250 R.I. Code R. 250-RICR-150-15-3.11

Current through November 7, 2024

Section 250-RICR-150-15-3.11 - Application for a Freshwater Wetlands Permit

3.11.1Purpose and Outcomes

A. An Application for a Freshwater Wetlands Permit may be submitted to the Department to receive a determination as to whether or not all applicable standards specified in § 3.7.1 of this Part have been met or, if not, whether or not a proposed project may be granted a variance from the standards without the submittal of an Application for a Significant Alteration.

B. The Department's review of an Application for a Freshwater Wetlands Permit may result in one (1) of the following outcomes:

1. Issuance of a permit, with conditions, for alteration of freshwater wetlands including, if applicable, granting of a variance from standards specified in § 3.7.1 of this Part; or

2. 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 for a Significant Alteration (§ 3.12 of this Part); or

3. 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.

3.11.2Application Submittal Requirements

A. An applicant submitting an Application for a Freshwater Wetlands Permit must submit the following documents and must adhere to the following requirements:

1. Project Scope. The application must include and describe the entire project proposed 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:

a. The Department has previously reviewed the entire project and has considered all project impacts on freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage; or

b. 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.

2. Application Contents. A complete application must satisfy the general requirements set forth in § 3.8 of this Part. The application shall include the following:

a. An original completed application form provided by the Department (§§ 3.8.2 and 3.8.3 of this Part);

b. The appropriate fee (§ 3.8.9 of this Part);

c. A completed site plan, drawn to scale, that clearly depicts all elements of the project and accurately depicts the freshwater wetlands edges, associated buffers and buffer zones, floodplains, areas subject to flooding and areas subject to storm flowage that are on the property (§§ 3.8.4 and 3.8.5 of this Part); and d. Site work required to identify the proposed project (§ 3.8.6 of this Part).

3. Project Narrative. The applicant must provide a written overall description of the proposed project, including the following:

a. Project size, purpose, location and type;

b. A description of all applicable jurisdictional area;

c. Site history; and a description of the areas evaluated, including nearby roadways and adjacent land uses;

d. A description of the documented occurrence of rare native plants, rare native animals or rare freshwater wetland types as specified on lists maintained by the Department; and

e. The project narrative must clearly document how the proposed project has satisfied the standards specified in § 3.7.1 of this Part.

4. Applicants for major land development or major subdivision projects, as defined in R.I. Gen. Laws § 45-23-32, must submit, at the time the application is submitted to the Department, documentation of one (1) of the following:

a. Local Master Plan approval; or

b. Local conditional approval of a combined Master and Preliminary Plan; or

c. A letter from an authorized municipal official (the Administrative Officer) certifying compliance with local low impact development site planning and design requirements as contained within the local zoning ordinance, land development and subdivision Regulations, or other pertinent Regulations.

5. As required, any reports and calculations documenting compliance with the Engineering Requirements specified in § 3.11.2(A)(6) of this Part.

6. Engineering Requirements

a. Applications for proposed projects that increase impervious area or that trigger the redevelopment standard specified in the Stormwater Management, Design and Installation Rules, Subchapter 10 Part 8 of this Chapter, must submit supporting calculations, documents, and reports to demonstrate that the proposed project meets or exceeds the applicable review criteria set forth in § 3.11.3 of this Part below and in § 3.7.2 of this Part. Applicants should refer to the written evaluation - required elements in §§ 3.12.2(A)(4)(d) ((3)) through ((5)) of this Part as applicable.

b. Applications for proposed projects on individual residential lots of record may use the Rhode Island Stormwater Management Guidance for Individual Single-Family Residential Lot Development in place of the Stormwater Management, Design and Installation Rules, Subchapter 10 Part 8 of this Chapter.

c. Applications for projects that propose one (1) acre or more of land disturbance must include a Soil Erosion and Sediment Control Plan as specified in the Department's General Permit for Storm Water Discharge Associated with Construction Activity.

d. Applications for projects that propose to place fill or structures within a floodplain or floodway, or which otherwise may alter the rate at which flood water is stored by any freshwater wetland, must include supporting calculations, documents, and reports to demonstrate that the proposed project meets or exceeds the review criteria set forth in § 3.7.2 of this Part. Applicants are referred to the written evaluation - required elements in § 3.12.2(A)(4)(d) of this Part as applicable.

e. 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.

7. Variance from Standards. If a proposed project does not meet all of the standards specified in § 3.7.1 of this Part, an applicant must provide a narrative description documenting how the proposed project will satisfy the variance criteria specified in § 3.7.3 of this Part.

3.11.3Review by the Department

A. On-Site Review and Evaluation. An Application for a Freshwater Wetlands Permit is considered to be a preliminary determination, and the Department will act on an Application for a Freshwater Wetlands Permit 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, buffers, floodplains, areas subject to flooding and areas subject to storm flowage.

B. Permit Issuance. In order to issue a permit, the Department must be satisfied that a proposed project will not result in a significant alteration to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage.

1. A project which is determined by the Department to meet or satisfy all standards specified in § 3.7.1 of this Part shall be presumed to not result in a significant alteration to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage.

2. If a project is determined by the Department not to meet the standards specified in § 3.7.1 of this Part, a permit may be issued only when the Department is satisfied that:

a. All variance criteria specified in § 3.7.3 of this Part have been satisfied; and

b. The project will not result in a significant alteration to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage (see § 3.11.3(C) of this Part);

C. Significant Alteration Determination. In determining whether a proposed project will result in a significant alteration to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage, the Department will consider the following criteria, as well as the review criteria in § 3.7.2 of this Part. A proposed alteration may be considered significant whenever any one (1) of the following conditions exist:

1. A project appears to propose a random, unnecessary, or undesirable alteration to freshwater wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm flowage;

2. A project appears to alter the character, functions or values of any freshwater wetlands, buffer, floodplain, area subject to flooding or area subject to storm flowage in a way that could result in the following:

a. More than a minimal change of any portion of any freshwater wetland, river or stream resulting in a conversion from wetland to upland;

b. The detrimental modification of the biological, chemical or hydrologic characteristics of any freshwater wetlands or buffer areas which could reduce the natural values associated with the freshwater wetland or buffer;

c. More than minimal displacement of any flood waters onto or into property owned by others;

d. Increased flooding by a change in runoff characteristics or hydrology;

e. Reduction of the groundwater recharge or discharge value of any freshwater wetland or buffer;

f. Reduction of river or stream flows as a result of diversion or withdrawal of water;

g. Permanent change or conversion from one (1) habitat type in a freshwater wetland or buffer to another; or

h. The disturbance or destruction of any rare species or rare freshwater wetland type or the degradation of habitat for rare species.

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

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

5. A project involves a variance to standards and does not meet all the criteria to be granted a variance as specified in § 3.7.3 of this Part.

3.11.4Permit Requirements, Conditions and Renewals

A. The Department may grant a permit in response to an Application for a Freshwater Wetlands Permit, without first requiring an Application for a Significant Alteration, provided, however, that any such permits shall only be issued after the Department has determined that all elements outlined in § 3.11.3(C) of this Part have been met and shall be subject to such conditions as the Department may require to protect the freshwater wetlands, buffers and floodplains.

B. 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.

C. 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, buffers, floodplains, areas subject to flooding and areas subject to storm flowage. All applicants receiving a permit or subsequent transferees of the property shall avoid or minimize adverse impacts to any freshwater wetlands, buffers, floodplains, areas subject to flooding and areas subject to storm flowage and their functions and values, both during and after permitted activities.

D. Unless specified in writing by the Department, any decision issued in response to an Application for a Freshwater Wetlands Permit applies only to the proposed project that is described in the Application 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 assigned application number.

E. Any permit issued in response to an Application for a Freshwater Wetlands Permit shall be valid for a period of five (5) years from the date of issuance.

1. A permit shall be renewable by the permit holder for one (1) additional one (1) year period from the date of expiration (with the exception of permits granted under a Joint OWTS/Freshwater Wetlands Application which cannot be renewed) provided that:

a. The permit holder and project are in compliance with the permit; and

b. The permit holder submits an Application for Permit Renewal that meets the requirements of § 3.14.2 of this Part.

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

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

3.11.5Department's Decision - Notification

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 § 3.8.2(C) of this Part. At least once each month, the Department will also provide 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 is located.

3.11.6Application Closure

A. The Department's consideration of any Application for a Freshwater Wetlands Permit shall be deemed to have terminated, and the applicant's file shall be deemed closed, when any of the following circumstances have occurred:

1. 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

2. The Department is notified of a change of ownership during the processing of the application, and the new owner does not comply with § 3.8.3(F) of this Part within sixty (60) days; or

3. 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.

250 R.I. Code R. 250-RICR-150-15-3.11

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