Key Points on New Hampshire Dock PermitsJul 01, 2018
You have just purchased your dream home on the shore of New Hampshire’s big lakes and want to replace the old dock that came with the property. You notice some pretty large docking structures around the lake and want to install a dock large enough to accommodate your boats and family gatherings. Your contractor tells you it is doable. Before you proceed, it is worth a quick review of some key points on the law of docks in New Hampshire.
First, unless you plan to continue using an existing, legally grandfathered dock without expanding it, you or your contractor will need to apply for and obtain a permit from the New Hampshire Department of Environmental Services (NHDES). Under New Hampshire wetlands laws, only grandfathered docks or repair/replacement of existing legal structures can avoid permitting requirements. Even temporary, seasonal docks require a state permit, although they can qualify for a streamlined process if they meet certain criteria, including frontage, size, location and number of boat slips. For other projects, permitting can depend on whether a “need” for the project is demonstrated, among other things. While the New Hampshire Supreme Court recently confirmed that NHDES is authorized to require applicants to demonstrate need before granting a dock permit, the Court also established some constraints in how broadly that criterion can be applied to property owners with littoral rights.
Second, there are different levels of permit review that can affect project timing and cost, ranging from notification to full-blown permit proceedings. Temporary, seasonal docks and certain other projects can qualify for a permit by notification, which speeds up the permitting process and provides for standard form submission. In contrast, projects considered to be major, like docks with five or more boat slips or docks in tidal wetlands, usually require submission of more extensive application materials, with plans. There is a longer agency review time and Governor and Executive Council approval could be required. Knowing in advance how your project is classified under wetlands rules can help with project scheduling and budgeting.
Third, in addition to abutter rights under common law, state statutes give abutting landowners enhanced procedural legal rights before, during and after dock permitting proceedings. There is also broad protection in wetlands laws to prevent the agency from granting permits that would infringe on abutter property rights. Abutters in standard proceedings are entitled to certified mail notification of the dock application and can participate in and appeal the NHDES decision. Appeals are filed with the NHDES Wetlands Council, which reviews whether the permit decision was unlawful or unreasonable, and the Council decision can be further appealed to the state’s Supreme Court. Reducing litigation risk can often be as simple as checking in with the neighbors on any potential concerns about the dock plans.
Fourth, the state can enforce permitting requirements, including failure to obtain or comply with a permit. Because NHDES is in the process of updating the wetlands rules, keep in mind that there might be significant changes to the way in which the state regulates docks in the future. The revised rules could be in place by next year.
About the Author: Maureen D. Smith