250 R.I. Code R. 250-RICR-150-15-1.6

Current through November 7, 2024

Section 250-RICR-150-15-1.6 - Exempt Activities

A. General Conditions for Exempt Activities

1. Certain limited activities that may alter freshwater wetlands may proceed without a written permit from the Department, subject to the conditions and restrictions set forth below. Nonetheless, the Department strongly recommends that all such exempt activities or projects occur as far away from freshwater wetlands as possible.

2. Nothing in § 1.6 of this Part shall be deemed to:

a. Limit or reduce, in any way, the Department's jurisdiction over freshwater wetlands; or

b. Supersede any current terms or conditions of any permit, or

c. Interfere with the Department's ability to make a determination or decision on an application, or

d. Impose terms and conditions on any permit, enforcement action or Consent Agreement.

3. Any activities not described within this Rule that could alter the character of any freshwater wetlands require a written permit.

4. Nothing in this Rule shall preclude the Department from initiating an enforcement action in the event of any failure to undertake exempt activities in accordance with the requirements and conditions set forth herein.

5. The following general restrictions apply to all activities performed under this Rule:

a. Exempted activities do not obviate the need to obtain other applicable federal, state, or local permits, approvals, or authorizations required by law;

b. Any structure or fill exempt under this Rule shall be properly maintained to ensure public safety, and to protect wetland functions and values;

c. Best management practices for erosion and sediment controls must be used and maintained in effective operating condition during the activity, and all exposed soil and other fills must be permanently stabilized at the earliest possible date. (See "Rhode Island Soil Erosion and Sediment Control Handbook" ("RISESC Handbook") and the latest version of the "Stormwater Management, Design and Installation Rules" ("RISDIS Manual"), Subchapter 10 Part 8 of this Chapter, for design guidance and additional requirements.);

d. No activity exempted herein may jeopardize the continued existence of a rare wetland type, or a rare species; likewise, no activity exempted herein may destroy or adversely modify the critical habitat of such species;

e. Following the limited activity, all equipment used in installation or maintenance activities shall be removed from any wetland; and

f. All wetland functions and values must be protected to the maximum extent possible so as to prevent pollutants, sediment, direct discharge of stormwater runoff, or any material foreign to a wetland or hazardous to life, from entering any wetland.

B. Limited Cutting or Clearing of Vegetation

1. Limited cutting or clearing of vegetation in freshwater wetlands is allowed in accordance with § 1.6(A) of this Part only when:

a. The cutting is to remove tree limbs or dead or diseased trees or shrubs which, if left unattended, pose a threat to individuals, dwellings, structures, or safe vehicle movement over roads and driveways; or

b. The cutting is for purposes of trimming back and removing grasses, weeds, or shrubs encroaching upon existing or approved landscaped areas, fields, pastures or recreational areas, provided that the cutting is not taking place in an area designated to be planted, revegetated, or set aside to revert to a natural wild state for any mitigation or restoration purposes as a result of any term and condition of any permit, approval, enforcement action issued by the Department, or any Consent Agreement entered with the Department; or

c. The cutting is for obtaining firewood for non-commercial, individual use, is selective in nature, and ensures the long-term protection and stability of the forested habitat. The use of any motorized vehicle(s) for this purpose in any swamp; marsh; bog; pond; special aquatic site; or forested, shrub or emergent wetland is prohibited; or

d. The cutting is selective, and is carried out under the supervision of and in cooperation with the Department's Division of Forest Environment (DFE) and:

(1) The DFE or property owner notifies the Freshwater Wetlands Program that a notice of intent to cut, or an approved written management plan submitted under the Farm, Forest and Open Space Act or the Stewardship Incentives Program is on file with the DFE; and

(2) The cutting operation proceeds under those best management practices developed and approved by the DFE; and

(3) The cutting operation results in no permanent degradation or loss of any wildlife habitat associated with any freshwater wetland, including perimeter and riverbank wetland; and

(4) Equipment crossings are limited to wetland types consisting of areas subject to storm flowage or intermittent streams or a river less than ten feet (10') wide through the use of temporary "corduroy" log roads. This log crossing must not restrict natural flow patterns and wildlife movements, and must be removed immediately following the harvesting operation. All disturbed wetland areas in the vicinity of the crossing must be restored to a natural condition and stabilized; and

(5) Best management practices for erosion and sediment control are followed throughout the life of the project; (See Rhode Island Soil Erosion and Sediment Control Handbook); or

e. The cutting is for the maintenance of existing or approved footpaths or pedestrian trails, or maintaining cleared areas immediately along, but no greater than ten feet (10') from, the edges of driveways and access roads for vehicle safety and access; or

f. The cutting is within existing or approved, cleared utility rights-of-way and is restricted to only that necessary to maintain integrity of the utility line or pipe itself and to maintain access for maintenance, inspection or repair of poles, structures and equipment within the right-of-way; or

g. The cutting is on or along property lines for survey purposes or is on an established transect line to allow for access on foot when conducting environmental assessments, and is no greater than five feet (5') in width; or

h. Clearing or removal of any floating or submergent plants is limited to that area immediately adjacent to, but no more than fifteen feet (15') from, existing or permitted docks; beaches; or swimming areas. The clearing or removal of such vegetation is accomplished only through the manual use of hand-held implements; or

i. The cutting is restricted to existing drainage ditches, swales, or embankments of detention and retention facilities as a normal maintenance activity or best management practice; or

j. The cutting is performed to remove individual trees or portions thereof that have fallen over or into rivers normally accessible by canoes, kayaks, or boats.

k. The cutting is for invasive species control, including removal of invasive trees, shrubs, vines, or emergent vegetation, where necessary to facilitate the growth of native plants, provided that the project plans and details are submitted to the Department's Water Quality and Wetland Restoration Team for review, and the project is deemed by the Department to contain the necessary controls, expertise and follow-up monitoring to ensure success of the invasive control project.

C. Limited Maintenance and Repair Activities

1. Limited repair and maintenance of an existing structure located in a wetland is allowed under § 1.6(A) of this Part as specifically provided below, so long as the repair or maintenance does not increase the size of the structure vertically or horizontally. Some limited structural changes also may be exempt, as specifically provided below. For purposes of this § 1.6(C) of this Part, repair and maintenance is limited to routine activities necessary to ensure the upkeep of structures built in accordance with all necessary federal, state and local permits.

a. Exterior and interior work on a structure necessary to maintain its integrity and condition; or

b. Replacement of functional drainage structures, provided that:

(1) Culverts of more than fifty feet (50') are the same type, size, length, capacity and invert elevation as the present structure;

(2) Culverts of fifty feet (50') or less maintain the same slope, a nominally equivalent cross-sectional area and the same invert elevation as the present structure with no more than five foot (5') extensions in length on either end;

(3) The project does not result in sediment transport to wetlands or any filling, draining, or impoundment of wetlands beyond what was approved or existing; and

(4) The property owner maintains site plans that detail the condition of the drainage structure as it existed prior to replacement. A riprap scour pad not greater than ten feet (10') in length may be placed at the culvert outfall if an erosion problem is evident, provided that the access for fish and wildlife is not impeded; or

c. Normal maintenance of existing or approved accessory structures and lawns; or

d. Cleaning of drainage pipes, culverts, catch basins, manholes and drainage swales (for purposes of § 1.6(C)(1)(d) of this Part, a drainage swale is a conveyance owned or maintained by a municipal or state governmental body that facilitates the drainage of stormwater from paved roadways, but is not an area subject to storm flowage); or

e. Repaving of, or undertaking normal roadway maintenance of, paved public and private roadways, bikeways or footpaths. Normal roadway maintenance includes: resurfacing or in-place recycling of paved surfaces; repairs to, resetting or replacing curbs, berms, sidewalks or guardrails; addition of guardrails, signing, striping or signals; adjusting manholes, catch basins or utility structures to grade; and structural repairs to, or in-place replacement of manholes, catch basins or grates. Paving or oiling of dirt roads, how-ever, is considered an alteration which requires a permit; or

f. Repair to or maintenance of a stream crossing, such as a stone ford and its approach, or any unpaved road which is used at least on an annual basis, provided that any increase in road surface cover does not require the expansion of any slopes further into the wetland beyond the present toe of slope, and any increase in height does not exceed two inches (2"). Repair or maintenance to any stream crossing and its approach must be done during low or no flow periods; or

g. Repair of docks and footbridges. This does not include enlargements or extensions; or

h. Repair to boat ramps which does not include enlargements; or

i. Repair to any bridge, provided that the repair is undertaken from the deck or roadway, that no equipment is placed in any watercourse or wetland for the purpose of the repair, and that any material removed from the structure during repair is disposed of properly; or

j. Removal of manmade trash from watercourses and other wetlands without causing any change in the profile or general character of any watercourse or other wetlands. Removal must be performed manually, or by equipment when chains or cables can be attached to the item to be removed and the equipment can be operated from a road, parking area, or other similar location. Removal of natural material such as logs, brush, or trees from the watercourses and other wetlands must be limited to problem locations where lack of removal will result in erosion or blockage of culverts, obstruction of existing paths, or prevention of canoeing access; or

k. Repair to or in-place replacement of shoreline stabilization structures such as stone or masonry walls, provided that there is no change in the dimension or location of the structure and no material is placed in any location or in any manner that would impair surface water flow, and no material is placed in a manner such that it will be eroded by normal or expected high surface water flows; or

l. Maintenance of soil erosion and sediment control management practices and stormwater management practices in accordance with a plan approved by the Department; or

m. Maintenance of existing or approved bathing beach that does not expand or otherwise change the size or shape of the beach; or

n. Inspection, maintenance and repair to those utility poles, structures, equipment or underground lines or pipes which are necessary to provide utility services to the public; or

o. Replacement of utility poles, including changes in physical size, without any change to existing or approved cleared rights of way; or

p. Repair and replacement of utility lines attached to existing or approved bridges or in existing or approved roadways and railway beds provided anti-seepage collars are used as appropriate to prevent sub-draining effects on wetlands; or

q. Maintenance by municipalities of surface water impoundments used for drinking water supplies, provided that all maintenance activities occur within the existing boundary perimeters of the impoundment and that the municipality provide the Department with twenty (20) days advance written notice of such maintenance activity in accordance with R.I. Gen. Laws § 2-1-21(a); or

r. Repair and replacement of drinking water wells and their supply lines, provided that the following conditions are met:

(1) All cleared vegetation is allowed to re-grow naturally;

(2) The volume of withdrawal from the replacement well is no greater than 500 gallons per day;

(3) The repair/replacement well is for the same use as its predecessor;

(4) The repair/replacement well will service the same lot as its predecessor;

(5) No other feasible upland alternative is available; and

(6) All wetland disturbance is limited to the maximum extent possible; or

s. Repair of failed onsite wastewater treatment system (OWTS), made in accordance with the Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems, Subchapter 10 Part 6 of this Chapter; or

t. In-kind replacement of existing or approved buildings and constructed accessory structures if destroyed by fire or natural causes.

D. Demolition of Buildings or Accessory Structures

1. Demolition of buildings, parking areas or accessory structures is allowed in accordance with § 1.6(A) of this Part only where:

a. Building, parking area or accessory structure is not to be rebuilt;

b. Disposal of material is accomplished in accordance with all state laws and rules and the material is not disposed of or stockpiled in wetlands;

c. All pre-demolition grades are restored and all disturbed soils are stabilized;

d. Clean fill is used, where foundation holes or cellars of demolished buildings are to be filled;

e. All rubble and demolition debris are removed from the soil surface when demolition is complete;

f. Demolition activity and equipment operation are maintained within existing or approved disturbed areas on the property; and

g. All disturbed soils are loamed and seeded.

E. Single-Family Residences and Accessory Structures

1. The following limited changes to existing or approved single family residences and accessory structures are exempt in accordance with § 1.6(A) of this Part provided that: no vegetated wetlands are altered or artificially illuminated; all construction activity is located within existing or approved cleared areas, such as parking areas, lawns or cultivated fields; and all construction activity is located outside of flood plains and at least 25 feet from any pond, marsh, swamp, or wetland complex and at least 50 feet from any flowing body of water or bog:

a. Horizontal addition, such as a family room, bedroom, attached garage, or house wing, that is no larger than 600 square feet in footprint;

b. Vertical addition of no more than two stories;

c. Attached deck, enclosed porch, exterior ramp, or patio no more than 600 square feet in footprint;

d. Stand-alone garage, shed, or greenhouse no more than 600 square feet in footprint;

e. Pervious driveway of no more than 600 square feet; or

f. Alteration to an onsite wastewater treatment system (OWTS) approved in accordance with the Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems, Subchapter 10 Part 6 of this Chapter.

g. Other accessory structures except as limited in §§ 1.6(E)(1)(a) through (f) of this Part.

F. Nonresidential Buildings or Multifamily Residences and Accessory Structures

1. The following limited changes to existing or approved nonresidential buildings or multifamily residences and accessory structures are exempt in accordance with § 1.6(A) of this Part provided that: no vegetated wetlands are altered or artificially illuminated; all construction activity is located within existing or approved cleared areas, such as parking areas, lawns or cultivated fields; and all construction activity is located outside of flood plains and at least 25 feet from any pond, marsh, swamp or wetlands complex and at least 50 feet from any flowing body of water or bog:

a. Vertical addition limited to no more than two stories with no expansion of the building footprint;

b. Foundation and enclosure limited, per lot, to no more than: one storage cooler, one dumpster, one equipment shed, or one garage, each of which is no larger than 600 square feet in footprint;

c. Attached exterior ramp; or

d. Alteration to an onsite wastewater treatment system (OWTS) approved in accordance with the Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems, Subchapter 10 Part 6 of this Chapter.

G. Emergency Environmental Protection

1. Emergency installation of environmental protection structures, and undertaking of activities directly associated with the emergency containment and cleanup of oil or hazardous materials in wetlands, including the resolution of leaking underground storage tanks, is permissible in accordance with § 1.6(A) of this Part provided that such installation or activity is undertaken under the direct supervision of Department or federal cleanup personnel or the Department's emergency response personnel. During the emergency cleanup, unnecessary alterations of freshwater wetlands shall be prevented to the maximum extent possible, and best management practices for erosion and sediment controls must be initiated and maintained. Where applicable, heavy equipment working in wetlands must be placed on mats, and other temporary measures must be taken to minimize soil and habitat disturbance. Following emergency cleanup, the disturbed area must be stabilized and restored to the satisfaction of the Department.

2. The Freshwater Wetlands Program must be notified of the initiation of emergency environmental cleanup and upon completion of emergency cleanup activities.

H. Site Remediation

1. Activities which may affect freshwater wetlands and which are required by the Department for remediation of contamination resulting from releases of oil or hazardous materials are allowed in accordance with § 1.6(A) of this Part provided that:

a. The initial document or plan identifying potential impacts to freshwater wetlands and all subsequent action plans are submitted, whenever necessary, for the Freshwater Wetland Program review;

b. All site remediation activities which may affect freshwater wetlands are under the direct oversight or control of the Department;

c. The remediation activities are only those necessary to protect or restore freshwater wetlands from impacts or substantial threats resulting from actual releases of hazardous materials; and

d. The remediation activities incorporate all measures necessary to fully protect, replace, restore or mitigate the harm to any affected wetlands including best management practices, best available technologies, and any other measures which, in the opinion of the Department are necessary to:

(1) Comply with the substance and intent of these Rules;

(2) Protect the wetland environment; and

(3) Protect the functions and values provided by freshwater wetlands.

I. Utility Emergencies

1. Emergency access and repair or replacement of utility lines, poles, structures, equipment or facilities which is necessary as a result of storm damage, acts of vandalism, accidents or equipment failure is permissible in accordance with § 1.6(A) of this Part provided that all affected wetlands are fully restored following completion of the repair or replacement.

J. New Utility Lines

1. Installation, in accordance with § 1.6(A) of this Part, of new utility lines, poles, structures, equipment or facilities only where installation occurs on, above, or beneath existing or approved paved or unpaved roadways and their existing or approved cleared shoulders, or existing or approved railroad beds and their existing or approved cleared shoulders; and anti-seepage collars are used as appropriate to prevent sub-draining effects on wetlands provided that:

a. Existing culverts and the flow of water under bridges in roads or highways are not permanently blocked or disrupted by going under or attaching to such structure;

b. The project does not cause any diversion of ground or surface water to or from any wetlands;

c. The preconstruction contours are restored immediately upon installation;

d. All work in any wetlands in the easement is undertaken during low-flow periods;

e. All disturbed areas are revegetated after restoring contours; and

f. The project design incorporates best management practices for dewatering excavated areas.

K. Agricultural Practices

1. Continuing agricultural practices in wetlands by any property owner other than a farmer are permis-sible in accordance with § 1.6(A) of this Part provided that the activities are restricted to existing or approved gardens, pastures, and fields which have been in use on a regular basis. Expansion of gardens, pastures, and fields within regulated wetlands is prohibited without written authorization except as provided under § 1.6(L) of this Part.

L. Normal Farming and Ranching Activities

1. Normal farming and ranching activities carried out in wetlands by farmers are exempt in accordance with R.I. Gen. Laws § 2-1-22(i)(1).

M. Conservation Activities

1. Conservation activities, such as fish and wildlife management that are carried out on state or federal property by the Department or by the U.S. Department of Interior Fish and Wildlife Service are permissible in accordance with § 1.6(A) of this Part. Such activities are limited to the following:

a. Manipulation of water elevations within impoundment areas on state or federal property for the purpose of habitat and species management;

b. Management of species and habitat conditions by cutting, clearing, planting, plowing, or prescribed burning;

c. The installation of in-stream structures for manipulation and management of fisheries habitat including fish ladders, fish diversions, fish traps and structures to moderate stream velocities/volumes for fisheries management objectives; and

d. The maintenance, repair, replacement or installation of any water control structure within an existing low hazard dam maintained and operated by the Division of Fish and Wildlife for the management or conservation of waterfowl or wildlife.

2. This Rule does not allow for the installation of new dams, construction of new ponds, or filling or permanent drainage of wetlands.

N. Monitoring and Research Activities

1. The following monitoring and research activities are authorized in accordance with § 1.6(A) of this Part provided that there is no permanent loss of wetland, and that any soil disturbance is stabilized and the area is allowed to revert to its natural condition.

a. Installing groundwater monitoring wells to determine the depth to the water table or the extent of subsurface contaminants; installing groundwater table test pipes necessary for the testing of onsite wastewater treatment system (OWTS) design; and taking exploratory borings for soil and ledge/bedrock assessments;

b. Installing stream flow gauging stations by the United States Geological Survey, Water Resources Division;

c. Harvesting limited quantities of vegetation to estimate plant productivity or biomass;

d. Clearing footpaths or transect lines no greater than five feet (5') in width to permit wildlife surveys or access to sampling stations or plots;

e. Excavation of temporary pits for examination of soil properties and for the collection of soil samples; or

f. Construction of temporary blinds for wildlife observation.

O. Temporary Recreational Structures

1. The placement of temporary recreational structures for use during specific events such as water-skiing competitions and boat races is permissible in accordance with § 1.6(A) of this Part, provided that such structures are removed immediately after the specific event. Such structures consist of temporary buoys, markers, floating docks under one hundred fifty (150) square feet in size, and other similar structures.

P. Moorings and Anchorage for Single Boats

1. One mooring or anchorage (not to exceed a weight of 100 pounds) per waterfront lot for use by a single boat may be placed in accordance with § 1.6(A) of this Part.

Q. Emergency Water Withdrawal for Fighting Fires

1. Emergency withdrawal of water from a pond or flowing body of water for the purpose of fighting fires is permissible in accordance with § 1.6(A) of this Part, provided that the water withdrawal is for a specific emergency event and that other sources of water are inadequate or inaccessible at the time of the emergency.

R. Planting in Perimeter Wetland or Riverbank Wetland

1. Planting in that land area that can only be classified as a perimeter wetland or riverbank wetland is permissible in accordance with § 1.6(A) of this Part, provided that the following conditions are met:

a. The sole purpose of the project is to restore a disturbed, degraded or unvegetated area such as a mowed lawn, a gravel area, or a parking lot;

b. No cutting or clearing of trees or shrubs will occur. Cutting of existing groundcover or invasive vegetation to create a plantable site is limited to an area immediately around each new plant, not to exceed a radius that is twice the diameter of the rootball;

c. Pavement removal is limited to that area that will be planted;

d. All plantings must be native species and suitable for the site condition;

e. No excavation, filling, draining or grading is allowed except for a minimal addition of topsoil for each new plant and the application of a layer of mulch or woodchips less than three inches deep around each new plant;

f. All disturbed soils must be stabilized with a southern New England native seed mix;

g. All plantings must be maintained until they are established; and

h. No soil disturbance is allowed from May 15 through September 15 to safeguard potential turtle nesting areas.

2. For tracking purposes, the property owner is asked to notify the Department's Water Quality and Wetland Restoration Team, in writing, within ten (10) days after completion of the plantings.

S. High hazard and significant hazard dams

1. Maintenance, repair and emergency repair of high hazard and significant hazard dams are permissible, provided that all proposed projects and activities adhere to the requirements of the Department's Rules and Regulations for Dam Safety, Part 130-05-1 of this Title, and provided that the project will not result in a substantial alteration of a dam, as defined herein. A high hazard dam is one where failure or misoperation will result in a probable loss of human life. A significant hazard dam is one where failure or misoperation results in no probable loss of human life, but can cause major economic loss, disruption of lifeline facilities or impact other concerns detrimental to the public's health, safety or welfare.

T. Low hazard dams

1. Limited cutting or clearing of vegetation is permissible, in accordance with § 1.6(A) of this Part, and as specifically provided for below:

a. The cutting or clearing is limited to areas on and adjacent to the low hazard dam, such that it does not exceed fifteen (15) feet from the perimeter of the dam, including the toe; or

b. It is necessary to access the dam to complete maintenance activities.

2. Limited maintenance of low hazard dams to maintain them in proper working order is permissible, in accordance with § 1.6(A) of this Part, and provided that the activities are limited to filling minor erosion areas, lubricating and exercising equipment, and re-pointing masonry areas.

3. Inspection, maintenance and repair to any water control structure within a low hazard dam is permissible, provided that the Freshwater Wetlands Program receives written notification at least ten (10) days prior to the commencement of the activity. Such notice must explain the activity to be performed, and must state the expected time of completion. The normal water surface elevation shall not be substantially lowered except for that which is necessary to complete the inspection, maintenance or repair of the structure. Where practicable, either normal water elevations or temporarily lowered water elevations must be maintained by the use of temporary cofferdams. Such cofferdams must remain in place until maintenance is completed and must be removed upon project completion.

250 R.I. Code R. 250-RICR-150-15-1.6