Wetland Conservation District Zoning Ordinances

Section 2.3 Wetlands Conservation District

2.3.1 PURPOSES. In the interest of protecting the public health, safety and welfare the Wetlands Conservation District (WCD) has been established to protect, preserve and prevent the despoliation and unregulated alterations of 1) tidal and freshwater wetlands, 2) areas of very poorly drained soils and poorly drained soils, 3) vernal pools, and 4) 1st through 4th Order Streams, and 5) their buffers. It is in the public interest to protect the valuable functions these areas provide such as habitat for fish, wildlife and flora, ground water protection, storm water and flood control, nutrient and pollutant filtering, recreation and aesthetic enjoyment. (Amended March 2005, March 2012, March 2016)

The Wetlands Conservation District is intended to:

A. Prevent the destruction and preserve the integrity and health of wetlands and areas of very poorly drained soils and poorly drained soils and their buffers, all of which provide flood protection, connection to the ground or surface water supply, filtration of water flowing into ponds and streams, and augmentation of stream flow during dry periods; (Amended March 2012)

B. Prevent the development of structures and land uses on wetlands, areas of very poorly drained soils and poorly drained soils, and their buffers, which would contribute to pollution of surface and ground water by sewage or other wastes or toxic materials; (Amended March 2012)

C. Prevent unnecessary or excessive expense to the Town for provision and maintenance of essential services and utilities;

D. Deleted. (Amended March 1998)

E. Protect wildlife habitat, including amphibian and invertebrate breeding habitat (i.e. vernal pools), maintain ecological balance and enhance ecological values; (Amended March 2015)

F. Preserve and enhance the aesthetic values associated with wetlands and areas of very poorly drained soils and poorly drained soils and their buffers in Hampton; (Amended March 2012)

G. Prevent construction or earth moving activities in wetlands and their buffers, which could impact adjacent property. (Amended March 1998)

2.3.2 DEFINITIONS AND DELINEATIONS. Detailed descriptive materials and maps of wetlands and wetlands soils and flora in the Town of Hampton are found in the reports listed in the Appendix to this section and are incorporated herein by reference.

A. The Wetlands Conservation District (WCD) includes tidal wetlands, freshwater wetlands, areas of very poorly drained soils and poorly drained soils, 1st through 4th order streams or rivers and their buffers. In case of any question, the precise location of a wetland boundary or stream edge in any particular case must be determined by on-site inspection of soil types and vegetation. Any more detailed or updated study accepted by the Hampton Planning Board upon recommendation of the Conservation Commission shall supersede the Soils Conservation Service study where it is shown to be incomplete or inaccurate. (Amended March 1998, March 2012)

B. Tidal Wetlands are defined and delineated as: the wet side of the “Highest Observable Tide Line” (HOTL) edge which is a line defining the furthest landward limit of tidal flow, not including storm events, that can be recognized by indicators such as the presence of a strand line of flotsam and debris, the landward margin of salt-tolerant vegetation, or a physical barrier that blocks further inflow of the tide. In a given case, the HOTL shall be identified, documented, and mapped by an appropriate NH Certified Wetland Scientist. Examples of tidal wetlands include, but are not limited to the Atlantic Ocean, Hampton Harbor, and the Hampton Salt Marsh Complex. (Amended March 2005, March 2012, March 2020)

C. Freshwater Wetlands means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal conditions does support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Examples include, but are not limited to, non-tidal portions of ponds, rivers and streams. (Amended 2005, March 2016, March 2020)

D. 1ST Through 4TH Order Streams or Rivers are defined as Ash Brook, Drakes River, Little River, Nilus Brook, Old River, Taylor River, and Winnicut River.

E. Areas of very poorly drained soils and poorly drained soils

1. Very poorly drained soils are those soils in which water is removed from the soil so slowly that the water table remains at or on the ground surface most of the year. Very Poorly drained soils shall be classified in accordance with the most recent definitions, standards, and procedures of the Society of Soil Scientists of Northern New England. (Amended March 2015)

2. Poorly drained soils are those soils in which water is removed so slowly that the soil remains wet for a large part of the year. A poorly drained soil has a water table near the ground surface that keeps the soil wet for seven to nine months of the year. Poorly drained soils shall be classified in accordance with the most recent definitions, standards, and procedures of the Society of Soil Scientists of Northern New England. (Amended March 2015)

F. Vernal Pool is a confined basin depression that, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, provides essential breeding habitat for certain amphibians and invertebrates, and is free of adult fish populations. A vernal pool must support one or more primary vernal pool indicators, or 3 or more secondary vernal pool indicators as described in Identification and Documentation of Vernal Pools in New Hampshire, 2nd Ed., 2004 published by the NH Fish and Game Department. (Adopted March 2015)

G. Buffer is the area extending:

1. fifty feet (50 ft.) out from the boundary line of any tidal or freshwater wetland, and/or areas of very poorly drained soils and poorly drained soils, and/or vernal pools or

2. one hundred feet (100 ft.) out from the edge of any of the following 1st through 4th order streams* or rivers: Ash Brook, Drakes River, Little River, Nilus Brook, Old River, Taylor River, and Winnicut River. *(Appendix 7 – Strahler, 1957) The buffer is intended to provide a natural vegetative zone between the upland and any tidal or freshwater wetland, area of very poorly and poorly drained soils, and vernal pool for water filtration, storm water retention, flood protection and wildlife. (Amended 2005, March 2012, March 2016, March 2020) 

H. The Hampton Salt Marsh Complex as mapped in Exhibit 27 in the February 8, 2006 “Prime Wetland Inventory Report” by Gove Environmental Services, Inc. and as later also described in said Report under Recommendations for Hampton Prime Wetlands, is hereby designated a prime wetland for purposes of RSA 482-A:15 and Department of Environmental Services regulations. (Amended March 2009, 2012)

I. Mitigation means the measures that offset or counter the adverse environmental effects that developing or permanently disturbing land may have on the WCD. (Adopted March 2020)

2.3.3 PERMITTED USES. Uses permitted in the Wetlands Conservation District are those which do not result in the alteration of the land surface configuration by a) dredging, b) adding fill, or c) increasing the amount of impervious surface or the erection of any structure. (Amended March 2012; March 2015, March 2020)

A. The following uses are permitted in the WCD as defined in subsection 2.3.2 A 1-10. Additional exceptions or permitted uses for freshwater wetlands, very poorly and poorly drained soils, and 1st through 4th order streams are set forth in Sections 2.3.3 B and 2.3.3D.

1. Forestry and tree farming may be performed provided that best management practices, including leaving all stumps intact, are used to minimize siltation and protect wildlife habitat. (Amended March 2012; March 2015)

2. The cutting of live trees with a diameter of four and one-half (4-1/2) inches or less, measured four and one-half (4-1/2) feet above ground level, however this does not apply to the first 25 feet from the edge of a 1st through 4th order stream (see Section 2.3.3 C-1 for vegetation removal). Removal of dead, diseased or unsafe trees is permitted. Stumps and their root systems shall be left intact in the ground. (Amended March 2015)

3. Agriculture, such as harvesting marsh hay and gathering cast-up for fertilizer, provided that heavy equipment shall not be used in the WCD.

4. Wildlife refuge, conservation areas and nature trails.

5. Educational and passive recreational uses compatible with the purposes forth in Section 2.3.1.

6. By Wetlands Permit only, seawalls (including access structures), fences, footbridges, catwalks, and wharves may be constructed on tidal wetlands and must be constructed on posts and pilings (except seawalls) such as to permit the unobstructed flow of the tide and preserve the natural vegetation and contour of the tidal wetlands. (Amended March 1998, March 2012, March 2015)

7. By Wetlands Permit only, drainage ways as paths for normal runoff provided that they are constructed according to drainage plans, consistent with the purposes of the WCD Ordinance. (Amended 1998, March 2012, March 2015)

8. By Wetlands Permit only, roads, driveways, access ways, utilities, and power lines may be constructed in the WCD provided that the following conditions exist: (Amended March 2015)

a. - Proposed construction is essential to the productive use of uplands outside the WCD;

b. - Design and construction methods will be such as to minimize any impact in the WCD, and will include restoration of the site as nearly as possible to its original grade and vegetative condition;

c. - An alternative with less impact, which does not cross a wetland or buffer, is not feasible;

d. - The crossing will be at the point of least impact to the WCD; (Amended 2001)

e. - Applications for all necessary local and state wetlands permits shall be made concurrently. (Amended March, 1998, March 2012)

9. Landscaping: Provided that the Building Inspector determines that:

a. - The area to be landscaped has been previously disturbed or cleared or is maintained as a lawn or beach;

b. - The disturbed or cleared area is not being expanded;

c. - The proposed landscaping will not be contrary to the spirit or intent of the WCD Ordinance. (If the Building Inspector determines that the proposal is not consistent with the purposes of the WCD Ordinance, the proposed activity shall only be permitted if the landowner obtains an approved Town Wetlands Permit.

10. Replacement or Repair of an existing fence, shed, or deck; provided that the Building Inspector determines that:

a. - The fence, shed, or deck has a previously approved Town Wetlands and/or Building Permit;

b. - The fence length or the shed or deck square footage is not increasing or encroaching further into the WCD;

c. - The proposed work will not be contrary to the spirit or intent of the WCD Ordinance. (If the Building Inspector determines that the proposal is not consistent with the purposes of the WCD Ordinance, the proposed activity shall only be permitted if the landowner obtains an approved Town Wetlands Permit).

B. The following additional uses are permitted in freshwater wetlands and areas of poorly and very poorly drained soils and their buffers. (Amended March 2016)

1. Construction of wells for water supply and water impoundments constructed pursuant to plan approved by the Rockingham County Conservation District.

C. The following uses are permitted in the one hundred foot (100 ft.) buffer for 1st through 4th order streams or rivers as defined in Section 2.3.2: (Amended March 2016)

1. In the first twenty-five feet (25 ft.) from the nearest edge of the stream or river (known as the Vegetated Buffer Strip):

a) the cutting of invasive species only with hand tools, and

b) the application of limestone

2. Between twenty-five feet (25 ft.) and seventy-five feet (75 ft.) from the nearest edge of the stream or river (known as the Limited Cut Area):

a) the cutting of invasive species, and

b) the application of limestone

3. Between seventy-five feet (75 ft.) and one hundred feet (100 ft.) from the nearest edge of the stream or river:

a) the application of low phosphate, slow release nitrogen fertilizers, and

b) the cutting of invasive species 

4. Construction of wells for water supply and water impoundments constructed pursuant to a plan approved by the Rockingham County Conservation District.

D. Other low density uses in WCD as defined in this Ordinance may be undertaken only by Wetlands Permit as provided in Section 2.3.5 of this Ordinance. (March 2020)

2.3.4 USE RESTRICTIONS AND PROHIBITED USES (Amended March 2012 & March 2019)

A. No septic system, leach field or other on-site waste disposal facility shall be installed within 75’ (seventy-five) feet of the edge of any wetland, or any area of very poorly drained soils and poorly drained soils. In the event of failure of an existing system, the property must be tied into the town sewer system if available. If sewer is not available, an existing system may be replaced or repaired as necessary according to a design approved by the New Hampshire Water Supply and Pollution Control Division of the Department of Environmental Services. In the event the seventy-five foot (75’) setback cannot be maintained, the replacement system shall meet the setback to the degree possible. (Amended 2005)

B. Except as provided in Subsections C & D below, no structure, impervious surface, parking space or building activity including dredging, filling or regrading shall be permitted within fifty feet (50’) of any tidal or inland wetlands, or any area of very poorly drained soils and poorly drained soils or vernal pool, or within seventy-five feet (75 ft.) of the 1st through 4th order streams (as identified in Section 2.3.2 E). Any construction, forestry and agriculture activities within one hundred feet (100 ft.) of any wetland, or any area of very poorly drained soils and poorly drained soils, shall be undertaken with special care to avoid erosion and siltation into the wetlands, or any area of very poorly drained soils and poorly drained soils.

The Building Department or the Planning Board, pursuant to its Site Plan Review and/or Subdivision authority, Section 1.5 of the Town of Hampton Zoning Ordinance, may require an erosion control plan using Best Management Practices (see Appendix Number 4). (Amended 2005, March 2015, March 2016)

C. An existing building within the buffer zone may be repaired and/or replaced provided that the new or repaired structure, including any impervious surface, shall not extend further into the buffer area than the original foundation. (Amended 1998, March 2015)

D. Where a variance is granted that enables building on a pre-existing lot of record, the setback shall be in line with the setback of existing buildings within 100’ (one hundred feet) on either side. Where such buildings are set back varying distances, but closer than:

1. fifty feet (50 ft.) from the boundary of any tidal wetlands, inland wetlands, areas of very poorly drained soils and poorly drained soils, or vernal pools; or

2. one hundred feet (100 ft.) from any 1st through 4th order streams (as identified in Section 2.3.2 E), The furthest setback among such buildings shall apply. (Amended 2005, March 2016)

E. (Deleted 1994)

F. No application of fertilizers, pesticides, insecticides, or herbicides shall occur in any tidal

or inland wetlands, areas of poorly or very poorly drained soils, vernal pool, the 1st through 4th order streams as identified in Section 2.3.2 E, or their buffers, except as set forth in Section 2.3.3 D. (Amended March 2012, March 2015, March 2016)

G. No storage of yard waste, wood, or snow shall occur in any tidal or inland wetlands, areas of poorly or very poorly drained soils, vernal pools, or their buffers. (Amended March 2012, March 2015)

H. Construction Standards for the Tidal Wetland Conservation District - New Construction or substantial improvement of any structure including manufactured homes to be placed or substantially improved within the Tidal Wetland Conservation District shall comply with FEMA’s Guidelines that the Town has adopted for the VE Special Flood Hazard Area (Section 2.4.11-C Coastal High Hazard Areas (Zone VE) –Construction Standards). The construction work shall have no adverse impacts on adjacent properties. (Adopted March 2019)

2.3.5 WETLANDS PERMITS: A use not otherwise permitted in the Wetlands Conservation District may be undertaken by Wetlands Permit by application to the Planning Board. Provided such use is in keeping with the intent and purposes set forth in this Ordinance as permitted in the underlying use district. (Amended March 1998, March 2015)

A. An application for wetlands permit for activities in the Wetlands Conservation District shall be filed with the Town Planner who shall forward one copy to the Hampton Conservation Commission for review and recommendation. The Commission may make field inspections and consult with experts and the applicant may be required to bear the cost of such consultation. The Conservation Commission shall report its recommendations to the Planning Board within 40 days of the date on which the application is mailed or otherwise conveyed to the Chairman. Said report shall be submitted in writing at a regular meeting. (Amended 1999 & 2002, March 2012, March 2015)

B. No wetlands permit shall be granted unless it is found to be consistent with the purposes set forth in Section 2.3.1 and the spirit of this Ordinance. The Planning Board as part of this application shall hold a Public Hearing and notify abutters as required under RSA 676:4.(Amended 1998, March 2015)

C. Any Wetlands Permit granted by the Board shall expire two years from the date of said grant. If the work approved by the issuance of a Wetlands Permit is not initiated during that time, the Wetlands Permit becomes null and void. If the work approved is initiated but not completed during that time, the owners may apply for a two-year extension. A request for such extension must be filed at least one month prior to the Wetlands Permit’s expiration date. No more than two such extensions may be granted. (Amended March 2012, March 2015)

2.3.6 DISPUTED BOUNDARIES: In any instance where there is doubt as to the location of the Wetlands Conservation District boundary the burden of proof shall be on the applicant or property owner to show the proper location of the boundary.

A. Evidence shall be obtained by onsite investigation and analysis conducted by a New Hampshire Certified Soil Scientist or other New Hampshire certified wetlands scientist. (Amended March, 1998)

B. The Planning Board shall be responsible for making the final determination of the proper location of the boundary line.

1. Before making such determination the Planning Board shall review the evidence presented and shall consider the recommendation of the Conservation Commission. Where either the Planning Board or the Conservation Commission deems it necessary, they may consult an appropriate expert to review the studies submitted by the applicant to ascertain the proper location of the boundary. The applicant may be required to bear the cost of such consultation. The Planning Board shall notify the applicant of any such review and its probable cost before any consultant is hired.

2. The Planning Board shall render its decision in writing and set forth the evidence on which its conclusion is based.

3. A change to the wetland delineation, as a result of an appeal, made under this ordinance shall be recorded on a mylar with the Rockingham County Registry of Deeds. (Amended March 1998)

2.3.7 SPECIAL PROVISIONS

A. Where the Wetlands Conservation District is superimposed over another zoning district, the more restrictive regulations shall apply.

B. Lands, which may have been wetlands but were legally filled prior to March 12, 1985 shall be judged according to the soils and flora existing at the site at the time application for building permit or subdivision is made. (Amended 1998)

C. For newly created lots and existing lots of record where the Wetland Conservation District is present, Criteria C-1 through C-4 shall apply to new created lots and Criteria C-2, C-3, and C-4 shall apply to existing lots of record. (Amended March 2012, March 2015, March 2019)

1. The minimum lot area required in the underlying zoning district or 30,000 square feet (whichever is less) shall be contiguous and outside of the Wetlands Conservation District. The proposed development within the contiguous area shall not result in any permanent adverse impacts to the Wetland Conservation District. (Amended March 2015, March 2016, March 2019)

2. For lots that will contain more than one dwelling unit, the minimum lot area per dwelling unit required in the underlying zoning district or 30,000 square feet per dwelling unit (whichever is less) shall be contiguous and outside of the Wetlands Conservation District. The proposed development within the contiguous area shall not result in any permanent adverse impacts to the Wetland Conservation District. (Amended March 2015, March 2016, March 2019)

3. Where on-site sewage disposal is required the 30,000 contiguous square feet minimum lot area outside of the Wetlands Conservation District shall apply, provided that the septic system location and design are approved by the NH Department of Environmental Services, Water Supply and Pollution Control Division or successor State agency. (Amended 1998, 2003, March 2012, March 2015)

4. In zones RAA, RA, RB, RCS, G, and I, a 12 ft. setback shall separate the dwelling structure(s) including attached garages and/or porches from the Wetlands Conservation District. (also see Article IV, Section 4.9) (Amended March 2015, March 2020, March 2021)

C-a. Deleted (Amended March 2015)

D. All land included in the Wetlands Conservation District shall be appraised for tax purposes either:

1. At its full and true value in money, based on its market value as undevelopable land required to remain in open space, or

2. At its value for current tax assessment purposes, provided that application is made for current use or discretionary easement as appropriate and the land is found eligible as provided in RSA 79-A and the regulations of the Current Use Advisory Board.

E. Enforcement of this Ordinance shall be the responsibility of the Selectmen and the Building Department, as provided in Article XXI of the Hampton Zoning Ordinance and in accordance with RSA 676:17 (Amended 1998), and additionally: (Amended March 2012)

1. Where the Wetlands Conservation District is suspected to have been illegally filled, since March 12, 1985, its condition shall be confirmed by digging through the fill by hand or backhoe and the presence of poorly or very poorly drained hydric soils beneath the fill shall be considered evidence of filling. The determination of the soil conditions shall be made by a New Hampshire certified soil or wetlands scientist, and paid by the applicant. (Amended 1998, 2003, March 2012)

2. Where a site’s vegetation has been cleared, the presence of hydric soils shall be evidence of a wetland. (Amended 1998)

3. Ground and aerial photography may be consulted to examine the wetlands and buffers to confirm the possibility of violation. (Amended 1998)

4. Within 60 days of written notice of a confirmed violation, the property owner shall submit a written Restoration Plan to the Conservation Commission for approval. The property owner shall be financially responsible for the restoration of the violation. If the property owner does not restore the violated site as stated under the Conservation Commission recommendation, the property shall be ineligible for a Building Permit and/or a Certificate of Occupancy as cited in RSA 676:13 I. (Amended 1998)

F. If any provision of the Ordinance shall be held to be invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect or invalidate any other provision of this Ordinance.

G. This line left intentionally blank

H. Mitigation may be required for projects with proposed impacts and/or disturbances in the

WCD. Acceptable mitigation may include, but is not limited to, one or more of the following.

1. Enhancing existing wetland areas by increasing the size of the natural vegetated buffer

2. Replacing existing impervious surfaces with native vegetation

3. Permanently preserving land within the WCD or upland through land donation or conservation easement.

4. Creating or improving the property’s ability to infiltrate and treat stormwater runoff on site. The amount of mitigation offered shall be consistent with guidelines that are established by the Conservation Commission based on the type of disturbance within the WCD and the type of land (wetlands, buffer, or upland) being proposed as mitigation.

APPENDIX

Detailed descriptive materials and maps of wetlands and wetland soils and flora in the Town of Hampton are found in the following reports or their more recent revisions, which are incorporated herein by reference. (Amended 1998 AND March 2020)

1. SOILS INFORMATION FOR RESOURCE PLANNING, HAMPTON, NH, April 1982, U.S. Soil Conservation Service. Reference is made to the reports of Barry H. Keith submitted to the Hampton Conservation Commission in 1980 entitled THE WETLANDS OF HAMPTON, NEW HAMPSHIRE and RESULTS, HAMPTON, NH WETLANDS SURVEY.

2. STORM WATER MANAGEMENT AND EROSION AND SEDIMENT CONTROL HANDBOOK FOR URBAN AND DEVELOPING AREAS IN NH, New Hampshire Department of Environmental Services, Rockingham County Conservation District, USDA Soil Conservation Service, August, 1992.

3. PRIME WETLAND INVENTORY REPORT TOWN-WIDE WETLANDS INVENTORY PHASE II HAMPTON AND HAMPTON FALLS, NH, Gove Environmental Services Inc. February 6, 2006. (Adopted March 2015)

4. IDENTIFICATION AND DOCUMENTATION OF VERNAL POOLS IN NEW HAMPSHIRE, New Hampshire Fish and Game, 2nd Ed., 2004 (Adopted March 2015)

5. QUANTITATIVE ANALYSIS OF WATERSHED GEOMORPHOLOGY, Strahler, A.N., American Geophysical Union Transactions 38:913-920. 1957. (Adopted March 2016)