Is Silver Lake really a lake at all?

Residents now arguing state's high water mark doesn't apply because 'lake' is really just the river

Residents of Silver Lake from Belmont and Tilton have appealed a ruling by the Department of Environmental Services setting the natural mean high water mark at 468 feet, claiming that the level would effectively transfer ownership of shorefront property from homeowners to the state. In the first instance, the agency's ruling is appealed to the Water Council, a citizens panel of 16 members that oversees the Water Division, and may be pursued from their to the Superior Court. Under the public trust doctrine, the state owns public water bodies up to the natural mean high water mark and, in the case of lakes of 10 acres or more, owns not only the water but also the land beneath it. The state's ownership is automatic and does not require a deed. Furthermore, the state's rights trump the metes and bounds in deeds to private property. Paul O'Connell, president of the Silver Lake Association, said that before 2004 residents of Belmont who submitted site plans and sought building permits applied a natural mean high water mark of 465 feet. However, in 2004 applicants were informed by town officials that DES had raised the standard to 468 feet. In June 2005 a group of landowners petitioned DES to reconsider. With the natural mean high water mark at 468 feet, O'Connell has claimed that some 125 shorefront property owners find that, depending on the terrain, between one and 49 feet of their lots belongs to the state. Moreover, by reducing the size of lots, the ruling could also weigh on dimensional requirements, especially setbacks, to restrict the ability of property owners to alter their homes. Finally, the natural mean high water mark serves as the reference line for the Comprehensive Shoreland Protection Act (RSA 483-B), which regulates development within 250 feet of the shoreline, as defined by the reference line. In support of the ruling, Jim Gallagher stated that observations in the field of vegetation and shelving were consistent with a natural mean high water mark of 468 feet. Likewise, the average of annual high water levels at Silver Lake between 1982 and 2007 was calculated at 467.9 feet and exceeded 468 feet in 10 of the 26 years. Documents bearing on Silver Lake confirm that DES and its predecessor, the Water Resources Board, relied on a natural mean high water mark of 468 feet for decades, a conclusion supported by the New Hampshire Attorney General's Office. Finally, Gallagher suggested that 468 feet corresponds to the 100-year flood level of 471 feet calculated by the Federal Emergency Management Agency. Representing the residents, attorney Matthew C. Donahue of Lowell, Massachusetts, challenged the basis of the ruling by arguing that Silver Lake "operates more as a river than a static lake" because there is no dam at its southern end, which narrows into a channel and is fed by the Tioga River. The water flow and level is determined by dams to the north — Lakeport, Avery and Lochmere — which together manage the impoundment area of Lakes Winnipseaukee, Opechee and Winnisquam. Referring to DES's management plan for the Winnipesaukee River watershed, Donahue notes that "the normal expected flows on a routine basis" at Lochmere dam, which impounds Lake Winnisquam and is located immediately above Silver Lake, are between 250 cubic feet per second (cfs) and 1,000 cfs. According to DES "at these flow rates, and routine operation of the upstream dams, the corresponding level of the lake is 463.96 feet and 465.76 feet respectively." Donahue credits DES with acknowledging that the management of flows upstream of Silver Lake for the past 175 years make, as Gallagher wrote in his ruling, "the determination of high water levels by natural conditions nearly impossible." In a statement in support of the residents, Gary Springs, a ten-year veteran of DES who served as "shoreland outreach coordinator," said that Silver Lake should be treated as a river, not a lake. Consequently, the definition of "natural mean high water mark" applied to lakes and great ponds in the Comprehensive Shoreland Protection Act does not fit Silver Lake. Instead, he stated that Silver Lake should be subject to the definition of the "ordinary high water mark," which the act applies to rivers. He said that using the data of the United States Geological Survey for water levels at Silver Lake in April and May from 1982 to 2004, he calculated the ordinary high water mark at 465.2 feet.