2011 NH Water & Watershed Conference. Jennifer Rowden NH Department of Environmental Services

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1 2011 NH Water & Watershed Conference Jennifer Rowden NH Department of Environmental Services

2 New Hampshire s Water Resources Lakes and Ponds 1,000 Great Ponds Cover 165,000 acres Coastline 238 miles Rivers and Streams 17,000 miles Groundwater 60 % of NH s drinking water

3 Origins of Public Trust Roman Law Institute of Justinian By the law of nature these things are common to all mankind the air, running water, the sea, and consequently the shore of the sea. No one, therefore is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations. English Law Magna Carta, 1215 Limited restrictions to access sea. US Law State Constitutions

4 Public Trust Doctrine Today What is Public Trust Doctrine?. Common Law v. Statutory Law Common laws defined by courts Statutory laws defined by legislation Constantly being redefined as societal need change Then: Navigation and fishing Now: Navigation, fishing, recreation, aquatic life, and other uses and benefits Public Trust typically covers all navigable waters

5 Public Trust in NH Public Waters RSA 271:20 State Water Jurisdiction All natural bodies of fresh water are state owned public waters, and are held in trust by the state for public use the state retains its existing jurisdiction over those bodies of water located on the borders of the state over which it has exercised such jurisdiction. Courts have not settled on one definition of public waters, but... Generally included: Tidal waters Lakes and ponds greater than 10 acres Navigable rivers

6 Ownership State Ownership v. Jurisdiction All natural lake beds, but not river bottoms. 400 miles of state waterfront property Fee simple or flowage rights Jurisdiction Over the public waters Police powers to protect the people and property within the state. Reasonable Use of state waters include boating, fishing, swimming, and other lawful and useful purposes.

7 Another common law Riparian Rights Refers to tidal, estuarine, lake and river shorefront property owners. Riparian rights = Right to access the water Wharf out Gain by accretions or lose by erosion To replace losses by avulsion

8 Riparian Rights continued NH Supreme Court, 1979 (Sundell v. Town of New London,) Riparian land owners rights are greater than the public generally. Including the right to use and occupying waters adjacent to their shore for recreational purposes. However Riparian rights are also incidental rights. Meaning shorefront property may build a dock, as long as it does not unreasonably interfere with the public s use of the water. Rights are always subject to the State s rights to control them reasonably for public purposes. State can only take away rights if a landowner is compensated.

9 Regulatory Authority RSA 483 B: Shoreland Protection Act The state has an interest in protecting those waters and has the jurisdiction to control the use of the public waters and the adjacent shoreland for the greatest public benefit. State agency statues and administrative rules = regulatory authority Do Identify resources included in the public trust and how they will be protected Do not Define public trust

10 Docks, Moorings & Trampolines

11 Maintaining Navigation NH Department of Safety Mooring Permits RSA 270:60 Protecting the use of public waters by curtailing the undue proliferation of moorings Permit applications require existing docking information and and justification for the mooring NH Department of Environmental Services Dock Permits Require Wetlands Permit Restrict dock length (100 ft) and minimum spacing (75ft)

12 What is a public river? Rivers & Streams No size distinction, but its usefulness. But the ability to navigate is the general test. Protection for navigability (RSA 271) and for recreation (various statutes and administrative rules). NHDES has authority to determined navigability and recreation value on case by case basis from DOJ.

13 Shoreland Protection RSA 483 B Comprehensive Shoreland Protection Act & Permits Under current law the potential exists for uncoordinated, unplanned and piecemeal development along the state's shorelines, which could result in significant negative impacts on the public waters of New Hampshire.

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