Legal aspects of providing and controlling access to New Hampshire's coastal resources

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

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

Coastal Zone
Information
Gan"r

COASTAL ZONE

INFORMATION CENTER

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

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.

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

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

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

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.

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

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.

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.

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, [email protected] 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.

MAINE
22

NEWINGTON

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.

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.

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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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.

(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 [email protected] 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.

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