N.H. Wetlands Regulation: What Property Owners Need to Know

Adam M. Dumville
Director and Vice Chair, Administrative Law Department
Published: McLane.com
March 9, 2022

Does your property include, or is it adjacent to, a wetland or surface water body?  Have you conducted, or are you considering excavation, removal, filling, dredging, or construction of any structures in or adjacent to a wetland or surface water?  If so, you will need to be familiar with the State, federal and local wetlands regulations.

Wetlands regulation protects and preserves waters and wetlands (both salt water and fresh-water), from alteration without the necessary permits.  It advances the public interest by protecting water quality, wildlife and habitat, commercial, recreation and aesthetic uses by the public, groundwater reservoirs, and lakes, ponds and streams.

State wetlands regulation requires that you obtain a permit from the N.H. Department of Environmental Services (“DES”), prior to undertaking any excavation, removal, filling, dredging or construction activity in and adjacent to waters of the State, or in wetlands (i.e., below the mean high water line).  Activities affecting shorelands above the mean high water line are  regulated by the Shoreland Water Quality Protection Act. There are also overlapping federal and municipal regulations that must also be carefully taken into account.

Significant problems sometimes arise when landowners fail to recognize wetlands.  Wetlands may appear “dry” at the surface for much of the year, and for that reason an untrained observer may conclude, erroneously, they are not 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.  You should assume that if wetlands are disturbed for whatever reason by you or someone else, subsequent investigation will likely be able to establish the nature and extent of the preexisting wetlands and any corresponding violations.

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.

Based on the published experience of those who have run afoul of these laws, some of the  activities in or near wetlands that it was thought did not, but do require DES approval, include but are not limited to: constructing or repairing walls above or below the high water line of a surface water; stabilizing banks and shorelines; replenishment of an existing beach; construction or repair of water access structures; and the creation or reconstruction of trails, pathways, or boardwalks.

State law also prohibits the construction or modification of any structure suitable for dwelling (i.e., used for residential purposes, or contains a kitchen, bathroom, shower, or toilet), over a public water body.  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.

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.  If DES denies your application, or you are issued a permit with unreasonable or unlawful conditions, you have the right to request mediation or appeal such a decision to DES’s Wetlands Council.  In addition, if your abutting neighbor has been issued a permit to perform activities subject to regulation, and you believe the DES erred in granting a permit, you also have the right to appeal that decision.  Appeals before this Council are conducted like trials in the courts.  Having adequate legal representation is usually necessary from the outset to handle an appeal to the Wetlands Council.

Lastly, 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.  In such cases it is recommended that you have legal counsel, and a qualified environmental consultant to assist you in the case.