How to Navigate Regulations
Who regulates buffers?
New Hampshire was one of the first states to regulate the protection of wetlands. Jurisdiction for tidal wetlands began in 1967 and for nontidal wetlands in 1969. Today, management of buffer areas is governed by a combination of federal, state, and local policy that leaves many smaller shorelands and undesignated wetlands unprotected. Opportunity for increased buffer regulations for the smaller streams and undesignated wetlands lies with the municipalities. Town Planning Boards and Conservation Commissions are able through state statute to implement stricter regulations than the state standards and many have. To learn more about how to start working on increasing buffers in your community visit the Working with Communities page.
In BOB’s community assessment of community perspectives in the Exeter-Squamscott subwatershed, stakeholders reported that navigating this patchwork of municipal regulations can be confusing or frustrating. Several called for its simplification or even a one-stop-shop for all permits. The assessment found that, generally, there is support for statewide buffer regulations to support uniformity, clarity, and consistency.
State and federal buffer regulations are administered by the New Hampshire Department of Environmental Services (NHDES). These regulations restrict certain land use activities within shoreland and wetland areas. Their extension to buffer areas is limited to water bodies defined under the New Hampshire Shoreland Water Quality Protection Act (SWQPA) and the Prime Wetlands list. However, municipalities can enact more restrictive buffer regulations to protect valued water bodies and many do.
What's protected? What's not?
In New Hampshire a majority of buffer regulations are determined at the municipal level because 85 percent—or 16,000 miles—of the state’s streams are 1st, 2nd or 3rd order and therefore are beyond the reach of the state’s Shoreland Water Quality Protection Act (SWQPA) and federal regulations. Towns are able through state statute (RSA 647:16) to implement stricter regulations than the state standards and many have. (CLICK HERE to explore the state authority and structure for town board land use planning.) The Innovative Land Use Planning Techniques Handbook provides model buffer ordinance language for towns in addition to many other sustainable development techniques. RSA 674:21 outlines many of the land use control options municipalities can utilize to regulate buffer zones. Check with your town’s Planning Board or Conservation Commission to find out what is regulated in your community. For an overview of how buffers are implemented town-by-town around the Great Bay Estuary explore the Piscataqua Region Environmental Planning Assessment (PREPA).
This graphic shows a stream system and how low order streams converge to form 4th order streams. State and federal protections for freshwater start at 4th order streams. To see a map of all 4th order and higher streams in the state CLICK HERE.
At the state level, RSA 482-A: Fill and Dredge in Wetlands creates several zones to protect wetland areas, however, only some encompass buffers. These include prime wetland buffers—defined as a 100-foot upland buffer for wetlands designated as prime by a municipality—and tidal buffer zones, or the areas extending landward 100 feet from the highest observable tide line.
The Shoreland Water Quality Protection Act (SWQPA) also protects a 150-foot wide vegetated buffer in specific contexts. These include public waters, ponds, and impoundments greater than 10 acres, all lakes, 4th order and greater streams and rivers, rivers and river segments designated under the Rivers Management & Protection Act, and all waters subject to the ebb and flow of the tide, including tidal marshes, rivers, and estuaries.
If a stream, river, or wetland is not designated as “prime,” or is less than fourth order, no buffer protection is mandated by the state. However, under RSA 482-A:15 and Administrative Rules Env-Wt 700, a municipality may designate wetlands as “prime” if they are determined to be of high-quality, i.e, of large size, unspoiled character, and able to sustain populations of rare or threatened plant and animal species.
For more information about buffer regulations at the local, state, and federal level, see BOB’s Relevant Synthesis of Policy Options or refer directly to the following resources:
- The federal government’s jurisdiction is found under Section 404 of the Clean Water Act. The United States Army Corps of Engineers (USACE) carries this out by issuing a Programmatic General Permit in New Hampshire.
- State jurisdiction over these activities can be found in RSA 482-A: Fill and Dredge in Wetlands and the NHDES Administrative Rules Env-Wt 100 through Env-Wt 800. RSA 482-A: 2,X
- The state’s Shoreland Water Quality Protection Act (SWQPA) establishes minimum standards for the subdivision, use, and development of shorelands adjacent to public water bodies. Waterbodies protected under SWQPA are located on the Consolidated List of Water Bodies.
- Municipalities may designate wetlands under RSA 482-A:15 and Administrative Rules Env-Wt 700, as “prime” if they are determined to be of high-quality, i.e, of large size, unspoiled character, and able to sustain populations of rare or threatened plant and animal species.
CLICK HERE for a printable summary of the regulatory structure in New Hampshire.
What can I do in a buffer?
Permissible activities in buffers depend on relevant regulations. Statewide, the Shoreland Water Quality Protection Act protects a 150-foot vegetated buffer adjacent to specified water bodies. (Consult the Consolidated Water Bodies List to determine whether the state’s SWQPA applies to a particular water body.)
The 150-foot buffer is divided into waterfront and natural woodland buffer zones. Under RSA 483-B:9, V.(a)(1), waterfront zones include protected shorelands within 50 feet of the reference line. Within this zone, many land use restrictions apply related to vegetation removal, fertilizer use, construction, and other alterations. (See RSA 483-B:9, V.(a): Maintenance of a Waterfront Buffer.)
Natural woodland buffer zones within protected shorelands must be maintained within 150 feet of the reference line and encompass the waterfront zone. Defined at RSA 483- B:4, XI, these include forested areas with various species of trees, saplings, shrubs, and groundcover in any combination or stage of growth. Within these zones, 25% of the area must remain unaltered, i.e, native vegetation must be allowed to grow without cutting, limbing, trimming, pruning, mowing, or similar activities, except as needed for renewal or to maintain or improve plant health. Other land use restrictions in the natural woodland buffer zone can be found in RSA 483-B:9, V.(b): Maintenance of a Natural Woodland Buffer.
The SWQPA also requires several types of setbacks with protected shoreland areas. A setback is generally a specified distance from the water body within which other types activities are restricted, such as building construction or establishment of a septic system. Guidance on setbacks can be found under RSA 483-B:9: Minimum Shoreland Protection Standards and include 50-foot setbacks for all new primary structures; 20-foot setbacks for accessory structures, such as sheds, gazebos, and patios; and for septic systems, at least a 75-foot setback or more, depending on soil condition.
Projects involving excavation, earth moving, and filling are also subject the SWQPA. Those occupying areas greater than 50,000 square feet within the protected shoreland must have appropriate erosion and sedimentation control, and an alteration of terrain permit is required whenever a project proposes to disturb more than 100,000 square feet of terrain, no matter the location of the project.
The SWQPA also restricts the impervious cover allowed within protected shoreland areas. Under RSA 483-B:9, V.(g)(1), no more than 30 percent of the area of a lot located within the protected shoreland shall be composed of impervious surfaces, unless it includes a stormwater management system designed and certified by a professional engineer.
For more specific information on NH state regulations refer to the NH DES Wetlands Bureau Frequently Asked Questions.
Why protect smaller rivers & wetlands?
Water resources are firmly linked to quality of life in New Hampshire, and the land bordering rivers, streams, and estuaries provides many benefits that support strongly held, local values.
According to BOB’s community assessment of community perspectives in the Exeter-Squamscott subwatershed, these values include a need to protect public health, preserve community character, ensure access to water and views, provide clean water for drinking and recreation, maintain wildlife and forests, avoid future costs, and support economies that make communities desirable places to live and do business.
Unfortunately, approximately 85 percent—or 16,000 miles—of the state’s streams are 1st, 2nd or 3rd order and beyond the reach of state and federal regulations to protect. Natural resource managers are increasingly aware of the importance of these smaller streams in relation to the benefits that align with stakeholder values. Research has shown that buffers along headwater streams have a greater influence on overall water quality than buffers adjacent water body. For example, headwater streams exert control over nutrient exports to rivers, lakes, and estuaries and have a profound influence on shaping downstream water quantity and water quality.
Riparian habitat is at particular risk from conversion as these areas are often highly suitable for agriculture and desirable locations for human development. In the United States, ~1 percent of riparian areas were lost from 1972 to 2003. While this figure may not seem high, it is important to recognize that this represents a continued loss of habitat on top of historical loss in many places. In coastal New Hampshire, much of this land conversion can be attributed to a growing human population as a result of proximity to the expanding greater Boston area. From 1990 to 2010, the population in the Southern New Hampshire region grew by 19 percent with a concomitant 120 percent increase in impervious cover (representing 9.6 percent of the land area).
Where are the valuable buffers?
The BOB team created a set of municipal scale maps that identify and prioritize buffer areas in the Great Bay watershed according to their capacity to support four categories of benefits: water quality, flood storage and risk mitigation, wildlife habitats as designated in action plans and co-occurrence of benefits. Ostensibly, the more benefits a buffers supports, the higher its potential value, making co-occurrence maps particularly useful for assigning value to a particular buffer.
The Local Prime Wetlands Designation process (under RSA 482-A:15 and Administrative Rules Env-Wt 700) provides a way forward for communities interested in protecting a high value buffer area. This regulation allows a municipality to designate wetlands as “prime” if they are determined to be of high-quality, i.e, of large size, unspoiled character, and able to sustain populations of rare or threatened plant and animal species.
Should all buffers be the same size?
Buffers provide different ecosystem services depending upon their width and other characteristics. According to the coastal science literature review conducted by the BOB team, the overarching message regarding the relationship between buffer width and provision of ecosystem services is a simple one: in general, wider and more forested buffers provide greater benefits to water quality and biodiversity.
From a regulatory standpoint, perhaps the simplest approach is to recommend a single buffer width based that will maintain a majority of ecosystem services under most circumstances. For this purpose, scientists tend to agree that a 100-foot wide buffer is a good target.
However, buffer width can be varied, based on a variety of criteria, by a regulatory agency with jurisdiction over a given area. These criteria can include type or quality of the wetland from which the buffer extends—as the BOB team did with its prioritization maps— or even the slope or grade of the area leading toward the wetland or shoreland, the type or intensity of land use in the area in question, pollutant loading or the type of habitat present.
For example, the zoning ordinance of Island County in Washington State, for example, employs several matrices to calculate the appropriate buffer width for wetland areas. They employ a seven-step process for calculating these buffer widths and the County’s Planning Director determines land use intensity on a 3 grade scale. Once land use intensity is determined, the ordinance outlines appropriate buffers for especially sensitive wetlands (such as bogs, coastal lagoons and estuarine wetlands), with wider buffers for more intensive land uses. CLICK HERE for more details on this Washington State Case Study.
Another model for approaching regulating buffers comes from Rhode Island. Rhode Island offers an example of how a state with decentralized wetland policies can reclaim decision- making authority in a way that protects the interest of local communities and ecosystems and explore the use of variable width buffers based on surrounding land use. After an extensive review of the effectiveness of its former policies, Rhode Island underwent significant changes in its buffer regulations in 2017. To read more about Rhode Island’s efforts, CLICK HERE for the Case Study.
In New Hampshire, we currently lack the detailed spatial data and mathematical models needed to derive buffer recommendations tailored to the site-specific context. As such, even were this approach deemed to be the most desirable one, it is not currently practical.
These widths are a result of a synthesis of many sources. For more specific information about how these widths were generated, please reference the Coastal Science Literature Review.
What regulatory options do towns have?
Communities have a range of regulatory options with which to manage buffers, some of which have the potential to greatly enhance protection of buffer areas and use of local knowledge in land use management decisions. The effectiveness of each option, however, relies heavily on the resources, willingness, motivation, and expertise of a particular municipality to properly manage these areas. They include the following:
- Rely solely on the state’s SWQPA (RSA 483-B), which has limited jurisdiction and is not likely to protect many buffer areas associated with local water resources.
- Adopt regulations that extend the same protections laid out in the SWQPA to local streams and surface water bodies that do not fall under the act’s jurisdiction.
- Develop separate stream corridor (watershed) regulations to protect riparian buffers along 1st-3rd order streams, but leave the State’s SWQPA to regulate the lakes, ponds, and higher order streams in the community. See this PDF for more information.
4. Adopt regulations that are more stringent than the SWQPA minimum standards. Under RSA 674:16 Grant of Power, municipalities can adopt zoning ordinances that determine how land use and development decisions are made. And under RSA 674:21 there is an extension of power to municipalities to adopt innovative land use controls methods in shoreland and wetland areas. Such methods include environmental characteristics zoning, which regulates activities on a given piece of land based on its environmental characteristics.
For example, a Conservation Overlay District Zoning can prohibit or restrict development in drinking water or wellhead source areas, wetlands, shoreland buffers, wildlife corridors, cold-water streams, and other critical resource areas. Municipalities can use overlay districts to establish the size of buffers and setbacks and determine which activities are considered “allowable uses.”
Transfer of Development Rights permanently protects farmland and other natural and cultural resources by redirecting development to areas planned to accommodate growth. Land owners can legally sever the “development rights” from their land and sell them for use at another location. The land from which the development rights have been severed is permanently protected and the development value of the land to which development rights are applied is enhanced by allowing for new or special uses, greater density or intensity, or other regulatory flexibility.
- Embrace floodplain management. The National Flood Insurance Program (NFIP) is a partnership between a local community and the federal government. In participating communities, property owners and renters may purchase insurance to protect them against losses from flooding. In exchange for adopting and enforcing floodplain regulations designed to reduce future flood risks communities can get a reduced rate on their town’s residents’ flood insurance premiums. Towns must maintain current minimum floodplain standards to stay in the NFIP.
The state has authored a Floodplain Management Handbook to assist those at the state and local level in navigating the process of addressing flooding in New Hampshire. The NH Office of Strategic Initiatives operates a floodplain management program that offers assistance to towns. The University of New Hampshire also provides an online resource—Floodplain Learning on Demand—that provides, maps, regulatory information, quizzes, and a diversity of other information for those interested in learning more about floodplain management in New Hampshire.
6. Establish hazard zones. Under RSA: 674:56: Flood Hazards, and RSA 674:21: Innovative Land Use Controls, municipalities can minimize future flood impacts and enhance public safety in areas that are at risk for flooding and fluvial erosion by creating hazard ordinances. Fluvial erosion is defined as erosion caused by rivers and streams, ranging from gradual bank erosion to massive, sudden changes in river channel location and dimension during flood events. More information and model ordinances can be found in Chapter 9 of the Innovative Land Use Planning Techniques Handbook and the New Hampshire Office of Strategic Intiatives (OSI) Floodplain Management Program. These types of local land use controls indirectly discourage development near waterways thus protecting both water quality and local property.
7. Enact a Current Use Tax Structure: Current Use Regulation RSA 79 A allows communities to establish a tax strategy that enables landowners to keep open space property undeveloped. Under current use, land is assessed at its present, rather than at its highest potential, use. Those who possess qualified property pay a reduced tax rate. If property owners later decide to develop the land, they agree to pay a land use change tax, which is calculated as a percentage of the fair market value of the portion of the property being developed. Unless a governing body or town vote dictates otherwise, the land use change tax goes to the general fund. However, several New Hampshire communities have applied all or some of the tax to the town’s conservation fund. The Town of Sunapee has a useful guide to current use and more information can be found in a booklet published by the New Hampshire Department of Revenue every year.
What regulatory options does the state have?
While proper local management is feasible, studies in New Hampshire and elsewhere indicate the benefits of local knowledge are often outweighed by the lack of resources and technical expertise available to municipalities. As a result, many of the state’s smaller shorelands and undesignated wetlands are at risk for degradation as its communities continue to develop, and stakeholders are left to navigate an inconsistent, confusing, economically inefficient regulatory landscape. These conditions contradict the objectives outlined in New Hampshire’s current Wetland Program Plan, which prioritizes regulatory consistency and high enforcement.
All of these factors combine to create a powerful incentive for stronger state level regulations related to buffer management. This is underscored by a feasibility study conducted by undergraduates in Dartmouth College’s Center for Public Policy and Social Science. This study weighed the costs and benefits of centralized and decentralized buffer policies in New Hampshire. It found that generally, local policy makers are not equipped to conduct a thorough study of the factors necessary to determine the appropriate buffer width and that this expertise is more likely to reside in state agencies. These findings echoed those of the Rhode Island Legislative Task force, which when charged with exploring this issue, found that, in many instances, the state was the entity with sufficient funding, expertise, and experience in shoreland and riparian management.
BOB’s community assessment of community perspectives in the Exeter-Squamscott subwatershed found that, generally, there is support for a statewide buffer. Stakeholders felt that it could provide uniformity, clarity, and consistency, support affordable housing by allowing greater density, reduce costs of development by promoting efficiency, and provide a safety net for municipalities that don’t have a buffer. Some felt the lack of strong state-wide buffer called more stringent municipal regulations into question and stronger state rules would demonstrate that the state and courts support their ordinances.
However, there were also concerns over whether a statewide buffer would supplant municipal regulations or make it easier to challenge these local ordinances. Would, for example, communities use a science-based statewide buffer or continue to use their own buffer, which some perceive as being arbitrary or based on restricting growth? Would longtime residents be grandfathered into the rules?
Other approaches to buffer regulation can be found in case studies from other states. These include Vermont’s program to managing buffers to support stream corridor migration, Rhode Island’s approach to resolving state versus local regulations, and Washington’s matrix-based process for setting buffer widths. For more about how buffers are regulated in New Hampshire and other states, see the BOB policy synthesis.
How are buffer regulations enforced?
New Hampshire Department of Environmental Services (NHDES) is responsible for enforcement of federal and state regulations related to buffers. NHDES can impose administrative orders and fines of up to $ 5,000 per violation (multiple violations at a site are possible). Acting through the Attorney General’s Office, they can also seek civil penalties of up to $10,000 per violation per day and/or criminal penalties up to a misdemeanor for private individuals and felony for corporations.
In cases where the impact is exceptionally large or environmentally damaging or the violator has a prior enforcement history and/or is unwilling to correct deficiencies, NHDES may take more formal actions, such as Administrative Orders, Administrative Fines, or referral to the Department of Justice. Remedial actions, including restoration, frequently require the violator to hire a state-certified wetland scientist or an erosion control specialist to develop and submit a plan to bring the site into compliance.
Often, however, infractions are minor enough to go unnoticed or they do not fall under NHDES jurisdiction. This can lead to a “death by a million small cuts” scenario. While municipal code enforcement officers can access private land, they often don’t. BOB’s community assessment of community perspectives in the Exeter-Squamscott subwatershed underscored challenges to enforcement, including insufficient capacity, conflicting priorities, the logistical difficulties of implementing and monitoring no clearing and fertilizer ordinances, and the lack of a clear rationale for the regulations.