Freedom – February 3, 2011 – Four legislators representing the Ossipee Lake area have introduced a bill to set the lake’s natural mean high water benchmark at 406 ft. above sea level, four feet below the current benchmark. State Representatives Mark McConkey, Harry Merrow and David Babson joined State Senator Jeb Bradley in filing the legislation, HB 278.
The bill will be heard by the House Resources, Recreation and Development Committee at 2:30 p.m. on Tuesday, February 8, in Room 305 of the Legislative Office Building in Concord.
The legislators began work on the bill late last fall but said they hoped it would not be needed. At a public meeting hosted by Ossipee Lake Alliance in August, State officials promised to resolve the controversy around what is known as the 410 Rule by January. After conducting an inconclusive round of fact-finding on the lake’s historic water levels during the summer, the officials said they needed to return for further investigation after the October drawdown.
As the end of January approached, repeated email requests to State officials for an update on their investigation went unanswered, according to Alliance executive director David Smith.
Further complicating the situation are legal and environmental questions that surround the setting and changing of mean natural high water benchmarks.
A New Hampshire attorney with ties to Ossipee Lake has told the Alliance that while it is clear DES has the legal right to set natural mean high water benchmarks, it is unclear whether that authority is exclusive. He said that if HB 278 is enacted, it could increase the likelihood that the issue will end up in court. That, he said, could open the door to disputes over taxes and permits that might result in additional separate lawsuits.
The attorney, who asked that he not be quoted by name, also said a change in the benchmark to 406′ would have environmental implications that have not yet been discussed publicly. Under the current benchmark, new septic systems cannot be sited below 410′ because the land is owned by the State. A change to 406′ without an adjustment in environmental regulations could result in septic systems being sited closer to the lake and in areas known to flood. How a change in the benchmark might also affect the provisions of the Comprehensive Shoreland Protection Act as they apply to Ossipee Lake is also unclear.
The natural mean high water benchmark, which was little-known until last year, establishes how much of the surrounding shoreline the State owns in addition to the lake itself. Ossipee Lake’s benchmark is set at 410′ above sea level, but State officials say they do not know who set it or when.
An Alliance survey last spring showed a majority of lake property owners are concerned about the implications of the benchmark. Thirty-five survey respondents said the State owns more than 25 percent of their lake property as a result of the current benchmark, with 12 of those saying the State owns everything including their home.
Some lake property owners have told local officials and the Alliance that they have been unable to sell their property because the issue has received so much publicity. A number of lake property owners in Ossipee and Freedom have applied for a tax abatement based on the benchmark, but local officials have denied all such applications.