Env-C
800 ECOLOGICAL
REVIEW RELATED TO THREATENED AND ENDANGERED SPECIES
Statutory
Authority: RSA 217-A:7; RSA 212-A:9, III-IV
PART
Env-C 801 Purpose and
Applicability
Env-C
801.01 Purpose. The
purpose of this chapter is to establish the requirements and process for
requesting results from the DataCheck Tool pursuant
to RSA 217-A:7 and for obtaining an ecological review from the department
pursuant to RSA 217-A:7 or RSA 212-A:9.
Source. #14374, INTERIM, eff 8-26-25; ss
by #14473, eff 1-19-26, EXPIRES: 1-19-36
Env-C
801.02 Applicability.
This chapter shall apply to any person, entity, or governmental unit who
is:
(a) Requesting information from the DataCheck Tool; or
(b) Requesting an ecological review from the
department pursuant to RSA 212-A or RSA 217-A.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36
PART
Env-C 802 DEFINITIONS
Env-C 802.01 “Applicant” means a person, entity, or
governmental unit who requests information using the DataCheck
Tool or requests an ecological review.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36
Env-C
802.02 “Appreciably jeopardize the
continued existence” means “appreciably jeopardize the continued existence” as
defined in Fis 1002.04.
Source. #14473, eff
1-19-26, EXPIRES: 1-19-36
Env-C
802.03 “Avoid” means designing a project
so that harm to protected species or their habitat is avoided to the maximum
extent practicable.
Source. #14473, eff
1-19-26, EXPIRES: 1-19-36
Env-C
802.04 “Commissioner” means the commissioner of the department of
environmental services.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.02), eff 1-19-26, EXPIRES 1-19-36
Env-C
802.05 “Conservation measures” means
actions which serve to avoid, minimize, or mitigate harm to, and to promote the
recovery of or enhance the survival of, protected species, exemplary natural
communities, and critical habitat, including but not limited to:
(a) Design modifications to proposed actions to
protect species from harm;
(b) Modifications
to proposed actions such as alteration of the timing of proposed actions to
protect species from harm;
(c) Design
of crossing structures to maintain and enhance habitat quality, habitat
connectivity, and accommodate movement of species;
(d) Education
and training for construction personnel as to what construction activities have
the potential to cause harm to species;
(e) Signage to identify specific locations where
construction activities must avoid harm to species;
(f) Continued
research and monitoring of identified species;
(g) Protection
or restoration of wildlife corridors;
(h) Maintenance,
enhancement, or protection of habitat buffer areas; and
(i) Habitat protection, management, or
restoration.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.03), eff 1-19-26, EXPIRES 1-19-36
Env-C
802.06 “Critical habitat” means habitat of endangered or threatened
species of wildlife designated by the executive director of the New Hampshire
fish and game department as critical in accordance with to RSA 212-A:9, III.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.04), eff 1-19-26, EXPIRES 1-19-36
Env-C
802.07 “DataCheck Tool” means an online
data screening tool used to screen for known locations of protected species,
critical habitat, and exemplary natural communities.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.05), eff 1-19-26, EXPIRES 1-19-36
Env-C
802.08 “DataCheck
Tool results letter” means the document issued by the department with the
results to an applicant’s request for a screening of the DataCheck
Tool.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.06), eff 1-19-26, EXPIRES 1-19-36
Env-C 802.09 “Department” means the
department of environmental services.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.07), eff 1-19-26, EXPIRES 1-19-36
Env-C 802.10 “Ecological review” means an environmental
review by the department of potential impacts to protected species, critical
habitat, and exemplary natural communities to enable planning, permitting, and
funding.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.08), eff 1-19-26, EXPIRES 1-19-36
Env-C 802.11 “Exemplary natural community” means
“exemplary natural community” as defined in RSA 217-A:3, VII, namely “a viable
occurrence of a rare natural community type or a high quality
example of a more common natural community type as designated by the natural
heritage bureau based on community size, ecological condition, and landscape
context.”
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.09), eff 1-19-26, EXPIRES 1-19-36
Env-C 802.12 “Harm” means any act which kills or injures
individuals of a threatened or endangered wildlife species, or which acts to
significantly adversely modify or degrade the habitat supporting the species by
interfering with breeding, hibernation, reproduction, feeding, sheltering,
migration, or overwintering behaviors that are a part of the species’ normal or
traditional life cycle and that are essential to its survival and perpetuation.
Source. #14473, eff
1-19-26, EXPIRES: 1-19-36
Env-C 802.13 “Minimize” means using protective measures to
reduce potential harm that could remain after all practicable measures have
been taken to avoid harm to protected species or their habitat.
Source. #14473, eff
1-19-26, EXPIRES: 1-19-36
Env-C 802.14 “Natural community” means an interactive
assemblage of organisms, their physical environment, and the natural processes
that affect them.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.11), eff 1-19-26, EXPIRES 1-19-36
Env-C 802.15 “Protected plant
species” means any species designated as endangered or threatened under Ncr 312.02 or Ncr 312.03.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.12), eff 1-19-26, EXPIRES 1-19-36
Env-C 802.16 “Protected species” means both protected
plant species and protected wildlife species.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.13), eff 1-19-26, EXPIRES 1-19-36
Env-C 802.17 “Protected wildlife species” means any
species designated as endangered or threatened under Fis 1001.01 and Fis
1001.02 pursuant to RSA 212-A.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473 (formerly Env-C 802.14), eff 1-19-26, EXPIRES 1-19-36
PART
Env-C 803 DATACHECK TOOL REQUESTS
Env-C
803.01 When A DataCheck Tool Screening
Request Is Required.
(a) In
order to meet its obligation in RSA 217-A:7 or RSA 212-A:9, III, a state agency
shall submit a DataCheck Tool screening request to
the department for any projects carried out by that state agency that involve
changes in land use or which could otherwise impact protected species,
exemplary natural communities, or critical habitat.
(b) A person, entity, or governmental unit shall
submit a DataCheck Tool request if required by the
administrative rules of a state agency as part of a permitting, funding, or
other authorization process.
Source. #14374, INTERIM,
eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36
Env-C
803.02 Confidentiality.
(a) A person, entity, or governmental entity
shall only have the ability to request a screening to
receive a DataCheck Tool results letter if that
person, entity, or governmental unit has:
(1)
A legal right to the property about which the request is made; or
(2)
Permission of the property owner.
(b) Any person, entity, or governmental unit
eligible per (a), above, may request a screening to receive a DataCheck Tool results letter even if not required to do so
pursuant to Env-C 803.01.
(c) The confidentiality of the data regarding
protected species, critical habitat, and exemplary natural communities shall be
maintained by the department and any applicant.
Source. #14374, INTERIM, eff 8-26-25; ss
by #14473, eff 1-19-26, EXPIRES: 1-19-36
Env-C
803.03 DataCheck Tool Requests.
(a) To
request results from the DataCheck Tool, each
applicant shall submit to the department:
(1)
A complete form either electronically using the online screening tool at
https://www4.des.state.nh.us/NHB-DataCheck/
or in writing using the "DataCheck Tool
Request" form, NHDES-W-11-001, January 2026, available at: https://onlineforms.nh.gov/?formtag=NHDES-W-11-001;
(2)
A map that sufficiently shows the project site location, project size,
and property boundaries if not submitted on the online mapping tool; and
(3)
The fee required pursuant to (c), below, along with the corresponding
identification number (DCT ID#) from
completion of the form using the online screening tool, as applicable.
(b) Written requests and other required
information not submitted online shall be emailed, mailed, or hand-delivered
to:
Department of Environmental Services
Ecological Review Section
P.O. Box 95
29 Hazen Drive
Concord, New Hampshire 03302-0095
(c) The following fees shall apply as cited in
Table 803-1:
Table
803-1 DataCheck Tool Request Fees
|
DataCheck Request,
Online Screening Tool (Records Found) |
$50 |
|
DataCheck Request,
Online Screening Tool (No Records Found) |
No fee |
|
DataCheck Request,
No Online Mapping Tool (Map Mailed or Emailed) |
$50 |
|
Hardcopy Request |
$50 |
(d) Except as allowed in (e), below, a DataCheck Tool request shall be considered administratively
complete when the department has received all of the
information required by (a), above.
(e) A DataCheck Tool
request from a state or federal agency shall be considered administratively
complete when the department has received the information required by (a)(1)
and (2), above, and information regarding how and when the department will
receive the required fee per (c), above.
(f)
After receiving a DataCheck
Tool request letter, applicants shall qualify to receive additional information
about critical habitats, exemplary natural communities, or protected species
listed in the DataCheck Tool results letter, as
applicable, only if the request is submitted in writing to the department at
the contact information listed in (b), above, and the applicant signs a written
document agreeing not to disclose any additional information provided by the
department other than as necessary for completion of the project.
(g) The department shall not provide an applicant
with the exact location data of known occurrences of threatened and endangered
species due to not having the authority to do so. The only agencies with authority to release
the exact location data are the natural heritage bureau within the department
of natural and cultural resources for species and the non-game program within
the fish and game department.
Source. #14374, INTERIM, eff 8-26-25; ss
by #14473, eff 1-19-26, EXPIRES: 1-19-36
Env-C
803.04 Processing DataCheck Tool Requests.
(a) The department shall not process a DataCheck Tool request until the request is
administratively complete pursuant to Env-C 803.03.
(b) The department shall review the information
provided and assess any potential impacts on protected species, exemplary
natural communities, or critical habitat based on available data.
(c) Upon receipt of an administratively complete
request per Env-C 803.03, the department shall issue the DataCheck
Tool results letter to the applicant within 15 days containing the following
information:
(1) A list of the known occurrences of protected
species, exemplary natural communities, or critical habitat;
(2) Any recommended conservation measures for
protected species, critical habitat, or exemplary natural communities if the
department is able to do so without the need for a
full ecological review;
(3) Notification of the information that needs to
be submitted to complete an ecological review pursuant to Env-C 804; and
(4) Whether a site survey by a qualified
botanist, qualified wildlife biologist, certified wetlands scientist, or other
qualified professional needs to be completed prior to requesting an ecological
review.
Source. #14374, INTERIM, eff 8-26-25; ss
by #14473, eff 1-19-26, EXPIRES: 1-19-36
Env-C
803.05 Clarification of Recommended Conservation Measures in DataCheck Tool Results Letter. An applicant who has received a DataCheck Tool results letter containing recommended
conservation measures has the option of requesting an ecological review
pursuant to Env-C 804 to obtain different recommendations.
Source. #14473, eff 1-19-26, EXPIRES:
1-19-36
Env-C
803.06 Validity of the DataCheck Tool Results
Letter. A DataCheck
Tool results letter shall expire one year from the date of issuance.
Source. #14374, INTERIM, eff 8-26-25; ss
by #14473 (formerly Env-C 803.05), eff 1-19-26, EXPIRES 1-19-36
PART
Env-C 804 ECOLOGICAL REVIEWS FOR PROTECTED SPECIES, EXEMPLARY NATURAL
COMMUNITIES, AND CRITICAL HABITAT
Env-C
804.01 When An Ecological Review Is Required.
(a) An ecological review is required if the DataCheck Tool results letter indicates that a review is
needed and:
(1) The project is funded or carried out
by any state agency, pursuant to RSA 217-A:7;
(2) The project is funded or carried
by the department, pursuant to RSA 212-A:9, III;
(3) Any administrative rules promulgated pursuant
to RSA 482-A, RSA 485-A, or RSA 236 require such a review; or
(4) The administrative rules of the department
require such a review for a permit, approval, or other written authorization
issued by the department.
(b) An ecological review is not required if:
(1) The DataCheck Tool
results letter indicates either no records were found or no review is required
based on the described project;
(2) The department indicates in the DataCheck Tool results letter that the list of conservation
measures included is complete and no further review is necessary; or
(3) The applicant is no longer proceeding with
the proposed project.
Source. #14473, eff 1-19-26, EXPIRES:
1-19-36
Env-C 804.02 Ecological
Review Requests.
(a) No applicant shall request an ecological
review from the department unless a DataCheck Tool
request has been made and a valid DataCheck Tool
results letter has been received.
(b) The department shall accept a DataCheck Tool results letter previously issued by the
natural heritage bureau if:
(1) It was issued within one year of the
submission of a request for an ecological review; and
(2) It was issued for the same project site,
project description, and project size, and the permits listed in the request
for the DataCheck Tool results remain the same.
(c) Subject to (d), below, there shall be a fee
of $500 for ecological reviews required pursuant to Env-C 804.01 for the
following projects:
(2) Linear projects longer than one mile in
length; and
(3) Segmented projects with segments of any size
separated by one mile or more.
(d) There shall be no fee for:
(1) Applicants who are not required to proceed
with the ecological review pursuant to Env-C 804.01;
(2) Applicants that only need an ecological
review for the purposes of applying for a minimum
impact project pursuant to RSA 482-A;
(3) Applicants requesting an ecological review
pursuant to Env-C 803.05; or
(4) Any state agency that has a memorandum of
understanding or agreement with the department regarding the cost of ecological
reviews.
(e) If the DataCheck
results letter indicated, pursuant to Env-C 803.04(c)(4), that a site survey is
required, the applicant shall not submit a request for an ecological review
until the site survey and corresponding report are complete, unless the
applicant contacts the ecological review section at the department and obtains
permission to proceed without a site survey based on the applicant providing
justification for why a site survey would not provide information relevant to
the ecological review.
(f)
To proceed with an ecological review pursuant to (c) or (d), above, the
applicant shall submit to the department the following information:
(1) A complete "Ecological Review
Request" form, NHDES-W-11-002, January 2026, available at: https://onlineforms.nh.gov/?formtag=NHDES-W-11-002;
(2) The information indicated in the DataCheck Tool results letter as needing to be submitted,
if applicable;
(3) A detailed written description of the
proposed project including but not limited to purpose and proposed land
alterations and actions, information about the area to be affected by the
project, the activities that require permits or other authorizations, the current status of the project site, any known previous
alterations of the site, and any remaining features;
(4) Site photographs that are an example of
current conditions with dates and a photograph location plan, showing existing
conditions, habitat features, and possible locations of identified threatened
and endangered species, if known;
(5) Whether any portion of the project has
already begun or been completed;
(6) Any required fee in (c), above, if
applicable;
(7) A topographic map identifying the project
area at a scale of 1:24,000 or closer, and which shows property lines and the
limits of proposed disturbance;
(8) An aerial photograph identifying the current
condition of the action area at a scale of 1:24,000 or closer and which shows
property lines and the limits of proposed disturbance;
(9) Project site plan sheets showing the area of
proposed disturbance, habitat features on the property, location of any
proposed new or modified structures, and any delineated wetland or surface
waters, along with the estimated total square feet of disturbance;
(10) Any reports created to assess the site,
including but not limited to wetland assessments, vernal pool surveys, wildlife
or plant surveys, and other site visit observations;
(11) Any other available information, from
whatever source, that describes the potential harm of the proposed action on
listed species or habitat; and
(12) The conservation measures proposed by the
applicant, if known.
(g) Unless an online option is provided by the
department, requests shall be submitted by email, mail, or hand-delivery to:
Department of
Environmental Services
Ecological Review Section
P.O. Box 95
29 Hazen Drive
Concord, New Hampshire
03302-0095
Source. #14374, INTERIM, eff 8-26-25; ss
by #14473 (formerly Env-C 804.01), eff 1-19-26, EXPIRES 1-19-36
Env-C
804.03 Processing Requests for Ecological Review.
(a) The department shall deem a request for an
ecological review to be administratively complete when all of
the information required pursuant to Env-C 804.02 has been received.
(b) If the department receives a request that is
not administratively complete, the department shall send the applicant written
notice of the deficiencies and that the request shall be closed if the
additional information is not received within 60 days.
(c) Upon administrative completeness, the
department shall have 60 days to:
(1) Request additional information from the
applicant necessary to complete its review; and
(2) Issue an ecological review decision pursuant
to Env-C 804.04 and Env-C 804.05.
(d) The time it takes the applicant to respond to
a request for additional information pursuant to (c)(1), above, shall not count
towards the 60-day timeline in (c), above.
(e) The time for the department to complete the
review shall only be extended with written authorization from the applicant.
(f) An applicant shall have 180 days to provide
the information requested pursuant to (c)(1), above. The time for responding to a request for
additional information shall be extended an additional 180 days if the
applicant submits a written request for a time extension prior to the
expiration of the deadline. More than
one time extension shall be granted if the applicant demonstrates good cause,
as defined in (g), below. The department
shall close the ecological review request if the requested additional
information is not provided within any allowed time limit.
(g)
Good cause to extend an applicant’s deadline to provide additional
information shall be deemed to exist if:
(1) In order to submit the missing component(s)
or additional information, the applicant requires information from a third
party not under the applicant’s control, and the applicant has not received the
information despite making diligent efforts to obtain it; or
(2) The applicant has otherwise been prevented by
circumstances beyond the applicant’s control from obtaining or preparing the
missing component(s) or additional information.
(h) Once an ecological review request is closed
by the department pursuant to (b) or (f), above, the applicant shall submit a
new request if an ecological review is still required.
Source. #14473, eff 1-19-26, EXPIRES:
1-19-36
Env-C
804.04 Ecological Review Decisions
Under RSA 217-A. The department
shall issue an ecological review decision containing the conservation measures
necessary to prevent violations of RSA 217-A:7 and RSA 217-A:9.
Source. #14473, eff 1-19-26, EXPIRES:
1-19-36
Env-C 804.05 Ecological
Review Decisions Under RSA 212-A.
(a) Pursuant to RSA 212-A:9, III, the department
shall review the information submitted by the applicant to determine whether
the activities in the proposed project:
(1) Are designed to avoid, minimize, and mitigate
harm to threatened and endangered wildlife species and critical habitat,
including a violation of RSA 212-A:7; and
(2) Will not appreciably jeopardize the continued
existence of a threatened or endangered wildlife species or result in the
destruction or modification of critical habitat of such species.
(b)
The department shall issue an ecological review decision containing:
(1) The conservation measures recommended to meet
the standard in (a), above, or indicating whether the project will not meet the
standard in (a), above, even with conservation measures; and
(2) Any conservation measures recommended to
prevent violations of RSA 212-A, RSA 209:8, RSA 209:9, Fis 1401.02, Fis
1401.03, and RSA 217-A.
(c) If the department does not complete the
ecological review and issue the ecological review decision within the timelines
required in Env-C 804.03, the applicant may proceed with the project as
proposed, including with the proposed conservation measures. Applicants shall ensure compliance with state
law protecting wildlife and plants, including but not limited to RSA 212-A:7,
RSA 209:8, RSA 209:9, and RSA 217-A:9.
Source. #14473, eff 1-19-26, EXPIRES:
1-19-36
Env-C 804.06 Amendments to an Ecological Review
Decision.
(a) An applicant who has received an ecological
review decision may request an amendment to that decision by submitting a
written request to the ecological review section of the department using the
contact information in Env-C 804.02(g).
(b) Requests for an amended ecological review
decision shall be processed the same as a voluntary request for an ecological
review, with no additional fee required.
Source. #14473, eff 1-19-26, EXPIRES:
1-19-36
Env-C 804.07 Validity of an Ecological Review Decision.
(a) Any ecological review decision issued by the
department shall be issued based on the presumption that the information
submitted as part of the application is true, complete, and not misleading.
(b) If, after the issuance of the ecological
review decision, the department receives information indicating that
information material to an ecological review decision was not true and complete
or was misleading, the department shall notify the applicant in writing that
the issued ecological review decision is no longer valid.
(c) Any applicant who receives written notice
pursuant to (b), above, shall be required to:
(1) Submit a new request for an ecological review
if one is needed to obtain a permit, authorization, funding, or other approval;
or
(2) If a permit, authorization, funding, or other
approval was received based on the invalid ecological review decision, notify
the entity that issued the permit, authorization, funding, or other approval.
Source. #14473, eff 1-19-26, EXPIRES:
1-19-36
Appendix
A: State Statutes Implemented
|
Rule Section(s) |
State Statute(s) Implemented |
|
Env-C
800 |
RSA
217-A:7 |
|
Env-C 801 |
RSA 217-A:7; RSA 212-A:9 |