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Who owns land under the mean high water mark?

State and local officials hold first meeting to address questions

December 26, 2009
TAMWORTH — An archaic and seemingly arbitrary natural high water mark rule imposed by the state years ago for Ossipee Lake has property owners asking questions about ownership and values.

To open up discussion over this quagmire, the Ossipee Lake Alliance facilitated a meeting on Dec. 15 with several top state officials including Rene Pelletier, environmental programs administrator with the state Department of Environmental Services, K. Allen Brooks, chief of environmental protection for the state Attorney General's office, Department of Justice, Mark Stevens, DES land agent, Ossipee select board members, and members of the Ossipee Lake Alliance. Lake Alliance Board member and property owner Bob Reynolds spelled out the problem in an introduction to about a dozen attendees of the meeting, which was held at Samantha's Inn.

Reynolds found that there is a rule that not only does the state own the lake and the land under the lake, it owns up to the natural mean high water mark. For Ossipee Lake, that line is set at 410 feet. An Ossipee Lake property owner himself, Reynolds found that his entire property lies under that mark.

"… The natural high mean water level for Ossipee Lake is 410 feet. The lake is maintained at 407.25 feet in the summer; we have a dam that is at 408.2 feet, but our lake is what they call flashy and it goes up and down a lot depending on the rain. Somehow this level was set at 410 feet. My property is completely below 410 feet. So, I guess, my question is 'who owns it?' Is it me? Is it the state? Is this the situation like eminent domain, where the government can take properties for the common good?" asked Reynolds.

The 410 feet rule also raises question about ownership and rights, as well as compensation. "Can I make decisions, shoreline protections aside, to buy or sell my property or do things to it that I would as a normal property owner? Does the state own me proper compensation? Technically, if the state owns it, its market value is essentially zero, so what would that do to town assessments and market values of its properties?" added Reynolds.

"Is my mortgage valid? Is my deed valid? What about property taxes? How does this work?" he asked. While Reynolds could not say how many property owners on Ossipee Lake were affected, he projected that many would be given that the water level is 407 feet at Ossipee Lake, three feet lower than the line drawn by the state way back when.

K. Allen Brooks took the first shot at addressing some of these questions and explained the background, as murky as it may be, on the 410 rule.

He said the rule stating that the state owns the land that falls under the natural mean high water mark has been in existence since New Hampshire first became a state. The case law on this goes back to when the great ponds (10 acres or more) are owned up to the natural high water mark. In various forms this rule is applied in other states. He didn't know what the history or the intricate details were regarding setting the line for Ossipee Lake, but later in the meeting, land agent Mark Stevens referred to a state document from the 1930 where the 410 rule appeared.

Freedom Selectman Neil Boyle said the word "natural" (high water mark) was a key word, and if the dam weren't there, the natural high water mark would be more like 350 feet. "The question is, 'what's natural?'"

Brooks added that if this involved a stream and the state artificially impounded it and created a body of water more than 10 acres, it would not own the land in trust for the public. They would have to purchase the land, he said.

Ossipee Selectman Harry Merrow said his uncle was a lawyer in the 1950s, and he was told that the man high water mark is the water level if the dam wasn't there. "It doesn't make any sense if you have a piece of property there." Brooks agreed that the mark shouldn't change based on an artificial condition (such as the state creating a man made lake by damming a stream).

Merrow said he knows of two graves that are under the lake, under water. "Certainly when they were buried had to be before the dam was built," he said.

Stevens, the land agent, said they were all in agreement that the word "natural" was the key element. "In the 1930s the state determined that the natural high water mark was 410. They concluded this based on studies that the dam actually lowers water levels. And in a typical scenario, the dam would raise the water level. They concluded the dam lowers it and without the dam the water would reach 410 every spring. By installing the dam they were able to lower the water level at 407.5," he said, adding that the installation involved some dredging of the outlet and the canal. That doesn't change where the natural high water mark is," said Stevens.

Merrow disagreed.

"Anybody that says that dam lowers the water level has rocks in their head," said Merrow.

"When I was a kid every fall they let the water out of the dam and the lake didn't go up. There is no way in the world the dam lowers the level. I would like to talk to whoever said that."

Stevens said the person who said that said it back in 1930.

Merrow explained what the issue meant for the town of Ossipee through statistics he has gathered.

"We've got 537 waterfront lots with an assessed value of (more than) $237,000,000 which brings in almost $4 million in tax revenue, which is about 40 percent of our taxes. Now all of these properties are not below 410 (feet) but I suspect many of them may have part of their lot below 410. I wouldn't want to pay taxes on something the state owns," he said.

Mark McConkey of Freedom, a septic system designer and installer, said he's run into an issue with the state telling a landowner that a system could not be placed in a location because of the high water mark. "Now we have people working with some of the surveying groups in town, we are continually running into problems with what to do with people who have homes in that area, how to maintain the property," he said. "My thought is if we can't resolve the natural high water level, then how do we work this? Does this need to be done legislatively? How do we allow people to reasonably care for what they have?"

Brooks said there were a number of septic systems below the 410 line. The decision as to what the actual… the final arbiter of that isn't us, and isn't the Legislature either; it's the judicial system – it's the courts. The court can determine that the natural state was more likely (a different number). We don't have the ability to do that.

The public trust doctrine is exclusively the realm of the courts, he added.

Pelletier added that the state has no interest in ownership. "It isn't anyone at the DES' intention to own the land. One of the things we are concerned about is, and the reason we operate the dams is to minimize impact on structures. We're wide open to talking about the 407 (line). When houses get flooded or are below grade our phones ring," he said.

Reynolds suggested, and state officials concurred, a review of the 410 rule. Pelletier wrapped up the meeting by asking those in attendance to submit any information, statistical, anecdotal or so forth, regarding this problem. "If you can get us any information to help elucidate the problem, we'll sit down and look at it. If wee need a legislative fix, we'll determine that need if we get to that point," he said.

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