SB 164-FN-LOCAL - AS AMENDED BY THE SENATE

02/22/2023   0554s

2023 SESSION

23-1042

08/05

SENATE BILL 164-FN-LOCAL

AN ACT relative to consideration of biodiversity in the land and community heritage investment program.

SPONSORS: Sen. Watters, Dist 4; Sen. Perkins Kwoka, Dist 21; Sen. Avard, Dist 12; Sen. Altschiller, Dist 24; Sen. Fenton, Dist 10; Rep. Bixby, Straf. 13; Rep. Read, Rock. 10

COMMITTEE: Energy and Natural Resources

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AMENDED ANALYSIS

This bill defines biodiversity and requires its inclusion in the land and community heritage investment program.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

02/22/2023   0554s 23-1042

08/05

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Three

AN ACT relative to consideration of biodiversity in the land and community heritage investment program.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1  Findings.  The general court finds:

I.  There is an average 69 percent decline in global populations of mammals, fish, birds, reptiles, and amphibians since 1970 including the loss of nearly 3,000,000,000,000 birds in North America since 1970, and 1,000,000 animal and plant species are now threatened with extinction.

II.  Invasive species and warming temperatures pose a threat to the biodiversity of New Hampshire.

III.  Three-quarters of the land-based environment and roughly 66 percent of the ocean environment have been significantly altered.  More than a third of the world's land surface and nearly 75 percent of freshwater resources are now devoted to crop or livestock production.  Climate change and pollution worsen the impact of other stressors on nature and our well-being.

IV.  The people of the state of New Hampshire, including future generations, deserve a clean, healthy, and biodiverse environment, including pure water, clean air, natural beauty, healthy ecosystems and a stable climate, necessary for the preservation of the natural, cultural, scenic and healthful qualities of the environment.

V.  Ecosystem services of a biodiverse environment benefit New Hampshire citizens, so the state of New Hampshire recognizes the need to maintain biodiversity and to enhance its capacity to adapt to change and provide for the needs of future generations.  New Hampshire recognizes the responsibility to develop and utilize these resources in a manner consistent with their conservation and biodiversity.

VI.  The state, including each branch, agency, and political subdivision, recognizes their roles as trustees of the natural resources of the state, among them its waters, air, flora, fauna, climate, and public lands.  The state recognizes the duty to conserve, protect, and maintain these resources for the benefit of all the people, including generations yet to come.

2  New Paragraph; Land and Community Heritage Investment Authority; Definitions; Biodiversity.  Amend RSA 227-M:2 by inserting after paragraph I the following new paragraph:

I-a.  "Biodiversity" means all of the species, including plants, bacteria, animals, and humans in a particular region, habitat, or ecosystem, that work together to maintain balance and support life.  Biodiversity includes the variability among living organisms from all sources including terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are a part, including variation in genetic, phenotypic, phylogenetic, and functional attributes, as well as changes in abundance and distribution over time and space within and among species, biological communities, and ecosystems.

3  Definition; Easement Interests; Biodiversity Added.  Amend RSA 227-M:2, IV to read as follows:

IV.  "Easement interests" means conservation, including biodiversity, historic preservation, or scenic easements, development rights, or any other similar protective interest in real property held in perpetuity, or a term easement that is held for a specific period of time and not in perpetuity as part of a farm viability program.

4  Definition; Eligible Resource.  Amend RSA 227-M:2, V to read as follows:

V.  "Eligible resource" means a natural, cultural, or historical resource including archaeological sites; historic buildings and structures which house cultural events and programs; historic properties including buildings and structures; historic and cultural lands and features; ecologically significant lands; biodiverse areas; existing and potential public water supply lands; farmland; forestland; habitat for rare species or important wildlife; wildlife corridors and habitat strongholds as defined in RSA 207:1; lands for recreation; riverine, lake, estuarine, and ocean shorelands; scenic areas and viewsheds; and wetlands and associated uplands.

5  Effective Date.  This act shall take effect 60 days after its passage.

LBA

23-1042

Revised 1/30/23

SB 164-FN-LOCAL- FISCAL NOTE

AS INTRODUCED

AN ACT relative to biodiverse environments.

FISCAL IMPACT:      [ X ] State              [ X ] County               [ X ] Local              [    ] None

The Office of Legislative Budget Assistant is still awaiting information from the Department of Business and Economic Affairs.  The Department was contacted on January 13, 2023.

METHODOLOGY:

This bill defines biodiversity and requires its inclusion in certain land use regulations.  The bill also creates a form contract to preserve the rights of domestic animals and wild animals.

The Department of Agriculture, Markets and Food indicates this bill would have no fiscal impact on the Department.

The Department of Environmental Services indicates this bill would not change any fees charged by the Department, nor would it impose any additional costs on the Department.  In addition, the  Department assumes the proposed changes to local land use planning would be optional so the legislation would not directly affect local or county revenues or expenses.

The Department of Fish and Game indicates this bill would impact state and local expenditures by an indeterminable amount.  The Department identified the following sections of the bill with a potential impact:

• Proposed RSA 674:21, I, (o) would add biodiversity as a purpose coequal with agriculture, forestry, and conservation or public recreation for a landowner or developer to convey an easement to a municipality if they subdivide a property using the village plan alternative that would cluster development within 20% of a property, retaining the remainder in open space.  The Department assumes it may prove challenging for the landowner or municipality to determine how agriculture, forestry, or conservation activities may have to be modified to conserve the very broad values outlined in the biodiversity definition.  This could result in lengthy discussions, potential conflict of opinions, and court cases if those conflicts cannot be resolved.  This would increase costs to the municipality and landowner by an indeterminable amount.   
• Proposed RSA 477:45, III would allow a landowner to enter into a “biodiversity preservation discretionary agreement” with another entity that could be in the form of a conservation easement, deed restriction, etc. to be placed on a property for the purpose of enforcing “the rights due to the wild animals that live on his or her property.”  This change would allow the conveyance of a conservation easement on the wild animals that may occur on or use a particular property.  The Department states the costs of this change are indeterminable but potentially significant.  Most wildlife have home ranges that extend beyond the property boundaries of a typical land ownership.  They may be retained in an undeveloped state that would help maintain biodiverse populations, or abutting parcels could get developed, which may render the maintenance of biodiverse populations and the terms of the easement unfeasible.  It would be impossible for a landowner to guarantee the well-being of a particular wildlife population or to ensure that it meets the definition of a “biodiverse” population.  Given these issues, conflicts will surely occur, likely leading to court cases and an indeterminable but potentially significant state and local costs.  
• Section 15 of the bill would require several state agencies to consider biodiversity in its planning.  It’s difficult to predict the fiscal impact of this consideration on state expenditures.

The Department of Transportation indicates in the development, construction, and maintenance of the highway network it complies with all state and federal laws regarding environmental resource protection.  Including maintenance of biodiversity as a resource type would also be included in these evaluations.  To the extent existing reviews are protective, insofar as possible, of environmental resources, the inclusion of biodiversity, as it is defined in the bill, would not likely result in significant additional expenditures, however the amount of additional expenditures cannot be determined.  

The New Hampshire Municipal Association states the bill defines the term “biodiversity” under RSA 674:21 and allows municipalities to pass charters protecting the rights of residents to a clean, healthy, and biodiverse environment, including pure water, clean air, natural beauty, healthy ecosystems, and a stable climate, and to the preservation of the natural, cultural, scenic and healthful qualities of the environment within its bounds.  Further, the legislation allows the creation of discretionary easements for biodiversity purposes.  Last, the legislation grants rights, created via contract, for domestic animals as well as rights for wild animals living in a discretionary easement created for the purpose of biodiversity.  The Association assumes alterations to the rules surrounding conservation easements, including discretionary easements, may allow greater inclusion of property in tax-advantageous holdings, effectively decreasing the amount of revenue that can be expected to be generated from those properties.

It is assumed that any fiscal impact would occur after FY 2023.

AGENCIES CONTACTED:

Departments of Agriculture, Environmental Services, Fish and Game and Transportation, and New Hampshire Municipal Association