250 R.I. Code R. 250-RICR-150-15-1.9

Current through November 7, 2024

Section 250-RICR-150-15-1.9 - Request for Preliminary Determination

A. Purpose and Outcomes

1. A Request for Preliminary Determination application may be submitted to the Department to receive a determination as to whether or not a proposed project represents a significant alteration.

2. The Department's review of a Request for Preliminary Determination may result in one of the following outcomes:

a. Issuance of a permit, with conditions, for an insignificant alteration of freshwater wetlands. § 1.17 of this Part provides examples of insignificant alterations; or

b. Issuance of a determination, in accordance with R.I. Gen. Laws § 2-1-22(a), that a significant alteration has been proposed and that a permit may be sought only by filing an Application to Alter a Freshwater Wetland (§ 1.10 of this Part); or

c. Issuance of a determination that a permit is not required, along with conditions deemed necessary to ensure that this remains the case in the future.

B. Application Requirements

1. An applicant seeking a Request for Preliminary Determination must submit the following documents and must adhere to the following requirements:

a. Project Scope. The application must include and describe the entire project either proposed or contemplated by the applicant. A request for a partial review or review of fewer than all phases of a project may be considered by the Department only if:

(1) The Department has previously reviewed the entire project and has considered all project impacts on freshwater wetlands; or

(2) As a condition of a prior determination, permit, consent agreement, or consent judgment, the Department required separate applications for individual portions of an overall project.

b. General Requirements. The applicant must satisfy the general requirements set forth in § 1.7 of this Part which include the following:

(1) A completed application form (§§ 1.7(A)(1) and (2) of this Part);

(2) The appropriate fee (§§ 1.7(A)(10) and (11) of this Part);

(3) A completed site plan that accurately depicts the wetlands edges that are on the property (§§ 1.7(A)(3) and (4) of this Part); and

(4) Site requirements to identify the proposed project (§ 1.7(A)(5) of this Part).

c. Project Description. The applicant must provide an overall description of the project, including project size, purpose, location and type; site history; and a description of the areas evaluated, including nearby roadways and adjacent land uses.

d. Avoidance and Minimization Requirement

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

(AA) Whether the primary proposed activity is water-dependent or whether it requires access to freshwater wetlands as a central element of its primary purpose (e.g., a pier);

(BB) Whether any areas within the same property or other properties owned or controlled by the applicant could be used to achieve the project purpose without altering the natural character of any freshwater wetlands;

(CC) Whether any other properties reasonably available to, but not currently owned or controlled by, the applicant could be used to achieve the project purpose while avoiding wetland alterations. A property is reasonably available if, in whole or in part, it can be acquired without excessive cost, taking individual circumstances into account, or, in the case of property owned or controlled by the same family, entity, group of affiliated entities, or local, state or federal government, may be obtained without excessive hardship;

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

(EE) Whether the applicant has made any attempts (and if so what they were) to avoid alterations to freshwater wetlands by overcoming or removing constraints imposed by zoning, infrastructure, parcel size or the like; and

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

(2) Minimization: For any impact to freshwater wetlands that cannot be avoided, the applicant must satisfactorily demonstrate to the Department in the written narrative that the impact to wetland functions and values have been reduced to the maximum extent possible. At a minimum, applicants must consider and address the following issues:

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

(BB) Whether the proposed project is necessary at the proposed location or whether another location within the site could achieve the project purpose while resulting in less impact to the wetland;

(CC) Whether there are feasible alternative designs, layouts, densities or technologies, that would result in less impact to the wetland while still achieving the project purpose; and

(DD) Whether reduction in the scale or relocation of the proposed project to minimize impact to the wetland would result in adverse consequences to public health, safety or the environment.

(3) Mitigation Measures. Measures, methods, or best management practices to avoid alterations of and minimize impacts to wetlands include, but are not limited to:

(AA) Preserving natural areas in and around wetlands;

(BB) Minimizing the extent of disturbed areas and encouraging the preservation of land in its natural state;

(CC) Designing dense plantings of shrubs and trees between the developed areas and the remaining natural areas to "buffer" impacts from loss of wildlife habitat and loss of natural areas and to reduce the impacts of noise, lighting and other disturbances upon wildlife and the remaining natural areas;

(DD) Maintaining unrestricted fish and wildlife passage;

(EE) Designing structures and alterations so that they are located outside of flood plain, floodway, areas subject to flooding, flowing bodies of water or other freshwater wetlands;

(FF) Using best management practices for the stabilization of disturbed areas and the selection, use, and maintenance of temporary or permanent soil erosion and sediment controls in accordance with the latest version of the RISESC Handbook and the RISDIS Manual, Subchapter 10 Part 8 of this Chapter;

(GG) Using best management practice selection and design criteria in accordance with the latest version of the RISDIS Manual, Subchapter 10 Part 8 of this Chapter, to reduce stormwater flows and maximize the control, treatment and maintenance of systems associated with reducing stormwater impacts to acceptable levels;

(HH) Minimizing impervious surface areas such as roads, parking, paving or other surfaces;

(II) Incorporating compensatory flood storage area(s) where necessary and in compliance with these Rules;

(JJ) Encouraging infiltration of non-contaminated run-off into uncontaminated soils;

(KK) Preventing channelization or piping of run-off and encouraging sheet flow;

(LL) Landscaping with gradual slopes to maximize sheet flow and infiltration while minimizing channelization;

(MM) Minimizing or eliminating the use or increase of any pollutants, fertilizers, pesticides, herbicides, or any other chemical or organic application which increase pollutant and nutrient loadings;

(NN) Maximizing setbacks of septic systems and other land disturbances from wetlands; and

(OO) Minimizing the withdrawal of surface water or groundwater from wetlands or uplands adjacent to wetlands, especially during dry periods, and minimizing any reduction in river or stream flow.

e. Engineering Requirements

(1) Applicants must submit supporting calculations, documents, and reports to demonstrate that the proposed project meets or exceeds the review criteria set forth in § 1.9(C) of this Part below and in § 1.10(E) of this Part. Applicants should refer to the written evaluation - required elements in § 1.10(B)(5)(d) ((3)) through ((5)) of this Part for guidance.

(2) Engineering calculations are not required for individual residential lots except where areas subject to storm flowage, rivers, streams, or flood plains will be altered.

(3) The Department reserves the right to require additional information in order to satisfy the review criteria or to waive any requirement if it is determined that the information is not applicable.

f. Compliance with Water Quality Regulations. Applicants must comply with the Department's Water Quality Regulations, Subchapter 05 Part 1 of this Chapter. A separate application is not required unless specified in said Regulations.

C. Review by the Department

1. On-Site Review and Evaluation. Pursuant to R.I. Gen. Laws § 2-1-22(a), the Department will act on a Request for Preliminary Determination only following an on-site review and a preliminary evaluation of the project and its anticipated impacts to the natural characteristics, functions, or values of the subject freshwater wetlands.

2. Significant Alteration. The Department will evaluate all Requests for Preliminary Determination to ascertain whether such projects will result in significant alterations of freshwater wetlands. The Department will consider the following criteria in making this evaluation, as well as the criteria in § 1.10(E) of this Part. A proposed alteration may be considered significant whenever any one of the following conditions exist:

a. A project does not satisfactorily avoid, minimize or mitigate impacts to freshwater wetlands;

b. A project appears to propose a random, unnecessary, or undesirable alteration to freshwater wetlands;

c. A project appears to alter the character, functions or values of any freshwater wetland in a way that could result in the following:

(1) More than a minimal change of any portion of any swamp, marsh, pond, bog; special aquatic site, emergent, submergent, shrub or forested wetland, river, stream, intermittent stream or other watercourse from wetland to upland;

(2) The detrimental modification of the biological, chemical or hydrologic characteristics of any wetland areas which could reduce the natural values associated with the wetland;

(3) Reduction of the value of any fifty-foot (50') perimeter wetland, or one hundred foot (100') and two hundred foot (200') riverbank wetland through permanent loss or change in characteristics;

(4) More than minimal displacement of any flood waters onto or into property owned by others;

(5) Increased flooding by a change in runoff;

(6) Reduction of the groundwater recharge or discharge value of any wetland;

(7) Reduction of river, stream or intermittent stream flows as a result of diversion or withdrawal of water;

(8) Permanent change or conversion from one habitat type in a wetland to another; or

(9) The disturbance or destruction of any rare species or rare wetland type or the degradation of habitat for rare species.

d. A project proposes temporary alterations which over time may cause significant permanent alterations to freshwater wetlands and their functions and values; or

e. Any individual alteration that may, when evaluated cumulatively with other alterations, cause significant impacts to freshwater wetlands and their functions and values.

3. Insignificant Alteration. In order to obtain a permit for an insignificant alteration, the Department must be satisfied, either by supporting site plan(s) and documentation provided by the applicant and his or her qualified professionals or by staff evaluation, that:

a. All probable impacts to freshwater wetland functions and values have been avoided to the maximum extent possible;

b. Any impacts resulting from physical loss or permanent change of wetland characteristics are so limited in scope, area or duration that they could only result in minimal change to the characteristics, functions and values of the freshwater wetland;

c. The project does not appear to propose any random, unnecessary, or undesirable alteration to any freshwater wetland;

d. Best management practices and other mitigative features were incorporated to avoid a significant alteration of wetlands and to protect wetland functions and values; and

e. The project complies with the review criteria set forth in § 1.10(E) of this Part.

D. Permit Requirements, Conditions and Renewals

1. The Department may grant a permit in response to a Request for Preliminary Determination, without first requiring an Application to Alter a Freshwater Wetland under R.I. Gen. Laws § 2-1-22(a), provided, however, that any such permits shall only be issued for insignificant alterations and shall be subject to such conditions, including time of completion, as the Department may require to protect the wetlands.

2. Any applicant or subsequent transferee receiving a permit under this Rule shall comply with all conditions of the permit and all provisions of the Act and these Rules. Any non-compliance with the permit violates the Act and these Rules, and constitutes sufficient grounds for an enforcement action.

3. The permittee or subsequent transferee of the property to which the permit relates is responsible for the proper installation, operation, maintenance and stability of any mitigative features, facilities, and systems of treatment and control that are installed or used to comply with these Rules and any terms and conditions of the permit and to prevent harm to freshwater wetlands. All applicants receiving a permit or subsequent transferees of the property shall avoid or minimize adverse impacts to any freshwater wetlands and their functions and values, both during and after permitted activities.

4. Unless specified in writing by the Department, any decision issued in response to a Request for Preliminary Determination applies only to the proposed project that is described in the Request and its supporting documentation, including the requisite site plans. Site plans shall bear a stamp of approval, signed by the Department, as well as the date of the permit letter and the correct application number.

5. Any permit issued in response to a Request for Preliminary Determination shall be valid for a period of four (4) years from the date of issuance, except as follows:

a. Permits that relate to the development of property that were in effect on November 9, 2009 are subject to tolling pursuant to R.I. Gen. Laws § 42-17.1-2.5 and shall be valid an additional 2060 days after the four (4) year period established above.

b. Permits that relate to the development of property issued between November 9, 2009 and June 30, 2015 are subject to tolling pursuant to R.I. Gen. Laws § 42-17.1-2.5 and shall be valid until July 1, 2019.

c. The permit shall be renewable by the permit holder for one additional two-year period from the date of expiration, provided that:

(1) The permit holder and project are in compliance with the permit; and

(2) The permit holder submits an Application for Renewal that meets the requirements of § 1.11(B) of this Part.

d. Permits granted in response to a Joint OWTS/Freshwater Wetlands Application are valid for a period of five (5) years from the date of issuance and may not be renewed.

6. Upon completion of the construction of the permitted project, the permit does not need to be renewed by the permit holder.

7. Unless specifically limited by the terms and conditions of the Department's permit, any Preliminary Determination issued by the Department, that relates to an approval of a project as an insignificant alteration or a determination that the Act does not apply to a specific project, prior to April 7, 1994, is expired.

E. Department's Decision - Notification

1. The Department will mail notice of its decision to the applicant and the applicant's representative, if any, consistent with R.I. Gen. Laws § 2-1-22(g) and § 1.7(A)(1)(e) of this Part. At least once each month, the Department will also mail copies of such decisions to the city or town clerk, the zoning board, the planning board, the building official and the conservation commission in the city or town within which the project lies.

F. Application Closure

1. The Department's consideration of any Request for Preliminary Determination shall be deemed to have terminated, and the applicant's file shall be deemed closed, when any of the following circumstances has occurred:

a. The applicant fails to answer any notification of application deficiency or request for additional information by the Department within a period of one (1) year from the date such notification or request is issued; or

b. The Department is notified of a change of ownership during the processing of the application, and the new owner does not comply with § 1.7(A)(2)(e) of this Part within 60 days; or

c. The Department has issued a permit or a written determination that the Act and these Rules do not apply, or that a proposed project represents a significant alteration of freshwater wetland.

250 R.I. Code R. 250-RICR-150-15-1.9