Recent Changes to the Shoreland Protection Act

By: James O. Barney, Esq.

Since 1991 the state Comprehensive Shoreland Protection Act, now known as the Shoreland Water Quality Protection Act (or “Act”), has placed restrictions on construction, excavation or filling activity within 250 feet of the shoreline of the sea, large ponds and lakes, and large rivers. Both developers and individual property owners have had to comply with these state restrictions, designed to protect water quality from degradation by infiltration and runoff from shoreland areas, in addition to complying with local zoning and subdivision regulations and other state laws (such as the Wetlands Act).

In 2011 the legislature passed major amendments to the Act, in an attempt to loosen some of the stricter provisions and add more flexibility, while preserving the main purpose of protecting water quality.

The “Protected Shoreland” to which the Act applies extends 250 feet from the shoreline of the affected water bodies. Within that zone are two more highly restricted areas: the “Waterfront Buffer,” which extends 50 feet from the shoreline, and the “Natural Woodland Buffer,” which extends 150 feet from the shoreline and includes the Waterfront Buffer.

One of the principal restrictions in the Waterfront Buffer is a requirement that tree and brush cover not be reduced in any part of the 50-foot-wide zone below a certain minimum level, with the standard being set by a “point score” for each 50 x 50 foot square. The point score for a square is determined by assigning a set number of points to each tree, sapling, shrub or ground cover plant, and totaling the points for the square. The minimum score for each square must be at least 50 points, or else no vegetation may be removed; if the score of the trees and saplings in a square is over 50, then some trees and saplings may be removed, so long as the total score for trees and saplings in the square remains at least 50.

In the 2011 amendments, the general scheme of the minimum point score requirement, and the minimum of 50 points, were both retained, but the number of points assigned to trees and saplings was greatly increased. For example, formerly a 12-inch-diameter tree counted 5 points, whereas now it counts 10. Also, points are now available for shrubs and ground cover, whereas before they were not counted at all. However, there remains the restriction that with certain exceptions, no natural ground cover may be removed within the Waterfront Buffer – only trees and saplings, and shrubs higher than 3 feet (provided the trees and saplings remaining continue to meet the 50-point minimum).

Within the Natural Woodland Buffer (including the Waterfront Buffer), the principal restriction has been that a prescribed minimum area must be maintained in an unaltered state or be improved with additional vegetation. The minimum area to be so preserved used to be 50% of the area between 50 and 150 feet from the water; but the 2011 amendments decreased this minimum area to 25%.

Within the Protected Shoreland as a whole, i.e., within 250 feet of the water, including the two buffer zones, principal restrictions include minimum setbacks for new septic systems, proportionate to the porousness of the soil, and special requirements that apply if the total impervious area within the Protected Shoreland is going to exceed a certain minimum. While the 2011 amendments did not change the septic setbacks, they did somewhat loosen the imperviousness standard. Whereas previously there was an absolute maximum of 30% for impervious area within the Protected Shoreland, the 2011 amendments provided that the 30% limit could be exceeded by implementing a storm water management system designed and certified by a professional engineer. Also, prior to 2011, in order to exceed 20% impervious area, an owner had to both implement a storm water management system and cure any point score deficiency in the Waterfront Buffer (i.e., any square whose point score was below 50) by doing additional plantings; whereas under the 2011 amendments, the obligation to do additional plantings is not triggered unless the impervious area goes over 30%.

The 2011 amendments also loosened many other requirements of the Act: for example, a provision was added making it easier for an owner to obtain a waiver of many of the minimum standards; and another allowing owners to go forward with certain minor work without obtaining a special permit. A summary of the main provisions of the Act as amended can be found at http://des.nh.gov/organization/divisions/water/wetlands/cspa/documents/summary_standards.pdf, and the text of the entire Act at http://www.gencourt.state.nh.us/rsa/html/l/483-b/483-b-mrg.htm. For advice or assistance with understanding and applying the current provisions of the Act to a specific property or project, feel free to contact Jim Barney.