons; land application of treated wastewater (spray irrigation); and discharge to the ground of treated non-domestic wastewater.50 

Owners of residences and commercial or industrial activities that are located in wellhead protection areas designated under RSA 485-C do not need any permits or approvals for a potential contamination source ("PCS"), but must implement Best Management Practices to prevent the PCSs from contaminating the groundwater.51  Any human activity or operation on the land surface is considered a PCS "if the activity or operation poses a reasonable risk that regulated contaminants may be introduced into the environment in such quantities as to degrade the natural groundwater quality."52  PCSs include, but are not limited to, vehicle (including aircraft and boats) service and repair areas; general service/repair areas such as furniture stripping, photographic processing, print shops, and appliance and small engine repair; metalworking shops; manufacturing facilities; USTs and ASTs; solid waste and scrap processing and storage; transportation corridors; septic systems; laboratories and medical, dental, or veterinary offices; use of agricultural chemicals for golf courses, feed lots, kennels, piggeries, parks, nurseries and sod farms, as well as manure stockpiles and use of registered pesticides; salt storage; snow dumping areas; cleaning services including beauty salons and car washes; food processing plants; fueling and maintenance of excavation and earthmoving equipment; concrete, asphalt, and tar manufacture; cemeteries; and hazardous waste facilities.53 

5. Solid Waste

Waste building materials and rubble resulting from the construction, remodeling, repair, or demolition of structures or roads ("construction and demolition debris") is solid waste and so is regulated by NHDES under RSA 149-M and N.H. Code Admin. R. Env-Wm 100-300, 2100 - 3700. Construction and demolition debris includes, but is not limited to, brick, concrete and other masonry materials; wood; wall coverings; plaster and dry wall; plumbing; fixtures; non-asbestos insulation or roofing shingles; asphaltic pavement; glass; plastics; and electrical wiring and related components.54  Some types of construction and demolition debris can be salvaged (cleaned and, if needed, repaired and then reused in-kind) or recycled on-site or off-site without a permit. Materials which can be neither salvaged nor recycled must be processed, incinerated, or landfilled at permitted solid waste management facilities. Certain (very limited) types of construction and demolition debris can be burned or buried at the job site without a permit from NHDES, although local approvals may be required.55 

C. Special Commercial Considerations

Additional approvals may be required depending on the type of commercial development that will occur on the property, as discussed below.

1. Public Bathing Facilities

If a development will include a swimming, wading, or therapy pool, a spa, or any other recreational water pool (such as at the end of a water slide or a wave pool) that will be used by the public or by members of a condominium or homeowners association, approval for the design of the pool or spa must be obtained from NHDES prior to beginning construction.56  N.H. Code Admin. R. Env-Ws 1101-1105 specify the application and design requirements. Operation of the pool or spa must comply with the requirements specified in the rules, in particular regarding water quality. Legislation is being considered for the 2002 legislative session that would require operators as well as designers and installers of public bathing facilities to be licensed by NHDES.

2. Youth Recreation Camps

Youth recreation camps that operate for 10 or more days per year must be licensed by NHDES. The license is conditioned upon "maintenance of clean, healthful sanitary conditions and methods"57  as detailed in N.H. Code Admin. R. Env-Ws 1120.

3. Groundwater Withdrawals

Approval must be obtained from NHDES (and notice must be given to the governing body of the municipality in which the well is located) prior to withdrawing 57,600 gallons or more of groundwater in any 24-hour period.58  In order to obtain approval the applicant must, inter alia, show the need for the withdrawal and demonstrate that the withdrawal will not result in adverse impacts to water resources and other water users.59 

4. Petroleum Storage Tanks60 

Prior to installing or substantially modifying an underground petroleum storage tank (UST) or above-ground petroleum storage tank (AST), including associated piping, the owner must obtain a permit from NHDES. The owner of any existing UST or AST must register the UST or AST with NHDES, and must update the registration if the information provided changes. 61 

UST facilities that dispense gasoline must be equipped with Stage I vapor recovery controls if the facility has a combined annual (calendar year) throughput of gasoline of 120,000 gallons or more or has a storage capacity of 1,100 gallons or more.62  Stage I controls are designed to minimize the emission of gasoline vapors during transfer of fuel from delivery trucks to the USTs. If a gasoline dispensing facility is located in Hillsborough, Merrimack, Rockingham, or Strafford Counties and meets certain throughput thresholds, Stage II vapor recovery controls will be required.63  Stage II controls are designed to minimize the emission of gasoline vapors while the gasoline is being transferred from the USTs to motor vehicles. In either case, a state air emissions permit (called, in this case, a "certificate of compliance") is required under RSA 125-C (see next section).

5. Air Emissions

Prior to constructing, installing, operating, or making material modifications to any stationary source (a building, structure, facility, or installation which emits or which may emit any regulated air pollutant64 ), a permit must be obtained from NHDES under RSA 125-C. The type and amount of the pollutant(s) will determine whether a federally-based Title V permit or a state-based temporary permit or permit to operate is required. Permit applications are reviewed to ensure that emissions will not cause violations of ambient air standards for regulated pollutants. If modeling indicates that a violation is possible, permit conditions (such as to limit operating times and/or require control devices) will be imposed to maintain emissions below levels of concern.

A stationary source that is not otherwise required to have a permit (i.e., whose emissions are below threshold regulatory levels) will not be required to obtain a permit for emissions of toxic air pollutants if the uncontrolled emissions do not exceed ambient air limits at the compliance boundary (usually the property boundary).65  However, the facility must undertake a compliance demonstration, must maintain the compliance demonstration at the facility, and must provide the compliance demonstration to NHDES upon request.66 

D. Developing or Transferring Previously-Developed Properties

1. Site Investigations; Disclosures

New Hampshire does not have a general statutory requirement to investigate or disclose site conditions when developing or buying or selling real estate. However, the requirement can be said to exist de facto due to loan requirements imposed by most lending institutions. Strict liability statutes (those that impose liability on property owners for remediation of contamination regardless of fault) that exempt "innocent landowners" typically require an actual inquiry into existing site conditions prior to purchase, and will not exempt someone who is willfully ignorant.

There also are a few specific requirements that may apply to such transactions. New Hampshire statutes impose an affirmative obligation on the seller to inform prospective purchasers of the hazards and potential presence of radon gas and lead paint67  and the type and condition of private water supply and septic system, if applicable.68  Also, the owner of developed waterfront property using a septic system must hire a licensed septic system designer to do a site assessment study to determine whether the site meets current requirements for on-site wastewater disposal prior to executing a purchase and sale agreement.69 

If part of the redevelopment of a property will involve taking a UST or AST out of service (or replacing it), a site investigation must be done.70  Even if a UST or AST is not involved, a site investigation is required if groundwater contamination otherwise is discovered.71 

2. Site Clean-up, Remediation

If a site investigation reveals contamination, the property owner will be liable for clean-up of the contamination source and remediation of contaminated soils and waters,72  and usually must obtain a groundwater management permit that will include monitoring and remediation requirements.73  In conjunction with this permit, a groundwater management zone may be established.74  While NHDES has adopted ambient groundwater quality standards,75  the standards to which the site must be cleaned up will depend on the intended use of the property after clean-up.76  Depending on the intended use, an owner may be able to clean-up to a lower standard and accept an Activity and Use Restriction ("AUR") that is recorded in the chain of title to limit the future uses of the property.77 

3. Brownfields Redevelopment

A "brownfields" site is a contaminated property that has been abandoned or that is owned by an individual or entity unwilling or unable to effect the necessary clean-up to make the property commercially viable. Such properties commonly exist in downtown areas, and tend to contribute to the abandonment of the downtown area in favor of strip mall development on the outskirts of town. In addition to being aesthetically unpleasing and posing a hazard to trespassers, brownfields sites put a strain on municipal coffers since owners typically stop paying property taxes on the sites when they become non-productive.

In 1996, in recognition that "[t]he strict liability imposed on owners and operators of contaminated property under existing environmental statutes has had the unintended result of discouraging the repurchase and reuse of some contaminated properties,"78  the Legislature enacted RSA 147-F to establish a brownfields program. The intent of the program is to provide incentives to persons who wish to redevelop contaminated properties by facilitating the remedial process and providing liability protection to persons who assume responsibility for property remediation without preexisting liability.79  The statute establishes criteria that a person must meet in order to qualify for the program, primary among them being that the person did not contribute to and is not otherwise liable for any release.80  Contaminated property is eligible unless it (a) is not in compliance with a state or federal corrective action order, or (b) qualifies for full reimbursement under the oil discharge and disposal cleanup fund, the fuel oil discharge cleanup fund, or the motor oil discharge cleanup fund.81 

Under the brownfields program, developers can receive assistance from NHDES in undertaking site investigations and remediation. Once a remedial action plan ("RAP") has been approved, a covenant not to sue can be issued to the developer. The covenant protects the person from liability for contamination addressed by the RAP, and is voidable if the developer fails to complete the RAP or otherwise comply with its conditions.82 

One of the current limitations of the brownfields program is that it affords protection only under state law; it does not provide legal relief from liability or potential liability under federal law.83  For this reason, NHDES has strongly supported federal legislation that would establish an analogous program to provide relief from federal liability.

III. THE PERMITTING/ENFORCEMENT INTERFACE

A. Permit Processing; Permit Conditions

All of the statutes that establish a requirement to obtain a permit or other approval for a particular activity from NHDES require that the permit or approval be obtained prior to engaging in the activity. Some of these statutes specify a time frame in which to apply for the permit (e.g., an application under RSA 485-A:17, I, must be filed at least 30 days prior to the proposed start date) or in which NHDES must review and issue a decision on an application (e.g., 30 days for subdivisions and 15 working days for septic systems under RSA 485-A:29, I). However, most statutes are silent on the timing, and so it is up to the developer to ensure that an application is submitted enough in advance of the proposed start date to allow adequate time for NHDES review.

A common problem when submitting permit applications is failing to provide clear and complete information. When an application is submitted that is not clear or not complete, NHDES either can deny the application or, the more usual route, request clarification or additional information ó but it cannot issue a permit. If additional information or clarification is not provided, then the application usually will be denied. It is thus to the developerís advantage to provide clear and complete information the first time, and to answer any inquires from NHDES about the application promptly.

Most NHDES permit programs work on a first-come, first-served basis, so even when a complete and clear application is filed it may not be reviewed immediately. If an application is set aside because clarification or additional information is required, it usually is taken out of the queue when the request is made and only put back in the queue when the information is received. Also, certain programs typically have heavier filings at certain times of the year, so advance planning is recommended to help ensure that the permitting phase does not put a project behind schedule.

For permits that are issued based on plans submitted by the applicant, the plans typically are incorporated into the issued permit by reference. This means that all of the notes and specifications regarding materials, sequencing, elevations, and the like become enforceable permit conditions once the permit is issued. Other permit conditions typically are based on the programís rules and or statutory requirements; including them as permit conditions serves to highlight the requirements and to consolidate them into a more easily referenced document.

B. Common Violations

There are many pitfalls awaiting the unwary developer. This section identifies some of the most common problems, based on the (perceived) frequency with which they arise in enforcement cases.

The most common violations arising from new development are wetlands and erosion control violations. The most common wetlands violations include initiating work without first obtaining a permit (either not applying or not waiting for the application to be reviewed and the permit issued), not posting the permit, and working in wetlands beyond the limits of the permit. The most common erosion control/Site Specific violations are not following the construction sequence, which typically requires detention basins to be constructed and stabilized prior to other site work being initiated, and not properly installing other erosion controls such as silt fences or check dams.

The most common shoreland protection violations include cutting more than 50% of the basal area of trees, not leaving a healthy, well-distributed stand of vegetation, and pulling out stumps. The most common violation of subdivision requirements is failing to obtain approval prior to creating and selling lots on which structures (usually seasonal cabins) were built for rental. Logging operations frequently run into trouble by failing to build and maintain crossings properly and by putting slash and other debris into wetlands.

A common violation when developing public water supplies is failing to obtain prior approval for the well location. The most common violations when constructing septic systems include inaccurately portraying site conditions on the application and failing to install the system in strict accordance with the approved plan ó as to both location and materials.

The most common violations involving development of public bathing facilities is failing to get the plans approved prior to undertaking construction, even though the program has done extensive outreach to known designers and installers of such facilities and to municipalities.

A common problem when developing stationary sources of air pollutants is not first obtaining a Temporary Permit to Operate, which is required for construction and testing. Modifications to USTs without prior approval are a common problem in that field.

The most common problems arising from redevelopment activities include improper management and disposal of solid and hazardous waste and failing to monitor as required in the groundwater permit.

C. Discovery of and Response to Violations

NHDES has many inspectors and other staff who travel in most parts of the state. Although most staff will be carrying out responsibilities relating to only one program, an increasing number of staff are being crossed-trained to be able to recognize violations of other program requirements that they might come across. Also, staff of other agencies (such as the N.H. Fish & Game Department and the Department of Resources and Economic Development/Forestry Division), current and former employees of regulated entities, and many concerned citizens (including municipal Conservation Commission members) are willing to keep an eye out for possible violations of environmental requirements and report them to NHDES. It thus is more likely than not that violations arising out of real estate development will come to the attention of the appropriate program at NHDES.

Once NHDES becomes aware of a possible violation, staff will confirm whether a violation actually exists, usually by inspecting the property and/or requesting information from the developer or property owner. If a violation is confirmed, NHDES will determine an appropriate response. The factors that NHDES will consider are identified and explained in Chapter I of its Compliance Assurance Response Policy, published September 27, 2000 ("CARP"). The CARP is available at www.des.state.nh.us/legal/carp or through the NHDES Public Information Center.

The response of NHDES to the first violation by a developer where no environmental harm has occurred frequently is to provide information on what went wrong and what needs to be done to fix it, often by way of an inspection report. The response in such a situation also may include providing more specific technical assistance or recommending that the developer obtain the services of a qualified consultant. As the severity of the violation or the degree of knowledge possessed by the developer increases, the response determined by NHDES to be appropriate escalates. NHDES might issue a Letter of Deficiency, which identifies the violations and requests compliance (and, if appropriate, remediation) within a specified time period, or an Administrative Order, a legally-enforceable document which identifies the violations and requires compliance (and, if appropriate, remediation) within specified deadlines.

If the developer has a history of non-compliance or if the violations are causing harm, NHDES may issue an order that requires the developer to stop all work on the property except as specifically allowed to come into compliance. Such orders frequently are referred to as "Cease and Desist Orders", although they typically also include other compliance and remediation requirements. If an order that requires work to stop is issued, control over when work can resume lies largely with the developer: the sooner the violations are addressed satisfactorily, the sooner NHDES will amend or release the order to allow development work to continue.

Again depending on the factors involved, such as if the violations caused actual harm or the developer is uncooperative in providing information or remediating the violations, NHDES may seek an administrative fine in lieu of or in addition to issuing a Letter of Deficiency or Administrative Order, or may decide to refer the case for civil or criminal prosecution to the N.H. Department of Justice, Office of the Attorney General ("AGO"). If a referral is made, NHDES usually will request the AGO to seek injunctive relief (compliance and/or remediation) as well as penalties.

NHDES has an internal review process that is designed to ensure to the extent possible that the response to discovered violations is appropriate. Further, orders and the final decision on an administrative fine can be appealed, and a hearing must be held prior to an administrative fine decision being issued. Thus, the best response by a developer to an enforcement action from NHDES, especially when the developer does not agree with the action, is to contact the person identified in the document and proceed from there to discuss and resolve the issues. Contacting NHDES is especially important if the developer receives a Notice of Proposed Administrative Fine and Hearing, because the procedural rules adopted by NHDES allow the hearing to proceed once proper notice has been given, even if the person does not attend the hearing.84  The worst response is to ignore the action and hope that it will go away ó usually it wonít, and the developer just loses any chance of being viewed as cooperative.

Another factor that NHDES will consider when determining an appropriate response is whether the developer realized an economic benefit from the violations. If so, NHDES will initiate an administrative fine action or will refer the case to the AGO for civil penalties to attempt to recoup the economic benefit plus an amount that will provide an appropriate deterrent effect (i.e., an amount that will be more than just a "cost of doing business"). Economic benefit can be calculated in a variety of ways, depending on the situation. For example, if unpermitted dredging resulted in a developer stockpiling several thousand cubic yards of usable construction materials, such as loam or gravel, NHDES will estimate the amount the developer would have had to pay to purchase the material and will factor that in as economic benefit. If a developer should have applied for a permit but didnít, the cost of preparing the application may be considered. (If the application is just prepared later rather than sooner, this may not come into play.) Also, because administrative fines are capped at a lower amount than civil penalties, NHDES may refer a case if the administrative fines that could be imposed are not large enough to recoup economic benefit and provide a deterrent. A discussion of the NHDES policy on calculating and mitigating penalties in settlement can be found in Chapter VI of the CARP.

Once an enforcement action is initiated, the developer will need to spend time and money (possibly including attorneys fees) to respond to NHDES and address the violations. Additional costs will mount if the enforcement action includes a penalty component, and may be incurred if a cease-and-desist order puts the project off schedule. Long-term costs also may also be realized due to the developer then having a history of non-compliance, as discussed in the next section.

D. History of Non-Compliance; Chronic Violators

Once NHDES issues an enforcement action or the AGO takes a civil or criminal action, the developer has a "history of non-compliance" ó which becomes relevant if violations are discovered subsequently, either on the same project or a different one. A history of non-compliance has always been a factor considered by NHDES when determining an appropriate response to a discovered violation, and rules adopted in 1999 allow a program to refuse to issue a new license85  or initiate a license action (an action to suspend, revoke, or refuse to renew an existing license) based on a person being the subject of two or more administrative or civil enforcement actions or one criminal enforcement action within the prior three-year period or based on non-compliance with an open administrative or judicial order or if fees, administrative fines, or civil or criminal penalties are owed.86 

Some programs, though, tend not to use formal enforcement actions ó even Letters of Deficiency. Instead, they prefer to use inspection reports or other communications to try to get violations corrected. This practice may work fine when the developer is genuinely competent and cooperative ó but if the developer can't or won't come into and maintain compliance, the lack of a documented history of non-compliance can handicap the program when it finally concludes that "enough is enough" and wishes to take formal action. This is frustrating not only to NHDES staff, but to abutters and others who may be impacted by the violation as well as to those developers who have been complying with the requirements.

Rather than allow a situation to continue which may encourage programs to initiate more enforcement actions so that a track record is formally established (which is not necessarily in anyoneís best interests), NHDES has developed rules to expand the bases for denying a new permit application or initiating a license action where past violations were not subject to formal enforcement. Under the rules,87  a "chronic non-complier" is defined as a person who:

"(1) Has committed, within 3 years of the date of application or of the violation(s) for which a license action has been initiated, as applicable:

a. More than 2 violations that remain uncorrected after the department or the [United States Environmental Protection Agency ("USEPA")] has notified the respondent, in writing, of the violations and the need to correct them, which demonstrates that the respondent is unable or unwilling to comply with applicable requirements; or

b. More than 3 violations that are corrected by the respondent after the department or the USEPA has notified the respondent, in writing, of the violations and the need to correct them, but recur with a frequency that demonstrates that the respondent is unable or unwilling to maintain compliance with applicable requirements; or

(2) Has been the subject, within 3 years of the date of the application or of the violation(s) for which a license action has been initiated, as applicable, of 2 or more administrative or civil enforcement actions or one criminal enforcement action that have not been overturned on appeal for violations of any applicable requirements pertaining to any of the respondent's activities."88 

The rules, which apply to all NHDES programs, then include in the grounds for refusing to issue a new license or to take a license action that the applicant or license holder is a chronic non-complier. This means that if a developer becomes known for repeatedly violating permit conditions or other applicable requirements, NHDES may refuse to issue new permits to the developer for future projects. If an occupational license is involved, such as a septic system designer or installer permit, NHDES may revoke the permit and so directly affect the developerís ability to legally engage in his or her livelihood. Whether the action involves a project-specific permit or an occupational license, the financial impact on the developer is likely to be significant.

The underlying rationale for the chronic non-complier rules is the belief, communicated to NHDES by many people outside the agency as well as expressed by staff, that it is a waste of state resources (due to the necessity of taking multiple enforcement actions) to continue to issue permits to people who do not comply with them and to allow someone to continue to hold a permit who is unable or unwilling to comply with its terms or other applicable requirements. The rules allow prior violations from the same program that were not the subject of a formal enforcement action to be used to establish a "chronic" condition of non-compliance and allow prior violations from other programs to be used provided they are reasonably relevant to the license or application at issue. Current state statutes do not require NHDES to operate each of its regulatory programs with blinders on, without regard for what is known (can be proved) about what a person is doing or has done under other licenses, and so NHDES has chosen not to create a stove-pipe in these rules by restricting the ability to use a prior violation to the program in which it arose. However, NHDES does intend that the prior violation(s) should be reasonably related to the issue of the personís ability and willingness to comply with a new permit.

The comments received by NHDES in the rulemaking process for the chronic non-complier rules suggest that at least part of the regulated community has noticed the rules and is concerned about them. It is important to note that the rules do not require NHDES to refuse to issue permits or to take a license action if the applicant or licensee meets the definition of a chronic non-complier; they simply provide an additional tool that can be used in appropriate cases. Good faith efforts to comply with requirements will be recognized and given appropriate weight. Even a series of violations at a regulated facility may not necessarily demonstrate an inability or unwillingness to comply (or maintain compliance) with applicable requirements and so may not constitute chronic non-compliance; the specific circumstances will be considered, as is true with all cases. Finally, the rules provide that the person against whom the action is being taken will have an opportunity for an adjudicative proceeding if one has not already been given, and that the program asserting the prior violation(s) will have the burden of proving the violations in the same manner as for the current violation(s). No one will be denied due process.

License actions historically have been viewed by NHDES as a "last resort" action, to be used when all other actions have failed to get the desired response. However, as regulatory programs mature and those in the regulated community have had more time to become familiar with the applicable requirements, NHDES has been using license actions more frequently, as well as sooner in any given developerís interactions with NHDES. It thus is becoming increasingly important for those who are subject to environmental permits and other requirements to not put their livelihoods at risk by failing to comply.

IV. SUMMARY

Many aspects of most development projects are affected by environmental statutes and rules. Failure to obtain a permit and failure to comply with permit conditions usually will come to the attention of NHDES, and often will result in project delays and additional costs as the developer contends with the enforcement action issued by NHDES. Repeated non-compliance that demonstrates an inability or unwillingness to comply may result in denial of future permit applications and the loss of occupational licenses. NHDES thus strongly encourages developers to become aware of, and fully comply with, all applicable requirements.

How to increase your chances of having your project go smoothly:

  1. Submit complete and accurate permit applications enough in advance to give NHDES time to review them; provide additional or clarifying information promptly if requested.
  2. Adhere to all permit conditions, especially sequencing!
  3. Comply promptly with all orders (or appeal the provisions you think are unreasonable); pay all assessed penalties promptly.

How to increase your chances of incurring delays and additional costs in your project:

  1. Donít bother to submit an application, or submit an incomplete or inaccurate application right before (or even after) you start work.
  2. Donít bother to comply with permit conditions.
  3. Ignore notices or letters from NHDES that identify violations and request or demand compliance; ignore notices that inform you that NHDES is seeking an administrative fine or has imposed one even though you didnít show up for the hearing.

ENDNOTES

1. Other environmentally-related issues beyond the jurisdiction of NHDES may also arise, such as whether threatened or endangered species and/or habitat therefor is present (ref. RSA 212-A) or whether a federal stormwater permit is needed. Those issues are beyond the scope of this article.
2. Not all of the permits issued by NHDES are covered here. For a complete listing and more detailed information on NHDES permits, approvals, licenses, and certifications, reference should be made to the Guidebook for Environmental Permits in New Hampshire, available from the NHDES Public Information Center (tel. 603-271-2975). The rules cited herein are also available from the Public Information Center or through the NHDES web site at www.des.state.nh.us/desadmin.htm.
3. RSA 483-B:4, XV (Supp. 2000).
4. RSA 483-B:9, V (Supp. 2000), N.H. Code Admin. R. Env-Ws 1400 (11/96).
5. RSA 483-B:3, I (Supp. 2000).
6. RSA 485-A:29, I (Supp. 2000).
7. RSA 483-B:6, I(e) (Supp. 2000).
8. N.H. Code Admin. R. Wt 303.04(e), (g) (04/97); N.H. Code Admin. R. Wt 304.05 (04/97).
9. RSA 483-B:9, V(a)(2)(A) (Supp. 2000).
10. RSA 485-A:17, I (Supp. 2000).
11. N.H. Code Admin. R. Env-Ws 415 (10/96).
12. RSA 482-A:3, I (Supp. 2000).
13. RSA 482-A:4, I (1992).
14. RSA 482-A:4, II (1992).
15. N.H. Code Admin. R. Wt 100-700 (04/97).
16. N.H. Code Admin. R. Wt 303.05 (04/97).
17. N.H. Code Admin. R. Env-Wm 100-300, 2100 - 3700 (10/97).
18. N.H. Code Admin. R. Env-Wm 302.03(b)(6) (03/00).
19. N.H. Code Admin. R. Env-Wm 3203.09 (12/98).
20. RSA 149-M:4, XXII (Supp. 2000).
21. For more information, see NHDES Fact Sheet WMD-SW-7, Stump and Brush Management, 1999 (available at www.des.state.nh.us/factsheets/sw/sw-7.htm).
22. RSA 485:1-a, XV (Supp. 2000).
23. RSA 485:8, II (Supp. 2000).
24. RSA 485:8 (Supp. 2000); N.H. Code Admin. R. Env-Ws 300 (06/97).
25. N.H. Code Admin. R. Env-Ws 300 (06/97).
26. RSA 482-B:5, I (Supp. 2000).
27. N.H. Code Admin. R. We 100 - 1000 (06/00).
28. RSA 482-B:8, II (Supp. 2000); RSA 482-B:16 (Supp. 2000).
29. N.H. Code Admin. R. Env-Ws 1008.05 (08/99).
30. N.H. Code Admin. R. Env-Ws 1008.04 (08/99).
31. RSA 485-A:30-b, I(g) (Supp. 2000).
32. RSA 485-A:13, I (Supp. 2000).
33. RSA 485-A:4, IX-b and IX-c (Supp. 2000).
34. RSA 485-A:4, IX (Supp. 2000).
35. RSA 485-A:2, XI-a (Supp. 2000).
36. RSA 485-A:2, XXII (Supp. 2000).
37. RSA 485-A:4, XVI-b (Supp. 2000); N.H. Code Admin. R. Env-Ws 800 (03/99).
38. RSA 485-A:32, I (Supp. 2000).
39. RSA 485-A:35, I (Supp. 2000).
40. N.H. Code Admin. R. Env-Ws 1003.01(d) and (e) (08/99).
41. N.H. Code Admin. R. Env-Ws 1008.04(e), Table 1008-3 (08/99).
42. N.H. Code Admin. R. Env-Ws 1504.01(a) (02/99).
43. RSA 485-A:36 (Supp. 2000).
44. RSA 485-A:29, I (Supp. 2000).
45. RSA 485-A:38, I (Supp. 2000).
46. RSA 485-A:4, XVI-a (Supp. 2000); N.H. Code Admin. R. Env-Ws 1600 (05/99).
47. RSA 482:2, II (Supp. 2000).
48. RSA 482:2, I (Supp. 2000).
49. N.H. Code Admin. R. Env-Wr 100 - 700 (02/97).
50. N.H. Code Admin. R. Env-Ws 1504.01 (02/99).
51. RSA 485-C:11, II (Supp. 2000).
52. RSA 485-C:7, I (1992).
53. RSA 485-C:7, II (1992).
54. N.H. Code Admin. R. Env-Wm 102.42 (10/97).
55. More specific information can be found in the NHDES Fact Sheet "Managing Demolition/ Construction Debris" which is available through the NHDES Public Information Center or at www.des.state.nh.us/factsheets/sw/sw-6.htm.
56. RSA 485-A:26. I (Supp. 2000).
57. RSA 485-A:23, 24 (Supp. 2000).
58. RSA 485-C:14-a (Supp. 2000); RSA 485-C:21, I (Supp. 2000).
59. N.H. Code Admin. R. Env-Ws 387 and Env-Ws 388 (05/01).
60. RSA 146-A; RSA 146-C:4, I (Supp. 2000); N.H. Code Admin. R. Part Env-Wm 1401 (04/97); N.H. Code Admin. R. Part Env-Wm 1402 (04/97).
61. RSA 485-C; N.H. Admin. Rules Env-Ws 1403 (11/96).
62. N.H. Code Admin. R. Env-A 1205.04 (02/96).
63. N.H. Code Admin. R. Env-A 1205.19 (02/96).
64. RSA 125-C:2, XI (Supp. 2000).
65. RSA 125-I:5, I (Supp. 2000).
66. N.H. Code Admin. R. Env-A 1400 (03/97).
67. RSA 477:4-a, I (1992).
68. RSA 477:4-c, II (Supp. 2000); RSA 477:4-d, I (Supp. 2000).
69. RSA 485-A:39 (Supp. 2000).
70. N.H. Code Admin. R. Env-Ws 412 (11/96).
71. N.H. Code Admin. R. Env-Wm 1403.07 (02/99).
72. RSA 146-A:3-a (Supp. 2000); RSA 146-C:11 (Supp. 2000); RSA 147-A:9 (Supp. 2000); RSA 147-B:10 (Supp. 2000).
73. N.H. Code Admin. R. Env-Wm 1403 (02/99).
74. RSA 485-C:6-a, 6-b (Supp. 2000).
75. N.H. Code Admin. R. Env-Wm 1403.05, Table 1403-1 (05/00).
76. N.H. Code Admin. R. Env-Wm 1403.04 (02/99).
77. Section 11 of the NHDES Risk Characterization and Management Policy ("RCMP"), January 1998 (revisions to tables April 2001), available at www.des.state.nh.us/orcb/doclist/rcmp.pdf; RSA 147-F:15 (Supp. 2000).
78. RSA 147-F:1, I (Supp. 2000).
79. RSA 147-F:1, II (Supp. 2000).
80. RSA 147-F:4, I (Supp. 2000).
81. RSA 147-F:4, II (Supp. 2000).
82. RSA 147-F:6 (Supp. 2000).
83. RSA 147-F:5, VI (Supp. 2000).
84. N.H. Code Admin. R. Env-C 204.09 (03/99).
85. A "license" is defined broadly under RSA 541-A:1, VIII (Supp. 2000) to include all permits, approvals, certifications, registrations, and other permission required by statute to be issued by NHDES.
86. N.H. Code Admin. R. Env-C 209.02, 209.03 (03/99).
87. Amendments to N.H. Code Admin. R. Env-C 209, adopted 09/24/01, effective 09/26/01.
88. N.H. Code Admin. R. Env-C 209.01(c) (09/01).

The Author

Attorney Gretchen Rule is the Administrator of the Legal Unit of the N.H. Department of Environmental Services in Concord, New Hampshire.

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