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State officials open to study, adjust 410-foot mark for Ossipee Lake

Hundreds pack Ossipee Town Hall for public forum on lake level

August 19, 2010
OSSIPEE — Where was everyone on Saturday?

It's likely many friends and neighbors in Ossipee and Freedom were at the Ossipee Lake Alliance public forum on the so-called "410 Rule" for Ossipee Lake, where more than 200 people jammed the Ossipee Town Hall on a hot and sunny Saturday morning, Aug. 14.

At the forum, state officials said they were open to study and possibly adjust the 410 mark, that they would collect data and tour the lake this fall after the drawdown, and get back to the public by January 2011 with an assessment.

Organizers and participants alike marveled at the heavy turnout, which by some accounts was more than the number that regularly attends town meetings. All 100 of the town hall's metal folding chairs were filled and it was standing room only for those who hovered on the sidelines or in the rear of the hall. The free coffee offered at the rear of the auditorium was long gone by 9 a.m.

Residents, no doubt many or most were shorefront property owners, attended to discuss a controversial interpretation of how much Ossipee Lake Shorefront property is owned by the State. The state owns the water bodies in New Hampshire, and sets a mean high water mark to delineate state from private property. The problem with this little known benchmark, emerged last fall when the NH Department of Environmental Services denied several permits for shorefront property owners to perform shoreline maintenance work, such as repairing septic system. The 410 rule subsequently created confusion over tax liabilities and whether a property owner had the right to sell the property.

The panel seated at the front of the forum included Freedom Selectmen Scott Cunningham, Les Babb and Neil Boyle, Ossipee Selectmen Harry Merrow and Morton Leavitt, Jim Gallagher, the Chief Engineer for the state's Dam Division; and Rene Pelletier, assistant director of the NH DES Water Division. Other guest speakers included Bob Reynolds of the Ossipee Lake Alliance, State Rep. Mark McConkey, R-Freedom, and Alliance President David Smith. In the audience were State Senator Jeb Bradley (R-Wolfeboro) and State Rep. Susan Wiley, (D-Sandwich).

Reynolds, of the Ossipee Lake Alliance, was himself a perfect example of worse case scenario since his entire property lies within the 410-foot line. He said a three feet difference from mean high water mark to a typical water level of 407.25 (the line currently being applied by the state for permit applications) is " along way up your shoreline."

"This has also had a chilling affect on real estate sales," he said, reporting anecdotal information of a 50 percent dip in sales. Buyers may wonder "if I'm buying this property, do I own it or not," Reynolds said. He said the towns also collected millions of dollars in shorefront property taxes, which in many towns equals more than half of the tax revenues.

Furthermore, he said the state couldn't seize property without compensation. If the property beneath the 410 line falls within state property it would be untaxed and towns would lose millions of dollars.

"There's evidence that the 410 line is wrong … we're all on the same side here. Let's just fix the issue," said Reynolds.

Chief Engineer Gallagher concurred that the state is working with residents and officials. He also clarified a major point, that the state is not using the 410 line any longer as the buffer line for shoreline work, but rather the 407.25.

He said the "mean high water mark" for inland waters is the highest line on a water body that is usually delineated by physical features such as shelving visible when the lakes are lowered. "It's kind of like a ring around a bathtub."

Those physical features were used at one time (but it was unclear as to exactly when or why) to set the mark on Ossipee Lake at 410. "We need to take a look at this," he said. A dam installed back in 1878 may have also affected the mean high water mark. Gallagher said during a reconnaissance tour of the lake in the spring, officials did now see a ring, or shelving, at the 410 line. "The environment has been altered by the dam," he said. "We're continuing our investigations." He said there is evidence to support the 407.25 line and in the fall, "we'll look harder."

"We're going to have to look at physical evidence," he said. Gallagher said by the end of this year, the state should have enough data to make a decision on the line. No doubt, he added, line clouds the ownership issue. However, the state has no interest in seizing property. The land that it does own under the lakes is owned in public trust.

One attendee asked what if any benefit the higher 410 mean high water mark holds for the state.

"None, the state has no incentive whatsoever. The state wants to determine what (the line) is," replied Gallagher. Later he added, "we're not here to defend the 410 line – it is what it is. We'll come up again this fall and come up with a documented decision."

From the audience, about a dozen residents provided the officials with information, feedback and data on why they thought the 410 line should be lowered. Selectmen Merrow added that he's found some grave and bridge abutments under water – no doubt evidence that the water level has risen over the years.

Several officials expressed a desire to avert a lengthy and costly legal battle over the line.

State Rep. McConkey said he was encouraged by the meeting and was concerned for homeowners. "The towns should not have to spend good money to plead their case in the courts," he said. However, legislators could submit place-holding legislation this fall in the event that lowering the lake high water mark would require a legislative solution.

Resident Neil Boyle urged the officials "not to take the easy way out.

"Make the decision to put it back to 400 feet – and don't throw it back to the courts," he said, eliciting laughter from the crowd over his "400" foot line.

Assistant Director Pelletier said the information supplied by the towns thus far has been very helpful. He complimented the crowd, and said, "This has been a very accommodating group."

He assured the public that the department will come out with a decision by January if not sooner. "We want to do the right thing," he said.

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