051130_NHDES_Appeal

Request reconsideration of the October 14, 2005 decision to approve a permit to dredge and fill 7,814 square feet of palustrine forested wetlands and intermittent streams (impacting 107 linear feet) to construct an access loop road for a proposed kindergarten in Goffstown.

Deny reconsideration to overturn the October 14, 2005 decision to approve a permit to dredge and fill 7,814 square feet of palustrine forested wetlands and intermittent streams (impacting 107 linear feet) to construct an access loop road for a proposed kindergarten in Goffstown.

STANDARDS FOR APPROVAL:
1. This project is classified as a Minor Project per NH Administrative Rule Wt 303.03(h) and (l), as wetland impacts are less than 20,000 square feet, and intermittent stream impacts are less than 200 linear feet.
2. The need for the proposed impacts must be demonstrated by the applicant per NH Administrative Rule Wt 302.01.
3. The applicant must provide evidence which demonstrates that his/her proposal is the alternative with the least adverse impact to areas and environments under the department's jurisdiction per Rule Wt 302.03.
4. The applicant must demonstrate by plan an example that each of the factors listed in Rule Wt 302.04(a), Requirements for Application Evaluation have been considered in the design of their project.

FINDINGS OF FACT:
5. On May 2, 2005, DES held a pre-application meeting with the Goffstown School District and their agent, True Engineering. A loop road with 3 wetland crossings was discussed to construct a town kindergarten. DES recommended that a master plan be provided to address potential future school expansion, that a functional assessment of wetlands be completed, and explained the wetland requirements of avoidance and minimization, project need, as well as the least impacting alternative analysis.
6. In the original application received by DES on July 6, 2005, the applicant requested 8,698 square feet of wetland impact, including 205 linear feet of intermittent stream impacts, to construct an access loop road that will serve a new kindergarten with associated parking.
7. In a letter dated July 5, 2005, the Goffstown Conservation Commission requested a 40-day intervention in order to complete a site walk and forward comments to DES.
8. In a letter dated July 7, 2005, DES sent a "Notice of Administrative Completeness" to confirm that the application was accepted as administratively complete.
9. In a letter dated July 13, 2005, DES sent relevant information to the Piscataquog River Local Advisory Committee (LAC) to notify them of the proposed project.
10. On August 15, 2005, DES received a letter from an abutter to the project (map 5, lot 16) to express concerns and comments with the school proposal.
11. On September 8, 2005, DES received a letter from the concerned abutter (map 5, lot 16) who now is representing a local citizens group known as the Goffstown Residents Association (GRA). The letter expressed concerns with finding the most appropriate lot for the proposed school, and requested that the previous letter dated August 15, 2005 be represented as concerns from the collective group. In addition, GRA requested that DES conduct a public hearing because the current proposal was never afforded a town public hearing prior to the town vote (which approved the transfer of land from the town to the School Administrative Unit (SAU) #19 to complete this project).
12. On September 9, 2005, DES received a letter from the Goffstown Conservation Commission stating that they have serious concerns about the proposed use of the property, and asked DES to consider several issues including: town wetland zoning, potential future school expansions, alternative site layouts, a least impacting alternative analysis, wetland functional assessment, runoff and treatment from impervious surfaces, changes in groundwater hydrology, and to consider open bottom culverts for the stream crossings.
13. On September 14, 2005, DES received plans from the concerned abutter (map 5, lot 16) showing town wetland setbacks, and future conceptual development.
14. In a letter dated September 16, 2005, DES sent a "Request for More Information" to the applicant to address concerns raised by the Goffstown Conservation Commission and the GRA, and to meet specific NH Wetlands Bureau Administrative Rules. DES summarized that the application did not appear to avoid and minimize overall wetland and stream disturbance, and did not provide evidence that the alternative is the one with the least impact to wetlands or surface waters on-site. Several other items were requested including: a master conceptual plan for potential future development, wetland classifications with stream types and channel locations, mitigation (if stream impacts were not further reduced), plans stamped by a Certified Wetland Scientist (CWS), revised plans to relocate stormwater detention areas, and to contact the NH Fish & Game Department relative to 2 species of concern within the project vicinity.
15. On September 27, 2005, DES received a letter of response and revised plans from SAU #19 and True Engineering, to satisfy the requested items from DES' September 16, 2005 letter. Overall wetland and stream impacts were further reduced by using; one way 20-foot access roads, 2:1 side slopes, an open bottom box culvert, and by reducing the footprint of rip-rap aprons. In summary, plans were revised to reduce total wetland impacts to 7,814 square feet and intermittent stream impacts to 107 linear feet.
16. On September 29, 2005, DES received a letter of response from BAG Land Consultants (the applicant's consultant and CWS) to satisfy the DES requested items.
17. On September 30, 2005, DES received revised plans from BAG Land Consultants that contained the stamp of the CWS.
18. On October 10, 2005, DES received an inter-department communication from the NH Fish & Game Department stating that, "It is our understanding that a bottomless concrete box will span the largest wetland drainage, substantially reducing impacts to the intermittent stream at the project site. The bottomless concrete box will also help to retain the natural hydrologic characteristics of the site, potentially resulting in reduced impacts to wood turtle (Clemmys insculpta) and the state endangered brook floater mussel (Alasmidonta varicosa), located downstream in the Piscataquog River."
19. On October 14, 2005, DES approved the wetland permit to dredge and fill 7,814 square feet of palustrine forested wetlands and intermittent streams (impacting 107 linear feet) to construct an access loop road for a proposed kindergarten in Goffstown.
20. On November 1, 2005, DES received a letter from Attorney Jed Z. Callen on behalf of a citizens group called Goffstown Residents Association (GRA) requesting reconsideration of the decision to approve the wetland permit.

FINDINGS RELATIVE TO GOFFSTOWN RESIDENTS ASSOCIATION (GRA) RECONSIDERATION COMMENTS:
21. In a request for reconsideration letter from Attorney Callen representing GRA (received November 1, 2005), contention was made that the issuance of the permit was illegal and/or unreasonable for the following reasons. The list below summarizes each GRA reason (in italics) followed by the DES finding:
a) DES received the original application for the Permit on July 6, 2005. DES agrees with this statement.
b) By letter of July 5, 2005 the Goffstown Conservation Commission (GCC) requested a 40-day intervention in order to complete a site walk and forward comments to DES. DES agrees with this statement.
c) On August 29, 2005 the GCC submitted its report to DES. In that report, the GCC strongly urged DES to consider the following issues (among others); "There is no alternative site proposed for the layout of the loop road with 3 wetland impacts. A similar-sized area of buildable land is located on the same property, closer to Elm Street, which would not require any of the crossings." and; "A least impacting alternative has not been performed, for using other town-owned lands." DES finds the statements taken from the GCC letter to be accurately quoted.
d) By letter of September 19, 2005 DES acknowledged the receipt of the report from the GCC. DES agrees with this statement.
e) RSA-A:11 sets forth the Administrative Provisions for the implementation of Chapter 482-A. More specifically, RSA 482-A:11 (III)(a) states: Upon written notification to the department by a municipal conservation commission that it intends to investigate any notice received by it pursuant to RSA 482-A:3, the department shall suspend action upon such notice and shall not make its decision on the notice of a minor or minimum impact project nor hold a hearing on it if a major project until it has received and acknowledged receipt of a written report from such commission, or until 40 days from the date of filing with the municipal clerk of such notice, whichever occurs earlier, subject to an extension as permitted by the department. In connection with any local investigation, a conservation commission may hold a public informational meeting or a public hearing, the record of which shall be made a part of the record of the department. If a conservation commission makes a recommendation to the department in its report, the department shall specifically consider such recommendation and shall make written findings with respect to each issue raised in such report which is contrary to the decision of the department. If notification by a local conservation commission pursuant to this paragraph is not received by the department within 14 days following the date the notice is filed with the municipal clerk, the department shall not suspend its normal action, but shall proceed as if no notification has been made. DES finds that RSA 482-A:11(III)(a) is accurately quoted.
f) DES decision to issue the Permit is illegal because it fails to specifically consider and make written findings with respect to the issue raised by the GCC that there is a lesser impacting alternative by utilizing an area on the property, closer to Elm Street, which could accommodate the kindergarten without any wetland impacts associated with an access road. Included with this Request for Reconsideration is a plan that illustrates a lesser impacting alternative layout consistent with the recommendation of the GCC. In a letter dated September 16, 2005, DES sent a "Request for More Information" to the applicant to address concerns raised by the GCC and the GRA, and to meet specific Wetlands Bureau Administrative Rules. DES summarized that the application did not appear to avoid and minimize overall wetland and stream disturbance, and did not provide evidence that the alternative is the one with the least impact to wetlands or surface waters on-site. Several other items were requested including: a master conceptual plan for potential future development, wetland classifications with stream types and channel locations, mitigation (if stream impacts were not further reduced), plans stamped by a Certified Wetland Scientist (CWS), revised plans to relocate stormwater detention areas, and to contact the NH Fish & Game Department relative to 2 species of concern within the project vicinity. In addition, DES made the following written findings to satisfy issues that were raised:
I. On September 27, 2005, DES received a letter of response and revised plans from SAU #19 and True Engineering, to satisfy the requested items from DES' September 16, 2005 letter. Overall wetland and stream impacts were further reduced by using; one way 20-foot access roads, 2:1 side slopes, an open bottom box culvert, and by reducing the footprint of rip-rap aprons. In summary, plans were revised to reduce total wetland impacts to 7,814 square feet and intermittent stream impacts to 107 linear feet.
II. On October 10, 2005, DES received an inter-department communication from the NH Fish & Game Department stating that, "It is our understanding that a bottomless concrete box will span the largest wetland drainage, substantially reducing impacts to the intermittent stream at the project site. The bottomless concrete box will also help to retain the natural hydrologic characteristics of the site, potentially resulting in reduced impacts to wood turtle (Clemmys insculpta) and the state endangered brook floater mussel (Alasmidonta varicosa), located downstream in the Piscataquog River."
III. Overall, DES finds that the need for the proposed impacts has been demonstrated by the applicant per Rule Wt 302.01;
IV. The applicant has provided evidence which demonstrates that this proposal is the alternative with the least adverse impact to areas and environments under the department's jurisdiction per Rule Wt 302.03;
V. The applicant has demonstrated by plan and example that each factor listed in Wt 302.04(a) Requirements for Application Evaluation, has been considered in the design of the project.
VI. In addition, wetland or surface water impacts associated with potential future development on this lot will be considered cumulative with impacts authorized under this permit and may require compensatory mitigation for the entire development.
VII. Public hearing is waived with the finding that the project is classified as a Minor Project and will not significantly impair the resources of this palustrine forested wetland and intermittent stream ecosystem.
Furthermore, DES offers the following additional findings relative to specific GCC
concerns. The list below summarizes each GCC concern (in italics) followed by the
DES finding:
I. The site does not meet Goffstown's zoning regulations for buildable area that are normally applied to subdivision proposals. More than half of the proposed site for the 10 room kindergarten building would lie within the wetland conservation overlay district. Building at this location would not be a minor waiver of the requirement, but a complete disregard of the intent and functional purpose of the wetland buffer zone. The wetland overlay district is a Town of Goffstown zoning requirement and therefore is not applicable to a DES permitting decision under the authority of RSA 482-A.
II. Although the applicants currently claim they are only looking at the site for a 10 room kindergarten, previous presentations clearly indicated that the kindergarten would be expanded to an Elementary school (previous presentations at deliberative sessions, and the application package to the state for kindergarten construction aid). Expanding to a larger school will significantly increase the impacts above and beyond what is submitted in the application. DES requested (on September 16, 2005) and received (on September 27, 2005) a conceptual master plan that details potential future impacts to ensure appropriate land use planning. Also, DES issued the finding that wetland or surface water impacts associated with potential future development on this lot will be considered cumulative with impacts authorized under this permit and may require compensatory mitigation for the entire development.
III. There is no alternative site proposed for the layout of the loop road with 3 wetland impacts. A similar-sized area of buildable land is located on the same property, closer to Elm Street, which would not require any of the crossings. Note, however, that this alternative location on this site still lacks adequate space for a school building - it only improves the situation by avoiding the wetland crossings and requiring less alteration of terrain. It was noted by the applicant and the GCC that building closer to Elm Street lacks adequate space for a school building; therefore, the overall wetland and stream impacts were further reduced by using; one way 20-foot access roads, 2:1 side slopes, an open bottom box culvert, and by reducing the footprint of rip-rap aprons. In summary, alternative plans were submitted that further reduce total wetland impacts to 7,814 square feet and intermittent stream impacts to 107 linear feet.
IV. A least impacting alternative analysis has not been performed, for using other town-owned lands. Current Wetlands Bureau Administrative Rules do not specifically require that an off-site alternative analysis be performed. In fact, Rule Wt 302.04(a)(2) clearly states that, "The alternative proposed by the applicant is the one with the least impact to wetlands or surface waters on site." Despite this fact, the applicant submitted a 4-page letter on September 27, 2005 that summarizes a 34-year history of the kindergarten school proposal, which includes many years of town-wide searching for the appropriate parcel. Therefore, DES finds that an off-site analysis has been completed. Furthermore, DES found that the revised plans further reduced overall wetland and stream impacts by using one way 20-foot access roads, 2:1 side slopes, an open bottom box culvert, and by reducing the footprint of rip-rap aprons.
V. Since the proposed development resides within the wetland buffers, the functions that the buffer zones provide are lost. Yet this is a development where such buffers are very important due to the large extents of impervious areas that would be introduced. Again, DES finds that wetland buffers are a Town of Goffstown requirement and therefore not applicable to DES permitting decisions under the authority of RSA 482-A. In addition, the DES Site Specific Program reviews and ensures that all impervious areas are properly treated prior to discharging into wetlands and surface waters.
VI. The runoff from impervious surfaces will not receive adequate treatment, and will flow into the stream draining this area directly into the Glen Lake reservoir on the Piscataquog River. Furthermore, this flow into the river is located at the only public beach on Glen Lake. As previously stated, the DES Site Specific Program reviews and ensures that all impervious areas are properly treated prior to discharging into wetlands and surface waters.
VII. There will need to be significant removal of material into a slope north of the building site to construct the proposed building. There is also a playground area proposed in wet soils where water is moving though shallow soils over ledge, and will require drainage to develop. How these changes will modify the hydrology of the site has not been addressed, and is also a concern due to the direct drainage of the stream into the Piscataquog River. DES finds that the playground area is located in an area of uplands and therefore outside of the Wetlands Bureau jurisdiction. Also, the Site Specific Program will review any changes to the post-development hydrology to protect surface water quality and downstream abutters.
VIII. Since the water table is so shallow on much of the site, we are not convinced that treatment swales for storm water runoff will perform well on this site. We urge you to look closely at the plans for managing and processing the runoff. The Site Specific Program will review any changes to the post-development hydrology and stormwater runoff to protect the wetlands and the surface water quality, as well as downstream abutters. In addition, Site Specific rules require that treatment swales have at least a 2-foot separation from the seasonal high water table to ensure adequate treatment of runoff.
IX. We (the GCC) routinely request open bottom culverts for the stream crossings, but open bottom culverts are not a part of this plan. On September 16, 2005, DES requested that plans be revised to further reduce overall wetland and stream impacts. Revised plans were submitted by the applicant's agent on September 27, 2005 that incorporated an open bottom box culvert as suggested.
g) DES decision to issue the Permit is illegal because it fails to specifically consider and make written findings with respect to the issue raised by the GCC that a lesser impacting alternative has not been considered utilizing other town-owned lands. In a letter to DES (copied to the GCC) dated August 15, 2005 GRA specifically identifies tax map 5, lot 24 as town-owned land that could accommodate the kindergarten without any wetland impacts. Included with this Request for Reconsideration is a plan that illustrates that lesser impacting alternative. Current Wetlands Bureau Administrative Rules do not specifically require that an off-site alternative analysis be performed. In fact, Rule Wt 302.04(a)(2) clearly states that, "The alternative proposed by the applicant is the one with the least impact to wetlands or surface waters on site." Despite this fact, the applicant submitted a 4-page letter on September 27, 2005 that summarizes a 34-year history of the kindergarten school proposal, which includes many years of town-wide searching for the appropriate parcel. Therefore, DES finds that an off-site analysis has been completed, and the applicant has provided sufficient information which demonstrates that this proposal is the alternative with the least adverse impact to areas and environments under the department's jurisdiction.
h) DES has acted unreasonably and/or illegally by misstating and misapplying Administrative Rule Wt 302.03(a). Wt 302.03(a) states; "The applicant shall submit a statement describing the impact of the proposed project design and provide evidence which demonstrates that, subject to (b) below: (1) Potential impacts have been avoided to the maximum extent practicable; and (2) Any unavoidable impacts have been minimized." DES appropriately applied Administrative Rule Wt 302.03 and found that the applicant provided sufficient evidence which demonstrates that this proposal is the alternative with the least adverse impact to areas and environments under the department's jurisdiction.
i) In a September 16, 2005 Request for More Information, DES states that "Review of the proposed development does not appear to avoid and minimize overall wetland and stream disturbance. In accordance with NH Administrative Rule Wt 302.03(a) and Wt 302.04(a)(1) and (2), the applicant must provide evidence that demonstrates that wetland impacts have been avoided to the maximum extent practicable, and that the alternative is one with the least impact to wetlands or surface waters on-site. Please revise the overall layout to further reduce or remove wetland and stream disturbance." DES finds the statement taken from the DES letter to be accurately quoted.
j) Nowhere in Wt 302.03(a) does it limit the least impacting alternatives analysis to on-site alternatives only. On May 2, 2005 DES held a pre-application meeting attended by the Applicant's engineer and the Applicant's wetland scientist. The document summarizing that meeting shows that DES specifically, and with emphasis, directed the Applicant to consider all town-owned property when performing the alternative analysis and identifying the least impacting alternative; giving examples of cases in other municipalities where applicants were held to the same standard. The applicant submitted a 4-page letter on September 27, 2005 that summarizes a 34-year history of the kindergarten school proposal, which includes many years of town-wide searching for the appropriate parcel. Therefore, DES finds that an off-site analysis has been completed, and the applicant has provided sufficient information which demonstrates that this proposal is the alternative with the least adverse impact to areas and environments under the department's jurisdiction.
k) By memo of September 30, 2004, the Goffstown Board of Selectmen identified all town-owned parcels greater than 10 acres in size. This memo identified not only the parcel that is the subject of this permit application, but also tax map 4, lot 24. The applicant was aware that map 5, lot 24 was a town-owned parcel that is capable of accommodating a kindergarten and yet they failed to consider that parcel as a lesser impacting alternative. A copy of that memo is attached to this Request for Reconsideration. The applicant submitted a 4-page letter on September 27, 2005 that summarizes a 34-year history of the kindergarten school proposal, which includes many years of town-wide searching for the appropriate parcel. Therefore, DES finds that an off-site analysis has been completed, and the applicant has provided sufficient information which demonstrates that this proposal is the alternative with the least adverse impact to areas and environments under the department's jurisdiction.
l) DES has acted unreasonably and/or illegally by issuing the Permit for 107 linear feet of intermittent stream impacts. GRA contends that the major stream that flows through the property, and which will be impacted in two locations, is a perennial stream. DES review of the USGS topographic map for the area shows intermittent streams with relatively small watersheds. In addition, the applicant's state Certified Wetland Scientist (CWS) professionally certified that the streams on site are all classified as intermittent in nature; therefore, DES finds that the streams are classified as intermittent.
m) In support of its decision, DES finding number 3 states; "In the original application received by DES on July 6, 2005, the applicant requested 8,698 square feet of wetland impact, including 205 linear feet of intermittent stream impacts, to construct an access loop road that will serve a new kindergarten with associated parking." This finding is not correct. Nowhere in the original application does it characterize the streams as intermittent. In fact, the application characterizes the major stream on this property as a perennial stream. In addition, during the May 2, 2005 pre-application meeting the CWS representing the Applicant characterized the major stream as perennial. DES found that in the original application, the CWS stated that "Stream 1" was "probably perennial" and that "Stream 2...appears to be seasonal"; however, DES requires a more definitive determination than "probably" and "appears." DES therefore requested more information in a letter dated September 16, 2005, where item #3 stated, "...submit plans that clearly identify the wetland classifications and stream types." In a letter dated September 26, 2005, the CWS submitted additional information to DES that stated, "The flows in the impact area are definitely intermittent in nature…"; therefore, based on DES review of the USGS topographic map for the area and the CWS professional certification, DES finds that the streams are classified as intermittent.
n) DES appears to have made the determination that all of the streams on this property are intermittent based upon a September 26, 2005 letter from BAG Land Consultants stating, "the flows in the impact area are definitely intermittent in nature…" This letter was accompanied by three photos taken under very dimly lit conditions. The information contained in this letter is inconclusive and contrary to information provided to DES by the Applicant's agent on two prior occasions. GRA contends that DES should have inspected the site and made scientific findings and a determination relative to the appropriate characterization of this stream. DES reviewed internal topographic maps and various GIS computer layers which all lend support of the intermittent stream determination. In addition, the applicant's wetland scientist has been certified through the NH Joint Board of Licensure and Certification which indicates that this person is qualified to delineate wetland boundaries and prepare wetland maps in accordance with standards for identification of wetlands adopted by DES or the United States Army Corps of Engineers. Also, DES site inspections are not required for minor impact projects.
o) The DES Request for More Information letter dated September 16, 2005 states, "Pursuant to Wt 303.02, projects that propose to disturb 200 or more linear feet of intermittent or perennials stream channels or its banks are classified as a Major Project. All projects that propose major impacts to streams are required to submit a compensatory mitigation proposal in accordance with Wt 302.03(b). Therefore, if the overall stream impacts are not further reduced, then please submit a mitigation proposal that meets the requirements of Chapter Wt 800." Accurate characterization of this stream is necessary to determine whether or not this project should be considered a major impact project and thus subject to the compensatory mitigation requirements. DES finds that an accurate determination was made to determine the intermittent stream status and that no new scientific information has been provided that would suggest otherwise.

FINDINGS FOR DENYING RECONDISERATION:
22. Final review of the information submitted by the GRA for reconsideration failed to provide significant new information that would warrant a department reversal of the approved wetlands permit.

FINDINGS FOR RECONFIRMING APPROVAL:
23. This project is classified as a Minor Project per NH Administrative Rule Wt 303.03(h) and (l), as wetland impacts are less than 20,000 square feet, and intermittent stream impacts are less than 200 linear feet.
24. The need for the proposed impacts has been demonstrated by the applicant per NH Administrative Rule Wt 302.01.
25. The applicant has provided evidence which demonstrates that this proposal is the alternative with the least adverse impact to areas and environments under the department's jurisdiction per NH Administrative Rule Wt 302.03.
26. The applicant has demonstrated by plan and example that each factor listed in Wt 302.04(a) Requirements for Application Evaluation, has been considered in the design of the project.
27. DES finds that additional wetland or surface water impacts associated with potential future development on this lot will be considered cumulative with impacts authorized under this permit and may require compensatory mitigation for the entire development.
28. Public hearing is waived with the finding that the project is classified as a Minor Project and will not significantly impair the resources of this palustrine forested wetland and intermittent stream ecosystem.
29. In addition, DES finds that a hearing for the request for reconsideration would not be beneficial based on the project's low complexity of wetland issues, and based on the finding that the information provided would not be more effectively presented in a hearing format.