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DES may rethink 410 Rule on Ossipee Lake


June 24, 2010
OSSIPEE — State environmental officials expressed a willingness to change the controversial 410 Rule on Ossipee Lake, but first they will need to come back to the region in the fall to examine more evidence.

By law, the State owns the lake and shoreline to the natural mean high water mark, which the Department of Environmental Services (DES) currently sets at 410 feet above sea level, or about three feet higher than the lake's summer level. Local officials and Ossipee Lake Alliance believe 410 feet is too high, and point out the state has no data to sustain its claim. A recent survey of lakeside property owners found, 35 respondents said DES' claim that the lake's natural mean high water mark is 410 feet above sea level means the state owns more than one-quarter of their property – with 12 of those saying the state owns everything, including their home, according to the Ossipee Lake Association.

On Tuesday, local officials from Freedom and Ossipee along with Bob Reynolds, of Ossipee Lake Association, went on a tour of the lake with DES officials. Then the group met at Ossipee Town Hall to discuss their findings.

The purpose of the tour was to help DES officials decide whether the 410 determination is accurate. The natural mean high water mark is a physical feature that the water leaves on the shoreline. Specifically, DES wants to know what the high water mark was before dams were installed on the lake. Jim Gallagher, of DES, stressed that the "410 Rule" was not in fact a rule, but rather a "determination."

Unfortunately, some of the lake's features that the DES officials were looking for on Tuesday were not visible because the water was too high. Gallagher said he'd have to come back in the fall sometime after Columbus Day.

"Years ago, the determination was made that Ossipee Lake was 410 feet and we've been carrying on with that," said Gallagher. "We looked back on the record and didn't find a lot, so we're revisiting that… Our determination will be based on physical evidence."

Ossipee Selectman Harry Merrow agreed.

"We'll find the best scientific method to determine the high level mark and let the chips fall where they may," said Merrow.

In the meantime, the Town of Ossipee will not grant abatements to affected property owners. That would be admitting that the state is correct, said Merrow.

In addition to providing the tour, the local officials provided Gallagher and his coworker Rene Pelletier with numerous pages of documentation and maps. The group plans to meet again in August — after they have a chance to fully digest the information gathered during Tuesday's meeting.

Gallagher said he hopes that DES will be able to render some conclusion surrounding the 410 determination by the end of the year. The 410 mean high water mark determination was based on some mapping done about 80 years ago.

"Somewhere in the 1930s, someone came up with the 410 number," said Pelletier, of DES. "We hope not to have this conundrum in 50 years."

Reynolds said he hoped it would be resolved quickly because the 410 foot determination makes it impossible for people to buy or sell affected properties. After all, no one would want to buy land from a private person if it turns out that land is actually owned by the state.

"This may be stymieing a lot of real estate activity in the area," said Reynolds who called for a deadline.

Everyone at the meeting seemed to agree that Reynold's question is important and they planned to seek an opinion on that from the New Hampshire Attorney General. However, Merrow said he didn't want the process to be rushed.

State Rep. Mark McConkey (R-Freedom) said the local officials have already gotten the state to bend on the 410 determination when it comes to permitting. Now, the state will allow people to do things like repair their retaining walls and septic systems at 407.25 feet. McConkey also said he was pleased with how the process was going and he thanked the DES officials for making the visit.

"It's been a real open process," said McConkey who said everyone seems to be working in good faith. "I think we are where we need to be."

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