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Bar News - September 16, 2011

Environmental & Natural Resources : Formerly Known as the Shoreland Protection Act: Drastic Changes to Environmental Legislation


Gretchen Rule Hamel
Those who followed environmental legislation in the 2011 session observed an unprecedented attack on RSA 483-B, the (former) Comprehensive Shoreland Protection Act. As of this writing, the Act has not been repealed outright -- but it has been significantly revised, primarily by sections 382 through 412 of HB 2, the budget trailer bill (Laws of 2011, Chapter 224). But unlike when the law was first enacted in 1991 but not funded -- and so not effective -- until 1994, and when amendments were enacted in 2007 to be effective April 1, 2008 (which were then repealed effective May 1, 2008 and then reenacted effective July 1, 2008), this time there is no time at all to adjust to (or prepare for) the changes. The amendments to RSA 483-B in 2011, Ch. 224 became effective July 1, 2011 - two days after the bill was enacted without the governor’s signature on June 29, 2011.

The most noticeable change is to the name of the Act itself: from "Comprehensive Shoreland Protection Act" to "Shoreland Water Quality Protection Act" (SWQPA). The change signifies a departure from the long-standing concept of protecting complex resources and ecosystems in favor of a more limited focus on surface water quality. Other amendments also reflect this change in emphasis to focus only on how any particular activity affects surface water quality. For example, two of the reasons for establishing minimum standards have been modified, such that shoreland development and its impacts are concerns only if they "may potentially damage the public waters" (RSA 483-B:2, IX and XV; 2011, 224:383 and 384, respectively). While "may" and "potentially" appear to allow for continued regulation of activities that do not have an immediate detrimental impact on water quality, the qualifying language is a significant change from the prior presumption that shoreland development and its impacts are of concern, period.

Another significant change is the addition of a permit-by-notification (PBN) for projects "which have no impact on water quality and which follow department rules" (2011, 224:395). A PBN is available for projects in one of four categories: (1) projects having total impacts less than 1,500 square-feet that add no more than 900 square-feet of impervious area within the protected shoreland area; (2) stormwater management improvements, erosion control projects, or environmental restoration or enhancement projects; (3) maintenance, repairs, and improvements of public utilities, roads, and access facilities; and (4) "similar activities defined as qualified" for a PBN by rules adopted by the Department of Environmental Services (DES). (Id.) The requirements for obtaining a PBN are spelled out in detail in the statute: the owner must file a notification form, after which DES has five business days to review the notification and inform the owner whether it is "complete and accepted" or not (2011, 224:397). If the notification is "complete and accepted" the project can proceed immediately (2011, 224:395). A notification is "complete" and so must be "accepted" if it (1) meets or exceeds all of the minimum standards under RSA 483-B:9; (2) includes a notification form, signed by the property owner, that provides the specified information about the owner, property, and project and includes plans and photographs; and (3) identifies which category of PBN projects identified in the statute the project is in. (Id.) The PBN process does not require the applicant to notify abutters or the municipality.

Changes to the minimum standards specified in RSA 483-B:9 give property owners much more leeway when landscaping within the protected shoreland, and in particular within the waterfront buffer (the first 50 feet from the reference line, which is approximately the water line). For example, property owners can now remove naturally occurring leaf or needle litter, stumps, decaying woody debris, stones, and boulders, as those materials were deleted from the definition of "natural ground cover" (Id. and 2011, 224:386). The grid/point system for measuring the minimum amount of vegetation that must be maintained within the waterfront buffer does remain in place, and a minimum of 50 points is still needed per 2500 square-feet (50 by 50) grid segment, but the scoring system has been significantly altered. Under the new system, as many as 25 points can be assigned to shrubs and groundcover, and the point values assigned to various diameters of trees has been increased (2011, 224:399). As a result, significantly fewer trees and saplings are needed per segment. To illustrate the significance of the change, consider this: under the prior scoring system, the minimum of 50 points per segment could be met by having five 14-inch trees or ten 8-inch trees, regardless of shrubs and ground cover. Under the new system, a segment with two 14-inch trees and ground cover on only half of the segment would exceed the minimum requirement.

Another change makes it easier for property owners to avoid the minimum standards entirely. Previously, property owners with projects not meeting the standards had to obtain a variance under RSA 483-B:9, V(i). Variances were subject to the same criteria as apply to local zoning boards of adjustment under RSA 674:33, I(b), and were not routinely granted. Owners now can request a waiver, which is to be granted if "strict compliance with the minimum standards ... will provide no material benefit to the public and have no material adverse effect on the environment or the natural resources of the state." (2011, 224:401)

Expanding and moving a non-conforming structure also was made easier, by two related changes. First, the prohibition against changes in the size, dimensions, footprint, interior square footage, and location of a structure was deleted from the definition of "replace in kind" (RSA 483-B:4, XVIII-c); the term now means the "substitution of a new structure for an existing legal structure." (2011, 224:390) In conjunction with this, RSA 483-B:11, I, was revised so that nonconforming structures within the protected shoreland can be "repaired, replaced in kind, reconstructed in place, altered, or expanded" (2011, 224:404). A structure’s footprint can be expanded even if it is within the waterfront buffer, but it cannot be extended closer to the reference line and the structure and/or property must be made "more nearly conforming" (Id.).

Changes also were made that will benefit those who do not comply with the law. First, RSA 483-B:5, II has been amended so that DES is now allowed to enter property only after written notification to the property owner (2011, 224:394). The introductory language of paragraph III of RSA 483-B:18 (regarding enforcement) has been revised so that civil penalties, injunctive relief, and/or administrative fines can now be assessed only against someone who violates the Act and "damages the public waterway" and "fail[s] to make a good faith effort at remediation and restoration" after notice from DES (2011, 224:406). RSA 483-B:18, III(a) has been revised to reduce the maximum civil penalty from $20,000 per day of a continuing violation to "$5,000 for each continuing violation" (Id.). Finally, criminal penalties have been eliminated entirely. (Id.)

This article summarizes the more significant changes to RSA 483-B; more information will be available at as resources allow.

Gretchen Rule Hamel is the Legal Unit Administrator for NH DES. Ms. Hamel earned a BS (Chemistry) from the University of New Hampshire and a JD from Harvard Law School. She has been at DES for over 23 years.

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