Enviro. Groups Say New State Rule For Developers Puts Endangered Species At Risk

Feb 18, 2020

The eastern box turtle is considered endangered by the state. It's found at a site in Milford that sparked a recent state Supreme Court decision leading to a controversial rule change.
Credit NH Fish & Game

Environmental groups say a new state rule, which has support from the construction industry and could become permanent, puts endangered species at greater risk from development.

For years, state regulation has mandated that development projects “not result in adverse impacts” to a list of more than 50 critters that the state considers threatened or endangered.

Those include the New England cottontail, golden eagle and frosted elfin butterfly, along with animals that are subject to separate federal protections, such as the piping plover, Canada lynx and eastern wolf. 

The Department of Environmental Services has long enforced its permitting rule by allowing developers to offer mitigation plans that minimize or offset unavoidable impacts – and Jim O’Brien, a spokesman for the Nature Conservancy in New Hampshire, says this has generally worked out.

“Doing avoidance first if you can, and then mitigating impacts to species – that makes sense,” O’Brien says. “We don’t want to stop all development from happening, and we feel that DES, through its regulatory approach, can work with developers to find the right path forward for projects.”

But now, a November order by the state Supreme Court is changing that process.

The court was asked to review a legal challenge to mitigation plans for two protected turtle species and one kind of snake on the site of a proposed gravel mine in Milford.

Local advocates said the developer hadn’t demonstrated they could avoid all adverse impacts to the animals, and that under state rules, the project could not proceed.

In its order, the court agreed. They said the wording of state regulation technically did not allow developers to simply minimize impacts to wildlife.

Peregrine falcons, like this one seen with her chicks in Franconia Notch, are considered threatened by state agencies.
Credit Chris Martin / NH Fish & Game

DES and the construction industry said this interpretation was not realistic. Late last year, the agency put a new emergency rule in place of the old one, and they want to make it permanent.

Instead of “no adverse impacts,” the new rule says only that project designs must “not jeopardize the continued existence” of a protected species, or destroy critical habitat.

For groups like the Nature Conservancy, this implied that projects could be allowed to move forward as long as they didn’t cause extinctions – which raised serious concerns.

The Nature Conservancy wrote to DES about the issue in January, along with the Society for the Protection of New Hampshire Forests, Appalachian Mountain Club and the state Audubon and Lakes Association.

“The Department’s proposed language abruptly and dramatically shifts how the Department regulates the impacts of projects on [threatened and endangered] species,” the letter says.

The nonprofits call the new standard “such a low bar” as to render the development rule and DES protections for these species “essentially meaningless.”  

O’Brien, the Nature Conservancy spokesman, says the new language will also be hard to enforce – making the permitting process less predictable for developers.

“In our view, DES could have written a rule that puts into place the practice that they had been following, rather than rewriting the rule so broadly that it’s hard to interpret how they’re going to apply it,” O’Brien says.

State officials are also debating the justification for the emergency rule in question.

DES says it was necessary to prevent “significant fiscal harm” to citizens. But the Joint Legislative Committee on Administrative Rules, or JLCAR, disagreed, asking DES in January to repeal the rule.

In a Feb. 14 letter, DES commissioner Robert Scott declined that request.

The New England cottontail is considered endangered in New Hampshire and Maine.
Credit NH Fish & Game

He says the new interpretation of the rule, left unaddressed, would impose “delays and additional costs” on 25 pending projects, and would have done the same for more than a third of past projects.

“Sudden changes to regulatory processes lead to unanticipated delays and, subsequently, potential reductions in capital expenditures for equipment, materials, and labor, with direct and complementary impacts to individuals and other business,” Scott writes.

His letter came with support from groups across the construction industry, arguing DES was obligated to respond to the Supreme Court decision.

Gary Abbott with the Associated General Contractors of New Hampshire says the ruling “could greatly hinder current and future construction projects in the state, as it is virtually impossible to guarantee ‘no impact’ to threatened or endangered species in all projects.”

People like Jim O’Brien generally agree that it can be hard to avoid all impacts in all projects. But this is why he says DES should formalize its old standard.

He and other groups also want the agency to take more public input from stakeholders outside the construction industry before they finalize any new rules.

A final draft of the permanent replacement rule is expected in the next month. A DES spokesman says more public input will follow, before the rule goes to JLCAR for approval around May or June.

The spokesman says the agency is also considering separate reforms around their endangered species protections in development permits, but gave no further details.