Freedom – May 24, 2010 – A majority of the Ossipee Lake community is concerned about the impact of the State’s controversial 410 Rule, not just those who have lost the most property. That’s the headline result of an online survey of 1,600 lake property owners conducted by Ossipee Lake Alliance from mid-April to mid-May.
In the survey’s starkest finding, 35 respondents said DES’ claim that the lake’s natural mean high water mark is 410 ft. 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.
Alliance Executive Director David Smith said 288 property owners took part in the survey – equally split between Ossipee and Freedom – but not all respondents answered all of the questions. He said the 35 respondents whose property is 25% to 100% owned by the State represented 17% of the 212 people who answered that question.
Smith said the survey results show concern about the 410 Rule’s impact isn’t based solely on how much property residents believe they have lost to the State. When asked to rate the impact of the 410 Rule as high, medium or low, 32% (68 respondents) said it was high. Some 52% (132 respondents) said they were “very concerned” about the law’s impact.
In another finding, 20 property owners (10% of respondents) said their septic system is below 410 ft., which means the State owns it. Another 33 (16% of respondents) said they are now unsure who owns their septic system.
Legal Basis of the Rule
Alliance officials began planning the survey after hosting a December meeting at which Rene Pelletier of DES and Allen Brooks from the State Attorney General’s office explained the common law origin of the State’s ownership of large lakes and their shorelines up to the natural mean high water mark.
State Administrative Rule Env-Wr 903.02 directs DES to establish the benchmark using geographical information, such as EPA and USGS databases, historical topographical maps and photographs, and physical evidence such as shoreline soil and vegetative conditions.
Pelletier and Brooks said the benchmark for the Ossipee Lake system is 410 ft., but they could not explain when or how the benchmark was set or who set it since there apparently is no paper trail for the decision. The officials said they would consider lowering the number if local officials can show it’s wrong.
State Administrative Rule Env-Wr 904.01 requires DES to conduct an investigation into a benchmark classification if it receives “credible information in writing” that the benchmark is incorrect, and State Representative Mark McConkey and Ossipee Selectman Harry Merrow have been gathering such information since January.
Lake residents have supported the fact-finding effort; but in comments posted to the survey, some expressed their frustration that the State can’t define what kind of information it needs to overturn the benchmark because it doesn’t know what information was used to establish it.
For the Ossipee Lake system, a key word in determining the natural mean high water mark is “natural,” since the lake’s water level has been managed since the 1800s by dams on the Ossipee River.
The State Dam Bureau currently manages the lake’s water level at 407.25 ft. in summer and 403.5 ft in winter. But neither figure represents a natural water level from which a natural mean high water level can be derived.
Critics of the current benchmark also point to the word “mean” in the law. They say it is uncommon rather than average for the lake to reach 410 ft. They point to damaging floods caused by massive rains – such as in October 2005 when the lake reached 409.6 ft., and June 1998 when 17.48 inches of rain raised the lake to 413 ft. – as exceptions to the lake’s typical high water levels.
In March, Representative McConkey and Selectman Merrow presented State officials Pelletier and Brooks with maps, photos and personal recollections on the lake’s historical water level as evidence that might lead to a formal investigation.
Pelletier and Brooks were unconvinced, but offered a concession of sorts by agreeing DES will stop automatically rejecting wetlands permit applications for shoreline work on land below 410 ft. The land and any improvements made will, however, remain State property.
Taxes and Land Transfers
While some survey respondents said they would file for a tax abatement unless the State lowers the benchmark, only two such requests were made this year during the window for filing – one by a business and the other by a residential property owner. Both filings were made in Ossipee and both were denied.
Speculation also continues about the potential impact of the 410 Rule on the sale of lake property, although there have not yet been any reports of sales being delayed or aborted. Some respondents to the survey said they had checked their title insurance policy and were surprised to find it contained an exception in regard to state laws regulating shorefront land.
Alliance Director Smith said a public forum on the 410 Rule that was planned for June has been shifted to August to accommodate continued research on the historical water level of the lake. That includes a site visit to the dam by State officials that is scheduled for June.
Smith said he thinks new information from the site visit will be useful for the public meeting, adding that 205 survey respondents (80%) said they were very likely or somewhat likely to attend such a meeting.
He said the Alliance will confirm an August date for the public meeting with State officials in July and will announce the date well in advance.