Environmental Law

NH Shoreland Protection Receives an Extreme Makeover

May 2008

By Ari B. Pollack and Erik Newman*

The Comprehensive Shoreland Protection Act (CSPA) confirms the common view that "the shorelands of [New Hampshire] are among its most valuable and fragile natural resources." RSA 483-B:1. For this reason, the CSPA establishes a "Protected Shoreland" area along New Hampshire's lakes, rivers and coastline while regulating construction and land use within the Protected Shoreland area. The shoreland statutes and regulations under RSA Chapter 483-B and Env-Wq 1400 were broadly revised by the N.H. State Legislature over the past year. These recent amendments take effect on July 1, 2008.

Changes to Comprehensive Shoreland Protection Act (CSPA)

Whereas shoreland oversight used to occur at the municipal level, the new CSPA requires that landowners seeking to commence construction, excavation or filling activities within the Protected Shoreland must obtain a new permit or exemption directly from the New Hampshire Department of Environmental Services (DES). "Protected Shoreland" remains defined as all land within 250 feet of the natural mean high water level, high tide line, or full pond waterline for artificially impounded water bodies. However, the revised CSPA reinvents many of the restrictions that had applied to development and land use planning within the Protected Shoreland.

Removed from the CSPA are standards limiting tree-cutting to a percentage of the existing tree stand. By definition, administration of this standard proved cumbersome in circumstances where regulators were seeking to evaluate tree numbers after they had been cut and removed. Instead, a new "tree scoring" practice has replaced percentages for ensuring the protection of vegetated buffers within the waterfront buffer. For example, trees will be assigned a score based upon diameter with wider, more mature trees receiving higher scores. Within the first 50 feet of the Protected Shoreland adjacent to the water (the so-called "Waterfront Buffer"), a minimum tree score of 50 points must be maintained within each 50 foot wide segment of the Waterfront Buffer.

Additional restrictions within the Waterfront Buffer under the new regulations include a prohibition on use of chemicals within 25 feet of the shoreline. Low phosphorous, slow release nitrogen fertilizer may be used in the area that is from 25 feet to 50 feet back from the shoreline. Also, rocks, stumps and trees' root systems must be left intact in the ground, unless their removal is specifically approved by DES.

Changes to the CSPA also impose new restrictions on the area within 150 feet of the shoreline (the so-called "Natural Woodland Buffer"). For example, the new regulations limit the creation of impervious surfaces and require minimum amounts of unaltered areas as a percentage of lot area. Non-conforming lots developed prior to July 1, 2008 that do not satisfy these minimum standards are protected, but owners may not increase their non-conformity by further diminishing the amount of unaltered area.

Other important changes include a land use planning requirement that new lots have a minimum of 150 feet of shoreland frontage. Expansion of nonconforming structures located within the Protected Shoreland that increases the sewage load to an on-site septic system will require DES's approval. Also, modifications to the designation of rivers that come within the jurisdiction of the CSPA will cause an additional 1,391 miles of river to be protected.

The revised CSPA regulations continue to provide for waivers and variances from the requirements of the CSPA. Requests for relief should be submitted as part of an application for a shoreland permit. Granting of a waiver is conditioned on DES concluding that the request will not result in an adverse effect to the environment, the public health or safety, and will not impact abutting properties more significantly than compliance with the CSPA regulations.

The changes to the CSPA are critically important for shoreland property owners. In addition, there is certain to be an adjustment period while regulators gain experience applying the shoreland permit requirement, learn the function of unaltered and impervious surface coverage ratios and gain comfort with the tree scoring system. Even though the CSPA requires a decision on a permit application within 30 days of receipt of a completed application, compliance with additional information requests by DES may extend that timeframe considerably.

Anyone contemplating shoreland development after July 1st must be forewarned to start this land use planning process well ahead of schedule.

Explore more resources on Shoreland Protection at the DES web site. For more information on how these new rules impact your specific situation, please contact Ari Pollack or Erik Newman.

*Ari B. Pollack is admitted in New Hampshire and Massachusetts. Erik Newman is admitted in New Hampshire.

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Ari Pollack
You may contact
Ari Pollack at 603-545-3630.

Erik Newman
You may contact
Erik Newman at 603-545-3638.

Related practice areas:
Real Estate Development
Environmental Law
Shoreland Development