So You Want ot Put that Garden Where? Traps for the Unwary in the Shoreland Water Quality Protection Act

The snows of February are now gone and the Black Flies have not yet appeared; and like many New Hampshire residents, my thoughts naturally turn to being outdoors and working in my gardens.  For those with water frontage, however, there are several things you should know about the Shoreland Water Quality Protection Act found in RSA 483-B (“the Act”) before you start that new project.

The Act gives the Department of Environmental Services (“DES”) various levels of jurisdiction within 250 feet of the “reference line” –  this usually means the highest observable tide line.  While certain activities within the 250 foot Shoreland Protection zone generally do not require a permit from DES, such as maintenance of existing grandfathered open areas (e.g. mowing lawns, raking leaves, adding mulch) and planting non-invasive species or maintenance of gardens by hand, if the object is to create a new garden, install a permanent structure, and/or if machinery is being used, a permit from DES may well be needed.

Within that 250 foot zone, there is a series of zones which run in order of protection/restriction:   a Waterfront Buffer and Primary Building Setback zone (the area within 50 feet of the reference line), the Natural Woodland Buffer zone (running between 50 feet and 150 feet from the reference line), and the Shoreland Protection zone (running between 150 feet to 250 feet from the reference line).

Within that 50 foot Waterfront Buffer zone, property owners are limited on what work they can do and how much of the natural ground cover and/or trees and saplings they can remove.  In short, if you want that new garden to go within the Waterfront Buffer zone, you will need to analyze the existing tree/shrub coverage and ground cover to see what, if any, vegetation can be removed to allow that new bed.  Trees and shrubs are given a variety of “points,” with the goal of the Act being to maintain as much existing vegetation as possible. Additionally, the Act requires that 25% of the area within the Natural Woodland Buffer zone be left in an “unaltered state.”

We recommend to our clients that before undertaking any activities you take photographs of existing conditions and create a diagram of both your existing conditions and your proposed changes.

The Act is complicated and is a topic of continual amendment by the Legislature.  Note that certain other State and Town regulations may also apply that are beyond the scope of this article.  For more information, check out the DES website at or consult with an attorney in DTC’s Land Use and Permitting Practice Group or an experienced wetland scientist.