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State Seeks Input On Controversial Endangered Species Rule Change For Construction Projects

Keith Williams
Flickr CC

A fight is brewing at the New Hampshire Department of Environmental Services about the permitting rules for construction projects. Builders support a recent change that loosened a key standard, while conservationists worry it'll harm endangered species. 

The groups will air their views Thursday at the first of two virtual public input sessions at DES.

NHPR’s environmental reporter Annie Ropeik joined All Things Considered host Peter Biello to explain the significance of the controversy. 

This transcript has been lightly edited for clarity, and includes portions omitted for broadcast due to time constraints.

Peter Biello: So what are the permits we're talking about here? What kinds of building projects require them?

Annie Ropeik: So these are what are called Alteration of Terrain permits. And they basically go to any kind of construction project that's going to affect land, water, you know, the natural environment in a watershed – which is not all of the state, but it's a lot of the state. And so this could be a permit that a small housing development expansion would need, it could be a big energy project that gets one of these – a new school, a new factory or storage facility, really all kinds of things, there's a lot of these that float around. [Projects must disturb more than 100,000 square feet of land. The state issues about 200 of these a year.] And so they are pretty routine, but also pretty important because they are designed to protect watershed, critical habitat, natural resources, drinking water, all that kind of thing.

Peter Biello: OK, and what do they have to do with endangered species?

Annie Ropeik: Part of what you have to prove to DES when you want to get an Alteration of Terrain permit is what kind of impact your project will have on threatened and endangered species in the area where you want to build. So this would be state listed species, federally listed species [such as the piping plover, Canada lynx, various sea turtles and other aquatic species, as well as plants]. And so you have to show DES what kind of impact you're going to have on these and what you're going to do about that. And it this is the crucial part of the rule that has changed.

Credit Peter Paplanus / Flickr CC
Flickr CC
The endangered marbled salamander is listed by New Hampshire Fish & Game as one of the state's most imperiled species.

So it used to be that the rules said that developers could have “no adverse impacts” on this kind of species. DES has really not enforced this rule that way over the years. Groups I've talked to, everything from construction folks to conservation groups, all agree that the practical way to enforce this rule has been to find ways to “avoid and minimize” impacts, and if you can't do that, to mitigate them. Because a lot of people will say that it's impossible to have no adverse impacts. Some might disagree with that, but that's really what's at issue here.

This rule recently changed to now say that a project must only “not jeopardize the continued existence” of a threatened species, which you may guess is quite a difference from “no adverse impact.” And so that's really what's caused the controversy here.

Peter Biello: OK, and so these rules seem like they might be very obscure, but it sounds like the stakes are pretty high. So why does this matter in the in the grand scheme?

Annie Ropeik: Yeah, I mean, so like I said, these are really common permits, and they’re permits that a lot of different projects need. So there's a lot of economic development at stake here. But this is also sort of a fight about, like, what is the role of DES and what can and should be done in an effort to protect endangered species? So is it possible to have no adverse impacts? Is that something that DES should enforce to the letter if it can, and how can they do that, and what are the tradeoffs of doing that? Or should DES find a way to write its rules in a more lenient fashion? Is “must not jeopardize the species but other than that, you can kind of go ahead” a bridge too far?

These are all the questions that are surrounding this rule change, which kind of went into place as an emergency rule after a Supreme Court decision that affected this. And there's been fallout ever since. And so the hearing they're having tomorrow is an effort to start the stakeholder process, to maybe look at a compromise between these two ends of the spectrum and find a way to allow economic development and protection of endangered species to coexist, not just sort of in DES’ practice, but in the letter of the law, which has really not been the case up to this point.

Credit Lisa Mattei / New England Wild Flower Society via USFWS
New England Wild Flower Society via USFWS
The endangered Jesup's milk vetch plant is found in only three spots on the sloping banks of the Connecticut River in New Hampshire and Vermont.

And I would just add that, as with all things that I often talk to you about, this is a climate change issue. Climate change in the state threatens our biodiversity, we're going to have species moving around and changing, and their populations shrinking and being affected by changes in our environment. And so any other threats to those species, including from unchecked development, are a real problem, because biodiversity is important [read more in this bulletin from the U.S. Fish & Wildlife Service on an endangered plant found along in the Connecticut River]. It's a huge foundational part of what keeps our natural ecosystems healthy, and we rely on those for our food and drinking water.

So this is, like you said, it's a wonky change, but it really does get to the heart of what we talk about when we talk about environmental protection in the state.

Peter Biello: And so what are you expecting at tomorrow's hearing and what happens after that?

Annie Ropeik: So I'll be interested to see if DES and the other stakeholders involved in this are looking to sort of just cement the change they've already made, to kind of assuage the concerns about it, or if they're looking to go back to the drawing board and write a completely new rule here after the past several months where this, you know, not so popular change was in place.

There will be representation from Fish & Game there are also, which is interesting. The Department of Fish & Game is not a regulatory agency, but they've typically helped DES out with questions about things like endangered species. They have the biological, the scientific expertise there, of state agencies. And the new version of this permitting rule actually gives Fish & Game kind of a more legal role in the process, which is a big change from how it's been operated in the past. And so I'll be interested to hear what Fish & Game has to say about that tomorrow, if there are concerns about the change in that rule. They have a new executive director also, and so this change has now bridged two administrations at Fish & Game, so that could play a role here.

And then I'll just be interested to see how much pushback there is maybe from the public. You know, if citizens want to comment on this and participate in the hearing, they can do that. And [in developing this rule] DES got a lot of comments from just regular residents who said, "you should be doing no adverse impacts to endangered species. Why allow development to happen at all if it's going to have those impacts?" Which is just really not how the state operates in practice. The state sort of wants to find a way to allow development to continue if they think there's a responsible way to do it. And I think that's really the heart of the debate, is, what does that mean, is that possible, and what are the tradeoffs of that?

The DES public input session on possible changes to Alteration of Terrain permit rules takes place online from 1 to 4 p.m. Thursday. Another hearing is planned for October.

This story has been updated to clarify which projects typically receive Alteration of Terrain permits.

Annie has covered the environment, energy, climate change and the Seacoast region for NHPR since 2017. She leads the newsroom's climate reporting project, By Degrees.

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