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(Submitted By Robert Livingston, 1/11/02)

Merrimack Valley Trail Riders felt there where clauses and statements in HB-1273 regarding the "coarse and fine filter" that needed clarification by an independent expert . So we went outside to seek an unbiased expert's opinion on the subject, and found Mr. Robert Livingston, a watershed expert who works for New Hampshire's Department of Environmental Services. His letter follows outlining what he thinks of the WOHRV park environmental restrictions written into HB-1273.

His letter was sent to Representative Alger on 1/14/01, and is displayed below.

_{________________________________________________________}

Robert Livingston

1/11/02

Greetings Representative Alger:

I was only recently made aware of the pending legislation HB-1273 concerning ATVs in the state of New Hampshire. After reviewing the initial draft released last Monday, 1/7/02, I became somewhat alarmed. There appears to be several flaws with this legislation, but the one that especially caught my attention, and the one that I would like to focus, is the so called "course and fine filter". With my professional background I feel can contribute some useful insight and feedback to you and your committee on this subject. So what follows below is an analysis of that "coarse/fine filter section of HB-1273".

Note that my professional work experience includes over 15 years in the environmental field working for the Department of Environmental Services as an environmentalist. The opinions here are drawn from my personal work experience and are not official or unofficial statements from any DES Agency. (Disclaimer as per DES policy)

In summary, after reviewing the proposed environmental measures put forth in HB-1273 (1/7/02), it in my opinion that it would be extremely difficult, if not impossible, to meet the proposed "Coarse and Fine filter Criteria" for trail creation. It is the most restrictive environmental measure I have seen attached to any recreational activity in the 15 years that I have been involved in this profession. The setbacks appear to be arbitrary and inclusive for this specific recreational activity at hand. I know of no other activity, recreational, residential, industrial, or otherwise, that has had this sort of constraint placed on it in this state.

Further, I find it curious, if not strange, that the Clough State OHRV Park was not used as a model, or at least had some input on the filter. In the 15 or so years that Clough OHRV has been in existence little or no environmental damage has taken place. In fact the environment, and animals and plants that live there, seem to be thriving and doing just fine as they share the facility with ATV users. So perhaps the commission could re-look at Clough and analyze why it has worked, then move forward and use it as a model for new parks. This approach would seem to me to be far more scientific then what is currently being proposed in HB-1273; which at best appears to be arbitrary and prejudicial.

Regardless, in my opinion if this "Coarse and Fine filter Criteria" in HB-1273 as now proposed is adhered to and made law for ATV activity in New Hampshire, it will make the creation of new trails in New Hampshire unfeasible.

Sincerely,

Robert Livingston

Profession: State Environmentalist

Watershed Nonpoint Source Specialist

Hopkinton NH 03229

Coarse/Fine Filter Analaysis Of HB-1273, Robert Livingston, 1/11/02

Proposed 215-A:44 Coarse and Fine Filter Criteria

Comments of the following proposed items:

215-A:44 I (b) Definition appears to be a typo or mistake; i.e. "Less than 90% of the property is composed of the following"

- Should it read "is not composed"? Other wise would it take only one occurrence of any item to not make the filter. Further, if not a typo, mistake or incorrect interpretation of mathematical percentages, it appears the clause, as written, has the intent on failing literally any targeted trail site.

215-A:44 I (b)(i) As stated explicitly in the NH Native Plant Protection act. "The presence of a rare plant or natural community does not limit a landowner's ability to use their land."

-Under the proposed paragraph 215-A:44 I (b)(i), it appears that The presence of a rare plant or natural community would limit land use.

215-A:44 I (b)(ii) What is the necessary habitat for successful breeding or survival of a listed endangered or threatened species?

-The definition of a necessary habitat can be too broad and subject to personal interpretations; delineation of such boundaries would be more or less total conjecture of the survey personnel.

215-A:44 I ( c ) "If it is to be a trail network, at least 700 contiguous acres…" It’s unclear to me why 700 acres is a size of land that makes ATV activities acceptable, or not. I’d submit that rather then using a "land size parameter" the commission should instead adapt a "land density requirement"; i.e. acres of trail per acres of land. The 700 acre number listed here appears to me to be somewhat arbitrary, and does nothing more then limit the ability to find useful sites in this state for ATV activities.

215-A:44 II (o)The proposed set backs for 1^st 2^nd or 3^rd ordered streams exceed existing State RSA’s for any kind of regulated activity, and appears to be far too restrictive for the intended recreational use at hand. Properly designed ATV trails are much less environmentally disruptive as compared to activities such as logging, road construction, subdivisions (industrial and residential), and agricultural activities. Most "regulated activities" have no set backs to surface waters as long as Best Management practices (BMPs) are in place, and wetlands laws are adhered to.

215-A:44 II (q) No existing RSA’s prohibit recreational activities within 200’ of such water bodies listed in this proposed setback. The creation of a 200 foot setback from these water bodies could possibly be the most restrictive ever imposed on a recreational activity.

215-A:44 II(s)The statement "avoids known, identified and currently existing important wildlife habitat features for species of concern" and Is very broad. If it includes the New Hampshire Natural Heritage Inventory list of Rare Plants, Rare Animals, and Exemplary Natural Communities, (which includes more than 4,000 plant, animal, and natural community occurrences throughout the state) it would eliminate large areas of land use for just an occurrence of a listed species.

In my years of experience in the environmental field I’ve never seen the New Hampshire Natural Heritage Inventory list used in this way.

215-A:44 II(u) Same as comment for 215-A:44 II(s)

215-A:44 II(x)(y)(z) There should be an exclusion for existing trails that are obviously being tolerated by nesting raptors, ospreys, and eagles, and exclusions for newly made trails that after the fact have a nesting. Most moderately sized woodland water bodies can demonstrate an occurrence of a Heron rookery. And if the entire water body is deemed so with a setback of 330 feet, very large areas would be eliminated from use.