Since the State of New Hampshire first enacted laws to protect and conserve the state's coastal wetland resources in 1967 and freshwater wetlands in 1969, the Forest Society has been a vocal supporter of state efforts to work with the regulated community to assure that the statutes and rules designed to protect these resources achieve their desired goals. Because wetlands are themselves complicated natural systems, providing a variety of ecological services in support of daily life, their protection can itself be a complicated undertaking.

The statute that protects wetland resources is RSA 482-A. Its statement of public purpose --- the goal statement of the statute --- recognizes in great detail the multiple functions and values wetlands provide for wildlife, for groundwater (and human drinking water) supplies, for handling runoff of surface water, for flood retention and for reducing siltation of open water channels. The statement of purpose makes very clear that it is the goal of RSA 482-A to "protect and preserve" wetlands from "despoliation and unregulated alteration" because the functions and values they provide are essential for public good and welfare.

SB 435 had been introduced by Senator Harold Janeway for consideration by the Legislature in its 2008 session. The problem SB 435 is designed to address surfaced in December 2006 when the Supreme Court ruled in Greenland Conservation Commission et al vs. NH Wetlands Council that RSA 482-A as presently written limits the jurisdiction of the DES to regulate wetlands. Specifically, the Court ruled, the DES jurisdiction to protect wetland resources begins and ends within the actual boundaries of the proposed dredge or fill which is the subject of a project's proposed wetlands application. Most wetland scientists we have spoken with agree that from a scientific perspective the protection of wetland functions and values is considerably constrained by the Court's ruling. The fact is that wetland functions and values do not stop at the boundary of the dredge or fill proposed in a project's wetlands application. To fully protect wetland resources, DES must have the authority to regulate the direct impacts of a proposed project as well as the "indirect" impacts of a proposed project. Wetland scientists agree that the indirect impacts can be much more harmful over time to affected wetland systems than direct impacts.

The Court itself clearly states in their opinion that they make no judgment on the science; they are only interpreting the law as it is presently worded. Clarifying the law to account for scientific findings and/or goals, the Court said, is the business of the Legislature. This is the reason Senator Janeway introduced SB 435.

We at the Forest Society believe that the current limitation placed by the Court decision on the protection of wetland resources is significant and serious. We believe that the Court opinion creates a substantial barrier to the attainment of goals RSA 482-A was created to achieve. We believe that the language of SB 435 will remove this barrier and, if enacted, will restore the capacity of RSA 482-A to fulfill its original purposes.

Over the past 50 years much of the development that has occurred has avoided wetlands, partly because RSA 482-A encouraged this avoidance but mostly because there was a significant inventory of developable land that was not wet. Additionally, developing land that is dry is less expensive to develop and more appealing to buyers. As the inventory of available dry land for development shrinks today, particularly in the south and southeastern parts of the state, the land that remains is increasingly the very land avoided in the past because it includes wetlands. Wetland resources are under greater stress from development today than they have ever been before. This is hardly the time to impose narrower boundaries on the state's primary tool to conserve the functions and values of our wetland resources.

The most effective way to protect the state's wetland resources is to amend RSA 482-A to clearly establish that DES has the authority to regulate both direct and indirect impacts of project proposal disturbances on wetlands. The Forest Society testified in support of SB 435 on February 5 before the Senate Energy, Environment and Economic Development Committee.

On February 13 the Committee voted 4-1 in favor of amending RSA 482-A to authorize DES to regulate indirect impacts on wetlands. Senators Martha Fuller Clark (D-Portsmouth), Kathleen Sgambati (D-Tilton), Maggie Hassan (D-Exeter) and Jacalyn Cilley (D-Rochester) all voted to support the change. On February 21 the State Senate sent the bill to interim study on a voice vote, as it became apparent that the bill was one vote short of the 13 votes needed to pass the bill.