By SYDNEY B. LEAVENS
Monitor staff

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Barnstead, New Hampshire

BARNSTEAD - A man accused of damaging wetlands by allowing dozens of four-wheelers to go "mud-bogging" on his Barnstead property has settled with the state for $9,000. His lawyer believes this is the first case to apply state wetlands laws to the use of four-wheelers in marshes.

When Thomas Florence Jr. and about 40 others rode four-wheelers on Easter weekend last year, they rode through about an acre of marshy land on his 70-acre property. State officials said the damage caused by the vehicles meets the definition of dredging and filling wetlands under state law. Florence did not have a permit to dredge or fill and thus committed a wetlands violation, Assistant Attorney General Christopher Helms said.

"At the time of the investigation, there was evidence of wrenching of the material, redepositing the material, digging down in the wetlands," Helms said. "We feel that the settlement is reasonable."

No one has ever requested a wetlands permit for "mud-bogging," according to the attorney general's office. Florence's lawyer, Tom Quarles of Devine, Millimet & Branch in Manchester, said this is the first mud-bogging wetlands case of which he is aware.

Quarles said his client did not realize that he and the other riders could be breaking the law. Once Florence knew that, Quarles said, he cooperated with the state throughout the investigation.

Quarles said it is questionable whether the state could have shown damage to the wetlands; he said Florence settled the case only to avoid costly litigation.

"If we'd gone forward, we had a wetlands scientist who would have said that . . . natural attenuation . . . had basically restored the wetlands to its pre-mud-bogging-incident condition," Quarles said.

According to Quarles, Florence had not intended to host most of the 40 riders who showed up on his property that day. He'd made plans to spend the holiday riding with a couple of friends on the undeveloped land, but a few cell phone calls led to a situation beyond his control.

"Word got out beyond Mr. Florence's group that this would be a good spot to go four-wheeling that day," Quarles said. "There were many, many uninvited riders."

Several of those riders cut across a beaver pond and marshy area on the property, a little more than a half-acre of the terrain. Neither Quarles nor Helms is sure exactly how many did.

A neighbor who works for the Department of Environmental Services reported the incident at work the next day. Both the neighbor and the police, who also responded to the scene that Sunday, said they saw about 40 vehicles on Florence's land.

State officials who examined the wetlands for damage that week found large ruts in the marsh, along with a plume of muddy sediment emptying into a nearby tributary stream, Helms said. (Quarles said he has seen no photographs to verify that the stream of mud existed.)

The settlement suspends $5,000 of Florence's fine if he does not violate the state's wetlands laws for one year. It also requires Florence to post signs on the property that provide information about avoiding wetlands and stream banks when using off-road vehicles.

Florence immediately blocked access to his property, Quarles said. He later sold it, but with the stipulation that the new owner also post the signs agreed on in the settlement.

Under state law, a person found violating wetlands regulations can be fined up to $10,000 a day. The state did not seek a larger settlement in this case, Helms said, because Florence cooperated and because he did not make money from the event.

"And the area is starting to restore itself, which is good, of course," he added.

 

the state department of environmental protection is real sensitive to wetland issues, in my area which is NW Fl, coastal regions, there are saltwater marshes, and while there is marsh & canal, I know taht these are tidal in nature, thereby governed by DEP, & beaches & shores. in the inlying areas, anything of size, or in a floodplain that is marsh, cypress or gum swamp, whether on private land, or not is usually governed by "Jurisdictional Wetlands" policy. this is determined by type of vegatation & soils, floodplain, and water body. it usually keeps the 2 -3 private environmentalists busy flagging these areas for surveyors to locate. the DEP also has policy on "Mature Secessional Forests", based on vegatation, and tree size, generally there is no development in areas of greater than 10% slope on sites, these are usually put in conservation easements to the respective counties. these are ways that the state can protect sensitive areas without having to buy property.

and, unless there is a existing trail/road through these areas, I do not travel through them, it is not worth the fines, and liability for me to do so.
streams, swamps, and forests, I don't ride through..

"Dredge & fill" seems like a stretch, though..really looking for someone to make an example out of..typicially dredge & fill is LARGE SCALE..& overseen by Corps of Engineers..(Federal) but mainly applies to navigable waters (state lands)

remember, if land is submerged by water, the jurisdiction is in the hands of the state..

 

Oh yeah I know I just wanted people to see. I ride mostly in sand pits. People need to know about stuff like this though so they don't do it themselves. Not knowing is what gives ATV'ers a bad name in the long run.

 

wow. So if I buy land that has a marshy area, I can't even so much as walk through it because it may result in "a plume of muddy sediment emptying into a nearby tributary stream"? That dredging thing seems like QUITE a stretch. Is the DEP in bed with Greenpeace and Sierra Club extremists (activists)? What defines a marsh? Do other states act the same way? I think I need to do some research.

 

This should show you how F'd NH is it cost them 30K per mile to build a trail

Greetings GSATVA Members:
We lost the vote yesterday on HB748 in the Senate. It appears to have been 14 yea, and 7 nay. But hats off to Senators Frank Sapareto for leading our charge.. What we lost was control of was the wheeled OHRV land easement account put into legislation last year by GSATVA to counter the "Course and Fine Filter" (CaFF).

As a result of yesterday's passage of HB748 a clause, lobbied for hard by the Bureau of Trails (BoT), will go into effect that will allow the BoT to access the moneys in that account for "new trail construction'.

There are several problems with this:

1. CaFF Prevents Construction- the only place BoT will be constructing new trails is in state parks and state lands. But the CaFF is so restrictive that it makes it almost impossible to build new trails these properties. We knew this last year, and as a result created that land easement account to counter CaFF. The theory was that if we could acquire non-state lands through easements the CaFF would not apply, and thus be neutralized.

2. BoT Trails are Expensive- last year BoT built a trail system in Nash stream. It was 7 miles long, of which 5 were already dirt roads, and the cost was $60,000. So that works out to about $8.5k/mile, or $30k/mile if you don't count dirt roads. Compare that with the trails systems created all over the state by private clubs for next to nothing, other then sweet equity, and it causes one to pause, and wonder... why?

3. No input- when BoT builds trail systems the user has no input. Its done in stealth, and you have little or no say in how anything is done. Case in point is Bear Brook; we are getting little or no input in how that trail system is being planned (if it is at all).

So in summary if BoT can't build new trails systems because of the CaFF, why are they so eager to get their hands on all that money? Right now there is a huge state budget short fall, and the bureaucracies are tying to find money any way and any where they can. Else they might have to do the unthinkable and "make a cute" (something unheard of in government).

So since a government bureaucracies number one goal is grow, and since there appears to be no accountability for these moneys, I myself am quit skeptical that any of it will go to "new trails construction". Rather I suspect it will all just mysteriously disappear into the black hole of Concord, as it always has, to further that end. That is unless we can find a way to make DRED and the BoT accountable. Say tuned on that note....

Sincerely
Peter Sandstrom, President GSATVA

P.S. Check out the GSATVA letter to the Senators that we sent them asking them to vote "no".

http://www.gsatva.org/killhb748letter.html

 

I hope I don't create hard feelings but when a club forms, part of there responsibility is education. This isn't just rider safety but also environmental education. The DEP isn't out there to create huge fines and be jerks, they simply have guidelines that were created by the government that need to be enforced. If you (like myself) ever created a wetland (yup Created) you could see and understand the reasons that they are so protected. (eco-system) Although these people don't seem to be fair sometimes, they are a government agency and they would rather work with you than against you. Most of them just want to be asked or notified about what's going on around these areas and they can help you with the issue. maybe you could get a DEP agent to join your clubs or come and talk about their expectations. If researched on you own or take classes about it you would understand a little better. I hope you don't get pizzed at me for replying, but I hope you will take the time and talk to DEP or atleast do some research. I can try to answer some question you may have and I'll try to get an answer, butI can't guarentee it. Thanks.

 

jeff,
creating a wetland sounds cool, but it also implies that since land is submerged by water, thereby it becomes part of state soviern lands?
swamps are treaed diffrently than marshes that abut navigable bodies of water here, salt water marshes are controlled by beaches & shores, as refrence to mean high water, swamps are done by a diffrent department of DEP. but all are ecosystems. my question about the state's role in submerged lands is this: to what extent does the water body play?, either in terms of navigability, or in terms of floodplain management? manmade, seasonal, or just pesky beavers? now there is also the area that is marsh that is above the mean high water line. but still part of the ecosystem.

now some places have man made lakes, that are controlled, but soverign lands don't apply to them, other places are seasonal, yet others are true marsh, or swamp ecosystems.

note this is not a atv question, but one I'd like to find out about as pertaining to property rights.

Thanks

 

I am trying to get an answer for you but, I'm a city worker not a genius. lol, and I could hardly understand the question you have and no way could I answer it. You may be better off to give Florida's DEP agency a call where things may differ 2500 miles away.

 

jeff,
thanks, to clarify my question, say if a develper makes a holding pond for drainage, or a man made pond, that would NOT be under DEP jusisdiction, since the land he used to create it was dry., and it was a private project, (Not state or federal) correct?

say if a swamp was on someone's land, that would fall under DEP jurisdiction, since the state holds title to submerged lands, correct?

say a bunch of beavers dammed up a creek & created a pond, since it is temporary, whose jurisdiction would the beaver pond be in?, (the creek would be DEP obviously)

diffrent states treat water rights diffrently, some go to the top of the bank, others go to the center of the deeprst part of the water body (creek or river) others go to seasonal high water line, it depends on where you are


Thanks,

 

It all come sdown to money,you wouyldnt have ted turner or Hovnanian constructuion CO being hassle dlike this when millions of bucks even billionares are at stake.How id they even catch this guy was 1 of the riders a brown noser an dime dropper for the epa?specially if it was private property,,,,,,,,,,,,screw these old FAt *## old grumpy tree huggers.