Concord — November 25, 2006 — The Executive Council voted yesterday to allow two “dug-in” boathouses on Lake Winnipesaukee, despite rejecting a smaller boathouse last month that would have required less excavating than either of these projects.
The boathouse issue has stoked controversy. The state prohibits the construction of new boathouses at the existing shoreline. But shorefront property owners across the state have circumvented that problem by building boathouses slightly inland and dredging so the water meets the boathouse. State officials have traditionally permitted the projects, but a Superior Court judge ruled last year that the state had been lax in applying environmental-protection laws.
The case reached the state Supreme Court, which has not yet heard arguments on the matter. Until the court rules, the Department of Environmental Services and the Executive Council – which holds final approval for major projects on large bodies of water – can act on a case-by-case basis.
Ed Dupont, a lobbyist for one of yesterday’s applicants, hotel magnate J.W. Marriott Jr., said he believes the boathouses are legal under state law and come down to “philosophical, political and substantive” decisions by the executive councilors.
Opponents of the dug-in boathouses say the excavation damages the shoreline and can lead to a range of problems, including increased runoff and sediment deposits in the lake. The newly exposed lake bottom is particularly sensitive to invasion by milfoil and other harmful non-native plants, said Brad Kuster of the Conservation Law Foundation, an intervening party in the Supreme Court case.
Since the August 2005 Superior Court ruling, the Department of Environmental Services has refrained from approving similar boathouses, DES Commissioner Tom Burack said yesterday. However, the department has continued to forward previously permitted projects to the Executive Council for consideration, he said.
The Executive Councilors have mixed feelings about the boathouses. “In principle I don’t like them, but the department just keeps sending them over,” Councilor Peter Spaulding said yesterday, before the meeting. At a council meeting last year, Spaulding called dug-in boathouse construction “a destructive and unnecessary” practice of the “idle rich.”
Others are fine with them. “I don’t have a problem with it,” Councilor Ray Wieczorek said. Councilor Ray Burton, whose district includes the Lakes Region, said he endorses the boathouses because he believes they are legal.
“Hey, if it’s allowed under New Hampshire law, those who oppose it should go to the Legislature and change the law,” Burton said.
With Councilor Ruth Griffin absent last month, the council voted 2-2 on a proposed 760-square-foot boathouse in Alton. The tie meant the project failed.
With Griffin present yesterday, the council voted 3-2 to approve one boathouse and 4-1 to approve the other.
In one application, the Marriott family wants to build an 800-square-foot boathouse in Tuftonboro that would require the excavation of 1,725 square feet of bank and protected shorelands. The other application – a 1,512-square-foot boathouse proposed by Scott Desantis of Center Harbor – would require excavating 1,866 square feet of land from the shoreline.
The Executive Council did not discuss the projects before voting, though Gov. John Lynch asked Burack, who took over as commissioner two weeks ago, for a brief update. Burack explained that his department was working with the Attorney General’s office to review the legal issues related to dug-in boathouses.
Until then, and until the Supreme Court rules, “we are following what’s been the practice of the department in recent times in dealing with these,” Burack told the council. “But it’s all under review.”
Councilor Deb Pignatelli voted against both boathouses. Spaulding voted against the Desantis boathouse.
Afterward, Dupont said he believed the boathouses were the first approved by the council since the August 2005 ruling by Belknap Superior Court Judge Harold Perkins. “We continue to stress the fact that state law allows them,” said Dupont, a former state Senate president. Still, he said, “they’re controversial, no question.”
In considering the boathouses, the state traditionally considered laws that applied to filling and dredging in wetlands, meaning any area that would be covered by the lake at the high-water mark, Burack said.
In considering a challenge to a pair of approved permits, Perkins ruled that DES neglected to consider the state’s Comprehensive Shoreland Protection Act, which was enacted in 1991 and which protects the area within 250 feet of a lake’s high-water mark.