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Know the Law: How NH's Shoreland Protection Act Limits Development Along Public Waters

Written by: Adam M. Dumville

Published in the Union Leader (2/2/2020)

Q: I’m looking to develop my lakefront property, but have been told I may run into environmental issues that could impact my plans. Is this something I should be concerned about?

A: Possibly. The New Hampshire Shoreland Protection Act regulates any development, including work on existing structures, within 250 feet of a public waters like lakes, ponds and artificial impoundments greater than 10 acres in size, coastal waters and certain rivers and streams that flow all year round.

If you seek to renovate, develop, excavate or introduce fill to a property subject to the jurisdiction of the Shoreland Protection Act, you must first obtain a permit from the state Department of Environmental Services. As an initial matter, any new permanent structure that supports, shelters or encloses persons, animals or goods or property that is central to the fundamental use of the property, such as a home, must be set back at least 50 feet from the water line. Any accessory structure, such as a walkway, patio, shed, gazebo or restraining wall, must be set back at least 20 feet.

To obtain a permit from the DES, you must establish that you meet all of the requirements of DES rules, subject to a few exceptions for nonconforming lots and nonconfirming structures. If the DES denies your application, you have the right to request mediation or appeal such a decision to DES’s Wetlands Council.

Lastly, doing work without a permit, or failing to comply with the requirements of your Shoreland Protection Act permit, the state or the municipality in which you live could find you in violation and issue you an enforcement order to cease and desist, pay a fine, require you to restore the property to its original condition, and/or seek an injunction in the courts.

If you are issued such a notice of a violation or an enforcement order, having adequate counsel to defend your rights is of paramount importance.

Homeowners who have property abutting public waters should also be aware of the Fill and Dredge in Wetland Act. To the extent your construction or alteration of your property involves impacts to a wetland, including constructing permanent or seasonal docks, you must also comply with all of the department’s rules promulgated under the wetland statute.

Adam can be reached at [email protected].

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

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