Know the Law: If your property includes wetlands, you’ll need a state permit for any plans to alter it

Adam M. Dumville
Director and Vice Chair, Administrative Law Department
Published: Union Leader
May 14, 2023

Q: My property includes, or is it adjacent to, a wetland or surface water body and I’m considering some construction. What do I need to know before starting a project?

A: Wetlands regulation protects and preserves waters and wetlands (both salt water and fresh-water), from alteration without the necessary permits.  If you are considering any type of excavation, removal, filling, dredging, or construction projects in or adjacent to a wetland or surface water then the State wetlands regulations requires that you obtain a permit from the N.H. Department of Environmental Services (“DES”).

Significant problems can sometimes arise when landowners fail to recognize wetlands. Wetlands are identified by the presence of wetlands plants, soil types, and subsurface water levels.  Before undertaking any activity in what might be wetlands, you must determine whether wetlands are present, which usually requires an assessment by a qualified and licensed professional.

Some of the common activities that require a permit are construction, repair, or replacement of permanent and seasonal docks (which all have very specific requirements) and placing fill of any kind, or excavating in any wetland or area below the mean high water level of a pond, stream or lake to create land, for example, creating a beach or building foundation.  To obtain a permit from DES, you must comply with the detailed requirements of DES’ rules.  Notification of your application to all abutters is required, and copies must be provided to the municipality.

Doing work without a permit, or failing to comply with permit conditions, will likely cause the State, federal government or the municipality to bring an enforcement action, including a fine, and an order requiring restoration of the site to its original condition (even after a structure has been built).  If the violation was committed by your predecessor in ownership of the property, and you had no reason to know of the violation, you may have important rights and defenses you can raise, as well as claims against the prior owner.  If you have a pre-existing nonconforming use, i.e., a “grandfathered” structure, constructed and continuously in use since before 1967 or 1969, you are entitled to maintain it.  Because a grandfathered use can be inadvertently lost, you should consider getting experienced advice before making any changes to it.

If your project involves regulatory issues with wetlands, or you receive notice of any type of violation, it is recommended that you have legal counsel, and a qualified environmental consultant to assist you in the case.

Know the Law is a bi-weekly column sponsored by McLane Middleton. Questions and ideas for future columns should be emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.