    [From the U.S. Government Printing Office, www.gpo.gov]

                 Z7

              LEGAL ASPECTS OF PROVIDING
              AND CONTROLLING ACCESS TO
              NEW HAMPSHIRES
         I    COASTAL RESOURCES

              Coastal Zone
              Information
               Gan"r

                                                 COASTAL ZONE

                                              INFORMATION CENTER

              by

              Carolvn Baldwin
              Frank'lin Pierce Law Center

              Kristin Johnson
              Student Assistant

              GC   IP-AR-SG-84-6
              57.2
              N4517
              no.84-6 ilication of LTNH/UMe Sea Grant College Program
              c.2

                            Legal Aspects of Providing and
                                Controlling Access to
                                   New Hampshire's
                                  Coastal Resources

                                   Carolyn Baldwin
                              Franklin Pierce Law Center

                                   Kristin Johnson
                                  Student Assistant

           UN

                                   UNHMP-AR-SG-84-6

                This work is the result of research sponsored by the office of
                Sea Grant, NOAA, Department of Commerce under Grant #NA81-
                AAD00035 to the University of New Hampshire. The U.S. Govern-
                ment is authorized to uroduce and distribute reprints for gov-
                ernmental purposes any copyright notation that may appear
                hereon notwithstanding.

                                FOREWORD AND ACKNOWLEDGMENTS

                     This study was prepared under a grant from the Sea Grant

              program administered by the University of New Hampshire Marine

              Program. As must be expected in an undertaking such as this,

              what we found was not always what we expected, and the initial

              proposal was in some aspects too broad for a relatively modest

              project.

                     Where we have not been able to develop firm proposals, we

              have tried to point the direction and provide a framework for

              further research and the creation of mechanisms to resolve

              conflicts over access and preservation of resources.

                     In each major chapter we have acknowledged those who

              worked with us, taking their time to discuss the issues with us

              and-,to review our drafts ahd comment on them. Wherever possible

              we have sought to reflect those comments in our final revisions.

              However, there are a few people who should have special

              recognition for their ongoing support and advice on all phases

              of the project. These include Brian Doyle, Associate Sea Grant

              Director at the UNH Marine Program; George Smith, Director of

              the New Hampshire Port Authority, Chris Simmers, Marcia Keller

              and Mark Chittum of the Coastal Zone Management program in the

              Office of State Planning, and Francesca Latawiec of the

              Strafford Regional Planning Commission.

                    Several people responded to our initial inquiries about

             coas.tal access and provided useful background information.

             These included Louise H. Tallman of the Rye Conservation

             Commission, Peter Gamester of the New Castle Board of Selectmen,

             Rance G. Collins of the Greenland Planning Board, Georgia 1-1.

             Olson, Executive Director of the Rockingham Planning  Commission,

             John F. Rowe of the Newington Planning Board.

                    Diane White of the Rockingham Regional Commission

             prepared the diagram maps for Seabrook/Hampton Harbor and

             Portsmouth Harbor. Alice Chamberlin, Esq.,  Director of the

             Environmental Law Clinic and Franklin Pierce Law Center,

             provided advice and counsel. Bonnie Morrison of the Franklin

             Pierce Law Center helped to put drafts on the word processor.

                    We are grateful to all who contributed to our

             understanding of coastal access issues and we hope that. this

             report will be a positive contribution.

                                         Carolyn Baldwin,

                                         Project Investigator

                                         Kristin Johnson

                                         Student Assistant

             Sea Grant MS-9

                                    TABLE OF CONTENTS

                 Foreword andAcknowledgment s

                 Executive Summary and Conclusions

                 Introduction                                             14

                 Portsmouth Harbor                                        19

                 Seabrook/Hampton Harbor                                  41

                 Inland Tidal Waters: The Estuarine Area                  71

                      New Hampshire Tidelands: Ownership, Rights and
                           Limitations                                    88

                      Municipal Liability on the Waterfront               105

                 Bibliography                                             124

                                   SUMMARY AND CONCLUSIONS

              Introduction

                     The purpose of this project was @_-o identify conflicts

              between public access to and protection of coastal resources   in

              New Hampshire, and to consider legal mechanisms for resolving
                                                                        l

              them. We chose three  different types of resource for study,
              each having its own set of*access priorities and concerns for

              resource conservation.

                     The areas chosen were (1) Portsmouth Harbor, New

              Hampshire's only commercial shipping port; (2) Seabrook/

              Hampton Harbor, a small fishing and recreation facility; and (3)

              the tidal estuarine/riverine system comprising the Great and

              Little Bays and their tributory rivers.

                     In each.case we interviewed people concerned about the

              area in question from development, business, recreational.,

              residential and governmental points of view. We compiled    their

              responses and made site visits to develop a composite

              description of the area nad*the issues and conflicts identified.

              Finally we considered possible mechanisms to resolve the

              identified issues and conflicts.

              Portsmouth Harbor

                     Portsmouth Harbor, as the only ice-free deep water harbor

              between Boston and Portland, Maine, is potentially, at least an

              important element in the economic development of the state.

                                                                              2

                     The State Port Authority pier ships scrap metal and

              accepts and ships other cargo. Until recently a coastal

              container shio called weeklv at the oier. Current proposals for

              upgrading access and adding a second pier may revive this

              service for the sta te's industry. The New Hampshire Port

              Authority, under its current director Mr. George Smith, has

              aggressively sought to expand the role of Portsmouth as a

              chipping port. Business people, through the Chamber of Commerce

              Port Committee and th e Propeller Club, actively promote business

              and work together to deal with potential conflicts.

                     The Portsmouth Naval Shipyard, a federal installation

              currently engaged in rehabilitating nuclear submarines, is a

              major employer in the area and an important member of the harbor

              community although it is actually located in Kittery, Maine, on

              the north side of the harbor.

                     The City of Portsmouth has in recent years become

              increasingly attractive both to visitors and to potential

              residents. Its various businesses catering to tourists and

              shippers as well as commercial and industrial users.

                     Interests identified include residential and tourist

              accommodation and related business, commercial fishing,

              recreational boating, industrial and commercial shipping,

              federal, state and local governments, and wild-life habitat and

              water quality protection.

                     Issues identified among these interests were, in the

              government- sector: (1) the Port Authority mandate is over-broad,

              detracting from its main mission of port development and

             management; (2) lack of coordination among state agencies

             responsible for regulating activities in the harbor area, and
             confusing and conflicting directives and requirements; (3) lack

             of consistent state commitment to port develooment; (4) poor
             enforcement of state regulations and permit conditions; (5)

             some concern for security at the Naval Shipyard, especially from

             fishermen and other small boats in the harbor.

                    In the business and industry sector issues focus

             especially on the tourist recreational  interests and commercial

             shipping. Road salt brought in through Portsmouth for the

             entire state is stored on a pier in-the harbor and scrao metal

             is held for shipment at the state pier. These shipping-related

             activities raise predominantly aesthetic problems for the

             tourist and residential business-interests.

                    Environmental concerns focus on industrial spills and

            .discharges from both industry and upstream municipal sewage

             systems, dredge and fill in channels and adjacent wetlands.

             Spill cleanup is especially difficult because of the swift

             currents. An oil spill can destroy an entire crop of oysters in

             the Great Bay aquaculture project and, if it occurs

             coincidentally with release of young fish, will adverSE!ly affect

             sea ranching and sport fish stocking projects.

             Seabrook/Hampton Harbor

                    Seabrook/Hampton Harbor is a tidal basin enclOSE!d behind

             barrier beaches--Hampton Beach and Seabrook Beach, both of which

             are extensively developed. The harbor and its tributory rivers

                                                                                        V

                                                                                4

              with extensive tidal marsh and flats, are fertile spawning

              grounds for fish and other wildlife. Siltation from the rivers

              along with sand deposited by long-shore currents and aggravated

              by jetties, constantly threatens the existence of the harbor. A

              regular dredge program is essential if the harbor is to remain a

              viable port for commercial and recreational fishing and boating,

              Natural and man-made impacts combine to create conditions which

              will, if not consistently addressed, render the harbor unusable

              in the not too distant future.

                     Major man-made impacts include the jetties mentioned

              above, commercial and residential development on the barrier

              beaches, dunes and wetlands, roads and bridges, and the Seabrook

              Station, a nuclear plant under construction by Public Service

              Company of New Hampshire. (At the time of this writing

              construction was halted for financial reasons). State a,nd

              private facilities exist side-by-side in the harbor, including

              fish piers, launchi ng ramps, marina and boat yard facilities and

              piers for "party boats." A substantial area around the nuclear

              plant, a radius of 1.25 miles, is reserved as an "area of

              control" under Nuclear Regulatory Commission regulations.      Much

              of this area is marshland and is thus protected from further

              encroachment by development and  fill operations. The back-dunes

              area of Seabrook Beach is of special concern as the only

              remaining undeveloped dunes in the area. Efforts are being made

              to preserve them through acquisition by the town or a private

              conservation organization.

                     Except for the Seabrook Station, major interests revolve

                                                                             5

             around the tourist and recreational and commercial fishing

             industries, and summer is the important season in the economic
             life of the communities of Hampton and Seabrook. The state has

             strong interests, not always coordinated, in both the

             environmental integrity and economic vitality of the area. The

             state runs a commercial fish pier and owns Hampton Beach (as it

             does most of New Hampshire's ocean beach frontage). It issues

             commercial and recreational fishing licences and collects fees

             for activities on the water and state-owned land.

                    Areas of conflict focus on tourist/non-tourist activities

             and extend to both government and private entities. Local

             governments and business feel that the state takes unreasonably

             large revenues from the area and does not return a fair share,

             especially for harbor maintenance -projects. Private business

             considers the state, with its commercial fish pier and control

             over mooring space, as a competitor and fears an increase in

             state-run enterprise will damage private business.

                    The location of a major power facility.on New Hampshire's

             limited coastline and in a major tourist-recreation.al area

             presents a major source of conflict., although the very existence

             of the plant requires preservation of some natural resources in

             the protected radius. The project has closed off a launch ramp

             in Seabrook which may not be reopened. While it has contributed

             a major portion of tax revenue to Seabrook, the Public Service

             Company plant contributes none to Hampton. Hampton feE!lS that

             the potential impact of the plant, once it begins production,

             may adverse ly affect its tourist industry. Evacuation issues

                                                                            6

              are unresolved, 'The impact if neither reactor at the Seabrook

              Station is completed has not been evaluated and such

              considerations are well beyond the scope of this study.) The

              very existence of the Seabrook plant has attracted people to the

              area to visit Public Service Company's elaborate education

              center. Many of these visitors are school children, but what

              proportion are tourists who bring additional business to the

              area is not known.

                     Clamming, fishing and maintenance of a healthy ecosystem

              compete with development pressures, especially in the Seabrook

              dunes and the wetlands bordering developed areas.

                     Enforcement of state law regarding dredge and fill and

              lack of coordination among state agencies are problems here as

              elsewhere. Administrative reorganization should consider means

              to resolve coflicting mandates among state agencies and.provide

              for a common enforcement mechanism for state regulations and

              permit conditions. This will require a well-understood

              management policy at the state level, but development of such a

              POlicy must involve extensive local input if it is to be

              successful.

                     Local governments also need both the tools and the will

              to enforce their ordinances and regulations. Existing

              enforcement mechanisms are cumbersome, expensive and thus often

              ineffective. Some property acquisition will be necessary to

              preserve the remaining dunes at Seabrook. This can be

              accomplished entirely with local funds or possibly with some

              federal- help from the Land and Water Conservation Fund.

                                                                            7

                    The Public Service Company Barge facility and the closing

             of a launch ramp continue to be issues for the Town of Seabrook.

             Riverine and estuarine coastal resources

                    Rather than focus on a specific area for this type of

             coastal resource, the study generalized the descripticn, It    is

             based especially on the work of the Strafford Planning

             Commission in organizing River Area planning projects in the

             Lamprey and Cocheco-Isinglass river basins, and the-Great Bay

             Estuarine Sanctuary nomination prepared by the Office of State

             Planning, and the Great Bay Estuarine System Conservation Trust

             project, also spearheaded by office of State Planning although

             it is a private land trust operation.

                    There is much privately owned land, some of it still in

             relatively large tracts, along the tidal shoreline. MaJor

             governmental installations include Pease Air Force Base on Great

             Bay in Newington and the University of New Hampshire's research

             facility on Adams Point, also on Great Bay.

                   . Municipalities own some shoreline, sometimes used for

             boat launch ramps but also for non water-related pruposes such

             as maintenance facilities and parking. The Audubon SOCiety has

             a sanctuary on Little Bay and most of the remaining tidal.

             shoreline is privately owned.

                    As cleanup of industrial discharges and municipal sewage

             disPosal in the waterways Progresses, there is renewed interest
             in waterfront property, both' for private residential purposes

             and public recreation. It is in this area that conflicts arise

              between public and private uses and among different recreational

              interests.

                     Major conflicts arise among (1) private landowners and

              recreational interests including picnickers, hikers and swimmers

              who are not always considerate of one another or the property

              owners' rights. Problems include littering, improper parking

              and use of moter vehicles, noise and trespassing; (2) different

              recreational interests including hunters and fisherman, who are

              concerned for habitat maintenance, and. developers, motor boats

              and off-road vehicles, non-power boaters (especially canoes) and

              swimmers and power boats.

                     Enforcement of state laws and regulations on dredge and

              fill and pollution is a problem here as elsewhere. In

              addition, the state's policing of its rules on boating is

              spotty at best. Lack of cooperation between municipalities and

              the state, along with uncoordin ated and inconsistent state

              policy, threatens shrinking wildlife habitat and continuing

              Pollution problems.

              LEGAL MEMORANDA

                     Two legal memoranda are included in this report, both of

              major concern to the riverine/estuarine areas.

              Municipal Liability on the Waterfront

                     The question of potential liability is often raised by

              municipal officials when it is suggested that a town undertake

              to maintain an access point for waterfront activities. The

              recent case of State v. Brosseau 123 N.H.,    (1983) raises the

                                                                             9

              question whether the state also may incur liability for its

              facilities. Our research indicates that the exposure is not as

              great as feared and that insurance against such liability will

              not greatly increase the municipal insurance bill. More

              realistic concerns are problems of cost of maintenance and

              policing and preventing overly-intensive and inappropriate   use

              of such facilities.

                     Private landowners who permit use of their land for

              recreational purposes are shielded from liability by statute

              But the concept of sovereign immunity for municipalities has

              been abolished in New Hampshire, first bv court decision and

              then by statute.

              Ownership of Inter-Tidal Lands

                     No New Hampshire statute has clarified the issue of state

              vs. private ownership of land between mean high and me-an low

              water.  A seventeenth century massachusetts ordinance provided

              .for private.o-vinershio of these intertidal lands although the

              public was-permitted to cross them for limited purposes.

              Because New Hampshire was for a brief time part of

              Massachusetts, the ordinance may argulably be incorporated in

              New Hampshire law. Common law or statute in most states

              Provides for state ownership to mean high water. Statute SO

              provides in New Hampshire for non-tidal waters (See RSA 488-A).

              Conflicting nineteenth century court decisions in New Hampshire

              leave the question unresolved. The issue has not been addressed

              judicially in recent years, first because the state owns most of

              the ocean beaches so the question is in many cases irrelevant,

             and secondly because there has not until recently been

             substantial development pressure on the intertidal lands.

             Finally, of course, state law restricts activities in tidal

             wetlands (RSA 483-A). The issue can, however, be expected to

             arise again as population and development pressure s increase.

             SUMMARY OF RECOMMENDATIONS

             General:

                    1. Consistent policy and efficient permitting process.
             State agencies need @o coordinate their policies and permitting
             procedures. The current reorganiza .tion effort shoul d be

             accomplished with that consideration in mind, but reorganization

             alone cannot resolve the problems. Most people we interviewed

             were not hostile to reasonable regulation in the interest of

             environmental protection, safety and public welfare. Bu.t many

             expressed frustration at inconsistent or conflicting

             requirements, delays and unclear policy objectives.

                    .2. Consistent and efficient enforcement: state level.

             Also frustrating to conscientious developers and industry as

             well as to sportsmen and others concerned with habitat

             preservation and environmental conservation was lack of

             enforcement. At both state and federal levels, enforcement

             resources have been cut back and personnel from various agencies

             no not have cooperative responsibility. Again'reorganization

             can help if this object is considered in the process. But a

             major policy declaration at the state administrative level will

             be nece-ssary to make the best use of existing personnel.

                     Clear legislative and administrative policy that 'Laws and

             regulations be enforced consistently and fairly should be
             promulgated at the state level. Adequate funding will be

             required to carry out the policy and give it credibility. Costs
             of enforcement should be imposed on violators by statute. A

             carefully drafted citizens suit provision may provide for a

             broader enforcement reach.

                     3. Consistent and  efficient enforcement: municipal

             level.

                     Towns do not presently have credible enforcement

             authority. Fines for violations of-local ordinance are

             inadequate to encourage voluntary compliance ($500 maximum

             following conviction for a zoning violation, $1000 maximum    for

             other police-power ordinances) and costs of enforcement are

             usually borne by the taxpayers..

                     4. Enforcement: state-municipal coordination

                     Local agencies, especially health officers, building

             officials, planning boards, conservation commissions, selectmen

             an.d police departments can serve to alert state enforc(@Ment
             agencies to violations of state permit requirements. But they

             must be informed when permits are issued and the condi'--iohs

             attached. They must also feel reasonable confidence that. when a

             violation is reported prompt and effective action will be taken

             by the appropriate state agency.     State policy and decisions on

             activities where the state either owns or has jurisdiction over

             waterfront property should consider local planning, zoning and

             health regulations.

                                                                               12

                     5. Control of development.

                     Municipalities should design their master plans and

              zoning regulations to take into account the special character of
              waterfront property. Shoreland zones can evaluate development

              proposals in light of their water-dependent or water-related
              characteristics, and can protect sensitive ecological areas by

              wetlands overlay ordinances, shoreline setbacks, and cluster

              provisions which encourage preservation of wetlands and

              shorefront and/or provide for reasonable public access.

                     6. Liability.

                     Municipalities and private non-profit organizations which

              maintain access for the public to coastal resources should be

              relieved of excessive anxiety about potential liability through

              legislation designed to protect them except in extreme cases,

              even if a reasonable use charge is made to users. Thus -

              reasonable maintenance of public access can be encouraged.

                     7. Land tru  sts.

                     The land trust concept should b  e expanded and developed

              to provide for preservation and controlled public access where

              appropriate. A land trust can hold property in fee or it can

              hold partial interests in the form of conservation easements.

              The trust should also consider partial development of some lands

              in order to fund preservation of sensitive areas. It should

              also be able to charge reasonable fees for access to cover

              policing and maintenance.

                                                                              13

              RECOMME14DATIONS FOR FURTHER STUDY

                     Several issues were raised  in the course of this project

              which invite further study. They   include

                     (1) Mooring allocation system: identification of

              alternative systems and development of a reasonable, consistent

              policy for allocating limited mooring space especially for

              pleasure craft. The issues revolve around whether a mooring can

              be sold or otherwise conveyed with a boat, whether a mooring

              holder can rent his mooring, and whether a mooring holder can

              replace his existing boat at the same mooring.

                     (2) Alternatives to open   storage of salt and scrap

              piles. There is no doubt that both of these operations in

              Portsmouth harbor are legitimate and important commercial

              operations for an active seaport,. Thus far no reasonable

              alternative has been found to the storage of these commodities

              on piers in the harbor.

                      3) Potential- impacts, economic and environmental, of

              non-completion of the Seabrook nuclear plant.

                     (4) Self-enforcing mechanisms for state and local laws

              and regulations. The consequences of ignoring state and local

              regulations must be sufficiently painful to encourage would-be

              violators to abide by the laws. Criminal penalties arI2 usually

              inappropriate, and fines are difficult to collect. A citizen-

              suit provision might in some cases reinforce the state and

              municipality's ability to follow through on enforcement action.

              MS-4

               Introduction      Access to New Hampshire Coastal Resources   14

                            LEGAL ASPECTS OF PROVIDING AND CONTROLLING

                            ACCESS TO NEW HAMPSHIRE'S COASTAL RESOURCES

                        Franklin Pierce Law Center, Concord, New Hampshire

                                CAROLYN W. BALDWIN, Project Leader

                                KRISTEN JOHNSON, Student Assistant

                                           INTRODUCTION

                      In New Hampshire, with its short coastline and population and

               commercial pressures in the coastal area, competition for access to

               coastal resources is sometimes intense. The estuarine system known

               as the Great and Little Bays,'toastal rivers, as well as the

               seacoast and island, must be carefully managed to foster both the

               development of compatible multiple uses and protection of these same

               resources from over'use or abuse.

                      The matter of public access to coastal amenities is

               two-pronged. First, there is concern to facilitate public access to

               beaches, tidal areas, rivers and estuarine resources for legitimate

               purposes ranging from sport and commercial fishing, aquaculture and

               boating to more passive activities such as swimming and bird

               watching. On the other hand, it is vital that sensitive coastal,

               estuarine and riverine areas be protected from over-use to prevent

                     f the very resources which attract both the public and private
               loss 0

               investment. Where access is be provided over or adjacent to

               privately held property, there arise conflicts between public and

                Introduction      Access to 'New Hampshire Coastal Resources    15

                private rights and priorities.

                       The project has focused on legal means to provide access to

                New Hampshire's estuarine, ri@.7erine and coastal resources, with

                emphasis on opportunities for compatible multiple use, while a  lso

                addressing legitimate concerns for conservation of those resources

                and protection from improper or overly intensive use.

                       The purpose, then, of this project has been to  explore

                different types of resources to determine what types of access

                exist? what uses are now made of New Hampshire's coastal resources,

                and what kinds of legal mechanisms exist or are needed to foster

                compatible multiple use in the best interests of the state and its

                people.

                       The report includes the following documents. (1) Report on

                Portsmouth Harbor. (2) Report on Seabrook/Hampton Harbor. (3)

                Report on estuarine and tidal-riverine access issues. (4)

                Memorandum on the extent of state authority over inter-tidal lands.,

                (5) Memorandum on municipal, private and organizational liability

                at access points. Each report includes conclusions and

                recommendations, and conclusions and recommendations are summarized

                in the executive summary.

                                               PROCEDURE

                       The first phase of the project was a review of Sea Grant

                projects and literature from other states looking for similar

                projects in other jurisdictions for both substantive and procedural

                guidance. Sea Grant and other organizations were contacted to

                follow up promising leads.

             Introduction       Access to New Hampshire Coastal Resources       16

                     After discussion with Sea Grant p  ersonnel and a survey of the

             coastal area, three types of resources were chosen for intensive

             -study. In each area key individuals were interviewed to obtain

             different views of the resources and use of them, and on-site visits

             were made. Where legal questions were raised, research was

             conducted on existing law in New Hampshire and comparisons made with

             law in other states.

                     Information from interviews, on-site visits and available

             written material were compiled and analyzed, and descriptive

             summary, conclusions and recommendations drafted.

                                           POINTS CHOSEN

                     Three quite different types of coastal areas were chosen for

             intensive study. Because most o   f New Hampshire's beaches are in

             fact state owned, access to ocean beaches was not selected as one of

             the problems to be explored in detail. In New Hampshire beach

             access problems are la  rgely physical, limited by road access,

             parking limitations and the like, rather than legal. Where legal

             problems do exist, they are highly local and individual, usually

             issues relating to the legal existence and extent of public rights

             of way.

                     Portsmouth Harbor, as the state's only seaport capable     of

             handling commercial shipping, the mouth of a major estuarine system,

             and the site of a historic city and major commercial and industrial

             region, was an obvious choice.

                     A second type of resource was the smaller harbor, and we

                Introduction        Access to '@ew Hampshire Coastal Resources       17

                selected Seabrook/Hampton harbor for closer study. The smaller

                harbors accommodate commercial and recreational fishing,

                recreational boating and shoreline activities such as clamming,

                hunting and birdwatching. They are basic to the state's import       ant

                vacation/tourist industry as w-ell as to commercial fisheries.

                       To help our readers visualize the harbors and the different

                interests using them, we have included sketch maps, prepared for the

                project by Diane White of the Rockingham Planning Commission.

                       Finally, we'focussed on tidal estuarine and riverine areas.

                The Strafford Regional Council is at the same time working on a

                grant to study means of public access to riverine and estuarine

                resources. We have worked closely with Francesca Latawiec,

                community/regional planner at the Strafford Regional Council, to

                identify areas of concern and deal with legal issues while leaving

                it to the groups forming around the Lamprey and Cocheco river basins

                to identify specific problems. The interests-and confl        icts
                identified in this type of coastal resource are more eZsily

                generalized than are those in the harbors, so we have not described

                any estuarine or tidal river area in.detail.

                       The situation is constantly in flux. Recent announcement

                that the container service will no longer serve Portsmouth affects

                the port in ways we have not analyzed. Public Service Company's

                financial problems remain unresolved and there is no way to forecast

                its effect on the coastal resources. The nomination of portions of

                the Great Bay to be a National Estuarine Sanctuary, if accepted,

                will certainly affect the inland tidal area. Even if it is not so

                designated, the studies and educational efforts, and the development

             Introduction      Access to 'Iew Hampshire Coastal Resources   18

             of the Great Bay Estuary Land Trust will have long-term

             ramifications for the region.

                    New Hampshire has a precious resource in its limited coastal

             regions. That it is being viewed from a broad planning perspective

             is a promising omen for wise use in the future.

             Sea Grant MS-5

                                         PORTSMOUTH HARBOR

              Introduction

                     As a mechanism for analyzing the various activities in and

              around the harbor, we have drawn upon a technique developed by Mark

              Hershman to differentiate between uses.    Hershman analyzes uses

              according to whether they are water dependent, water enhanced, or

              water neutral. "Water dependent" uses are those which would not

              exist without access to the water. These include fishing, shipping,

              tourist cruise. boats, marinas and the like. "Water enhanced"

              activities are those which could be carr.ied on at locations away

              from the waterfont, but which are enhanced in some way by a

              waterfront location. These may include restaurants, especially

              those in buildings providing a view of the harbor, tourist

              accommodations, and even residential development. The third

              category is those uses which are neither dependent on nor enhanced

              by a location adjacent to the waterway, and which could be carried

              on with equal success in a location away from the harbor. These

              include most industrial and commercial uses. Clearly the water

              dependent activities, so long as they are economically viable, must

              take precedence over those which could be successfully pursued

              without water access where priorities for waterfront 'Locations must

              be established. However, we do not mean to imply that water enhanced

              activities should be excluded from the waterfront. The economic and

              aesthetic benefits to the region of compatible mixed use of its

              resources must be recognized and encouraged.

                Access to New Hampshire's Coastal Resources Portsmouth Harbor 20

                       In preparing this report we received cooperation from

                many of those whose business interests revolve around the harbor

                area. Limitations of time and resources prevented us from

                interviewing everyone whose name was suggested to us. We tried

                to select a representative sampling of the various interests in

                order to get as many points of view as possible. We are most

                grateful to the following individuals who gave generously of

                their time to discuss with us their perspective on the harbor

                and its many users' interests.

                       George Smith, New Hampshire Port Authority

                       Kenard Lang, manager of the State Fish Pier on Pierces

                Island

                       Ted Spurr and John Nelson, New Hampshire Fish and Game

                Department.

                       Lt. Cdr. Timothy M.Boudewyns, legal officer for the

                Portsmouth Naval Shipyard and

                       Robert Johnston, public relations officer for the

                Portsmouth Naval Shipyard.

                       Calvin Canney, city manager and Chris Sheridan, director

                of development for the City of Portsmouth.

                       Joe Sawtelle, real estate developer on Nobles Island and

                elsewhere in the Portsmouth area.

                       Dick Holt, Portsmouth Navigation Division, Central Wharf

                Towboat Company.
                boats. Robert Whitaker, owner and opera   tor of the Viking Cruise

                Access to New Hampshire's Coastal Resources Portsmouth Harbor 2    1

                       Phil Cava, chairman of the port committee, Poz*tsmouth

                Chamber of Commerce.

                       Pat Genestreti, Simplex Wire & Cable Company.

                       Ruth 'Kotsonis, Dorchester SEA-3 company and cha,'Lr of the

                Propeller Club safety and harbor improvements committee.

                       Kevin Tacy of York Harbor.Export Inc.

                       Prof. Philip Sawyer of Sea Run, Inc. and the University

                of New Hampshire.

                Description of the Resource.

                       Portsmouth Harbor, the only major harbor to which New

                Hampshire has.direct access, is "the only ice-free deep water

                harbor between Boston, Massachusetts and Portland, Maine.      The

                Piscataqua River channel is approximately 35 feet deep, thereby

                providing sufficient draft to accommodate most of today's
                largest ocean-going vessels." 2  The New Hampshire side  of the

                Piscataqua River, which empties into the Harbor, gives access to

                water deep enough for ocean going shipping, while the Maine side

                is shallow. This fact accounts, at least in part, for the

                comparative intensity of development on the New Hampshire side.

                Tidal currents, bridges and the narrow and busy channel make

                navigation in and out of the harbor a matter for skilled pilots.

                In the case of large ships, those longer than 50 feet and

                especially oil tankers, tugs are required.

                       The northeastern side of the harbor and the river are

                bordered by the State of Maine, specifically the towns of

                Kittery and Eliot in the harbor area. The Town of Newcastle,

              Access to New Hampshire's Coastal Resources Portsmouth Harbor 22

              New Hampshire, abuts much of the outer harbor east of

              Portsmouth. it is an island connected  to the mainland by

              bridges and causeways, and is largely residential in character.

              Part of the town's coastline is occupied by Fort Stark, a

              military installation no longer active. The function of this

              area now being discussed and its location does.not directly

              affect the harbor area under study.

                    The City of Portsmouth itself is one of the oldest sea

              ports in North America. In recent years its citizens have taken

              a renewed interest in the city's history, as well as in its

              potential for commercial and industrial activity. Buildings

              along its narrow, winding streets, typical of old seaport

              communities, have been refurbished for a myriad of uses, many of

              them connected with the tourist industry now an important factor

                                              3
              in the region's economic health.

                     Pierce Island and Four-Tree Island are city owned and

              managed as public parkland. Public park continues west along

              the shoreline to the Memorial Bridge (a lift bridge) except for

              th.e state commercial fish pier at the western end of Pierce

              Island. The legislature in 1983 appropriated $150,000 for a

              fis*h handling facility at the state fish pier, provided that the

              facility is leased to provide for amortization of a 20 year bond

              issue. (Chapter 423 VI E, Laws of 1983).

                    Prescott Park, on the mainland, is quasi-public managed

              under an endowment by a board of trustees, It has a small

              docking facility for private boats. A project is underway to

              develop it to accommodate more transient private yachts.

                              s.

                                                                                                 MAINE
                        22

       NEWINGTON

                                                        20

                                                                                                                                                t
                                                        19:                         KITTERY

                                                                  18
                                                                   rT7
                                                                                                                             %

                                                                  14                    5 E AVE'
                                      1-95
                                                                                           ISLAND
          1. Coast Guard Station                                                            M4
                                                                         9        6
                  Stark                                                                                                                   z.
          2. Fort
          3. Proposed marina & dredging
          4. Naval Shipyard                                                     7       5
          5. Pierce island                      PORTSMOUTH
          6. Four Tree Island                                                                               NEW
                                                                                                                                             jP
          7. State fish pier                                                                               CASTLE
          8. Strawbery Banke
          9. Prescott Park
         10. Memorial Bridge
         'I. PSN11 power plant                      NEW
         12. Theatre-by-the-Sea
                                                   A Ilk/1 VIC' I 1 7
                                                       I   I I I IF) If                                           -112 1
         13.                                     ,t%1V1 0      A% U
             Granite State Minerals
             Viking pier
         15. Condominium/commercial complex                                                                                 PORTSMOUTH
                                                                                                        LITTLE                HARBOR
         16. Nobles Is./Port Authority                                                                  HARBOR
         17.",Proposed dredging site
          8                  4ass Bridge
         i".-ME/N11 Ri'e'. I By                                    0 Moto
         19. National Gypsum
         20. 1-95 Bridge

         22. Simplex Wire &  Cable
         21. Sprague Energy
         23. American Trawler                                                                  aw     no,    '00 0-0
                            yaw     -as

             Access to New Hampshire's Coastal Resources Portsmouth Harbor 23

                    There are three bridges across the Piscataqua in

             Portsmouth Harbor. Seaward of the easternmost bridge, Memorial

             Bridge on US Route One, water access on north and south shores

             of the harbor is relatively open. The channel here is deep, but

             maneuvering space for large ships is limited. Public access to

             the water from land is difficult in the outer harbor because

             most of the littoral property is privately owned. On the Maine

             side, the Portsmouth Naval Shipyard occupies a large portion of

             the land area within the harbor. The shipyard is located on

             property which was once four islands, now reduced to three by

             fill.. It is connected to the mainland by two bridges, one of

             which carries a marine railway. The channel runs close to the

             shipyard, creating some complaints of security problems by the

             Navy. The state-owned fish piet-is also outside of the bridges

             on Pierce Island, and Prescott Park in Portsmouth provides some

             visual and limited physical access to the outer harbor. Pierce

             Island and Four-Tree island also provide park facilities to the

             public.

                    Most of the port and dock facilities are up-river of

             Memorial Bridge. On the New Hampshire side, the "Old Harbor"

             area accomodates tourist cruise boats, tug-boats, wharfs for

             private business and industr-,I, and the state pier on Nobles

             Island. All are between the Memorial Bridge and the Maine-New

             Hampshire Route 1 By-Pass Bridge which also accommodates the

             railroad. Besides these water-dependent activities, there are

             restaurants, shops and other businesses, and housing in

             rehabilitated.buildings which benefit aesthetically from

              Access to New Hampshire's Coastal Resources Portsmouth Harbor 24

              proximity to the waterfront, although they are not directly

              dependent on access to the harbor.

                     Just west of the Memorial Bridge is a power plant soon to

              be abandoned by Public Service Company of New Hampshire,.

              Studies are being conducted to determine how best to use this

              property to take advantage of its harbor-side location. Several

              restaurants, Theatre-by-the-Sea and other commercial and

              business establishments extends along Bow Street, many in

              buildings formerly used for port-related activities such as

              warehouses, to the Old Harbor. The Old Harbor accommodates tug

              boats, harbor sightseeing boats, Granite State Minerals' pier,

              and the Viking Cruises pier. More restaurants and shops occupy

              the ground floors of the buildings on the landward side of Ceres

              Street, with other businesses fronting on Market Street using

              the street level floors. The upper floors of some of these

              buildings have been converted for residential use.

                     The State Port Authority pier is on Nobles Island,

              connected to the mainland by fill and a roadway. It handles

              storage of scra p metals and other materials awaiting shipment as

              well as cargo shipped into the state by sea. Limited warehouse

              space is available for storage of shipments in transit,

              including a climate-controlled warehourse to accommodate the

              state's liquor imports. A container vessel makes weekly calls,

              and other commercial ships dock at the State Pier. A long-range

              plan calls for dredging the turning basin and adding a second

              state berth so that more than one vessel at a time can -tie up  at

              the State Pier. In addition, a rock ledge at Goat Island,

               Access to New Hampshire's Coastal Resources Portsmouth Harbor 25

               outside the Memorial Bridge, will be blasted. There seems to be

               no opposition to that plan in th eory. The gravel obtained by

               blasting will be used as fill, but there are problems of

               disposal of dredge spoil and location of the second berth. In

               1983 the Legislature appropriated $600,000 for "plans and

               specifications for new dock and containment area" (Chapter 423

               V, Laws of 1983).

                      Upstream west and south of Nobles Island are tidal ponds

               and marshy areas which offer habitat and feeding grounds for

               marine coastal wildlife and open space areas within the built-up

               sections of the city. Passing over the western end of Nobles

               Island is the Maine-New Hampshire Interstate Bridge on By-pass

               us 1, also a lift bridge. Beyond the By-Pass 1 Bridge the

               channel narrows and there is relatively light shoro-front

               activity between it and the Interstate 95 bridge. There are

               plans for a museum and other tourist attractions for the area.

               Above that point shipping is specialized for large industries in

               Portsmouth and Newing ton before the estuary widens out into the

               Great and Little Bays.

                      Beyond this bridge there are private facilities for a

               number of industries which require shipments by sea, including

               Simplex wire & Cable, National Gypsum, Sprague Energy, American
               Trawler, Dorchester Sea-3 LPG facility, Public Service Company's.
               Schiller plant and several oil terminals stretching up into the

               Town of Newington. The 1-95 Bridge is high enough to

               accommodate shipping without disrupting road traffic with a draw

               or lift.

               Access to New Hampshire's Coastal Resources Portsmouth Harbor 26

                      Most of the commercial activities in and around

               Portsmouth Harbor are,year-round except for harbor tour's and the

               Viking cruises.

               Description of Interests Involved

                      The state has begun to recognize the value in having an

               active port.for its existing industry and to attract other

               investment and development. Commercial fishing continues as an

               important means of livelihood for a segment of the area's

               population. The role of the federal government as a major

               employer cannot be ignored as an economic factor.   The

               Portsmouth Navy Yard, actually located in Kittery,  Maine, has

               been a part of the Portsmouth Harbor picture since  the early

               nineteenth century and is likely to continue as an  important

               economic factor, as well as user of the harbor reSOU,@CeS, in the

               foreseeable future.

                      There is relatively little private residential property

               directly on the New Hampshire side of the harbor. Condominiums

               are being developed in new and rehabilitated buildings on the

               southerly side of Nobles Island, across from the Port Authority

               pier. There is housing in some rehabilitated buildings; on the

               Old-Harbor, and much of the shorefront in the Town of Newcastle,

               on the outer harbor, is residential.

                      The City of Portsmouth has become an important New

               Hampshire tourist attraction, and businesses have developed

               along the waterfront to accommodate it. These include cruise

               boats.(water dependent), and restaurants, shops and senii-public

             Access to New Hampshire's Coastal Resources Portsmouth Harbor 27

             facilities such as Prescott Park and Strawbery Banke (water

             enhanced).

                    Most commercial fishing is handled at the State Pier,

             outside the Memorial Bridge, although some comes into the Old

             Harbor area, and the American Trawler Company, a private

             fish-processing plant, is upstream of 1-95. Facilities for

             private, recreational boating on the New Hampshire side of the

             Harbor, include the Prescott Park dock, a launch ramp at Pierce

             Island, and some seventy five moorings in New Castle harbor and

             another one hundred outside. Sport fishing is possible, but

             tidal currents and shipping traffic tend to discourage small

             boats.

                    Industrial and commercial shipping are dominant beginning

             in the old harbor area with Granite State Minerals pier, the

             State Pier on Nobles Island, and the industrial facilities,

             mostly oil terminals, which line the river up into Newington.

             There is little public access to the river up-stream of Nobles

             Island until it widens into the Great and Little Bays, and most

             industry is attracted to the area because of its water access.

                    The presence of the federal government is strongly felt

             in the outer harbor, in the form of the Portsmouth Naval

             Shipyard. With  its large payroll and steady employment

             prospects, the Naval-Shipyard plays a key role in the economy of

             the region. Eight thousand civilians work at the shipyard,

             which rehabilitates nuclear submarines on a fixed schedule

             extending well into the foreseeable future. The Coast Guard

             maintains a station on New Castle Island. The Army Corps of

              Access to New Hampshire's Coastal Resources Portsmouth Harbor 28

              Engineers has ultimate responsiblity for dredging the channel

              and turning basins further upstream, in cooperation with both

              riparian states. State and federal governments share

              responsibility for the waterway and for protecting the sensitive

              wetlands throughout the coastal region.

                     The State of New Hampshire has an important interest in

              its only port which can handle commercial shipping. The state

              pier on Nobles Island has potential to serve business in

              Vermont, Massachusetts and Maine as well as New Hampshire

              business. It is presently limited by its single berthing

              facility and by limitations on road access. A major activity of

              the state pier is the shipment of scrap metal to European

              fabricators. But when the scrap is being loaded no other ship

              can use the piet. Thus the container ship sometimes is forced

              to go to Boston and other shipping which might use Portsmouth

              goes to other ports which can accomodate them on schedu le.

              Construction of the second berth should alleviate this
                                                                      problem.

              But the piles of scrap, which interfere with the perceived

              aesthetic requirements of other types of port-area activities,

              have-served as a focus of local dissatisfaction with the pier

              operation. (See City of Portsmouth v. John T. Clark & Son and

              State of New Hampshire Port Authority 117 NH 797 (1977) in which

              the City of Portsmouth sought unsuccessfully to control the

              scrap metal storage by enforcing the terms of its zoning

              ordinance.)

                     The Port Authority has recently qualified as a "Foreign

              Trade Zone" which provides a location where "foreign traders

              Access to 1,1ew Hampshire's Coastal Resources Portsmouth Harbo r 21

              can store, exhibit, sample, blond, mix, sort, repack and

              manufacture various commodities. "The primary purpose of the

              zone is to encourage the final processing of certain imported

              goods in the United States rather than in the country of origin.

                    The intent of the zone concept is to provide businesses

              with capital savings ... realized through reduced or deferred
              customs duties ......4

                     A report issued in 1975-76 by the Strafford Rockingham

              Regional Comission cited the expansion of the Port Authority

              Pier as an area of potential conflict, at least in part because

              it was not clear at that time what purpose the expansion was to

              serve. There was concern at that time that a major oil

              processing installation might be contemplated which would be

              wholly incompatible with other activities in the harbor area.

              That fear seems to be largely dispelled, and the kinds of

              commercial shipping now contemplated appear much more

              appropriate to the area.

                     The City of Portsmouth is obviously most concerned with

              harbor operations. Municipal officials expressed frustration

              with the fact that neither state pier makes payments in lieu of

              taxes, despite legislative mandates (RSA 271-At17 (supp) 1977).

              However, George Smith of the Port Authority indicated that the

              state did in fact pay to the City $30,000 per year in lieu of

              taxes and has done so since 1977. (The reasons for this

              discrepancy, and whether the payment is reasonable or adequate,

              were not explored.) These activities do of course   require city

              services, and yet do not contribute directly to their support

               Access to New Hampshire's Coastal Resources Portsmouth Harbor 30

               nor are they controlled by city ordinances.

                      The towns of Newington and Newcastle also must: be

               concerned with water access in the harbor area, but neither town

               has been separately studied.

               Areas of Conflict and Competition for Resources.

                      With all this activity and the many interests involved in

               so limited'and complex a resource, our interviews revealed

               surprisingly little report of head-on conflict among them.

               There seems to be general recognition that each interest has

               valid concerns which have a place in the life of the harbor,  and

               that a cooperative approach to problems and conflicts will lead

               to a more productive and positive result than would

               confrontation.

                      Two organizations are key to this cooperative effort.

               The Greater Portsmouth Chamber of Commerce Port Committee was

               "created to increa*se and heighten the utilization and awareness

               of The Port of Portsmouth." It includes representatiVeS Of

               businesses in both Maine and New Hampshire who have actively

               worked to promote-development of the Port. The Portsmouth

               chapter of the Propeller Club, a national social and civic group

               composed primarily of commercial interests and industrial

               shippers, promotes development and safety in the harbor area.

               It also provides information to its members about Stilte and

               federal regulations and other pertinent activities.

                      This is not to say that there are no problems or

               incompatible proposals for use of the harbor resources. it is

               Access to New Hampshire's Coastal Resources Portsmouth Harbor 31

               rather to acknowledge that most of the port users publicly

               recognize that they are each part of a larger picture and must

               compromise with one another in the best interests of the entire

               region.

                      Having made this point, we were able to identify a number

               of areas of concern which if addressed might further enhance the

               multiple compatible use capability of the harbor. These fall

               into the following categories.

               I. Government

                      1. State-local-private industry relations. There was

               feeling that the Port Authority had too many concerns beyond the

               harbor itself and tended to be distracted from its major job of

               planning "for the maintenance and development of the ports,

               harbors and navigable rivers . . . to foster and stimulate

               commerce and shipment of freight through the State's ports

                  (RSA 271-A:2). The opinion was expressed that users of the

               port should be represented on the authority and that the

               authority should better communicate and coordinate its

               activities with the municipalities and private industrial and

               commercial users of the port. It should be noted here that

               those interviewed spoke favorably of the present director of the

               Port Authority, Mr. George Smith.'generally confirming that

               despite minimal support from state funds, he is providing

               positive leadership for the Port Authority.

                      2. Lack of coordination among state agencies was a major

               complaint of private business and industry. The Chamber of

                                                              Portsmouth Harbor 3'
                Access to New Hampshire's Coastal Resources                        2

                Commerce Port Committee has identified some 60 statutes and 19

                agencies which have some jurisdiction over the harbor and its

                activities. Major concern dealt not with environmental

                regulations as such, but with inefficient processing of

                applications and unclear dire@tives for mitigating potential

                damage from a proposed operation.

                       3. Funding for port development, maintenance and

                marketing was identified as a concern by several people

                interviewed. Presently fees imposed by the state for most

                services in the port area are deposited in the general fund and

                treated as tax income. The service paid for may not be fully

                provided and maintenance of facilities tends to be inadequate to

                properly serve user needs. Development projects cannot be

                planned according to user needs and input, but must depend on

                the political process for authorization and appropriation.

                       4. Funding was also a problem in enforcement o   f existing

                regulations and permit conditions. The state lacks manpower to

                make regular inspections of permitted operations to assure that

                any pollution control.systems are properly monitored and that

                any malfunctioning system or bypass operation is shut down

                before damage is done. Cleanup of pollution after the fact,

                where it is possible to do so effectively, is invariably more

                expensive than prevention, and such cleanup cost must often be

                borne by the public, at least in the first   instance.

                       5. Security is of course a prime concern for    the Naval

                shipyard. The policy of the shipyard administration    is to take

                a low profile approach to the issue, calling on the Portsmouth

              Access to New Hampshire's Coastal Resources Portsmouth Harbor 33

              harbor master when tourists and fishermen on the harbor side

              fail to respond to verbal warnings from the base's own security

              vessels.

              II.  Business and Industry

                     1. The limited physical size of the resource inevitably

              leads to competition among different types of water-dependent

              and water-related uses. In particular, private yachtin   g and

              commercial tourist activities must compete with commercial and

              industrial shipping operations for limited mooring, docking,

              pier and land facilities. The Chamber of Commerce Port

              Committee serves as a forum for discussing and recommending

              solutions to some of these issue s. Whether a more formal

              process is needed was not clear from our interviews. The Port

              Authority now has a profe$sional administrator who is

              responsible for managing the logistics of harbor operations. A

              mechanism based on criteria such as water-dependency,

              environmental impact, economic impact and impact on existing or

              other proposed activities, and even aesthetic considerations

              could be worked out to assist city, state and private interests

              in planning and implementing development in the harbor area.

                     2. The salt piles of Granite State Minerals and the

              scrap metal piles on the Port Authority pier have been an issue

              for other existing and potential enterprises in the harbor area.

              Given the extremely limited physical space available in the

              harbor, it is not clear what mechanisms might be developed to

              reduce potential conflict while allowing for continuation of

               Access to New Hampshire's Coastal Resources PortSMOL[th Harbor 34

               these bulk commodity operations and opening up the harbor to

               other kinds of uses.

               III. Natural Environment

                      1. The harbor area provides habitat for aquat-ic life of
               many kinds, and concern for t@e well-being of  fish, birds and

               other wildlife competes with development interests. Municipal

               sewage remains a concern in the Piscataqua estuary. Industrial

               pollution is less of a problem except when an oil spill or other

               accidental occurance damages an area. The Harbor has peculiar

               problems of spill control because of the swift currents.. The

               conventional containment of spilled oil by "booming" is not

               effective and a system of."deflection booming" is being

               developed to divert a spill into a cove and onto land where it

               can be dealt wi'th, avoiding the danger of widespread dispersion.

                      2. Aquaculture (or "Aquiculture" as it is spelled in the

               state statute relating to the rearing of aquatic organi  sms RSA

               211:62-e), is a relatively new activity in the coastal area.

               Municipal sewage pollution, as it presently exists, is not a

               serious problem for this potential industry, but industrial

               pollution, such as oil spills or chemical contamination can be

               disastrous. Two types of aquaculture were identifi'ed.

                      (a) An oyster seeding and   rearing project is now

               commercially maintained by York Harbor-Export, Inc. and its

               properietor Kevin Tacy. The project was initiated as a result

               of studies begun under a grant from Sea Grant. Oysters are

               brought to market size from seed in various parts of the Great

               Bay, then brought to a location in the Little Harbor south of

              Access to New Hampshire's Coastal Resources Portsmouth Harbor 35

              Newcastle Island for a two week period of  cleansing or

              "pqrging." An oil spill in the Great Bay   can wipe out an entire

              crop. A proposed marina, requiring extensive dredging in the

              Little Harbor area would eliminate the only location on the New

              Hampshire coast suitable for the purging operation according to

              Mr. Tacy. Polluted oysters cannot be transported across state

              lines, so an out-of-state alternative cleansing location is not

              fea.sible, unless laws are changed in a neighboring state, in

              this case presumably Maine, to allow for it. (Mr. George Smith

              of the Port Authority indicates that he believes that there are

              other areas on the New Hampshire coastline suitable for the

              purging operation.   This conflicting report has not been

              resolved.)
                     This is a case where use's are mutually exclusive, and no

              solution to allow for both uses is apparent at the site or

              elsewhere on the New Hampshire seacoast.

                     (b) A sea ran ching project is underway to raise salmon

              for the commercial market, directed by Professor Philip Sawyer

              of Sea Run, Inc. and the University of New Hampshire. Fish are

              hatched and raised at an inland hatchery and shipped to the

              coast for release above the dam at Newmarket. They must of

              course traverse the harbor to get to sea, and, a year or two

              later, to return to the river where they will be recaptured.
              When they return, the fish must run a barricade of sport's

              fisherman. As fish in public waters they are public property

              and there is no restriction on who can catch them, except that

              they cannot be taken commercially. A successful fish-ranching

              Access to New Hampshire's Coastal Resources Portsmouth Harbor 36

              venture would require some changes in the law to allow for

              recapture of relatively large number of the fish by commercially

              viable methods.

                     The sports fishermen are not considered a problem, nor is

              the existing level of pollution from municipal sewage. However,

              industrial pollution can be a significant threat, eSPE!Cially if

              a sudden spill should occur at the time the fish are released or

              when they are due to return.

                     3. Despite the commercial and industrial development

              along the harbor and the outer estuary, there are still areas of

              important wildlife habitat. Both municipal sewage and

              industrial pollution are problems for much of this kind of

              habitat. Some communities up river continue to discharge raw or

              almost raw sewage into the waterways which empty into the bays

              and harbor. Rochester and Exeter, in particular, have only the

              most primary treatment, that is settling lagoons, for their

              sewage. Industrial pollution is much reduced, bu  t inadequate

              enforcement has on occasion permitted situations to become

              serious before they are apprehended and curtailed. Sudden

              spills are of course a major concern. Continuous monitoring is

              necessary to prevent them and, when they do occur, to provide

              for quick cleanup and to minimize the adverse impact.

                     4. New Hampshire Fish and Game and the U.S. FLsh and

              Wildlife Service both oppose the plan to expand the Nobles

              Island Port Authority Pier with spoil from the proposed dredging

              of the turning basin. The major concern is for destruction of

              habitat.for birds and shellfish.

              Access to New Hampshire's Coastal Resources Portsmouth Harbor 37

              Recommendations and directions for future study

                     1. Lack of coordination among state agencies was a

              recurring theme in our interviews. The Department of Fish and

              Game has no formal liaison with the Port Authority. Nor has the

              Port Authority a seat on the Wetlands Board which is responsible
              for acting on applications'for dredge and fill projects in both

              coastal and freshwater wetlands. The U.S. Army Corps of

              Engineers must also approve of dredge or fill proposals in

              coastal wetlands and waterways, but communication between the

              Corps and the state Wetlands Board is minimal. The Water Supply

              and Pollution Control Commission, responsible for both private

              and municipal sewage disposal, should set its priorities in
              consultation with the Departmen@ of Fish and Game, among others.

                     One agency in the coastal region should be mandated.to

              take the lead in coordinating the permitting process and seeing

              that both state and federal requirements are met by any given

              project. The Port Authority might take on this responsibility,

              but it would require additional funding and administrative

              authority.

                     2. Lack of long-range planning, taking into

              consideration all of the interests identified, leads to

              confusion and conflict. Again a lead agency, perhaps the Office

              of State Planning in cooperation with the Port Authority, should

              undertake this kind of planning. Under the federal Coastal Zone

              Management program, a beginning has been made. But th   e Port of

              Access to New Hampshire's Coastal Resources Portsmouth Harbor 38

              Portsmouth itself, seems to have received less attention that

              some other areas.

                     3. A major area of conflict is the storage of bulk

              commodities at dockside. Portsmouth HarbLor is a very small

              area, and piles of scrap metal and road salt have become

              landmarks on the waterfront. The City of Portsmouth attempted

              to force the State to remove the scrap metal through its zoning

              power, but its appeal failed because the state is not subject to

              local zoning ordinances (City of Portsmouth v. John T. Clark &

              Son, Inc. (1977) 117 NH 797, 378 A2d 1383). Those involved in

              the shipping industry argue that, unlike other types of

              development proposed or existing in the area, their business

              requires storage at dock-side and should take precedence.

                     Thus far'no acceptable compromise has been proposed to

              accommodate both interests side-by-side, and the conflict

              continues. Any solution will be based more on economic than on.

              legal considerations.

                     4. The use of state imposed fees for services or use of

              state facilities should be reviewed. If the fee is a tax, it

              should be labeled as such and can be legitimately devoted to

              general state purposes. How ever, if it is a fee for service

              rendered, it should reflect the service and be used to assure

              .that the facility so supported is adequately funded. Fees are

              often set by the lLngislature without consideration of the cost

              'of service. Much of the state activity in the seacoast -area is

              priprietary, or at least proprietary in nature. These should be

              studied. to determine whether any given service is in fact an

              Access to New Hampshire's Coastal Resources Portsmout:j Harbor 39

              appropriate state activity, whether its continuation at its

              present or some other level is in the long term interest of the

              state and its inhabitants, and to identify the most cost

              effective way of delivering services. Some services should

              probably be supported by tax revenue. Others can appropriately

              be self-supporting. This is.a facet of long-range planning

              which must be constantly monitored and updated.

                     5. A related concern is enforcement of regulations,

              especially in the area of dredge and fill and pollution control.

              State pollution control agencies tend to be undermanned as well

              as uncoordinated. Inadequate monitoring of permit conditions is

              a chronic problem. The State needs to develop a coord'-nated

              enforcement team to inspect for compliance in water po-'lution,

              dredge and fill, hunting and fishing, boating and othe:

              concerns. The Coastal Zone Management program has some on-site

              capability presently supported by federal funds. But it is

              inefficient for each to support a separate enforcement section,

              especially where their concerns are closely related.

                     6.  Additional study will be required to determime what

              changes in the law may be required if aquaculture becomes

              commercially viable on a larger scale. It is premature at this

              time to propose any legislation. However, background

              preparation should be started in time to develop appropriate

              mechanisms for regulation in the public interest.

                     In none of our discussions concerning the marina proposal

              in Little Harbor did anyone but the owner of the business

              recognize that the oyster raising business would be destroyed by

              Access to New Hampshire's Coastal Resources Portsmouth Harbor 40

              the project. It must be noted that we did not look at that

              project in any detail, so we must assume that agencLes are aware

              of this conflict, although it was not mentioned specifically to,

              US. We have been referred to a study on the impact of the

              proposed marina by the Kimball Chase Company, and engineering

              firm in Poetsmouth, but we have not examined it for this study.

              FOOTNOTES

              1. Hershman, Under New Management: Port Growth and Emerging

              Coastal Management Programs, 1978.

              2. Port of Portsmouth Handbook, 1983-1986, page 33.

              3. See Romoser and Lagassa, Portsmouth at the Crossroads, New

              Hampshire Council for the Humanities, 1978.

              4. Port of Portsmouth Handbook, 1983-1986, page 15.

             Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                                41

                                   SEABROOK/HAMPTON HARBOR

             Introduction

                     Our research for Seabrook/Hampton Harbor region included

             field trips to view the area and interviews with residents and

             other interested parties. We appreciate the cooperation and

             guidance received from the following individuals, who gave of

             their time to discuss the issues with us:

                     Stanley Hamel, Chairman, Seabrook Conservation Commission

                     Jane Kelly, Town Clerk, Hampton

                     Eric Small, Administrative Assistant to the Selectmen,

             Town of Seabrook

                     Glen French, Hampton Beac'h@ Chamber of Commerce

                     Ray Gilmore, Smith & Gilmore Party Boats

                     George Smith, Smith & Gilmore Party Boats

                     John Fitzpatrick, Hampton Marina

                     The Honorable Beverly Hollingworth, State Representative,

             Hampton

                     The Honorable Robert Preston, State Senator

                     Bruce Beckley, Public Service Company of New Hampshire

                     Jane Doughty, Executive Director, Seacoast Anti-Pollution

             League  (SAPL)

                     Charles W. Eastman, Jr., Eastman Party Boats, Seabrook

                     Al Cauron, Gauron's Deep Sea Fishing, Hampton

                     Frederick Clews, Hampton Harbor Master

                     Marcia Keller, Office of State Planning

             Access to New Hampshire's Coastal Resources

                   Seabrook-Hampton Harbor                                  42

                     Ken Lang, State Fish Piers, DRED

                     Ted Spurr, New Hampshire Fish & Game

                     Frank Richardson, Wetlands Board

                     Sarah Thorne, Society for the Protection of New Hampshire

             Forests

             I. Description of the Resource in its Natural State

                     The Seabrook/Hampton tidal basin (known as Hampton Harbor)

             is enclosed behind two barrier beaches at the southern end of the

             New Hampshire coastline. Access from the ocean into the harbor

             is through a channel running between Hampton beach, to-the north,

             and Seabrook beach, t  o the south. The backside of the beaches

             form a large shallow basin bounded by tidal flats and marsh.         The

             Hampton, Brown's,'and Blackwater Rivers feed fresh water        into  the

             basin and a number of smaller creeks run through the marshes,

             dividing them and creating marshy islands. These tidal creeks

             carry nutrients and sediment into and out of the marsh, providing

             a fertile spawning ground for various marine species and causing

             siltation in the harbor. This interaction has resulted in a

             number of clam flats on the western side of the harbor as well as

             increasingly narrow and shallow navigation channels. Eventually,

             given no interruption in the natural processes, the harbor basin

             will fill in completely by accretion to the existing marsh.

                     The Blackwater River empties into the southerly end of the

             harbor after meandering through the Seabrook marshes. It has

             deposited a great deal of silt in the Seabrook end of the harbor

             creating.large flats. The thread of the river is, at most, two

             Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                                43

             to three feet deep during low tide. Brown's River empties into

             the harbor from the western side, bounding the towns of Seabrook

             and Hampton Falls. Channel depth is only one to two feet at low

             tide. The Hampton River runs into the harbor from the northwest

             corner of the basin. It also acts as a natural boundary line,

             dividing Ham'pton from Hampton Falls. The river's current is

             somewhat stronger than that of the Blackwater due to encroachment

             of the marshes, Thus it's mid-channel depth remains between

             three and four feet at low tide, at least in some spots, allowing

             access to the northerly creeks. There is a large mussel bed on

             the easterly side of the channel at the mouth of the Hampton

             River.

                    The inlet to the harbor is also filling in. This is

             caused primarily by the long-shor'e current which runs south along

             Hampton Beach. The current sweeps sand off the beach and

             deposits it at the southerly tip where tidal action can carry it

             into the channel. The lonq-shore current, while adding to the

             Hampton barrier beach,  is eroding the northerly end of the

             Seabrook beach. The erosion on the Seabrook side of the channel

             is less rapid than the accretion on the Hampton side. The

             long-shore current is deflected away from the shore and out and

             around the seaward-projecting sand spit at the southern    end of

             Hampton Beach, diminishing its action on the relatively    more

             westerly tip of Seabrook. Thus much of the sand coming     off

             Hampton Beach stays in the channel once it is deposited    there by

             the tides.

             Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                              44

             II. Human Impact on the Resource

                    The impact of human activity overlays the natural

             processes occurringwithin the basin. This description begins at

             the northern lip of the harbor inlet and follows the northerly

             shore west by northwest to the Hampton River, thence turning and

             running south along the marsh and Browns River to the Blackwater

             River, thence turning and running northeast by north along the

             back side of Seabrook Beach to the harbor inlet, thence east

             along the southern side of the inlet to the point known as

             Beckmans. The town line between Hampton and Seabrook is actually

             on the southern side of the harbor inlet; Beckman's Point is

             within the town of Hampton.

                A. HAMPTON HARBOR

                    Some of the man-made physical changes in the harbor are

             fairly permanent and stable; others need regular maintenance.

             The first man-made structure we encounter, following the   outline

             above, is a jetty which extends into the ocean off the northern

             tip of the inlet. The jetty was built to catch the sand being

             swept off the northern stretch of beach. At this time, the sand

             has totally filled in behind the jetty and exceeds the jetty's

             capacity. Thus the sand builds up at the tip of the jetty and

             spills out around it so that the harbor inlet channel to the

             south is being filled in. The Army Corps of Engineers is

             responsible for maintaining this outer portion of the channel.

             Although they dredged it in November of 1982, the sand had

             refilled the channel near the end of the jetty by June, 1983.

             This problem causes the larger vessels using the harbor- to detour

            Access to New Hampshire's Coastal Resources

                 Seabrook-Hampton Harbor                               45

            outside the channel at this spot to avoid running aground.

            .Working our way west from the jetty we found the former back

            dunes area had been leveled, filled and packed for use as a state

            park parking lot with rip rap stabilizing the shore along the

            inlet to prevent erosion. west of this is the Bascule lift

            bridge which links Hampton Beach with Seabrook, crossing the

            inlet close to the harbor itself. The bridge is operated by the

            State Department of Public Works and Highways and is manned

            during the three hours before and three hours after high tide.

            At all other times the operators are on call and will open the

            bridge if given prior notice. The bridge has only an eighteen

            foot vertical clearance at high tide so that it must be opened

            for most larger craft and even small sailboats. The larger party

            boats which use the harbor as a home port are all "low profile"

            so that they can enter and exit at all tides without the bridge

            being opened.

                   On the inland side of the bridge the state is responsible

            for maintenance of the channel. The state owns the land

            immediately to the west of the bridge and has put in a retaining

            wall and paved the area. The state operates a commercial fish

            pier, launch ramp, and dock for recreational boaters in this

            area. The state charges fees for launching, parking and for use

            of the fish pier services. The yearly fee for use of the fish

            pier is $100.00 to $125.00 per year for each fisherman. At

            present the only service provided is winches for hauling up the

            catch, although the state is considering the addition of fuel

            pumps. The recreati.onal dock is used only for loading and off

             Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                              46

             loading passengers and there  is a limit set on the length of time

             that any one boat can remain  tied up there. There  are only a

             couple of state attendants for the entire area and  since one of

             the party boat operators uses the same dock for loading his

             customers, some conflicts have arisen as competition for space at

             the dock becomes more intense during the height of the summer

             season. The area cannot be well policed to ensure time limits for

             docking are honored due to the lack of attendants.

                    Mr. Al Gauron, who operates four party boats, uses the

             state recreational dock for his customers to embark and land. He

             pays a rental fee to the st-ate for the use of a.portion of the

             state parking facilities for his customers and moors his boats in

             the harbor. Mr. Gauron owns a small plot of land abutting the

             north east cornee of the state site where he resides and operates

             his business office.

                    Further along the harbor shore and next to the state fish

             pier is privately owned land belonging to Pier Properties and run

            .by the family of Mr. George Smith. This area, once marsh, was

             filled many years ago   Mr. Smith's nephew, Ray Gilmor e, runs a

             deep sea fishing party boat operation on this site. Structures;

             at the site include a pier, outbuildings, and their private boat

             yard. The pier, extending into the harbor, is primarily used for

             embarking and landing customers and their catch. The four boats

             owned by Smith and Gilmore Party Boats range in size from fifty

             to seventy-five feet and are moored in the harbor rather than

             berthed at the pier. The buildings on the site include a bait

             and tackle shop and a retail lobster pound. The latter is not

              Access to New Hampshire's Coastal Resources

                   Seabrook-Hamoton Harbor                                 47

              run by the family but is rented out to a private company.

                     Abutting Smith and Gilmore is another parcel of private

              filled land with a residential dwelling and a private pier built

              by the owner, Mr. Dubee. Next to this is a tiny branch office of

              Normandeau Associates, Inc., a company engaged in scuba diving

              research for the Public Service Company of New Hampshire to

              determine what impact the nuclear power plant may have on the

              marine life in the harbor.

                     The next parcel of filled land is a six and one half acre

              marina owned by George Smith and operated by his son-in-law, John

              Fitzpatrick. The marina consists of a boat yard, man-made

              berthing basin, a large warehouse, and various outbuildings,

              including a small cottage used as a home by Mr. Smith. The

              berthing basin holds about eighty small craft and. is always

              filled during the boating season. Services provided by the

              marina include dockage, storage, fuel, hardware, hoists, hauling

              and launching. There is rooin to expand and develop the business

              but a number of economic and regulatory hurdles would need to be

              dealt with first. These include the various state and possibly

              federal permitting processes involved and the competition from

              the state operated pier facility. Since the state facility was

              built four or five years ago, use of the marina launch ramp has

              dropped off. If the state adds fuel pumps to their pier,

              expansion of existing fuel services at the marina may not be cost

              effective. In addition to these considerations the marina is a

              seasonal operation and any capital improvements must be carefully

              weighed in terms of their economic viability.

             Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                               48

                    The mussel bed mentioned in Section I above is in front of

             the marina, to the left of the entrance to.the marina basin. To

             the north and west of the marina is marsh and the Hampton River.,.

             The marina is the last major filled-in portion of the eastern

             harbor shore and the Hampton Beach residential development

             extends north and east behind it.

                    Heading north by northwest, further up the Hampton,River,

             past the area known as The Willows we eventually reach Nudds

             Canal. The Hampton Boat Club is located on Nudds Canal. so that

             onl@ shallow draft skiffs can get out to the harbor at present

                 B. Seabrook Harbor

                    On the southwest shore of the Hampton River a-hd the

             western side of the harbor are the large open areas of tidal

             marsh and Browns'River. The Public Service Company of New

             Hampshire's Seabrook Nuclear Power Plant site is in the upland

             and filled areas of this marsh south of Browns River. The plant

             is located on 715 acres, two thirds of which is, or was,

             marshland. The Nuclear Regulatory Commission usually requires a

             two-mile radius of control fro m the center of the plant. but this

             was reduced to 1.25 miles to accommodate the Public Service

             Company's site at Seabrook.    The NRC Safety Evaluation. Report

             indicates that the site  is 896 acres according to the Seacoast

             Anti-pollution League (SAPL). We have not attempted to resolve

             this discrepancy.

                    Rocks Road launch site on Browns River, one of t,hree town

             owned ramps, is located near the Seabrook Plant. This launch is

             closed at the present time due to its proximity to the

             Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                              49

             construction site. The Public Serv 'ice Company of New Hampshire

             may reopen the site once the plant is completed although there

             are security problems to be dealt with. A second launch site,

             Farm Lane Dock on Walton Road, is between the Seabrook Plant site

             and the Blackwater River.

                    South and east of the Seabrook Plant is the Blackwater

             River. Cross Beach, a traditional summer colony east of the

             Blackwater, is only partially accessible by land at high tide;

             some area residents want to add sufficient fill to provide access

             at all.tides. Northeast of Cross Beach is the Seabrook Beach

             area, divided by RoUte 1A running between the front and back

             dune. The back dune area consists of three to four hundred acres

             and is mostly undeveloped. At the northern end of the tack dune,

             where it meets the marsh, a leve'fed and filled area supports

             commercial and tourist establishments as well as the Seabrook

             Police Station. There is a municipal launch ramp at this site

             and a privately owned dock and pier belonging to Bill Eastman.

             Mr. Eastman runs a party boat operation from his pier, catering

             to..deep-sea fishing, whale watching, and sight seeing.

                    There is a navigable channel running from this point north
             al-ong the western side of the flattened dune to the harbor inlet.

             The channel depth ranges between 5 and 6 feet at low tide when it

             has been recently dredged. Small craft and the party boats are

             moored at the southern end of the channel which provides the only

             real exit from the Seabrook side of the harbor. On the western

             side of the channel are clam flats and on the east is the

             flattened dune. Where the dune used to be is a town parking lot

             Access to New Hampshire's Coastal Resources

                   Seabrook-Hampton Harbor                                50

             and  beach for residents only, the Public Service Company barge

             facility, and Rte. 1A. At the northern end of the flattened dune

             is the Bascule lift.bridge and Beckman's Point. As noted

             previously this land is actually part of Hampton. On t'llie eastern

             side of Route 1A, along the harbor inlet and south, are summer

             homes built on the leveled front dunes. The beach and what

             remains of the front dunes are owned by the town to a 'Line six

             feet from the most seaward cottages.

             INTERESTS INVOLV ED

             I. GENERALLY

                    The Hampton-Seabrook area is a well known, long

             established summer colony. The year round residents depend

             chiefly on the seasonal tourist influx to sustain them for the

             rest of the year., Thousands of tourists visit the long sandy

             beaches each year and the majority of residential units are

             rental cottages t ightly packed in two discrete areas known as

             precincts: Hampton Beach and Seabrook Beach. Each of tliese

             precincts is a seperate village district within the parent     town,

             having a measure of self-regulatory authority under the enabling

             statute, RSA Chapter 52. Use of the Hampton Harbor itself is

             limited by the shallow bottom, low bridge, and the undeveloped,

             now legally protected marsh.

             a) BOATING

                    Commercial establishments on the eastern side of the

             harbor basin cater to the summer trade, including the -water

             dependent party boats and the marina. In addition to the twelve

             party bo.ats and the eighty odd small craft based at the marina,

             Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                               51

             there are usually some two hundred boats moored in the harbor

             during the summer months. A harbor mastec for each town is

             appointed by the New Hampshire Port Authority. His tasks include

             allocation of mooring space and collection of fees. The limited

             availability of moorings causes some competition among boat

             owners, and there is always a waiting list for the limited space.

                    Non-tourist commercial fishing boats using the harbor for

             a home port include about 25 skiffs and 15 boats used for

             lobstering, 12 draggers and 6 gillnetters. The fishing vessels

             are all day-trippers because the harbor cannot accommodate larger

             boats and dockside services are limited. The majority of

             fishermen operate only during the summer months with no more than

             four or five working year round.

                    Tourist and recreational fishermen include both those

             using the three party-boat services and those with their own

             small craft. Others fish from land or surf cast.

                    Clamming is limited to state residents by statute (RSA

             211 :62-a) and no commercial clamming is permitted.

             b) Tourist

                    Commercial land based establishments are, for the most

             part, limited to summer operations. These are located in the

             intensely developed Hampton Beach Commercial district which runs

             the length of Hampton Beach along Route 1A. Restaurants, novelty

             and clothing shops, arcades and motel/hotels line the beach. The

             Hampton Beach Chamber of Commerce has been active in planning and

             implementing new commercial attractions. The Chamber hopes to

             Access to New Hampshire's Coastal Resources

                   Seabrook-Hampton Harbor                                 52

             extend the season by establishing a year round attraction,. such
             as an aquarium, near the beach. A new privately owned trolley
             bus began operating along Hampton Beach during the summer Of

             1983, with a connecting run into Hampton Center. The trolley
             provides the area with an attractive and practical alternative to

             parking at the crowded beach front. The Chamber of Commerce, the

             town, and the state cooperate in providing entertainment jind

             activities at the state owned amphitheater on the beach.

             c) State and Local Government

                     State interests in the Hampton-Seabrook area encompass

             recreational and commercial services. The town of Hampton deeded

             the beach proper to the state with the stipulation that nO

             commercial development be allowed on the beach. The state       runs

            .the state park and pier at the southern tip of Hampton Beach. it

             collects revenues from metered parking along the length. of

             Hampton Beach, attended parking lots and the state run launch

             ramp at the southern end of Hampton Beach, the state commercial
             fishing pier service fees, mooring fees, and the businE!SS Profits

             tax collected from merchants. Appropriations under Chapter 423:1

             (VI),(D), Laws of 1983, were allocate   d to DRED for "repairs tO

             seacoast parking areas (guard rail for seacoast parking a.real,

             constructed of wood posts and Corten)." These allocations took

             the form of five year bonds totalling $180,000.

                     Legislation enacted in 1983 will pro   duce additiona.1

             revenues from both resident and non-resident commercial sri-It

             water fishing licenses. The proceeds will go to the New

             Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                                 53

             Hampshire Fish and Game Department. Laws of 1983, Chapters 254

             (effective 8/17/83) and 81 (effective 7/23/83) respectively,

             amending RSA 211.(see also RSA's 206:33, 211:70 , 211:58, 214:9,

             214:15).

                     In addition, the state collects license fees from

             lobstering and clamming. RSA 211:62-a; RSA 211:18. The numerous

             clam flats in Hampton Harbor are owned by the state and'are

             regulated by the state Fish and Game Department under RSA

             211:62-a. Area residents have raised concerns about the state's

             management policies regarding the clam flats. Because the state

             needs the permit fees, they may be issuing more permits than the

             resource can accommodate-The clamming permits are issued only to

             state residents between Labor Day and Memorial Day, but

             insufficient enforcement personn'el prohibits effective prevention

             of off-season clamming.

                     Local government obtains revenues from property taxes,

             leasing out town owned'land (which comprises the majority of

             property in Hampton), and operation of town owned parking lots.

             Ii. Seabrook Special Interests

                     Seabrook has fewer commercial establishments near the

             harbor than does Hampton. These are pr   imarily seasonal

             restaurants and the Eastman Party boat operation. The rest of

             the area is residential cottages or open land as described

             earlier. The town operates a parking lot for town residents and

             a municipal launch ramp.

                     The privately owned dunes and marshes are controlled by

             state regulation under RSA 483-A and local building ordinances.

            Access to New Hampshire's Coastal Resources

                 Seabrook-Hampton Harbor                               54

            Some three hundred plus acres of the undeveloped back dunes are

            presently privately owned and there has been a great deal of

            public interest in protecting them from potential development.

            The recently revived Seabrook Conservation Commission is activ ely

            working to preserve the remaining dunes. The Commission is

            trying to persuade the town to purchase the area. The town has

            contracted with a private firm for a feasibility study of cost

            effective methods to obtain control over the resource.

                   The Public Service Company of New Hampshire is the town's

            major source of revenue both through property taxes paid and

            employment opportunities provided. The logistical problems

            related to construction of the Seabrook Plant have created some

            permanent changes in the town. The Public Service Company built  a

            road on top of the marsh ten years ago. The road was to be

            removed once the Plant was complete but now it may be impossible

            to remove without further damaging the marsh. In addition to the

            road, the Company's barge facility was built on town property by

            .agreement with the town. As part of the agreement the facility

            was offered to the town but the residents voted to have the

            Company remove it rather than pay the upkeep. At this time the

            Port Authority has acted to delay dismantling it pending further

            investigation of possible uses for the facility.

                     AREAS OF COVFLICT A14D COMPETITION FOR RESOURCES

                   The competition for resources in the Hampton/Seabrook

            harbor area is delineated along tourist/non-tourist lines.  The

             Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                                  55

             beaches attract hundreds of thousands of visitors every summer

             and both public and private coffers benefit from the seasonal

             influx. Competition for the tourist dollar is seen in the form of

             State versus local interests. Tourist and non-tourist dependent

             interests clash within both the private and public sectors.

             Underlying many of these intra and intersector conflicts are the

             disparate interests of conservationists and expansionists.

             Development of the harbor is presently limited by laws protecting

             the marshes and remaining dunes and by lack of state funding for

             expanding the potential capacity of the waterway. Major concerns

             are outlined below.

             I Government

                    1. state versus local government. The state collects

             revenues from parking meters and lots as well as from taxes

             levied on the profits of private entrepreneurs. There has-been

             some resentment expressed concerning the return flow of funds

             from the state to the locality. According to the Hampton Beach

             -Chamber of Commerce the state receives at least ten dollars in

             revenue for every  one dollar it allocates to the area.

                    2. State versus  commercial interests. Dissatisfaction with

             the state operations in the harbor includes the lack of channel

             maintenance and available mooring space. The high fees charged

             for the small number of services provided at the state run

             commercial fish pier and the mooring fees for those people who

             are able to get a space go to the General fund and are therefore

             not returned to the area except through specific authorization by

             'the legislature.

            Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                               56

                    3. Local versus local  interests. The Town of Seabrook

            receives the majority of its   revenues from property taxes paid by

            the Public Service Company.    Although area businesses are

            presently benefiting from income spinoff while the nuclear

            generating plant is under construction, other towns will receive

            none of the present or future tax revenues from the     property.

            The Town of Hampton in particular will be exposed to the same

            potential risks which may adversely affect its business interests

            should any problems develop with the plant once it is on line.

            II  Business and Industry

                    4. The state's role in a commercial enterprise such as the

            pier rankles some of the local business people who do not have

            the resources of the state treasury at their disposal but who are

            put in the position of having to compete for the same business

            with their limited resources.

                    5. Competition between tourist and commercial fisherman

            appears limited to allocation of existing land-based facilities.

            Pleasure boats and recreational fishermen use the state docking

            facilities as do the commercial party boats run by Al Gauron.

            This causes some conflicts when the users do not abide by the

            time limits for docking.

                    6. Competition between tourist and  non-tourist interests

            is clearly defined in the case of the Public Service Co., nuclear

            power plant . The concerns voiced by local business people

            include questions as to personal safety, public fear of visiting

            the area and the negative impact on business      and the adequacy

            Access to New Hampshire's Coastal Resources

                 Seabrook-Hampton Harbor                              57

            Of evacuation routes available considering the number of people

            at the beaches on a summer day.

                   7. The attraction of the Public Service Company plant,

            especially its elaborate education center, has already brought

            200,000 visitors to Seabrook. Some come specifically for this

            purpose, especially school children who come for class trips.

            Public Service Company is anxious to point out that $25,000,00

            per month is spent by the project in New Hampshire during

            construction, most of it in the southern seacoast area. However,

            most of the concerns expressed by other interests focussed on the

            plant's effects once it is in operation.

            III Natural Environment

                   7. Protecting the limited clam flats and natural habitat

            of the marshes is of major concern to both state and local

            interests. In addition to potential pollution problems associated

            with further development of the harbor, the nuclear power plant

            'may impact the area marine resources both passively and actively.

            Studies are being conducted by Normandeau Associates under

            contract to the Public Service Company to determine projected

            impact on the harbor flora and fauna during normal operations of

            the plant. In response to concerns of local and state citizens,

            the legislatu-re' recently enacted "An Act Requiring a Consequence

            Analysis Study for the Seabrook Nuclear Power Plant" Chapter 196,

            Laws of 1983 (effective June 16, 1983). The Act requires a

            special panel to study the effects of a "worst case" scenario of

            a core melt down at the plant.

            Access to New Hampshire's Coastal Resources

                 Seabrook-Hampton Harbor                              58

                   8. The Seabrook back dunes area is an example of'
            continuing concern over development'control. Area residents

            seeking to protect the remaining open spaces are at thE! mercy of

            an underfunded overworked system of state and local regulation.

            The Wetlands Board and local building inspectors are rE?sponsible

            for ensuring compliance with the permitting process and the local

            ordinances restricting building in protected areas. Lack of

            funding and manpower hampers these efforts and the burden falls

            upon the neighborhood watchdogs to inform the authorities when

            someone decides to build without first obtaining permission to do

            so. This leads to compromises with the noncomplying par-ties and

            lack of uniformity in applying the land use regulations. The

            federal Coastal Zone Management program has provided funding for

            the Wetlands Board enforcemen t program and violations have

            dropped while enforcement has increased. CZM funding will

            eventually dry up and there is concern about whether the state

            will to continue to fund the program.

            Access to New Hampshire's Coastal Resources

                 Seabrook-Hampton Harbor                              59

                    RECOMMENDATIONS AND DIRECTION FOR FUTURE STUDY

              1  State and local issues and jurisdiction

                    A general concern about state involvement in local

              problems emerged from our interviews. The state's role in

              management and control of the Seabrook/Hampton harbor

              encompasses a variety of activities and has drawn critisism from

              local residents on all fronts. Complaints included (1) the

              perceived over-involvement of the state in proprietary

              functions, that is activities which are not strictly

              governmental and which are perceived to compete with private

              undertakings; (2) inequitable distribution of state tax money

              relative to the amount of revenues collected from the region;

              (3) over-regulation of privately owned resources; and (4) lack

              of enforcement of existing regulations and ordinances. .

                     Although the complexity of these issues prevents us from

              adequately addressing them in detail given the limited scope of

              this study, we note their existence and offer some general

              guidelines for consideration.

                     (a) State competition with private enterprise. The State

              should review its activities to determine whether some of them

              could be more efficiently undertaken by the private sector.

              Serious consideration should be given to whether an activity is

              an appropriate governmental function, providing a necessary or

              desirable public service, or whether it is in fact a proprietary

              function competing with public funds again st the private sector.

              In those cases where studies show that the service can be

            Access to New Hampshire's Coastal Resources

                 Seabrook-HaMPton Harbor                             60

             provided at reasonable cost as well as or better than by a

             public agency, the State should develop a mechanism for

             divesting itself of such activities encouraging private

             interests to take over the function.

                    (b) Allocation of state revenues. It was not entirely

             clear how justified was the concern about unfair allocation of

                                     Analysis of state income and
             revenues by the state.

             expenditures in the area would be required to determine whether

             unfair burdens are in fact being placed on a particular area.

             There is question as to whether state fees for service are

             excessive or, on the other hand, whether som e may in fact be

             subsidized by general state revenues. This issue also relates

             to the issue of state versus private enterprise discussed in

             paragraph (a) above.

                    Allocation of revenues obtained through licensing, permit

             and service fees, as well as other state revenues now obtained

             from the localities and presently allocated to the general fund

             could be accounted for and dispersed through such an agency

             ac.cording to a formula determined by the legislature. :Such a

             formula would need to reflect the individual agencies' program

             needs and overall state policy considerations.

             Interagency coordination.

                    (c) Regulation of privately owned resources. There is a

             natural conflict between the interests of the public at large

             and the private landowner. This is reflected in the complaint

             that the government, whether state, local or federal, exercises

             too heavy a hand in control of the use of private property. The

             Ac cess to New Hampshire's Coastal Resources

                 Seabrook-Hampton.Harbor                              61

              development and adoption of a comprehensive plan and clearly

              articulated public policy on development and preservation of

              coastal resources may help to mitigate this concern and provide

              for consistency in regulation.

                    (d) Failure to enforce existing state and local

              regulations. This complaint was heard throughout our study.

              Reasonable regulations may be on the books, but they are

              sporadically enforced, and can often be ignored by an individual

              with little fear that effective enforcement action will be

              taken. Coordination of state agenc y field personnel and prompt

              agency level adjudication of violations would serve to increase

              credibility of state regulation. Selectmen should be provided

              with a mechanism to enforce town ordinances in the first

              in.stance, short of protracted superior court proceedings.

              2. Coordination among state agencies.    Coordination among the

              various state agencies responsible for regulating use of the

              harbor and-its resources is lacking. The harbor area residents,

              encompassing three towns and two precincts, look to the state

              for comprehensive management policies and control of shared

              resources. At present state authority over these resources is

              split among several state agencies, some with overlapping
              jurisdiction; ie: Depar@ment of Fish and Game, Water Supply and

              Pollution Control Commission, Water Resources Board, Wetlands

              Board, State Port Authority, Department of Resources and

              Economic Development, Office of State Planning. A single agency

              charged with primary responsibility for interagency coordination

             Access to New Hampshirels Coastal Resources

                  Seabrook-Hampton Harbor                              62

              is needed. Such an administrative-structure should be designed

              to improve the effecti,veness of individual agencies as well as

              to eliminate overlap and conflict among agencies.

                    A centralized, cooperative clearinghouse for interagency

              coordination should also enable the harbor area residents to

              determine agency jurisdiction and rules, obtain information and

              air grievences in one place.

                    A single agency might also coordinate and disperse

              information concerning federal regulatory requirements effecting

              state and local actions. Federal agencies involved include the

              Army Corps of Engineers, Coast Guard, Environmental Protection

              Agency, Fish and Wildlife Service (Interior Department),

              Department of Energy, and the office of Coastal Zone Management.

              3. Comorehensive long-term planning and implementation

                     In order to provide a comprehensive oversight agency with

              powers as described above, a review of present state policies

              governing the various areas of concern should be undertaken.

              Much of this has been accomplished already with federal Coastal

              Zone Management funds, although attempts to adopt a

              comprehensive plan have failed to date. Emphasis on local

              participation in management of state-owned resources may allow

              the recommendations already developed to be reassessed and

              implemented in a manner more acceptable to local communities.

              Certainly preservation and availability of the clam flats and

              fish nurseries are of concern to area residents who rely for

              livelihood on sport and commercial fishing. Management of the

            Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                               63

              state fish pier, mooring allocations, channel dredging, fill and

              dredge permits, parking facilities, as well as infrastructure

              repair and maintenance also affect local residents at one time

              or another.

                     A state management policy for the seacoast is needed. A

              general policy which will allow more local involvement in

              developing specific plans for each community's   needs should be

              formulated. Breaking down the comprehensive plan into man  ageable

              chunks which could be implemented a little at a time in keeping

              with an overall policy would allow  needed changes to be made

              without waiting for total agreement on a complete plan. An

              agreement on state policy may be more easily achieved than one

              concerning substantive plans. Local autonomy is highly prized in

              New Hampshire and the seacoast area is no exception. Encouraging

              local participation in state management planning should-be a

              primary focus of any formulated  policy.

              4. Preservation and management of development

                     Specific areas of concern include the preservation and

              management of the Seabrook dunes. Similar but more general

              needs include enforcement of local zoning ordinances and

              building codes and state permitting procedures to control

              development of the remaining open land around the harbor and

              preserve the most valuable open-space assets. Enforcement of

              state protection mechanisms now in place requires continual

              funding and is thus limited by the budget allocations made by

              the state legislature and monies available through the federal

            Access to New Hampshire's Coastal Resources

                 Seabrook-Hampton Harbor                               64

             Coastal Zone management program. As funds from the federal

             program dry up, responsibility for enforcement funding will fall

             fully upon the state. Considering the reluctance of the state

             legislature to allocate funds for enforcement and monitoring,

             alternative methods of financing should be considered. Bonding

             requirements, realistic civil fines, mitigation and restoration

             by the violator are among the mechanisms that might be used. An

             incentives program might be developed to encourage development

             designed to provide public access and preserve fragile

             resources.

                    (a) Funding of state enforce .ment programs needs to be

             considered in terms of an overall management policy and

             comprehensive plan for the Seabrook/Hampton Harbor area. Such a

             plan need not be developed as a 'whole if piecemeal planning

             follows a comprehensive policy outline. Perbaps regulatory

             enforcement at.the state level can be broken down by area

             instead of by agency. The single agency acting as a

             coordinator, as outlined above, might utilize interdepartment

             personnel more efficiently and economically by eliminating

             overlapping jurisdictions.

                    (b) Local government may also provide more effective

             enforcement of existing ordinances by providing additional

             funding. Recent legislative action authorizes municipalities to
             appropriate money for any legal purpose "not prohibited by the

             laws or by the constitution of [the] state." Chapter 137 of the

             Laws of 1983, amending RSA 31:4, effective August 10, 1983.

             Providing adequate funding for local enforcement of building

            Access to New Hampshire's coastal Resources

                 Seabrook-Hampton__Harbor                              65

              ordinances may reduce the burden on state agencies by nipping

              potential problems at the source. If local enforcement can be

              beefed up, the cost to the state may be reduced and local

              autonomy preserved. Incentive mechanisms should be considered

              if the state wishes to promote this type of town action.

                     (c) Towns are empowered by state statute (RSA 31:3) to

              acquire real property. The Conservation Commissions are also

              empowered to acquire property or interests in property for

              conservation purposes although they do not have eminent domain

              power. RS.A 36-A:4 (amend. 1973). The Town of Seabrook could

              raise and appropriate money to acquire the remaining back dunes

              in order to prevent further development. Revenues obtained from

              property taxes paid by the Public Service Company may allow

              Seabrook to undertake such a major purchase even without

              additional state or federal funds. The purchase process-may be

              expedited if the town acts alone. Alternatively, an application

              to the federal Soil and Water Conservation Fund could provide up

              to 80 per cent of the necessary funds for such a purchase. Such

              a purchase would allow the town to gain control of the resource

              before further damage is done to it.

                     Other potential sources of state and federal funding

              include the Coastal Zone Management program (funds limited to

              planning and research purposes), the Dingell-Johnson Fish

              Restoration and Management Program administeredby the

              Department of Interior, the National Park Service, and other

              programs of the Department of the Interior.    Funding for the

              Land and Water Conservation Fund administered by the National

            Access to New Hampshire's Coastal Resources

                 Seabrook-Hampton Harbor                                 66

             Park Service is assured for the 1984 year. However, general

             availability of such funds is limited under the present

             administration.

                    Other methods of purchasing the dunes might exclude the

             use of government funding all together. A private conservation

             trust could be formed to purchase and hold the property, or an

             established conservation group which buys such tracts may be

             willing to undertake a 11 or part of the purchase. Tax

             considerations for an owner who donates all or part of his

             interest should not be overlooked in the acquisition process.

                    Purchase of conservation restrictions or development

             rights may be a feasible alternative to fee simple acquisition.

             Some tax benefits might be available to the fee owner, and the

             town would get the results desired. RSA 79-A:15 et. seq., as

             amended). Other methods of purchasing the land at reduced cost

             to the taxpayer,include a bargain sale to the town witl-., or

             without a retained life estate by the present owner. This     would

             provide a less expensive means of obtaining ownership and

             provide tax benefits to the seller or his estate. Internal

             Revenue Code of 1954 as amended: Subtitle A, Chapter 18, Part

             VI, Section 170; and Subtitle B, Chapter 11A, Part IV, Sections

             2055 and 2106. (1983)

                    Further research should be conduc  ted to determine the

             advantages and disadvantages inherent in the various

             possibilities outlined. The Office of State Planning is

             presently working on a study, Land Protection Techniques for

             Communities, to be published during 1984. Of course, the

            Access to New Hampshire's Coastal Resources

                  Seabrook-Hampton Harbor                              67

              specific needs of each community will provide a guide to making

              the best decision.

              4. Impact of the Nuclear Power Plant

                 a. Recreational Facilities

                     The Rocks Road launch ramp in the Town of Seabrook is

              presently closed due to construction at the power plant site.

              Townspeople we talked to understood from Public Service Company

              that the ramp access would be reopened once construction was

              completed. A representative of Public Service Company express

              serious reservations about reopening the access because it is

              very.close to the plant and may raise security problems. If the

              launch ramp is not reopened the town will be left with only two

              access points for boaters. The town, in conjuction with the

              Public Service Company, may wish to consider openi-ng another

              launch site or upgrading and expanding already existing

              facilities. if the Public Service Company forecloses use of the

              Rocks Road site, compensation to the town may be required. This

              compensation might well take the form of like kind property

              purchased and dedicated in trust to the town for recreational

              use.

                     Although the Public Service Company offered the barge

              facility to the town it is not in a good location for a launch.

              The Port Authority and Public Service Company have prevailed

              upon the town to stay demolition of the barge facility for

              a.nother year 'but replacing the Rocks Road launch ramp should be

              considered as a separate issue. Boat access from the west side

            Access to New Hampshire's Coastal Resources

                 Seabrook-Hampton Harbor                               68

              of the harbor would be more advantageous for inland residents

              and would reduce the traffic crush on the eastern side. Whether

              such a site could be found is another matter. Considerations

              include wetland preservation and siting the launch ramp at a

              place where channel depth will allow maximum accessibJ' .1i.ty for

              various types of craft.

                b. Emergency evacuation planning

                    Another area of major concern to local residents is the

              emergency evacuation plan which must be developed to protect

              residents-and visitors in the event of a serious accident at the

              nuclear power plant. The study authorized by the legislature

              during the 1983 session will con sider this problem. Although

              Public Service Company contends that there is ample time for

              evacuation even in a "worst case" accident, present road access

              would appear to be inadequate to accommodate the volume of

              traffic which a rapid evacuation would generate. There has been

              some discussion about building a major north-south highway

              parallel to Route 1-A along the western side of Hampton Beach.

              In order to implement such a project compliance with federal

              laws, and especially the National Environmental Policy Act

              (NEPA) would be reguired. Consideration.of alternatives,

              historic preservation, business interests, coastal wetland

              protection and other environmental impact statement (EIS)

              criteria could delay such a project for years and perhaps

              prevent it altogether. Conflicting federal, state, and local

              interests would inevitably make realization of a major highway

            Access to New Hampshire's Coastal Resources

                 Seabrook-Hampton Harbor                              69

             difficult if not impossible. If a major project like this was

             approved and implemented the entire character of the harbor

             would be irreparably changed. Provision for adequate evacuation

             routes is absolutely necessary but care must be taken in

             evaluating the possible impact on the area resources before

             siting a major highway through the beach front towns.

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        5.   State boat landing
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        7.   State landing
        8.   Smith landing
        9.   Mussel bed                                                                                  6
      10.    Smith Marina                13.  Rocks Road launch                                 Rte '28
      11.    Clam flats                  14.  Seabrook Power Plant
      12.    Farm Lane dock              15.  Back dunes
                                                                                                                                                                         C

      16. Municipal landing &                 Eastman Pier
      17. Town Beach
      18. PSNIH barge facility
      19. Beckman's Point

             Access to New Hampshire's Coastal Resources                        71

                                 Riverine and Estuarine Areas

                           RIVERINE AND ESTUARI14E COASTAL RESOURCES

             In trod uct ion

                    For purposes of this chapter we have generalized the

             description of the resources involved, drawing from observations and

             interviews with people in a number of different locations along the

             rivers and estuaries that make up the inland tidal regions,

             especially those which feed into the Portsmouth Harbor. We have not

             included in this section those portions of the Piscataqua which are

             heavily industrialized, prefering to treat them, in-so-far as they

             are considered, as part of Portsmouth Harbor itself.

                    Two major initiatives directed toward conservation and access

             are presently in process in the tidal areas upstream from Portsmouth

             Harbor. The Great Bay Estuarine Sanctuary nomination is proceeding

             in tandem with establishment of the Great Bay Estuarine System

             Conservation Trust. The Sanctuary is proposed under a national

             program established in 1972 by Congress to protect and manage unique

             estuarine systems all over the country. The program focuses on

             public education and research rather than large-scale acquisition

             and elimination of development. The Office of State Planning has

             lead responsibility for preparing and following through on this

             nomination.

                    The second initiative involves the establishment of watershed

             associations along the major tributory rivers. The Strafford

             Regional Planning Commission, under a grant from the federal Coastal

             Zone Management program has taken the lead in organizing one such

              Acces s to NH Co astal Resources Estuarine & Riverine Areas            72

              associations, the Lamprey River Watershed Association. A second,       in

              the Cocheco-Isinglass watershed is not yet organized, but may take

              that step once the proposed Rochester treatment plant comes on line

              later in the decade. River area planning committees working to

              est ablish the associations have done extensive site-specific surveys

              and developed programs to accomplish purposes closely related to

              this study. These include (1) development of public access, (2)

              establishment of priorities among types of potential use, (3)

              protection of environmentally sensitive resources from inappropriate

              or overly-intensive use, and (4) search for mechanisms to minimize

              conflict among users and between the public-and private owners. Ms.

              Francesca Latawiec, planner with the S.trafford Regional Planning

              Commission, has had major responsibility for leadership under the

              grant.

                      We have worked With these groups in an advisory capacity and

              they have kept.us informed of their plans and progress.

                      We have therefore not attempted to identify a specific site

              for study, but have used the work of river area planning program to

              help us identify the issues and problems related to access.

                      Others who have assisted us on this chapter include      Sarah

              James of the Newmarket Planning Office, Kevin Tacy of York      Harbor

              Exports, Inc., John Nelson of New Hampshire Fish and Game Department

              and Eric Sawtelle of Trout Unlimited.

              Description of the Resource

                      Most of the property  bordering tidal rivers and the Great and

              Little Bays is privately owned. The major exceptions are at Adams

              Access to NH Coastal Resources Estuarine & Riverine Areas          73

              Point on the Great Bay, owned by the State and housing a marine

              research laboratory for the University of New Hampshire, a sanctuary

              on Little Bay owned by the Audubon Society and the Pease Air Force

              Base in Newington owned by the federal government. There is some

              municipally owned waterfront, usually close to town centers, such as

              the launch area in Newmarket.

                    Activities on the privately shorelands are still relatively

              non-intensive, including residential and farming uses. There is

              some industrial use, especially where the rivers are or were dammed

              for purposes of power production in the nineteenth century. These

              are of course at the upper end of the tidal sections. Industries in

              the mill buildings are now generally no longer water dependent and

              most are not even water-enhanced. Their location is determined by

              the existence of older mill buildings rather than their need for

              water for power or transportation. Major industries on-the

              Piscataqua in Portsmouth and Newington many of wh.ich are in fact

              water dependant, at least for transportation, are considered in the

              Portsmouth Harbor section of this report.

                     The Great Bay itself is relatively shallow with wide tidal

              flats. This feature has tended to discourage the development of

              such water-dependant facilities as marinas.    The federal

              government, in the form of Pease Air Force Base in Newington

              controls a large segment of the waterfront. It may well be that the

              heavy jet traffic at the air base has discouraged development to

              some degree in the area surrounding the bay, acting as de-facto     -

              protection for the wildlife habitat which is a major feature. The

              tidal flats and marshes attract migratory birds, waterfowl and game,

              Access to NH Coastal Resources Estuarine & Riverine Areas             74

              are spawning grounds -for fish and shellfish, and generally provide

              an important wildlife resource.

                     There are a few boat-launch ramps available to the public,

              mostly upstream from the Great and Little.Bays, and the Public

              sometimes gains access to both water and shorelands from rights of

              way at road bridges.

                     Until recently the rivers were heavily polluted with

              industrial waste and sewage. This fact alone has tended to

              discourage development along the waterfront in the past. The

              cleanup process is far from complete, but substantial progress has

              been made. The Water Quality Management Plan for the Piscataqua

              River and Coastal New Hampshire Basins, prepared by the Water Supply

              and Pollution Control Commission and published in June 1979, reviews

              water quality progress.in the region and sets goals for continuing

              efforts. We understand that an update of this plan is being

              prepared.

                     The Water Quality Management Plan contains maps of the region

              and describes the watersheds which contribute to the tidal areas.

              In New Hampshire there are some thirteen municipalities which border

              on inland tidal waters. These are Dover, Durham, Exeter, Newmarket,

              Newfields, Rollinsford, Stratharn, Newington, Greenland, and

              Portsmouth in the Piscataqua River Basin, and Seabrook, Hampton

              Falls and Hampton in the Seabrook/Hampton estuarine area. See the

              chapter on Seabrook/Hampton harbor for further discussion of that
              region. This chapter will focus on tributaries to the Piscataqua

              River, although observations about access issues here will apply

              Access to NH Coastal Resources Estuarine & Riverine Areas             75

              elsewhere, Rivers with tidal portions emptying into the Great Bay

              and the Piscataqua include the Salmon Falls, Cocheco, Bellamy,

              Oyster, Lamprey, Squamscott and Winnicutt.

              Major Interests Identified

                      Private property owners. Private property owners are a major

              interest in this entire region. Categories of private property

              owners include

                      (a) large, private holdings: a few remain, some as private

              homes and some as farms;

                      (b) residential development@ including single family

              subdivisions and more recently condominium and cluster type

              development.

                      (c) farms and other agricultural uses;

                      (d) small business: primarily tourist-related, such as

              restaurants, marinas, and retail establishments serving

              water-related recreation such as boat rentals, fishing supply and

              the like;

                      (e).industry: usually located in town centers such as Dover

              and Newmarket at -he point where the rivers are dammed and therefore
              cease to*be tidal. They make use of existing mill buildings,

              although they no longer use the water power for which the dams were

              created;

                      (f) aquaculture: fish ranching and oyster farming

              enterprises.

               Access to N11 Coastal Resources Estuarine  & Riverine Areas         76

               Local, state and federal government.

                      The State of New Hampshire has a broad public interest,

               exercised through various departments including Fish & Game,

               Wetlands Board, Water Supply & Pollution Control, Department of

               Resourc es and Economic Development and others.

                      The Wetlands Board, established under the Water Resources

               Board and incorporating representatives from several state agencies

               and the public, has jurisdiction over dredge and fill. in wetlands

               and over activities which involve docks or other structures in

               navigable waters. (RSA 482 and 483-A). The Governor and Council

               have the final authority over activities in public waters, although

               they do not have direct jurisdiction over activities in wetlands.

                                                                     Jackson
                      The University of New Hampshire, through its .

               Laboratory on Adams Point, emphasizes research on marine and

               estuarine matters, and thus has a major stake in the maintenance of

               water quality and habitat in the estuary.

                      Municipal governments. Municipalities own some shore

               property, usually near town centers and used for boat: launching,

               fishing and other recreational activities. In some cases,

               municipalities use shore-front property for purposes which are

               not only unrelated to the waterfront, but which actually detract

               from its attractiveness and interfere unnecessaril-y with public

               access. Examples are parking lots, public works garages, and

               landfills. Now as the water itself is cleaned Up, Municipalities

               will need to reassess their use of such property.

                      Cities and towns have an economic interest in development of

               the shoreline.. As pollution sources come under control, pressure to

             Access to NH Coastal Resources Estuarine & Riverine Areas          77

             subdivide property for residential or commercial purposes will

             increase, adding to the tax base and also to the demands for

             municipal services. This same development pressure will tend to

             reduce opportunities for public access while at the same time

             increasing demand.

                    Local conservation commissions have a role in responding to

             proposals for dredge and fill permits in.wetlands before the State

             Wetlands Board. (See RSA 483-A). They also may recommend municipal

             ordinances to protect wetlands and may be given responsibility for

             assisting other local boards in administering them. Parks and

             recreation commissions also have a role in managing town-owned

             property and planning for public access to waterways and wetlands

             for recreational purposes. Road agents must maintain access roads

             and may be responsible for some waterfront facilities such as launch

             ramps and parking areas.

                    Federal government. The United States Government, with its

             military facility at Pease Air Force Base in Newington, has a major

             role, but does not seem to represent an important interest in so far

             as use of the coastal resources themselves is concerned. It can be

             assumed that Base personnel become part of the general public when

             recreational interests are considered.

                    The Army Corps of Engineers has  responsibility for

             controlling dredge and fill activities  in navigable waters through

             the Rivers and Harbors Act, Section 10  and Section 208 of the Water

             Pollution Control Act.

                    Private, non-profit organizations.    Private organizations

             fall into two categories, those which actually own land and those

              Access to NH Coastal Resources Estuarine & Riverine Areas            78

              which do not". The Audubon Society of New Hampshire  owns a small

              sanctuary on the Little Bay. The Society for the Protection of New

              Hampshire Forests may hold some easements.

                     The sportsman's groups represent the majority of non-land

              holding organizations. Ducks Unlimited, Salmon Unlimited and other

              groups in the New Hampshire Wildlife Federation have taken an

              active interest in preserving habitat and access for hunting and

              fishing.

                     The general public, especially recreational interests.

              Recreational interests, not always compatible, range from relatively

              passive.enjoyment of the coastal area to more active pursuits such

              as fishing, canoeing, power boating, picnicking and camping,

              swimming, hiking, cross-country skiing and trail-biking. While some

              are represented by organiz ations, many are not. Their needs and

              interests are diverse, and they have no direct means of being held

              accountable for activities which may interfere with others or

              damaging to the resources.

              Areas of Conflict and Competition for the Same Resources

                     As might be expected, the public is often its own worst

              enemy. Littering, noise, and property destruction are common

              complaints among private property owners whose land is used by. the

              public or who abut public recreational property. These experiences

              lead private property owners to resist efforts to develop shorefront

              access on their property, such as easements for hiking trails.

                     The more access is closed off or compressed into smaller

              space, the greater the problems of litter, crowding, parking,

               Access to NH Coastal Resources Estuarine & Riverine Areas           79

               traffic and conflict among users in those areas where access remains

               available.

                      Private property owners do not always welcome hunters, and of

               course passive recreatiQn such as hiking, bird-watching and the like

               are severely restricted during hunting season in areas where game is

               plentiful.

                      Recreational fishermen, canoeists and swimmers object to

               high-speed boating and water-skiing in river channels. These kinds

               of activities also disrupt wild-life habitat in sorne areas and cause

               erosion along the shoreline.

                      Industrial and commercial users experience some difficulties

               with the general public's use of their water access for recreational

               purposes such as boat-launching, swimming and picnicking.

                   . Concern for habitat maintenance collides with development

               pressure, especially where dredging and filling are proposed in

               wetlands or estuarine bottoms. Development of course interferes

               with hunting interests where homeowners object to the use of guns

               near dwellings and trespassing on private property by hunters and

               other sportsmen.

               Major Issues Identified.

                      Pollution Control. Despite important progress in the last

               decade, pollution problems persist. Although this study does not

               address upstream sites, it cannot ignore the fact that pollution

               travels downstream, and inadequate pollution controls above  the

               tidal point affect the tidal areas.

                      Point Sources. Most industrial point source pollution has

               been brought under countrol through the National Pollution Discharge

               Access to NH Coastal Resources Estuarine & Riverine Areas             80

               Elimination System (NPDES) federal Water Pollution Control Act

               administered jointly by-the New Hampshire Water Supply and Pollution

               Control Commission and the Environmental Protection Agency. It can

               be assumed that policing of permit conditions is weak here as it is

               in other areas.    Nevertheless, industrial point discharges were not

               identified as a major problem.

                      Industrial spills, although infrequent, can be catastrophic

               and are a constant source of anxiety for wildlife management as well

               as for recreational interests and the fish-farming industry. The

               oyster-farming project has on more than one occasion been severely

               affected, and damages have been insufficient to cover real long-term

               losses according to the proprietor.

                      Municipal sewage remains a significant problem, especially

               on the Cocheco flowing from cities such as Rochester which have not

               yet completed sewage treatment facilities adequate to deal with the

               sewage collected.

                      Non-Point Sources. Non-point pollution sources are by

               definition more difficult to pin-point and of course harder to

               control. Major contributors to non-point source pollution include

               agriculture and forestry practices which cause siltation and run-off

               of pesticides and high-nutrient fertilizers; septic systems which

               also contribute nutrients; municipal and private landfills which may

               leach chemicals, heavy metals and nutrients; road salt; dredge and

               fill in wetlands; leaking underground fuel tanks; sand and gravel

               excavation; and runoff from roads and parking lots. Withdrawal of

               federal suppor t for non-point source control, and lack of state

               resources to fill the gap, have left many unanswered questions about

             Access to NH Coastal Resources Estuarine & Riverine Areas            81

             pollution from non-point sources and how best to control it.

                    Power boating. Despite state laws and regulations purporting

             to control the speed and wake of power boats, power boating was a

             frequent source of complaint. Municipalities do not have

             jurisdiction on state-owned waterways and cannot police them. The

             State has few enforcement personnel devoted to policing this kind of

             activity. The channels are narrow except for the Great Bay itself,

             and even there, at low tide especially, access is very limited for

             power boats. Canoeists, fishermen, swimmers, and wildlife

             management personnel especially emphasized the adverse effects of

             power boating (and water skiing) on-other activities.

                    Public access-and private property. There is major

             resistance by private property owners to public access across or

             adjacent to private property along the waterfront. Picnickers,

             swimmers, boaters and hikers leave trails of trash, from bottles to

             used pampers, and incidents of vandalism are reported.   Parking is a

             problem and cars either encroach upon the roadway or on private

             property.

                    Development and wildlife habitat. Housing and other build.ing

             development inevitably diminish the range of wildlife. In coastal

             areas, developers often seeks to''take advantage of a waterfront

             location by dredging or filling wetlands to increase buildable area

             or provide access to the water.

              Access to NH Coastal Resources Estuarine &.Riverine Areas

              ProiDosals and Recommendations

              A. The private sector.

                     1. The land trust concept should be embraced by all

              interests because of its flexibility and independence from

              domination by other institutions, private or governmental. The land

              trust can actually own land; it can hold easements for -articular

              purposes, leaving the underlying fee interest in private hands; it

              can purchase land or accept donations; it can develop land where

              appropriate and protect it to whatever degree is deemed necessary;

              it can manage land to further the-purposes*of the trust. The Great

              Bay Estuarine Trust, now in the process of organization, can be

              expanded to accommodate tidal lands tributory to the Bay and

              upstream areas could also be included.

                     Membership in the land trust is  voluntary, and can include

              those who actually own riparian land and those who do not. it

              provides a vehicle to protect both landowner and non-landowner

              interests without the wider political pressures involved*in state

              ownership or control.

                     Donations of land or interests in land to the trust may have

              favorable federal tax ramifications for the donor under Section 170

              of the Internal Revenue Code. Donation or partial donation of

              conservation restrictions or development rights will assure that

              land is eligible for current use assessment treatment for municipal

              property tax purposes under the state law, RSA 79-A.

                     2. The various sportmen's and other organizations using the

              area should consider setting up an umbrella organization to bring

             Access to NH Coastal Resources Estuarine & Riverine Areas          83

             different interests together in an ongoing planning and

             implementation effort. The River Area Planning Councils initiated

             by the Strafford Regional Commission could serve as models.

             B. The Public Sector.

                    3. Municipalities should work together to adopt compatible

             zoning provisions and subdivision regulations along the shorefront.

             These should direct water-dependent and water-related activities to

             that area, and discourage those which derive no benefit from

             proximity to the shore. They should protect sensitive areas from

             encroachment and provide for public access where appropriate.

                    Local wetlands overlay ordinances can be developed to prevent

             building activity in wildlife habitat. Prime wetlands can be

             designated under the State wetlands protection act (RSA 483-A) to

             restrict state permits for activities in wetlands.

                    Cluster zoning provisions can be developed to encourage

             preservation of operl space along the water front and prevent

             non-point source pollution from septic systems and run-off.

                    4. Municipalities should survey their holdings in shorefront

             areas to determine how best to use them in the public interest.

             Some should perhaps be sold to private developers who can use them

             appropriately without destroying their public value. In such cases

             it may be advisable f-or the municipality to retain an easement for

             limited public purposes. Other municipal holdings, now used for

             activities that are in no way benefited by proximity to the

             shoreline, might be developed to provide public access. Still

             others should be preserved or improved for protection of habitat,

              Access to NH Coastal Resources Estuarine & Riverine Areas           (34

              water quality and enhancement of aesthetic appeal.

                     5. Historic preservation considerations should not be

              ignored in developing plans for preserving the shoreland areas.

              Dams, millsites, residential and commercial buildings, and*so forth

              provide an important link with the past and add to the

              attractiveness and character of the ar.ea. There are important

              federal tax advantages to be gained from proper rehabilitation   of

              existing buildings and preservation of historic sites.,

                     6. motor boating in areas of wildlife habitat and where

              others swim or canoe was mentioned frequently as a problem. Only

              the state can control this activity which takes place in public

              waters. Pressure should be brought on state agencies to set clearer

              standards for power boats and to see that they are enforced.

              Penalties for illegal or dangerous boating activities will need to

              be stiffened. Personnel associated with the land trust or other

              organization holding an interest in riparian property should take

              responsibility for reporting boating violations, but the state

              agency, the Department of Safety, has the ultimate authority.

              (RSA 270) The division responsible for boating.safety is woefully

              undermanned in the field. If the state cannot provide more

              manpower, it should explore ways to use others, both private persons

              and state personnel, to improve policing capability.

              C. Public-private cooperation and alternatives.

                     7. Methods of limiting public access to appropriate purposes

              should be developed and enforced. In some areas    seasonal

              restrictions should be considered. For example,    off-road  vehicles

              and horses may not be acceptable on trails designed for hiking. If

              Access to Nil Coastal Resources Estuarine & Riverine Areas        85

              both activities can be accommodated at some times of year, they

              might be limited at inappropriate seasons, such as periods when the

              soil is especially wet or muddy. It may be advisable to place

              certain areas off-limits to the public during wildlife breeding

              seasons. Some areas may be open only to particular groups of users

              in any given season.

                     8. Policing is a problem here as in all the areas we

              studied. Mechanisms to provide for self-enforcement and to

              encourage compliance with reasonable regulation of activities must

              be worked out at both state and local levels. State agencies need

              to share personnel in the field, and municipal agencies need to be

              brought into the enforcement picture to provide a cooperative, broad

              based policing system.

                     9. The question of fu nding for policing access must be

              faced. A land trust should seek endowments with the land or

              interests it holds to provide for ongoing oversight. A fee system

              could be instituted in some areas, such as boat launches and trails,

              to provide funds for maintenance. If the state were to hold the

              property interests, it would be important to make certain that any

              fees were dedicated to that purpose and not diverted to the general

              fund. Sportsmen's clubs might assess their members who use the area

              for hunting and fishing.

                     Whatever mechanisms for funding are finally chosen, they must

              be carefully worked out to provide adequate support for the access

              program over the long term. Where donations of interests in land

              are made, and federal tax deductions sought, it is essential that

              the policing program be acceptable to the federal Internal Revenue

             Access to NH Coastal Resources Estuarine & Riverine Areas          86

             Service. This is somewhat. complicated by the fact that IRS has yet

             to adopt rules under the relevant section of the Code.

                    10. Liability is an ever-present concern, especially for

             municipalities and private individuals who make some charge for use

             of their land. The legislature has acted to protect property owners

             who permit recreational use of their land without charge (RSA

             212:34, 508:14; 216-F:3). But municipalities, since the abolition

             of sovereign immunity in New Hampshire (see section on Municipal

             Liability) are coming increasingly under threat of suit and are

             understandably uneasy. Private, non-profit organizations which

             maintain property for public or quasi-public purposes must also

             consider the liability issue. Fear of liability is frequently used

             as a reason for towns and private groups to decide against

             maintenance of public access facilities. Some changes in the

             legislation should be explored to lower the risk of liability  for

             all groups, public and private, if public access is to be maintained

             along the shorefront..

                    11. The New Jersey Conservation Foundation has proposed a

             system based on the English "Countryside Commission."   It merits

             closer examination to see if it may be adaptable to the New

             Hampshire situation. The New Jersey proposal "not only expands

             recreational facilities by financially rewarding landowners who

             allow some access to their land for hiking, camping, swimming and

             picnicking, but also sh ifts responsibility for these sites to a
             local warden." 1 (New Jersey Conservation Foundation, An Open Lands

             Management Program for New Jersey, January 1933.) "The Countryside

             Commission believes that channeling hikers, campers and other

              Access to TIH Coastal Resources Estuarine & Riverine Areas         87

              visitors into designated trails, picnic spots and campgrounds goes a

              long way towards easing existing problems. Rather than buy up

                     y land and run these many facilities on its own, the
              necessar                                         t-.

              Countryside Commission instead seeks wherever possible to encouraae

              private farmers and landowners to allow access across their land for

              trails and also to develop for-profit campsites and snack bars.

                     "Not only are the farmers paid for allowing trails, but a

              local warden with a great deal of autonomy then takes responsibility

              for setting up the hiking paths and maintaining. Each farmer has an

              individual contract with the Commission, usually for one or two

              years' duration, specifying where access can take place and freeing

              the farmer of liability."

                    New Hampshire law enables the state to set up a system of

              trails including outright purchase in fee and acquisition of limited

              property interests (RSA 216-F). This statute could be used as a

              basis for the kind of undertaking envisioned by the Countryside

              Commission proposal.

              Sea Grant MS-8

             Municipal Liability                                              88

                           MUNICIPAL LIABILITY ON THE WATERFRONT

                                  by Kristin Johnson

                                  Carolyn W. Baldwin, Supervisor

             Introduction

                   The availability of public lands for recreational Purposes

             concerns many people for many reasons. To some, public parks and

             wilderness areas are the last bastion of open country once freely
             accessible to all. To others, city parks-and swimming areas are

             the only respite from the jungle of urban pavement, glass, and

             steel. Unfortunately, the important-part these areas play in the

             human environment is often taken for granted by the people who

             use them. Today, the availability of public recreational areas,

             their maintenance and upkeep, and. the fact that they are open at

             all depends heavily on public policy and specific legal actions

             taken to ensure their continued accessibility.

                    In recent years- one particular legal development has

             perplexed state policy makers and the local governing bodies who

             are concerned about potential liability and the attendant

             financial burdens arising from the use of public recreationa1

             lands; the state courts have been whittling away at the doctrine

             of*soveriegn immunity. This paper will outline the decline of the

             doctrine in the State of New Hampshire and explore the present

             ramifications and possible future impact of this trend on the

             acquisition and use of public lands for recreational purposes.
             Although the decline of the soveriegn immunity doctrine affects

             all public lands used for recreational purposes, it is felt

              Municipal Liability                                              89

              first and most keenly at the municipal level. This paper will

              focus on municipal waterfront land as a specific example of how

              recent changes in the law may effect local land use policy.

              Sovereign Immunity

                     Throughout most of the history of Anglo-American

              jurisprudence, states and municipalities have been immune from

              tort liability. The doctrine is based on the common law theory

              that the sovereign, ie: the king, could not be sued without his

              consent. The doctrine has since been applied to our republican

              form of government and was adopted by the New Hampshire courts as

              early as 1821. Farnum v Manchester 2 NH 392. Although the

              doctrine was originally developed by the courts, the legislature

              has both adopted and limited it through the enactment of various

              statutes. In recent years the New Hampshire Supreme Court has

              severely curtailed the use of the doctrine. A brief discussion of

              these developments follows.

                     After a long series of decisions curtailing the doctrine's

              application at the municipal level, in 1983 the Supreme Court

              pierced the immunity of the state itself. In State v Brosseau,

              No. 82-064 & c., Slip Opinion of December 1, 1983 [123 N.H.

              467 A.2d     (1983)1 the New Hampshire Supreme Court warned that

              the state legislature should reconsider the "present procedural

              and financial inadequacies of statutes r'elating to sovereign

              immunity." Brosseau, Slip Op. at 6. The Court, with a two of five

              majority and special concurrance from Justices Douglas and

              Batchelder, stopped short of declaring the doctrine of sovereign

              Municipal Liability                                                   90

              immunity unconstitutional as it appears in NH RSA 99-D:l (Supp.
              1981). 1 The concurring opinion was strongly worded and noted that

              the doctrine "is unconstitutionally broad in its present

              statutory form." Brosseau, Slip op. at 7.

                      The Brosseau decision has been hailed as the death knell

              of  the state sovereign immunity doctrine. However, the holding in

              Brosseau is limited to negligence claims brought under two

              statutes, RSA 135-B and RSA 171-A. A right to adequate and        humane

              treatment vests in every involuntarily committed mental patient

              under RSA 135-B and in every developmentally impaired client

              treated by the state Division of Mental Health under R.SA 171-A.

              In Brosseau, the court found that the New Hampshire legislature

              had created a statutory right to adequate and humane treatment,

              and a corresponding duty owed by-the state, through its agents,

              to provide that care. Breach of the statutorily imposed duty in

              the Brosseau cases created a cause of action in tort for damages.

              Brosseau Slip op. at 5.

                      Actions brought against the state which are not based on

              statutorily imposed duties may still be dismissed based on the

              doctrine of sovereign immunity. Judicial abrogation of the broad

              immunity to suit, as it is presently legislated under RSA 99-D:l,

              is likely only if the legislature does not act to narrow that

              statute's scope and increase the limits on recovery for actions

              brought before the State Board of Claims under RSA 541-B:12

              (Supp. 1981). The emphasis on personal injury recovery is at the

              crux of the Court's opinion in Bro'sseau. The state's liability

              for injuries sustained by persons using state lands for

            Municipal Liability                                              91

            recreaticnal. purposes and how the holding in Brosseau might be

            applied to an action in tort for damages arising from such an

            injury are left for another day.

            municipal Liability: The Abrogation of Sovereign Immunity

                   Although the Brosseau decision is a major step in limiting

            the sovereign immunity doctrine at the state level, both the

            legislature and the Court have limited its application to local

            governments for nearly a century and a half. In 1842 the

            legislature created liability for towns for failure to properly

            warn of danger or defects on bridges*, culverts, sluiceways., or

            dangerous embankments (See RSA 231:92 (1981)) and roads (RSA

            231:91). In 1854 the legislature passed an act imposing liability

            for mob damage done to private property in any town where persons

            have riotously assembled. (See RSA 31:53, still on the books).

            For a time prior to 1893, state statutes made municipalities

            liable for any defects in any part of a highway. Wilder v

            .Concord, '72 N.H. 259. Other statutory limits followed. Finally,

            in 1961 the legislature passed RSA 412:3 which dissallowed the

            defense of governmental immunity where insurance had been

            purchased to cover a risk up to the limits of the coverage

            purchased.

                   The New Hampshire Supreme Court.began to distinguish

            between governmental and proprietary functions of municipalities

            several decades ago. Reynolds v Nashua, 93 N.H. 28 (1943) held

            liability could be imposed where a municipality acted like a

            private business rather than carrying out government functions;

            Municipal Liability                                              92

            Kardulas v Dover, 99 N.H. 359 (1955) held that a hospital

            operated by the City of Dover was not a governmental function and

            was liable for negligent conduct; Allen v Hampton 107 N.H. 377

            (1966) held the town liable for negligent maintenance of a

            municipal drainage system which resulted in extensive damage to a

            property owner. Liability was imposed when the act was determined

            to be proprietary and not when it was governmental. The

            distinction, however was often blurred. Gossler v Manchester, 107

            N.H. 310 (1966), Kennison, J. dissenting.

                   Effective July 1, 1975, in the case of Merrill v City of

            Manchester , 114 N.H. 722, 332 A.2d 378 (1974), the New Hampshire

            Supreme Court abolished sovereign immunity for New Hampshire

            municipalities. In Merrill, the New Hampshire Supreme Court

            prospectively abrogated the common law tort immunity of cities

            and towns and invited the legislature to specify the terms and

            conditions of suits against cities and towns, to limit the amount

            of recovery, or to take any action in its wisdom.it might deem

            proper. The legislature responded in 1975 by enacting RSA 507-B

            pertaining to bodily injury actions against governmental units.

            In 1981 RSA 507-B was amended to include personal injury -and

            proper-ty damage. Under RSA 507-B:2:

                   A governmental unit may be held liable for damages
                   in an action to recover for bodily injury, personal
                   injury or property damage caused by its fault or by
                   fault attributable to it, arising out of ownership,
                   occupation, maintenance, or operation of the
                   following:
                        I. All premises, except public sidewalks
                   streets highways or publicly owned airport runways
                   and taxiways.
                       II. All motor vehicles.

            'Municipal Liability                                              93

                   A governmental unit as defined in RSA 507-B:l includes

             counties, cities, towns, and other corporate and political

             subdivisions within the state. It does not include the state or

             any state agency or department. The exclusions noted in RSA
             507-B:2 are covered elsewhere in the statutes.  2

                   As amended in 1981, RSA 507-B establishes liability for

             bodily injury, personal injury or property damage sustained on

             municipal premises where fault and causation can be shown, with

             some exceptions.The abolition of sub-state governmental immunity

             is subject to two exceptions: for acts and omissions constituting

             (a) the exercise of a legislative or judicial function, and (b)

             the exercise-of an executive or planning function involving the

             making of a basic policy decision characterized by the exercise

             of a high degree of official judgment or discretion. Merrill,

             114 N.H. at 729-30. The concurrance in the recent Brosseau

             decision noted that these two exceptions should also be retained

             when the legislature reconsiders the sovereign immunity doctrine

             as appl.ied to State government.

             MunicipalWaterfront Liability

                   Who is liable for physical injuries and property damage

             when accidents occur on municipal property? The answer to this

             question, for public areas which abut the water, depends on-how

             the "area" is characterized. If the land is a public recreation

             area or park, the municipality may be held liable under RSA

             507-B. On the other hand, if the area is merely an access point

             for launching boats at the end of a road, the municipality may be

              Municipal Liability                                              94

              held liable only under certain circumstances set forth in

              Chapters 230 and 231 of the New Hampshire statutes. These two

              types of liability and the legislation which controls them will

              be discussed separately.

              I. Recreational Areas

                    An area developed and maintained by a municipality for

              recreational use on the waterfront is analogous to a public park

              or playground. New Hampshire case law dealing with municipal

              liability for injuries received by an individual While using

              a park or recreation area is sparse. The most recent case is

              Cargill v. City of Rochester 119 NH 662, 406 A2d 704 (1979) which

              deals with the change in the law embodied in Merrill 17.

              Manchester and the 1975 version-of RSA 507-B. Cargill will be

              discussed in more detail below.

                    Earlier cases involving injuries sustained in connection

              with municipal recreational facilities held that "in the absence

              of a statute creating the liability, no action can be maintained

              against a municipal corporation for an injury arising from the

              neglect of a public corporate duty, from the performance Of Which

              the corporation receives no special benefit, pecuniar, or

              otherwise."   Piasecny v. Manchester 82 N.H. 458, 136 A. 357

              (1926) and Harkinson v. Manchester, 90 N.H. 554, 5 A2d 721

              (1939). These cases would not bedecided the same way under the

              new statute and case law abolishing sovereign immunity as set out

              in Merrill v. Manchester.

                    A waterside recreational area should fall under the general

             Municipal "Liability                                               95

             term of "all premises" as used in subdivision one of RSA

             507-B:2,1. This statute entitled, "Liability for Negligence",

             specifically includes operation and maintenance of all premises.

             In the event of an injury, the injured party might bring an

             action alleging that the municipality was negligent in the

             .operation and maintenance of the recreational area. An important

             point to note is that an injured person must first prove that the

             municipality had a duty of care toward him in the particular -

             circumstance where the person was injured. The complaining party

             must show that: (1) there was such a duty owed to him; (2) that

             the municipality breached its duty in some way for which it can

             be held liable, and; (3) that the breach was the proximate cause

             of the injury. Nolan, Tort Law, s 171 (1979). Only by thus

             establishing duty of care, damage, fault, and causation can the

             injured party succeed in an action under RSA 507-B.

                   RSA 507-B:4 as amended in 1981 raised the limit on

             municipal liability to $100,000 for all damages sustained    by any

             one person arising from a single occurance in an action brought

             against a governmental unit. (The limit set in 1975 was $50,000.)

             The earlier limit was enforced, with reservation, in the case of

             ,Cargill v. City of Rochester, 119 N.H.662, 406 A2d 704 (1979). In

             that case, two boys, ages ten and twelve years, were playing near

             an indoor swimming pool owned and operated by the City of

             Rochester. The two youths entered an unlocked storage shed on

             city property; when one boy lit a match, a drum of methanol

             exploded. One boy died and the other suffered severe burns. In

             1975, the surviving youth and the estate of the deceased filed

            Municipal Liability                                               96

            actions in neqiigence and strict liability against the City of

            Rochester seeking damage.s of several million dollars in each

            case. The City of Rochester invoked the $50,000 limit and the

            plaintiffs attacked the constitutionality of the limit. The Court

            upheld the limit, but stated that the $50,000 limit was

            11precariously close to the boundary of acceptability." Id at

            708. This warning prompted the New Hampshire legislature to

            increase the limit to $100,000.

                  The opinion by Justice Lampron in the case of Merrill v.

            Manchester, supra, clearly states that.the common law i]DMLinitv of

            cities and towns was abolished, subject to certain exceptions

            relating to governmental discretion. If the rationale of Merrill

            is applied to a hypothetical case in which a youth is injured

            while playing, fishing or swimming at a city owned and maintained

            waterside park, it appears that the city would be subject to a

            suit. However, actual liability would turn on whether or not the

            injury was caused by a'fault of the city, or by a fault

            attributable to it. Liability under RSA 507-B:2 does not

            aut.omatically follow an injury; negligence and causation must be

            proved, as set out above.

            A. Insurance

                  A municipality concerned with the potential economic.- burden

            of a $100,000 judgment obtained against it by a successful

            plaintiff in a RSA 507-B suit, may purchase insurance to

            alleviate that concern. The $100,000 liability limit set by RSA

            507-B:4 is qualified by RSA 412:3 which allows a municipality to

             'Municipal Liability                                               97

             purchase insurance to cover the risk of liability created by RSA

             507-B. RSA 412:3 qualifies the RSA 507-B:4 liability limit by

             allowing recovery to the amount of insurance purchased or the

             $100,000 limit, whichever is higher. The municipality may find

             that it can reasonably afford to pay a yearly insurance premium

             on at least a portion of the potential $100,000 judgement, and

             thus could keep its recreational area open rather than close the

             area out of fear that it will be burdened with an unmanageable

             bill. Discussions with insurance professionals indicate that the

             premiums are relatively modest for this type of coverage.

                   RSA 412:3 was applied in Brown_v. City of Laconia, 118 N.H-

             376, 386 A.2d 1276 (1978). The plaintiff brought suit against the

             city to recover for property damage and personal injuries which

             resulted from an automobile accident. The plaintif.f claimed that

             the city negligently allowed a known, slippery, hazardous

             condition to remain by failing to remove ice and snow. The

             city's insurance company denied coverage and the city pleaded

             .governmental immunity. The court held that a city loses its

             governmental immunity up to the limit of insurance coverage on

             any risk insured against. Brown, 118 N.H. at 378. The Court found

             that the policy was purchased with a specific clause including

             the hazard of snow removal and that the policy did cover the

             plaintiff's claim. Id. at 378, 379.

             II. "End-of-the-Road" Launch Sites

                   In addition to waterfront recreation areas there are a

             number of boat launching sites at the end of municipal roads.

             Municipal Liability                                                98

             These sites may fall under the New Hampshire Statutes covering

             roads and highways if they are characterized as mere extensions

             of the road itself. 14H RSA Chapter 230 covers state high-,Alays and

             RSA Chapter 231 covers municipal roads. Three catagories of end-

             ,of-the-road launch sites can be distinquished from the statutes.

             Liability will be different in each case.

             A. Lay Out of Highways to Public Waters: RSA 230:63-71 (1981)

                    The Governorand his advisory council are empowered to lay

             out highways to public waters other than waters used as

             reservoirs by a municipality. RSA 230:69. Under present law

             neither the town nor the state can be held liable for "any injury

             to person or property on any highway laid out under the

             provisions of this subdivision, nor shall any indictment or

             information be maintained against any town on ?iccount of the.

             condition of any such highway." RSA 230:71. The effect of the

             Brosseau decision on this statutory immunity from suit is not

             clear. In this instance the state is performing a function unique

             to its position as sovereign in laying out    such highways.

             However, the municipality is required to maintain the road under

             RSA 230:70, although no liabilty attaches for failure to do so.

                    Under the Brosseau analysis, failure of the town to

             maintain the road may give rise to a cause of action for

             negligence if the   road is not specifically made subject to gates

             and bars under RSA 230:68. If the road is open to vehicular

             traffic to a launch site then it is questionable whether a motion

             to dismiss based on statutory immunity or a defense based on the

           Municipal Liability                                             99

           gates and bars theory would prevail. The analysis in Brosseau may
                                                        a

           require the town to submit to suit under the implied waiver of

           immunity theory arising from the town's statutory duty to

           maintain the road.

           B. Class VI Highways: RSA 229:5-VII and RSA 231:50 (1981)

                 Class VI roads are those which have been declared

           "discontinued as open highways and made subject to gates and

           bars" by vote at town meeting, or roads not maintained for at

           least five years. RSA 229:5-VII; RSA 231:44. A public launch area

           at the end of a Class VI road seems unlikely. A Class VI road is

           a public way which a municipality is not obligated to maintain,

           nor is it liable for failure to do so. RSA 231:50.

                 For a town to permit a launch area at such a location

           would imply an expectation that the road would be used and. bring

           into question the road's Class VI status or the appli-cability of

           the immunity statute. See Bancroft v Town of Canterbury 118 N.H.

           453 (1978) where plaintiff was injured at-a barrier to a

           discontinued bridge. The Court said: "we do not believe that [the

           statute] was intended to be a license for towns to construct or

           maintain barriers ... in a manner which invites peril." Id. at

           457.

           C. Other Municipal Roads

                 A municipal road ending in a launch site and not covered by

           the statutes discussed in parts A and B above falls under a

           variety of other statutes in Chapter 231. The immunity from suit

            Municipal Liability                                             100

            legislated under RSA 230:71, for highways laid out to public

            waters by the Governor and council does not apply to highways

            similarly laid out to public waters by the mayor or selectmen  of

            a municipality under RSA 231:6. Towns are liable for damages

            sustained by travelers on town bridges, culverts, sluiceways, or

            dangerous embankments where insufficient warnings are given or

            maintenance has been neglected. RSA 231:91, RSA 231:92. If the

            town does not maintain their highways when they have a duty to   do

            so they may also be fined for neglect under RSA 231:82. (The

            penalty does not apply to Class VI highways mentioned above)

                  However, towns are not liable -for damages sustained on

            Class I, state maintained Class II, Class III, or jointly funded

            Class V highways, except when the town neglects to maintain their

            portion of a jointly funded.road.-RSA 231:93. Until Brosseau    the

            state was not ammenable to suit for damages other than damages

            for taking, relocation, or destruction of property under RSA

            230:21-43 (1981). The statutory duties imposed on the state for

            maintenance of the highways under RSA 230.:1-7 might now give rise

            to.a cause of action for damages sustained by travelers due to

            the'state Is negligence in maintaining the highways.

                  other sections of RSA Chapter 231 further limit the

            liability of the municipalities with regard to injuries sustained

            by travelers.(see RSA 231:90, Duty of Town After Notice of

            insufficiency; RSA 231:91, Town to Act; Liability; RSA 231:96,

            Weight of Load; RSA 231:97, Width of Felloes; RSA 231:98, Droves

            of Cattle; RSA 231:99, Speed Limit; RSA 231:109, Liability of

            Persons for Damages on Bridges, Culverts, and Embankments.)

             'Municipal Liability                                             101

              Conclusion.

                   It is likely that municipalities will be held liable for

              injuries and damages sustained at publicly owned recreation areas

              if the injured party can prove that the injury was caused by the

              municipality's fault. RSA 507-B: section 2-a does insure that

              municipalities are immune from suits brought for accidents which

              occured due to bad weather. This is certainly a major cause of

              waterfront accidents but unfortunately not the only one. The

              municipality should buy insurance to cover the type of suits

              allowed under RSA 507-B.

                   Otherwise, maintenance of launch areas should be undertaken

              in conformance with RSA Chapter 231, and towns may still be able

              to take advantage of RSA .130:69, et. seq. and avoid liability by

              having the Governor and Council lay out the road. However, where

              a town has a Class VI road ending at a launch site or a road laid

              out to a public water by the Governor and Council, they may not

              be able to avoid liability after the Brosseau decision. Hopefully

              the legislature will act quickly to rewrite the offending

              statutes noted by the court in Brosseau.'At the same time they

              must carefully consider the impact of the Court's construction of

              the sovereign immunity doctrine and act so as to avoid an

              unreasonable burden on state coffers while meeting the Court's

              concerns.

                    Both the state and the towns seeking protection from

              potential liability may wish to purchase insurance. No litigation

              based on injuries sustained at a town waterfront has cropped up

             Municipal Liability                                            102

             since these statutes were enacted and no determination hats been

             made as to which statutes would cover an end of the road launch.

             Additional liability questions posed by Brosseau should prompt

             municipalities to purchase insurance coverage if they have not

             already done so. The public interest should encourage keeping

             recreational areas open and at the same time protecting

             municipalities from potentially unmanageable economic burdens.

            .Municipal Liability                                               103

             FOOTNOTES

             1. NH RSA Chapter 99-D "Defense and Indemnification of State

                   Officers and Employees"

             RSA 99-D:l (Supp. 1981) sets forth the statement of policy:

                  It is the intent of this chapter to protect state
                  officers, trustees, officials and employees who
                  are subject to claims and civil actions arising
                  from acts committed within the scope of their
                  official duty while in the course of their
                  employment for the state. It is not intended to
                  create a new remedy for injured persons, to waive
                  the state's sovereign immunity, or to waive the
                  sovereign immunity of the state which is extended
                  by law to state officers, trustees, officials   or
                  employees. The doctrine of sovereign immunity   of
                  the state, and the extension of that doctrine   to
                  officers, trustees, officials or employees of   the
                  state or any agency thereof acting within the
                  scope of official duty and not in a wanton or
                  reckless manner, except as otherwise provided   by
                  statute, is hereby adopted as the law of the
                  state.

                   In addition "Defense and Indemnification of County Officers

             and Employees" is regulated by RSA 29-A (1983).

             2. NH RSA Chapter 231 "Cities, Towns and Village District

                   Highways"

                   Municipal liability for "Neglect of Highways" is set forth

             in Chapter 231 beginning at RSA 231:82.

                  RSA 231:82,  Penalty fo r Neglect
                  RSA 231:84,  Fine
                  RSA 231:88,  Payment of Damages to Landowner
                  RSA 231:90,  Duty of Town After Notice of
                               Insufficiency
                  RSA 231:91,  Town to Act; Liability

             Municipal Liability                                             104

                   "Liability of Towns" is set forth in Chapter 231 from RSA

             231:92 through RSA 231:110 and liability for sidewalk "repair and

             Maintenance" is set forth at RSA 231:113.

                   Publicly owned airport runways and taxiways are regulated

             under NH RSA Chapter 422 and all government units  are exempt from

             liability under RSA 422:17 "Suits Affecting Air Navigation

             Facilities". Motor vehicle liabilty is regulated under the  Motor

             Vehicle Financial Liability Act and insurance for state owned

             vehicles was formerly governed by RSA 8:19,IX until its repeal

             in 1983.

             Sea Grant MS-10

             Ownership of Intertidal Lands in 'flew Hampshire               103

                NEW HAMPSHIRE TIDELANDS: OWNERSHIP, RIGHTS AND LIMITATIONS

                                         by Kristin Johnson

                                         Carolyn W. Baldwin, Supervisor

             I. Introduction

                    A long standing controversy over who holds title in fee

             simple to the narrow strip of New Hampshire land between high

             and low tide, called intertidal lands or foreshore, has never

             been adequately settled. Although this bit of property law was

             hotly debated during the 1800's when New Hampshire coastal

             communities began to grow, it has not been an active issue since

             that time. It may again become an issue as population pressures

             increase in communities boardering on tidal waters.

                  A hundred years ago the New Hampshire courts heard cases

             concerning public rights of way and trespass quare clausum

             fregit brought by coastal inhabitants against one another.

             These early settlers were as much dependent on the salt marsh

             hay which fed their cattle and the seaweed which fertilized

             their farm lands as they were on fishing. Farmers who did not

             own land abutting the sea relied on the saltmarsh commons and

             made it a regular practice to cross private lands to get to the

             tidelands where they gathered seaweed. Here the conflicts arose

             and were settled, but the courts' decisions were not always

             consistent.

                    As primitive agricultural practices gave way to more

             efficient methods of farming and then to industrial development

             Ownership of Intertidal Lands in New Hampshire                  106

             during the late 19th and early 20th centuries, disputes over

             tidal ownership and access died down. Today, as New Hampshire's

             tiny coast becomes increasingly populous, divergent interests

             are once again in conflict and the forgotten question of

             tidelands ownership needs to be resolved.

             II. The Controversy

                    A. English Law and the Massachusetts Ordinances of 1641

             and 1647.

                    For centuries the New Hampshire courts have been torn

             between the English law relating to tidelands which left title

             in the sovereign and the Massachusetts.Ordinance which granted

             title to private owners. New Hampshire was governed by

             Massachusetts from 1647 to 1679 and again from 1690 to 1692.

             This short period of unified rule was long enough to result    in

             300 years of unsettled law with regards to who owns the area

             between high and low tide. Therefore reference mus-t be made to

             the Massachusette Ordinances of 1641 and 1647, in order -to make

             intelligible the later decisions of the New Hampshire courts.

                    In 16 41 the Colony of Massachusetts Bay, which did not

             include New Hampshire, made the following provision in its Body

             of Liberties:

                 Every Inhabitant that is an howse holder shall
                 have free fishing and fowling in any great ponds
                 and bayes, coves and rivers, so farre as the sea
                 ebbes, and flowes within the presincts of the towne
                 where they dwell, unlesse the free men of the same
                 towne or the Generall Court have otherwise
                 appropriated them, provided that this shall not be
                 extended to give leave to any man to come upon
                 others proprietie without there leave. Colonial
                 Laws of Massachusetts. (Whitmore's Ed. of 1889) at
                 37, No. 16.

              Ownership of Intertidal Lands in New Hampshire                   107

                     The 1641 Massachusetts Body of Liberties is reprinted in

              1 Laws of New Hampshire, Appe ndix D (1904) and in the opinion of

              the editor, was "made operative by colonial legislation in New

              Hampshire as well as in Massachusetts Bay." 1 Laws of New

              Hampshire at 748.

                     In 1647 the provision quoted above was amplified and

              amended by the General Court of Massachusetts Bay as follows:

                   Every Inhabitant who is an householder shall have
                   free fishing and fowling in any great ponds,
                   bayes, coves and rivers, so farr as the sea ebbs
                   and flowes, within the precincts of the towne
                   where they dwell, unless the freemen of the same
                   towne or the General Court have otherwise
                   appropriated them. Provided that no town shall
                   appropriate to any particular person or persons,
                   any great pond containing more than ten acres of
                   land, and that no man shall come upon ahothers
                   propriety without their leave otherwise then as
                   hereafter expressed. The which clearly to
                   determine; It is declared, that in all creeks,
                   coves and other places, about and upon salt-water,
                   where the sea ebbs and flowes, the proprietor of
                   the land adjoining_, shall have propriety to the
                   low-water-mark, where the sea doth not ebb above a
                   hundred rods, and not more wheresoever it ebbs
                   further. Provided that such proprietor shall not
                   by this liberty, have power to stop or hinder the
                   passage of boates or other vessels, in or through
                   any sea, creeks or coves, to other mens houses or
                   lands. And for great ponds lying in common,
                   though within the bounds of some town, it shall be
                   free for any man to fish and fowle there, and may
                   pass.and repass on foot through any mans propriety
                   for that end, so they trespass not upon any mans
                   corn or meddow. Colonial Laws of Massachusetts.
                   (Whitmore-'s Ed. of 1889) at 170 (emphasis added).
                     B. The New Hampshire Aberation

                      In both Maine and Massachusetts the Bay Colony Ordinance

              as amended and actually adopted in 1647 is still part of the

              common law. One part of the Ordinance which is still good law in

               ownership of Intertidal Lands in New Hampshire                   108

               those jurisdictions is that the private land owner has title in

               fee simple to the low water mark or 100 rods out (whichever is

               shorter). Although INew Hampshire was partially within the

               territory governed by the Colony until the-first New Hampshire

               General Assembly in 1679   the Colonial Ordinance was not

               specifically incorporated into the first enactment of New

               Hampshire laws. See 1 Laws of New Hampshire. This lack of

               legislative specificity has led the New Hampshire Supreme     Court

               to take contradictory positions with regard to ownership of the

               foreshore.

               The Early Cases: Perley, Nudd, and Knowles

                      The cases which address the question of New Hampshire's

               incorporation of the Ordinance into the laws of the province are

               ambiguous. The problem i-s compounded by the New Hampshire

               Supreme Court's attempt to define rights acquired by custom and

               prescription under common law. The following cases illustrate

               these problems.

                      1. The Perley Case

                      The earliest case which distinguished waterfront rights

               acquired by custom and presription was Perley v. Langley., 7 NH

               233 (1834). The Perley case distinguished between rights "holden

               as a custom" and those "holden as a prescription" where the

               plaintiff sued the defendant for breaking and entering the

               plaintiff's close and removing earth from the plaintiff"s land.

               Per ley v. Langley, 7 14H at 235. The defendant pleaded in

               justification that he had a right to do so by custom since the

               town folk had done the same since-time immemorial. The Court

              Ownership of Intertidal Lands in New Hampshire                109

              finding for the plaintiff held that rights a prendre, in alieno

              solo, cannot be sustained as part of a local custom since the

              inhabitants of the town "may not have the inheritance ." Id. at

              236. The Court did state that, as a custom, the inhabitants of

              a town "may prescribe for an easement in alieno solo; as for a

              way - for liberty to play at rural sports - to draw nets on

              another's land - to pass free of toll - for a public landing,

              etc." Id. at 236, 237. (citing English cases).

                     The Court did not discuss the underlying assumption that

              the locus in quo, where the taking took placed, in fact belonged

              to the plaintiff. Although the defendant had pleaded that the

              taking itself was from Sanbornton Bay, a public, navigable,

              inland waterway, the Court, without discussion, found that  the

              taking was from Perley's land. Therefore, the court held that

              there was no justification for the defendant's trespass.across

              the plaintiff's close.

                     2. The Nudd Case

                     In the next case, Nudd v. Hobbs, 17 14H 524 (1845), the

              defendant was charged with trespass for breaking and entering

              the plaintiff's close in the Town of Hampton. The defendant

              first pleaded in justification that there was a right of way,

              common to all inhabitants of Hampton, over the plaintiff's land

              to the seashore. The Court found that there was a public right

              of way acquired by custom, citing as precedent the Perley case

              and Chitty on Pleadings 1116, notes y & w, 9th Am. ed.

                     The defendant, Hobbs, in addition to pleading a right of

              way by-custom across the plaintiff's land, also pleaded that

               Ownership of Intertidal Lands in New Hampshire                110

               there was a customary right of the inhabitants of Hampton to

               take seaweed and rockweed from the shore of the ocean and that

               this custom was a justification for his crossing the plantiff's

               land. A third plea reiterated the taking by custom

               justification but relied upon the defendant's status as a

               citizen of the state and not just an inhabitant of Hampton. The

               Court found the second and third pleas to be insufficient, Nudd

               v. Hobbs, 17 NH at 526.

                     The Court appears to have dismissed these last two claims

               on procedural grounds. Thus the Court was able to avoid deciding

               which of the two conflicting authorities controlled ownership

               rights in the foreshore, i.e.; the Colonial Ordinance which

               governed Hampton at one time, or the English law and local
               customs which prevailed in New-Hampshire at the time Hobbs"was

               decided. The Court therefore held the second plea insufficient

               on the basis that "it (did] not appear from anything stated in

               the second plea that the locus in quo was below high water

               mark." Id. at 526.

                     The third plea was also dismissed as insufficient based

               on the Court's finding that the defendant had admitted that the

               close of the plaintiff, from time immemorial, was and is

               "contiguous and adjoining the Atlantic ocean" and defendant's

               pleading that his entry was on to land between high and low

               water essentially admitted that the plaintiff owned the land

               between high and low water. Nudd v. Hobbs, 17 NH at 526. The

               Court holding against the defendant on these narrow grounds went

               on to say that ."the question is not raised, therefore, by these

              0wnership of Intertidal Lands in New Hampshire                     ill

              pleas, whether by the general rules of law the title of the

              owner of land bounded on the sea-shore extends to low water

              mark." Id. at 526.

                     In dicta the Court stated that

                 it may perhaps be held that the first enactment of
                 the general assembly ... which provided that the
                 laws they had formerly been governed by should be
                 a rule in judicial proceedings, so far as they
                 would suit our constitution, and not be repugnant
                 to the laws of England until others were legally
                 published, included the ordinance of 1641, so that
                 it has been transmitted as the rule ... to the
                 present day. Id. at 527, [citing State v. Rollins
                 8 14H 561 (1837)].
                     The language used by the Court (i.e.:"it may perhaps be

              held") seems to indicate an unwillingness to follow

              affirmatively the ownership-to-low-tide provisions of the

              Ordinance. If the Ordinance had indeed been the rule in New'

              Ham pshire and actually followed by the Hampton inhabitants from

              the time of its first enactment some 200 years earlier, then the

              Court could have used much stronger language in defining the

              parameters of ownership. The Court instead relied on the legal

              construction of the defendant's pleas to find that in this

              particular case the land between high and low tide was admitted

              to be owned by the plaintiff.

                     The Court in referring to the question of New Hampshire's

              adoption of the Ordinance found that "[hlowever this may be, the

              question raised  ... is whether the inhabitants of a town, or the

              citizens of the state, can justify an entry into the land of an

              individual, and the taking of seaweed and rockweed therein, for

              their own use, under a custom           Nudd v. Hobbs, 17 14H at

              527. The Court, answering this question in the negative, held

              Ownership of Intertidal Lands in New Hampshire                  112

              that "[sleaweed and rockweed thrown upon the shore belongs to

              the owner of the land upon which it is deposited." Id. at 527

              (citing English and Connecticut cases). The Court also

              analogized this right to one held by shoreland owners when a

              shipwreck washes ashore. Under those circumstances the owner of

              the shore has a preferential right to the abandoned property

              against that of a mere stranger. Nudd v. Hobbs, 17 NH at 527.

                     Thus having found that Nudd was the owner of t@..e land by

              the constructive admission in the defendant's pleas the Court

              had no problem in applying the rule set forth in the Perley

              case, i.e.: that there can not be custom for the inhabitants of

              a town or state to take such a profit in another's land. The

              land was thereby found to be within the plaintiff's right of

              control as against intruders who sought to take a profit a

              prendre in seaweed and rockweed thrown upon the shore.

                     3. The Knowles Case

                     The next case  brought for trespass quare clausum fregit

              on the New Hampshire shore was also at Hampton, Knowles v. Dow,

              22 NH 387 (1851). This case dealt with the question of the

              defendants' right to use the plaintiffs' land to haul, deposit,

              and then carry away seaweed and flatsweed. There were. six pleas

              entered by the defendant to justify the acts complained of. Two

              of the pleas asserted that the close was the soil and freehold

              of the state and not the close of the plaintiffs' and two pleas

              dealt with prescriptive rights claimed by the defendants. These

              first four pleas were not submitted to the jury due to lack of

              evidence.

              Ownership of Intertidal Lands in New Hampshire                113

                    The last two pleas concerned: 1) the right of the Hampton

              inhabitants (and therefore the defendant who lived in Hampton),

              acquired by custoin, to haul, deposit and carry away seaweed and

              flatsweed and 2) that the acts-complained of were done "by the

              leave and license" of the plaintiff. Knowles v. Dow, 22 NH at

              388, 389. The jury's verdict was for the defendant on the last

              two pleas and the plaintiff moved to have the verdict set aside

              alleging that the custom claimed was unreasonable. The Supreme

              Court overruled the plaintiff's motion and rendered judgment on

              the verdict.

                     In recounting the trial court's findings the court

              reporter noted that the locus in quo was above the high water

              mark (on the sand dunes) and this was the only area in

              contention. "[Ilt was not denied by [the plaintiff] that the

              defendant had a right to procure'seaweed between high and
              low-water-mark." Id. at 389. At trial both plaintiff and

              defendant produced witnesses who testified to the fact that they

              had seen the defendant and some thirty others from Hampton use

              the dunes for depositing seaweed for more than twenty years.

              Knowles v. Dow 22 NH at 406, 409. The Supreme Court held that

              "the custom alleged and substantially proved was to deposit upon

              the beach or sand-hills of the plaintiffs the seaweed gathered

              between high and low-water-mark. In this there seems to be

              nothing unreasonable." Id. at 405.

              Reconciling the Early Cases

                     The Knowles and Hobbs decisions are consistent. At that

              point the Court had not been required to-de cide who had title to

              Ownership of In tertidal Lands in New 'Hampshire               114

              the foreshore. The habits, if not the legal custom, of the

              people living on the coast appear to have been in dirE!Ct

              conflict with'the Massachusetts Ordinance. The testimony of

              various witnesses in the Knowles case fleshes out this; idea.

              One of the plaintiff's witnesses noted that the activity

              complained of had gone on without objection until 1841-1.

                     Through cross reference of dates and cases this; writer

              was able to map an interesting historical development. In 1847

              the unreported case of Nudd v. Lamprey was decided in Rockingham
              County. The county includes the town of Hampton and most of the

              New Hampshire coastline. The defendant in that action, Uri

              Lamprey, was one of the defendant's witnesses in the Knowles

              case in 1351. In Knowles Lamprey testified as to his knowledge

              of the defendants claimed licence to haul and deposit seaweed.

              The plaintiff attempted to have Lamprey declared incompetan't to

              testify on any of the issues because, as an inhabitant: of

              Hampton, he was a party interested in having the Court: find that

              a custom to haul and deposit seaweed did exist. The c  ourt

              however found him competent to testify on the issue of: the
              defendant's licence. '                                                   I

              The Aberation Takes Form: Clement and Concord Manufacturing

                     The unreported Nudd v. Lamprey  case was discussed by

              Chief Justice Charles Doe in a decision handed down in 1889.

              Justice Doe believed that Nudd v. Lamprey set out the definitive

              answer to the question of who owned the land in New Hampshire's

              intertidal zone. The voluminous opinion written by JUStice Doe,

              Concord Manufacturing Co. v. Robertson, 66 NH 1, 25 A 718

               Ownership of Intertidal Lands in New Hampshire                   115

               (1889), attempted to set the record straight once and for all.

               Justice Doe believed that the state held fee simple title to the

               foreshore.

                      Unfortunately, the legal reasoning set forth'concerning

               the tideland ownership was all dicta. The Concord case itself

               concerned the diversion of water away from the plaintiffs' mills

               by the defendants cutting and removing ice from the mill stream

               pond. The Court held that the facts as agreed upon by the

               parties did not show that the defendants use was unreasonable or

               that the plaintiffs suffered any d  amage. The case was

               discharged for trial on those disputed issues. Concord

               Manufacturing Co. v. Robertson, 66 NH at 30.

                      The thrust of Justice Doe's opinion   was aimed at

               destroying the idea that New Hampshire follows   the Massachusetts

               Ordinance, especially with regards to the tideland   ownership

               provision. The opinion states unequivavically:

                    In Nudd v. Lamprey, decided in the county of
                    Rockingham at the December term, 1847, it was
                    held that the provision of the Massachusetts
                    ordinance relating to the shore of tide-waters
                    has not been adopted and is not in force in this
                    state; and there is no ground on which that case
                    can be overruled. The introduction of any other
                    line than high-water mark as the marine boundary
                    would overturn common-law rights that had been
                    established here, by a usage and traditional
                    understanding of two hundred years duration,
                    before they were questioned in Nudd v. Lamprey.
                    And the rejection of the whole ordinance, except
                    the clause defining a "great pond" as one
                    11containing more than ten acres of land," may
                    leave little ground for the claim that this
                    definition has become a part of our law. There
                    would be a distinction between public and private
                    ponds if the ordinance had not been passed, and
                    the common-law classification can be determined
                    and applied by common-law means and methods. Con-
                    cord Manufacturing Co. v. Robertson, 66 NH 1, 27.

               Ownership of Intertidal Lands in New Hampshire                   116

                      Had this case been on point and/or the only one decided

               since Knowles, the ownership question might have been answered

               at last. There was one case, however, decided in 1862, some

               eleven years after Knowles and twenty seven years before

               Concord. That case, Clement v. Burns, 43 NH 609 (1862), was on

               point and decided the general rule of intertidal ownership in

               favor of the Ordinance of 1647. The Concord opinion sought to

               overturn the decision in Clement.

                      The Clement Case

                      The Clement case took place in Dover and the locus in quo

               was "a part of the shore of the navigable waters of the Cochecho

               River, between high and low water mark" and a roadway laid out

               by the town to the low water mark. Clement, 43 14H at 610. -The

               road crossed the plaintiff's land and the complaint alleged

               three basic counts against the defendant which sou   nded in

               trespass and conversion.

                      The defendant  allegedly used the road and the -laintiff's
                                                                       P

               wharf for the purpose of bringing in earth by boat.     The Court
               found that the road was legally laid out by the Town    ;Selectmen

               and that the entry upon the wharf was justified. Id.    at 615,

               616. The remaining question, decided against the defendant,

               concerned the fact that some of the defendant's mud had

               intermingled with the plaintiff's manure under the wharf and     the

               defendant in reclaiming his mud had also carried away some of

               the plaintiff's manure.

                      The Court appeared to meld the right of wharfing out and

               the general preferential rights claimed by littoral land owners

               Ownership of Intertidal Lands in New Hampshire                  117

               to use the shore for their own purposes, with the fee interest

               in the intertidal property. This lack of distinction was

               systematically rebutted by Justice Doe in the Concord case, but

               the fact remains that the Court in Clement did define the law in

               favor of the Ordinance:

                   As a rule of positive law, the ordinance of 1641
                   was not binding upon New Hampshire; but when we
                   consider that a union was effected in that same
                   year between New Hampshire, or so much of it as
                   then settled, and Massachusetts, which was
                   continued for about forty years, making them
                   practically one government, we should naturally
                   expect that the same usages would spring up here
                   under that ordinance, especially as such was
                   actually the case as to one shore of the
                   Piscataqua river, which then, as now, afforded the
                   principal part of the navigable waters of this
                   State. That a similar usage did spring up, and
                   has always existed, giving to the riparian owner
                   an interest in the shore of navigable waters,
                   subject only to the paramount right of navigation,
                   which interest he may vindicate by suit, we think
                   there is good reason to believe, and therefore for
                   the entry upon the shore below the wharf and
                   carrying away the soil and manure, the plaintiff
                   is entitled to recover; but it must be only
                   nominal damages. Clement v. Burns 43 NH 609, 621.

                      Although the Court in Clement recognized that the

               Ordinance was not binding in New Hampshire, the decision holds

               that as a matter of common law the provisions of the Ordinance

               were adopted. Justice Doe in Concord noted that this legal

               fiction was the only way the Clement court could reach the

               conclusion that the plaintiff was able to prevail in the suit

               brought for trespass q.c.f., and to do so the Clement Court had

               to, in their own words, "overlook [) nice technicalities"

               Clement v. Burns. Id. at 620. Justice Doe maintained that the

               real issue in Clement concerned "title by accretion of realty or

             Ownership of Interti dal Lands in New Hampshire                118

             confusion of personality." Concord Mfg. Co. v. Robertson at 23.
             (Citing English cases). 2

                     C. Federal and U.S. Supreme Court Cases.

                    The question of who owns New Hampshire's foreshore has

             never reached the federal courts although it has been discussed

             in dicta.

                    In Percy Summer Club v. Astle 163 F 1 (1st Cir. Ct. App.

             1908) the issue was ownership of a New Hampshire lake which was

             completely surrounded by land owned by the Percy Summer Club of

             New Jersey. The Club sought an inj  unction against all

             trespassers who crossed the Club's land and fished in -the lake

             claiming they alone had the right to fish in the lake. The.

             circuit court dismissed the complaint, Percy Summer Club v.

             Astle 145 F 52 (1900) and the Circuit Court of Appeals affirmed

             the decision. The Circuit Court of Appeals discussed the
             tideland dispute with regards to the Massachusetts'Ordinancels

             effect on the case at bar. They held that "[t]he New Hampshire

             court has tended to hold free the fishery in all considerable

             lakes and ponds, basing its action partly upon the analogy of

             the Massachusetts ordinances, and partly upon an appreciation of

             local usage." Percy Summer Club v. Astle, 163 F at 12.

                    The Court noted in dicta that the Ordinance was not

             adhered to by the New Hampshire Court with regards to tidelands

             although it continued to have some effect on New Hampshire law

             concerning fresh water. The court quoted the rejection of the

              Ownership of Intertidal Lands in New Hampshire                119

              Ordinance in Nudd v. Lamprey, supra, as being controlling only

              with regard to tidelands:

                 In Nudd v. Lamprey, an unreported case, decided in
                 1847, referred to in Concord Mfg. C. v. Robertson,
                 66 NH 1, 25 Atl. 718, 18 L. R. A. 679 (1889), the
                 court held that the owner of the upland had not
                 the exclusive right to take seaweed from the
                 adjoining flats.. In his opinion Chief Justice
                 Parker said:
                      "The court instructed the jury that the
                 seashore belonged to the owner of the adjoining
                 land to low-water mark. If this ruling be
                 correct, it must be because the English common law
                 has been abrogated by the Massachusetts ordinance
                 of 1641; but we cannot hold that that ordinance
                 was adopted here either in practice or as law.
                 The temporary union of this state with
                 Massachusetts did not make that ordinance the
                 abiding law of this state. There was no possession
                 upon which plaintiff can maintain his action. We
                 know of no legislation by which the ordinance of
                 1641 is in force here, and the counsel for
                 plaintiff seem to admit that they do not
                 understand how it is in force in Massachusetts and
                 Maine." Percy Summer Club v. Astle, 163 F at 7,
                 8.
                    This quote and the brief notation in the Concord Mfg. Co.

              case are all. that remain of the Nudd v. Lamprey opinion. The

              document itself was removed from the case file by Justice
              Ch arles Doe in 1883 and was never returned.3

                    The U.S. Supreme Court water rights case, Shively v.

              Bowlby, 152 U.S. 1 (1894) cited Hobbs, Clement, and Concord Mfg.

              Co. as supporting the statement that "[iln New Hampshire, a

              ri ght in the shore has been recognized to belong to the owner of

              the adjoining upland, either by reason of its having once been

              under the jurisdiction of Massachusetts, or by early and

              continued usage." Shively v. Bowlby, 152 U.S. at 20.

                     The Court did not elaborate on what type of "right" this

              was. Since the Concord decision was cited with the two cases

               Ownership of Intertidal Lands in New Hampshire                   120

               holding contra perhaps the court believed that this right was

               not a fee simple title to the foreshore. The Shively case dealt

               with Oregon law and the Court did not discuss the New Hampshire

               dispute.

                      Unfortunately, these two federal cases do not shed much

               light on the New Hampshire intertidal,ownership question.

               Although the court in Percy Summer Club addresses the conflict

               in dicta it does not define the parameters ot ownership. The

               Shively case merely indicates that the owner of the adjoining

               upland has some type of preferential right to the foreshore.

               III. State of the Law Today

                      Since the Clement case was decided there have been no.New

               Hampshire cases which put the ownership of the intertidal zone

               directly in issue. The majority of cases have dealt wi-th public

             /rights in non-tidal water bodies and the effect of the

               Massachusetts Ordi nance with regards to them. The case of

               Hampton v. Palmer 102 14H 127 (1959) was a dispute over- who  owned

               the land at the old "fish house area" in Hampton once-used    as a

               common. The outer boundary of the land in the old records     was

               noted as "ye sea" and the court did not address the intertidal

               ownership question as part of the decision. Hampton v. Palmer

               102 14H at 131, 132.

                      The only other case which deals with ocean front property

               and even mentions the question of intertidal ownership concerns

               a Rye, NH town ordinance which regulates surfing. State v.

               Zetterberg 109 14H 126, 244 A2d 188 (1968). The Court

             'Ownership of Intertidal Lands in New Hampshire                121

              specifically declined to rule "on the question of the extent of

              the ownership and of the nature of the rights and privileges of

              littoral owners with respect to the beach which adjoins their

              properties." State v. Zetterberg 109 NH at 128, 129.(citing

              Clement v. Burns and Concord Mfg. Co. v. Robertson).

                    Other recent cases deal with NH RSA 483-A (1967, amend.

              1983), the statute regulating dredge and fill in wetlands and

              protecting the sand dunes in Seabrook. [See Sibson v. State 110

              NH 8 (1969), 115 NH 124 (1975) and cases following). This

              protective measure does not address the question of ownership or

              the rights of the public with regard to use of intertidal

              property. The question of ownership still requires some type

              of resolution.

                     The majority of outer coastland in New Hampshire is held

              by the state and only 20 to 25% remains in private hands.

              However the lands abutting Great Bay and the tidal rivers [which

              provide boating access and shelter] are primarily in private

              hands. The ownership rights to intertidal land, and the public

              rights to walk, play, picnic and otherwise obtain access to the

              entire tidal area are not a source of major conflict at present.

              As the coast becomes more crowded, and the public seeks greater

              access to areas presently used only by littoral land owners,

              there may be pressure on the private owners to close off access

              points. There may come a time when the majority of the public

              will have only limited access to the New Hampshire shore and

              accessibility will be reserved to those individuals able to pay

              for the privilege.

             Ownership of Intertidal Lands in New Hampshire                122

                    A statutory provision defining the ownership rights or

             boundaries may avert this potential problem. The case law,

             although contradictory, can be seen to support the public right

             to access for recreational purposes. The case law supports a

             finding in favor of public usage which is not related to taking

             profits a prendre. This may be used to support a statutory

             provision which mandates public access to the intertidal zone

             irrespective of legal ownership of the land.

              Ownership of Intertidal Lands in New Hampshire                   123

                                           FOOTNOTES

              1. A right a prendre, also known as a profit a prendre, is an
              easement in land including the right to appropriate and take
              soil, or a product of it, which can be assigned a value. 1 G.
              Thompson, Commentaries on the Law of Property, sec.

              2. Had Justice Doe not been "of counsel" to one of the parties
              in the Clement case prior to his appointment to the bench
              perhaps his forty page unpublished opinion for Clement v. Burns
              would have controlled the outcome of that case and made this
              present day inquiry unnecessary. Justice Doe's draft opinion for
              the Clement case is preserved at the New Hampshire State Law
              Library.

              3. A long and fruitless search failed to unearth the unreported
              Nudds v. Lamprey case cited by Justice Charles Doe. The
              following sources were exhausted in the search:
                  a) NH State Law Library, Concord, NH
                  b) Rockingham County Courthouse Library, Exeter, NH
                  c) 14H State Archives, Concord, NH
                  d) NH State Library Special Collections, Concord, NH
                     i. Justice Doe
                     ii. Governor Bell
                  e) NH Historical Society, Concord, NH
                  f) First Circuit Court of Appeals Library, Boston, MA
                  g) Federal Records Center, Waltham, MA
                  h) University of Maine Law School Library, Portland, ME
                     i. Records and Briefs volume for Percy Summer Club Case
                  i) Franklin Pierce Law Center Library, Concord, NH
                  j) Professor John Phillip Reid, Biographer of Justice Doe
                     University of New York Law School, NY, NY
                  k) Concord Public Library, Concord, 14H
                     i. Justice Elwin Page Collection

              Other  sources were recommended but were not pursued due to time
              limitations:

                  a) Papers of John Henry Wigmore, Clerk to Justice Doe
                  b) Justice Doe Homestead, Rollingsford, 14H
                     note: Relatives of the late Justice are reported to prefer
                               privacy.
                  c) Papers of Judge Robert Pike, NH Superior Court
                  d) Papers of judge Jeremiah Smith, Nli Supreme Court

              Sea Grant M-13

                  Access to Coastal Resources           Bibliography              .124

                                              BIBLIOGRAPHY

                  Acheson, Acheson, Bort, Lello. The fishing ports of Maine and
                          New Hampshire: 1978. Maine Sea Grant Publications
                          (1980).
                          Inventory of facilities by industry within each port.
                          Portsmouth, Rye, Hampton/Seabrook, pp 234-243.

                  "Acquisition of easements by the public through use." Comment.
                          16 S. Dak. L. Rev. 150 (1971).
                          Addresses New Hampshire access through easements.

                  Black, Charles L. "Constitutionality   of the Eckhardt-Open
                          Beaches Bill" 74 Columbia Law  Rev. 439 (1974).
                          Favorable review of the Texas Congressman's proposal.

                  Brower, David. Access to the-nation's   beaches: legal and
                          planning perspectives. UNC Sea  Grant Publication
                          UNC-SG-77-18, February, 1978.
                          Contains useful case study sample and format. See pp 112
                          ff. Also critical issues, pp 53 ff.

                  Brower, Owens, Herr, Noneman. "Access to the nation's   beaches:
                          annotated bibliography." UNC Sea Grant College Working
                          Paper 78-3. August, 1978,
                          Cases (fed and state), Law Reviews, etc.*

                  Brower, David et al. Shorefront access and island preservatioL
                          study.' CZM/NOAA Washington, DC Nov. 1978.
                          More information on various states' access programs.

                  "Coastal wetlands in New England." 52 Boston U. Law Rev. 724
                          (1972).
                          New Hampshire foreshore ownership addressed.

                  Curtis, Jeffery D. "Coastal recreation: legal methods for
                          securing public rights in the seashore." 33 Maine Law
                          Rev. 69 (1981).
                          Maine and Massachusetts history of access reviewed. No
                          New Hampshire information.

                  Ditt-on, Robert and Mrk Stephens. Coastal recreation: handbook
                          for planners and managers. OCZM/NOAA, US DOC
                          Washington, D.C. Jan. 1976.
                          Access, pp 5-1 to 5-8.

                  Ducsik, Dennis. Shoreline for the public, a handbook of social,
                          economic and legal considerations-regardi g Public
                          recreational use of the nation's coastal shoreline. MIT
                          Sea Grant, MIT Press. Cambridge, MA 1974.

                   Access to Coastal Resources            Bibliography               125

                   Eckhardt, Robert C. "A rational national policy on public use
                           of the beaches." 24 Syracuse Law Rev. 967 (1973).
                           Conaressman from Texas proposes solution to access
                           pro@lems patterned after the Texas Law.

                   Fawcett, Mauus, Sorensen. "Recreational access to the coastal
                           zone: proceedings of a forum. Sea Grant California,
                           USC-IMCS (1979 or 80?)
                           Various papers.

                   Healy,  Robert G. et al. Protecting the golden shore--lessons
                           from the California Coastal Commission. Washington, DC,
                           The Conservation Foundation 1978.
                           California focussed and not relevant to New Hampshire.

                   Hershman, Marc. Under new management; port growth and emerging
                           coastal management programs. 1978.
                           Port Development problems. Washington State.

                   Maloney, Fernandez, Parrish, Reinders. "Public beach access: a
                           guaranteed place to spread your towel." XXIX U. Fl. Law
                           Rev. 853 (1977).
                           Model beach access ordinance.

                   Maloney, Frank and Richard Ausness. "The@ use and legal
                           significance of the mean high water line in coastal
                           boundary mapping." 53 tl. Carolina Law Rev. 185 (1974).
                           Technicalities of mapping an "ambulatory" property line.

                   McKeon, Steve A. "Public access to beaches." .22 Stanford Law
                           Rev 564 (1970).
                           Implied dedication, customary rights. Oregon, revival of
                           Thornton v. Hays.

                   New Hampshire coastal program ocean and harbor segment and final
                           environmental impact statement. April 1982. Prepared by
                           the Office of Coastal Zone Management, National Oceanic
                           and Atmospheric Administration and the New Hampshire
                           Office of State Planning.

                   Owens,  David and David Brower. Public uses of coastal beaches.
                           UNC Sea Grant, Sept 1976.-
                           Access to wet sand/dry sand.- Acquisition. Non-resident
                           access. Pubication devoted to access.

                   Piscataqua River and coastal New Hampshire management plan.
                           1979. Prepared by New Hampshire water Supply and
                           Pollution Control Commission, Staff Report No. 111,
                           prepared pursuant to the State of New Hampshire
                           Continuing Planning Process as part of the Statewide 208
                           Planning Program, Federal Water Pollution Control Act
                           Amendments of 1972.

                   "Recreational boating needs assessment and expansion feasibility

                  Access to Coastal Resources           Bibliography              1.26

                          study for the tidal waters of New Hampshire." Study by
                          Arthur D. Little, Inc. for NH State Port Authority.
                          OCZM/NOAA-DOC (summary) April 30, 1981.

                  Strafford Rockingham Regional Council. "A public shorefront
                          access planning process for the State of New Hampshire."
                          June, 1978.
                          Addresses all disputed access points on the outer coast.

                  Strafford Rockingham Regional Council. "Assessment impact and
                          control of shoreline change along New Hampshire's tidal
                          shore." OCZM/NOAA-Doc June 1978.
                          Technical erosion control problems at specific
                          beaches/points.

                  Strafford Rockingham Regional Council. "Current data on coastal
                          zone planning area." undated. General.

                  Strafford Rockingham Regional Council. "Existing and potential.
                          conflicts over land and water uses in the New Hampshire
                          coastal zone." Dec. 1975, Amend. Sept. 1976.
                          Mostly water use conflicts.

                  Strafford Rockingham Regional Council. "Permissible land and
                          water uses, or An allocation procedures for coas-tal land
                          uses.". Feb.. 1976.

                  Strafford Rockingham Regional Council. "Permits required:
                          federal state and local: Using land and water in the
                          coastal area. June 1976.
                          General.

                                                 CASES

                  Cargill v. City of  Rochester, 119 NH 662, 406 A2d 704 (1979).

                  Clement v. Burns, 43 14H 609 (1862)

                  Concord Manufacturing Co. v.Robertson. 66 NH 1, 25 A 718 (1889)

                  Elmer v. Rodgers, 106 14H 512, 214 A2d 750 (1965).

                  Knowles v. Dow, 22 NH 387, 55 A. 163. (s) 20 NH 1-35) (1851).

                  Merrill v. City of Manchester, 114 NH 722, 332 A2d 378 (1974).
                  Nudd v. Hobbs, 17 NH 524 (1845)
                          Public right of way by customary rights doctrine. but no
                          customary rights to profit aprendre.

                  Perley  v. Langley, 7 NH 233 (1834).
                          Distinguishinq "customary" from "prescriptive" rights.
                          Customary rights held by all in the locality and extend
                          only to easement of use.

                   Access to Coastal Resources          Bibliography              127

                   State v. Brosseau, 123 14H      467 A2d      (1983).

                   state v. Zetterberg, 109 NH 126, 244 A2d 188 (1968).
                          NH court refuses to address the mean high/low tide
                          question. Surfing against town ordinance.

                   Sea Grant MS-12

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