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Who Owns the Water? Exploring How Public Trust Affects NH's Lakes And

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Who Owns the Water? Exploring How Public Trust Affects NH's Lakes And 2011 NH Water & Watershed Conference Jennifer Rowden NH Department of Environmental Services [email protected] New Hampshire’s Water Resources y Lakes and Ponds y Coastline y 1,000 “Great Ponds” y 238 miles y Cover 165,000 acres y Rivers and Streams y Groundwater y 17,000 miles y 60 % of NH’s drinking water Origins of Public Trust y 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.” y English Law –Magna Carta, 1215 Limited restrictions to access sea. y US Law –State Constitutions Public Trust Doctrine Today y What is Public Trust Doctrine? y . Common Law v. Statutory Law y Common laws – defined by courts y Statutory laws – defined by legislation y Constantly being redefined as societal need change y Then: Navigation and fishing y Now: Navigation, fishing, recreation, aquatic life, and other “uses and benefits” y Public Trust typically covers all “navigable waters” Public Trust in NH y Public Waters y 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.” y Courts have not settled on one definition of public waters, but... y Generally included: y Tidal waters y Lakes and ponds greater than 10 acres y Navigable rivers State Ownership v. Jurisdiction y Ownership y All natural lake beds, but not river bottoms. y 400 miles of state waterfront property y Fee simple or flowage rights y Jurisdiction y Over the public waters y “Police powers” to protect the people and property within the state. y “Reasonable Use” of state waters include boating, fishing, swimming, and “other lawful and useful purposes”. Riparian Rights y Another common law y Refers to tidal, estuarine, lake and river shorefront property owners. y Riparian rights = y Right to access the water y Wharf out y Gain by accretions or lose by erosion y To replace losses by avulsion Riparian Rights continued y NH Supreme Court , 1979 (Sundell v. Town of New London,) y Riparian land‐owners rights are greater than the public generally. y Including the right to “use and occupying waters adjacent to their shore for recreational purposes”. y However… y Riparian rights are also incidental rights. y Meaning shorefront property may build a dock, as long as it does not unreasonably interfere with the public’s use of the water. y Rights are always subject to the State’s rights to control them reasonably for public purposes. y State can only take away rights if a landowner is compensated. 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.” y State agency statues and administrative rules = regulatory authority y Do ‐ Identify resources included in the public trust and how they will be protected y Do not ‐ Define public trust Docks, Moorings & Trampolines Maintaining Navigation y NH Department of Safety ‐ Mooring Permits y RSA 270:60 –Protecting the use of public waters by curtailing the “undue proliferation of moorings” y Permit applications require existing docking information and and justification for the mooring y NH Department of Environmental Services‐ Dock Permits y Require Wetlands Permit y Restrict dock length (100 ft) and minimum spacing (75ft) Rivers & Streams y What is a public river? y No size distinction, but its “usefulness”. But the ability to navigate is the general test . y Protection for navigability (RSA 271) and for recreation (various statutes and administrative rules). y NHDES has authority to determined navigability and recreation value on case by case basis from DOJ. 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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