Published in the Portsmouth Herald (12/29/2019)
Do you own a lake house or property that abuts a water body in New Hampshire? Are you looking to build a new structure, modify an existing structure, cut trees, excavate, fill and/or install a patio or walkway within 250 feet of that water body? Beware of New Hampshire’s Shoreland Water Quality Protection Act.
The Shoreland Protection Act recognizes shorelands of the state are among its most valuable and fragile natural resources, that protecting shorelands is essential to maintain the quality of public waters, that a natural woodland buffer and limiting the amount of impervious surface near the shoreline is necessary to protect the quality of public waters, that public waters are held in trust by the state, and that the state has an interest in protecting those waters. The Shoreland Protection Act was enacted to ensure that coordinated and planned development occurs along the state’s shorelines.
The act, with its extensive administrative rules, 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.
Any construction that requires tree clearing or brush removal must also comply with strict requirements, namely, natural ground cover must generally remain intact within 50 feet of the water line, including rocks and stumps and their root systems, except for a 6-foot wide walkway to a dock, beach or water body. A minimal amount of trees in this area may be removed based upon a sapling point score and certain shrubs and trees can be trimmed and pruned to a minimum height of three feet for the purpose of providing a view or access to the shoreline. Between 50 to 150 feet of the waterline, 25% of this area must be maintained as natural woodland, in other words, must remain in an unaltered state or improved with additional vegetation.
In addition, the Shoreland Protection Act regulates the amount of impervious surfaces that can be constructed within 250 of the water line. Impervious surfaces are those that are modified surfaces that cannot effectively absorb or infiltrate water, such as, roofs, decks, patios, paved or gravel driveways, parking areas, and walkways. If your planned construction alters the impervious area by more than 20% of your lot, you must develop a stormwater management plan or construct a stormwater management system designed by a licensed engineer, depending on the amount of new impervious area.
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 non-conforming lots and non-confirming structures. If the DES denies your application, you have the right to request mediation or appeal such a decision to DES’s Wetlands Council. In addition, if your neighbor has been issued a permit by the DES to construct within the SWQPA and you believe the DES erred in granting such a permit, you also have the right to mediate the Shoreland Protection Act or file an appeal. Appeals before the Wetland Council are akin to trials in the court system. Having adequate legal representation is key to a successful appeal at the Wetland 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 that 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 the all of the Department’s rules promulgated under the wetland statute.
Adam Dumville is an attorney in the environmental and energy practice groups at McLane Middleton, Professional Association. He can be reached at [email protected] or (603) 230-4414.