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Just When You Thought It Was Safe To Go Back Into The Water: Private Property

Written by: Gregory H. Smith

December 12, 1997

The State of New Hampshire enjoys distinctively beautiful natural resources. Not only are they environmentally, aesthetically, and recreationally valuable, but they are integrally related to our State economy. Since 1967, dredge and fill activity in the State’s waters have been regulated by the Wetlands Board, now the Wetlands Bureau. Shoreland owners have also had important private property rights to use the waterfront, wharf out and even sever and sell those rights separately from the upland parcel. But that scenario may change under the terms of a bill (Senate Bill 184) to be considered in the 1998 Legislative Session. Consider the following:

  • You own a lake front property. The old boathouse is in pretty good shape and the piers and boat dock require only minor reconfiguration to accommodate your children's favorite water sports.

Work that may have required a permit previously will be subject to a new set of requirements. The State of New Hampshire, Department of Environmental Services, under SB 184 might decide that the existing use of the waterfront is unreasonable. The State might decide to restrict your use of your waterfront amenities for a specific number of years. And under SB 184 you could be required to pay the State of New Hampshire rent for the right to use your waterfront.

If you own a commercial waterfront property, such as a marina, under SB 184, your investment will be severely devalued if your rights to use the marina expire after a set term of years, and you have to pay a State of New Hampshire an annual fee which is the greater of the fair market return on the value of the land or 3% of gross annual revenues derived of the marina.

  • If you own an industrial manufacturing facility in the State with an NPDES permitted surface water discharge you may now have to pay the State a new annual fee.

SB 184, would require leases for all shoreline structures in public waters and will significantly affect both existing and proposed private, non commercial, and commercial uses along virtually all water courses in the State. It would regulate any structure subject to current dredge and fill permitting built in public waters or on State submerged land, including; docks, wharves, piers, boathouses, fences, launch ramps, breakwaters, bridges, utility lines, intakes and outlets, and fill adjacent to shorelines which creates new land not contiguous to an existing shoreline

This proposed legislation is part of the State’s effort to codify and expand its interpretation of the Public Trust Doctrine. According to the core of the doctrine, the State holds title to the bed of land underlying all great ponds of ten acres or more and public trust rights in the waters. In this capacity the State asserts if it is entitled to rule on whether a use; even a long standing one is "reasonable".

The New Hampshire Supreme Court has consistently recognized that shoreline property owners have private property rights that are separate from, independent of, and more extensive than the public’s right to use the State’s water bodies. Among those rights is the right to erect wharves and other structures into the waters which are superior to the rights of the public. Significantly, our State has recognized that those private property rights are part of ownership of shoreline property and cannot lawfully be destroyed or impaired without compensation.

SB 184 is a dramatic expansion of existing State permitted jurisdiction. The Department’s authority is significantly expanded and the property owner’s rights are severely constricted under this proposal. SB 184 could require property owners to pay for their existing right to use the water adjacent to their property and could limit the term of such uses. Further, the Bill authorizes a State agency to: impose lease provisions on currently permitted shoreline structures which the department determines unreasonably interfere with or infringe on the property rights of other shorefront owners or the public’s right under the public trust doctrine; and require removal or modification of existing permitted structures upon the agency’s determination that the continuing use is unreasonable.

Protection of our water resources and the public’s enjoyment of those resources is an important goal. It must, however, be weighed against constitutionally protected private property rights. SB 184 is not simply a codification of the public trust. It would effect a dramatic curtailment of existing property rights. SB 184, as proposed, will drastically change the law of shoreline property ownership and use of the public water as it is presently defined. It will empower the State agency with far reaching past, present and future permitting and revenue raising authority which violate well established principals of State law. Just when you thought it was safe to go back in the water . . .

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