Bar News - September 21, 2016
Environmental, Telecomm, Utilities & Energy Law: Water, Water, Everywhere: New Hampshire’s Expansive Public Assets
By: Olympia Bowker
The shorelines of New Hampshire are deceivingly expansive, and the public has extraordinary rights of access to and use of this natural resource. The ghost of an ancient doctrine provides the people of New Hampshire with more than 165,000 acres of water, and 400 miles of shoreline – all of which the state is fighting to protect.
An Ancient Law,
The Public Trust Doctrine, as applied in New Hampshire, grants the public rights to waters far beyond the traditional coastline.
The Public Trust Doctrine dates back to ancient Roman law, was memorialized in the Magna Carta in 1215, crossed the Atlantic in the Colonial Ordinance of 1641, and continues to manifest itself in modern law today. It has persisted throughout history, likely due to its logical concept and practical application.
The Public Trust Doctrine embodies the idea that certain natural resources, such as water, shorelines, and air, are reserved for public use. While the doctrine’s specific applications are a product of state law, it is a universal concept in the United States today. Traditionally, the Public Trust Doctrine preserves access to, and the use of, coastal waters for the public to use for fishing, fowling, and navigation. These rights often extend to the high-water mark of a water body.
The idea of public access to “coastal waters” hardly seems like a big deal for New Hampshire – with a scant 18 miles of Atlantic coastline, New Hampshire has the least amount of coastline of any US state that touches the ocean. However, those 18 miles impacts a concentrated portion of the population, a tourism sweet spot, and seven separate municipalities: Seabrook, Hampton Falls, Hampton, North Hampton, Rye, New Castle, and Portsmouth.
In addition, New Hampshire veers slightly from the traditional Public Trust application, and instead holds aptly named “public waters” in trust for public use. It should be noted that the state’s agency statutes and administrative rules identify resources included in the public trust and how they will be protected, but there is no one law in New Hampshire that explicitly defines the “public trust.” Nonetheless, significant tracts of property are held by the state for the use of the public, under the Public Trust Doctrine concept.
In 1990, New Hampshire passed RSA 271:20, which defines State Water Jurisdiction. RSA 271:20 states: “All natural bodies of fresh water… are state-owned public waters, and are held in trust by the state for public use...” In 1991, the following year, New Hampshire passed RSA 483:B, which maintained, “The public waters of New Hampshire are valuable resources held in trust by the state. The state has an interest in protecting those waters and has the jurisdiction to control the use of the public waters and the adjacent shoreline for the greatest public benefit.”
This means that the people of New Hampshire can use such public waters for a variety of “lawful and useful purposes,” such as boating, fishing, and swimming.
In New Hampshire, “public waters” encompasses far more than just coastline. It includes great ponds, tidal waters, and public rivers. A great pond is a natural body of water that is at least 10 acres in size, and tidal waters extend inland far past the coast – they include all inland navigable waters that are affected by the tide.
This is great news for the people of New Hampshire. There are approximately 1,000 bodies of water listed as “great ponds” in the state, encompassing nearly 165,000 acres. Add that to an additional 400 miles of public waterfront property, and more than 326 miles of tidal shoreline (including marine and estuarine salt marsh) that are held in trust for the public. For a state with little coastline, the Public Trust enables public use of a large chunk of the State’s land.
The New Hampshire Department of Environmental Services (DES) maintains an Official List of Public Waters, pursuant to NH RSA 271:20, and was last revised on July 29, 2016.
A New Hampshire Value
Thanks to the expansive reach and application of the Public Trust Doctrine, much more than coastal land is in the scope of shoreline resources for the people of New Hampshire – as discussed earlier, at least 400 miles.
In 1991, New Hampshire passed NH RSA 483-B, The Shoreland Water Quality Protection Act. Through this law, the state conceded that “[t]he shorelands of the state are among its most valuable and fragile natural resources and their protection is essential to maintain the integrity of public waters.” Traditionally, shoreline protection has come in the form of hard, engineered structures.
Earlier this year, the New Hampshire Department of Environmental Services prepared the first-ever report on the New Hampshire Inventory of Tidal Shoreline Protection Structures. This report serves as a “baseline dataset of engineered shoreline protection structures.” The purpose of the project is to create a dataset that will inform management decisions, which will protect upland infrastructure from hazards such as sea-level rise, storm surges, and flooding.
The 2016 New Hampshire Inventory Report covered not only the 18 miles of Atlantic coastal shoreline, but also the 326-plus miles of tidal shoreline – including Great Bay, Portsmouth Harbor, and the Squamscott River.
Not all shoreline protection structures are created equal: traditional seawalls, rip-rap, which were originally designed to protect inland infrastructure and prevent erosion, can actually accelerate erosion, impact sand drift around the structure, and may fail during high velocity storm events. Berms and jetties are two other types of erosion control mechanisms. Berms are earthen mounds that block water, and jetties are linear piles of rock that jut out perpendicular from the shoreline.
Seventy percent of the Atlantic Coast of New Hampshire has some type of engineered erosion control structure, while only 12 percent of New Hampshire’s total tidal shoreline is armored. This means that the Atlantic Coastline – of which portions are maintained for sole benefit of public use and enjoyment – is subject to erosion, sea-level rise, and the battering of high velocity storm surges. Without constant upkeep and maintenance, the public shoreline could easily vanish.
Another method of erosion control that is increasingly common is beach nourishment. Beach nourishment is when imported sand is placed on a beach as a sacrifice to erosion. Instead of the foundational shoreline being removed by erosion, the new sand disappears instead, preserving the structural integrity of preexisting shoreline.
Beach nourishment often comes with a hefty price tag, and ultimately, it’s a temporary solution. In late 2015, the town of Wells, Maine, was debating a contribution of $1 million to purchase sand for nourishing the town’s local beach. Although the Maine municipality was to ship and purchase the sand, the sand for sale was located on the bottom of the Piscataqua River in Portsmouth, NH. However, New Hampshire’s river bottom has yet to be dredged, as the bill that authorizes the $20 million project has yet to make it through congress.
New Hampshire isn’t just a source of sand for out-of-state nourishment – Hampton Harbor is periodically dredged with the spoils deposited on Hampton Beach. Nourishment projects aren’t the only erosion control method that impact Hampton Beach. In 1965, a project was completed that extended and raised existing state-built jetties that were adjacent to Hampton Beach. Fifty years later, those jetties are in disrepair. Beginning on Sept. 15, 2016, the Hampton Harbor Jetty will be under construction through the fall season.
A notable perk to New Hampshire’s small coast zone is that it’s uniquely positioned to prepare for climate change, and the resulting sea-level impacts. In the past few years, landmark state environmental legislation has passed, which enables New Hampshire to prepare for imminent coastal and coastal watershed hazards.
In 2009, New Hampshire released its plan for “How to Address Existing and Potential Climate Change Impacts.” In 2013, Gov. Maggie Hassan signed Senate Bills 163 and 164 into law, giving New Hampshire the capability to analyze and prepare for increased coastal storms and flooding, which pose hazards to municipalities and public assets alike.
Despite its short coastline, New Hampshire holds hundreds of miles of shoreline, and thousands of acres of water for the use of the public. These assets are expansive due to the state’s interpretation and application of the Public Trust Doctrine. The public nature of these resources also makes them a top priority for New Hampshire to maintain, because when a public good is lost – everyone loses.
Olympia A. Bowker is of counsel at McGregor & Legere in Boston, and helps clients with a broad range of environmental, land use, zoning, and regulatory matters in both administrative and legal forums.