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Know the Law: Permitting and Regulatory Requirements on Public Waters

Written by: Katelyn E. Burgess

Published in the Union Leader (7/11/2021)

Q:  Last week’s Know the Law on “Mooring Placement on Unregulated Lakes” discussed littoral rights and mooring placements in the absence of explicit State regulations. In response to the article, we received questions about how littoral rights interact with the extensive rules and regulations governing use of waterfront property in New Hampshire and are providing some clarification on the topic.

A:  Littoral property rights, based for centuries in the common law, have become subject to the authority of State, federal, and local government agencies that regulate surface waters, shorelands, and wetlands. It is important to understand that such regulations control alteration of and construction in these environments, including installation of new structures (e.g., docks) on the bank and in the adjacent waters.

Notwithstanding littoral rights, shorefront property owners must comply with all applicable regulations and obtain necessary permits from the appropriate State, federal, and local authorities prior to construction in surface waters, wetlands, and shorelands. Dealing with these regulations can be difficult because such projects may be subject to different rules and permitting requirements depending on the project’s scale, configuration, and location. Moreover, alteration of the shoreland within 250 feet of the water line often requires a permit. To complicate matters, there are several State agencies regulating activities in this sphere. For example, the Department of Environmental Services administers permitting requirements for the installation or modification of docking and shoreland structures, and the Department of Safety regulates placement of swim lines and moorings in waters adjacent to the shoreline.

As a shorefront property owner, you must assure you are complying with changing regulations that limit the type and design of structures you are allowed to construct or maintain on your property. For example, while erection of boathouses has long been recognized as a common law littoral right in New Hampshire, State regulators have taken the position for some time now that they will not allow construction or expansion of any new boathouses in or over public waters. Repair and maintenance of existing docking and shorefront structures may be considered preexisting, non-conforming uses and are treated differently.  However, property owners must take into account the age of such structures, and should be careful to consider whether repairs would expand the nonconforming use in a way that is not permissible under current rules and regulations.

Long story short, activities on public waters and protected shorelands are often highly regulated under current New Hampshire law and federal law and subject to extensive (and often complicated) permitting requirements by government agencies. There are serious potential penalties for violating these regulations. To avoid potential pitfalls and penalties, shorefront property owners must stay up-to-date on rules and regulatory requirements governing activities on public waters and protected shoreland and diligently ensure that they obtain all necessary permits before undertaking any new projects in these locations.

Katelyn Burgess can be reached at [email protected].

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.

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