Towns shoulder burden of proof in high water mark dilemma
Lake Alliance, officials collect historic data on Ossipee Lake levels
April 22, 2010
OSSIPEE — The Ossipee Lake Alliance and town officials from Freedom, Ossipee and Effingham are busy this spring collecting evidence to support a request to lower the state's mean high water mark at Ossipee Lake by three feet.
Under common law, the state owns large bodies of water and their shorelines up to the mean high water mark. For Ossipee Lake, this mark is 410 feet above sea level. This benchmark poses a problem for shorefront homeowners like Bob Reynolds of Ossipee, who found that his entire lot was under the 410-foot mark when he applied to the state for shoreline work. The state has also denied applications for some septic system work, citing that the work was proposed within state property – within that 410 mean high mark.
Proponents seek to lower that mark to 407 feet. Other homeowners question ownership of the property but have unsuccessfully applied to towns for tax abatements. OLA and town officials met with key personnel from the state Department of Environmental Services, Department of Justice and the Dam Bureau in December to air their concerns. State officials acknowledged they couldn't justify when that mean watermark was set, and shifted the burden onto town and OLA members at the meeting to provide evidence supporting the request.
Since that meeting, Ossipee select board chair Harry Merrow, who is also a local Realtor, said he and State Rep. Mark McConkey of Freedom have collected "quite a bit of material" to present to the NH Department of Environmental Services. "We're hoping we can establish the mark is below the 410 – if we can't we'll go to court," said Merrow. He's aware of at least one abatement request to Ossipee, which was denied. "If we allow abatements, we are admitting the state owns to the 410 mark and we don't think it does," Merrow said. His collected data thus far includes old maps, and the fact that some old gravesites are located under water, as is an old state bridge abutment. He invites landowners who have evidence of the lower mean watermark to contact him with information.
In other developments, Ossipee Lake Alliance Executive Director David Smith announced that mailing list subscribers were notified by letter of an online survey on the topic of the 410 mark. The survey seeks to determine how many lake property owners are affected by the state's claim that it owns the shoreline up to the 410-foot mark.
The survey is targeted to property owners on Ossipee Lake and the three bays, the rivers and channels and Danforth Pond. Paper copies of the survey will be provided to property owners who do not have Internet access.
"I think everybody is affected in some way; the question is, how many," he said, noting that Reynolds' property is entirely under the 410 mark and that he thinks Westwood Shores homeowners are also heavily impacted.
One goal of the survey is to increase awareness of this issue. Smith said many lakefront property owners live elsewhere and were not around for the meeting in December. They have yet to fathom the potential impact of the state's mean high water mark on the lake. "This creates complications if you want to sell your property; you might not be able to get a free and clear title. That's the biggest concern thus far," Smith said.
Smith is equally as concerned that the state has shifted the burden onto the lake community and local representatives.
"Most disturbing is that the state does not know who set it, the criteria, etc. Because of that, the state should have the obligation to reset that number and to investigate. Instead, they have dumped that burden onto the lake community and the local representatives to prove that it should be lowered," said Smith. "It's a wild goose chase, because the state has not told us anything; they can't tell us what we're looking for."
"That, to me, is most disturbing. Our hope was that this would be a collaborative effort between the state and the lake communities."
A follow up meeting will be scheduled for some time in June with Rene Pelletier of NH DES and Jim Gallagher from the state's water division.
Pelletier has said in the past that the state is willing to consider evidence to lower the mean high water mark; as of this week, there were no new developments at the DES regarding this topic but Pelletier noted he would look forward to a follow up meeting and tour
Merrow said that tour will show them the lake historically has been much lower of the 410 mark, and will include a viewing of the Stage Road bridge abutments, now underwater.
Smith expects that more landowners will be around – and aware of the problem – for the follow up meeting in June. "There will be a higher level of interest," Smith said.
"Our agenda is to get this resolved," he said.