SB205: authorizing the state to accept the title of the dam and dikes at Smith Pond, Enfield, New Hampshire.

SB 205-FN - AS AMENDED BY THE SENATE

01/29/04 0187s

2003 SESSION

03-1176

06/10

SENATE BILL 205-FN

AN ACT authorizing the state to accept the title of the dam and dikes at Smith Pond, Enfield, New Hampshire.

SPONSORS: Sen. Below, Dist 5; Rep. Scovner, Graf 17; Rep. Akins, Graf 18

COMMITTEE: Environment

AMENDED ANALYSIS

This bill authorizes the department of environmental services to accept title to the dam and dikes at Smith Pond in Enfield, provided certain conditions are first met. The bill establishes the Smith Pond dam maintenance account to fund maintenance and repair costs for the Smith Pond dam and appurtenant dikes.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

01/29/04 0187s

03-1176

06/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT authorizing the state to accept the title of the dam and dikes at Smith Pond, Enfield, New Hampshire.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Findings. The general court finds:

I. Smith Pond in Enfield was created by a dam and dikes built by the Enfield Shakers in 1838 and was connected to the Lower Shaker Village for water power purposes by a diversion canal over a mile in length across the side of Shaker Mountain.

II. Smith Pond has not been determined to be a public water body and is presumed to be a private water body. The tax records of the town of Enfield show the area of the pond as contained within 4 separate parcels with 3 owners and with property boundaries across the pond.

III. The state of New Hampshire, fish and game department, owns approximately ½ of the shoreline and area of the pond, including a number of islands, as part of the 4,200 acre Enfield wildlife management area. Of the 4 parcels containing the impoundment area of Smith Pond, the state-owned parcel is most remote from Smith Pond Road with no dedicated access rights. Access to the pond across other portions of the wildlife management area is remote and distant.

IV. Smith Pond enjoys a high degree of water clarity and quality, there is very little development within its watershed, and it feeds a wetland marsh area below its outlet.

V. Smith Pond has significant historic, scenic, environmental, and recreational value which would be reduced if the dam were breached, and preserved and enhanced if the state acquires ownership of the dam and dikes with related conservation, public use, and access easements under the terms of this act.

VI. The pond is a warm water fishery and habitat for nesting loons and migratory duck populations.

VII. The adjoining Enfield wildlife management area has been ranked second of 293 state properties evaluated for investigation by the New Hampshire natural heritage inventory program due to its ecological diversity and potential for rare species and exemplary natural communities.

VIII. The last successor entity to the Enfield Shakers who originally developed and owned the dam, dikes and impoundment area, Enfield Shaker Limited Partnership, recorded a release and abandonment of all rights it may have to the water of Smith Pond and the land appurtenant thereto, as well as all rights to convey such water over the land of others in the Grafton County registry of deeds, Book 1946, Page 412, before dissolving and ceasing to exist. No other property owner has asserted, assumed, or accepted those property rights.

IX. The current state of disrepair of the dam and dikes creates a safety hazard that needs to be corrected by either breaching or repairing the dam and dikes, neither of which can be readily pursued due to the legal uncertainties as to ownership of and responsibility for the dam, dikes and impoundment, and access thereto.

X. If the state accepts ownership of the dam and dikes under the conditions of this act, the financial liability and risk to the state will be minimized while significant public access, recreation, historic preservation, and conservation values will be gained. The fish and game department will also realize improved access for management and public use of its Enfield wildlife management area.

2 Smith Pond; Town of Enfield. The department of environmental services may accept ownership and title to the outlet dam and appurtenant dikes of the approximately 68-acre Smith Pond, located off of Interstate 89 at exit 15, Smith Pond Road, Enfield, New Hampshire, subject to the following conditions:

I. A finding by the department that the dam and dikes are in a reasonable and acceptable state of repair.

II. Acceptance by the department of one or more easements for maintenance access to the dam and dikes.

III. Acceptance by the state of New Hampshire, acting through the department of environmental services, the department of resources and economic development, or the fish and game department, of a conservation easement to the entire area of the pond at the impounded mean high water, beyond such rights as the state already owns as part of the Enfield wildlife management area, that permits reasonable public pedestrian access, swimming, fishing, hunting, and non-motorized, carry-in, boat access including canoes, kayaks, inflatable rafts, and similar vessels, except as provided below. The easement shall also include public pedestrian access to the pond from the public way of Smith Pond Road and occasional vehicular access by individuals with disabilities as conditions may reasonably allow and by prior arrangement with the owner of the right-of-way up the private portion of Smith Pond Road, either directly or through a state office designated by such owner, with a provision that such individuals with disabilities may launch and use on Smith Pond a non-motorized boat or one powered with an electric motor with a manufacturer's rated capacity not to exceed 3 horsepower. The town of Enfield or a not-for-profit entity may partner with the state in acquiring or holding such a conservation easement.

IV. Acceptance by the fish and game department of an easement up Smith Pond Road and across private lands to the Enfield wildlife management area, adjoining the pond area, for purposes of occasional timber management and harvesting, as determined by the fish and game department, and for hunting and fishing access by the public.

V. A finding by the department and the state treasurer that there have been funds escrowed for deposit into the Smith Pond Dam maintenance account established in section 3 of this act which are sufficient to be reasonably expected to produce growth and returns from investments, which alone or in combination with binding agreements for payments or assessments with one or more property owners pursuant to RSA 482:44, are adequate to fund reasonably expected future maintenance and repair costs of the Smith Pond dam and dikes to be owned by the state.

3 Smith Pond Dam Maintenance Account. The Smith Pond dam maintenance account is created as a water resources council account of the department of environmental services authorized under RSA 6:12-d, XII. The department of environmental services may solicit and accept grants or gifts for deposit into the Smith Pond dam maintenance account. The state treasurer shall hold such funds distinct and separate from other funds of the state and invest them in accordance with RSA 6:8, to produce growth and returns from investments to fund future maintenance and repair costs of the Smith Pond dam and appurtenant dikes including access routes thereto.

4 Repairs Authorized. After the effective date of this act, the department of environmental services may obtain permission from abutting landowners to undertake the work required to restore the dam and dikes to an acceptable state of repair to the extent that funding for such work is available from sources other than the department.

5 Eligible Resource Assets Under Land and Community Heritage Investment Program. The easements to be accepted under section 2 of this act shall be eligible resource assets for financial assistance under RSA 227-M:8, III.

6 Title. A court of competent jurisdiction may quiet title to the dam, dikes, and the impoundment rights of Smith Pond and vest ownership therein with the state of New Hampshire, department of environmental services, upon representation by the state that the preconditions of section 2 have been satisfied and a finding that any property owners who may hold such rights have either quitclaimed their interest in such rights to the state or abandoned such rights.

7 Effective Date. This act shall take effect 30 days after its passage.

LBAO

04-1176

Amended 2/23/04

SB 205 FISCAL NOTE

AN ACT authorizing the state to accept the title of the dam and dikes at Smith Pond, Enfield, New Hampshire.

FISCAL IMPACT:

The Department of Environmental Services has determined this bill, as amended by the Senate (Amendment #2004-0187s), will increase state restricted revenue and expenditures by an indeterminable amount in FY 2004 and each year thereafter. There will be no fiscal impact on county and local revenue or expenditures.

METHODOLOGY:

The Department of Environmental Services states this bill would transfer title of the dam and dikes at Smith Pond to the Department, provided that the dam is in reasonable and acceptable state of repair as determined by the Department. Currently, there is seepage in two of the dikes and leakage through the dam around the low-level outlet, which is currently inoperable. In addition, the concrete on the upstream face of the dam has deteriorated, the crest of the dam has settled and is irregular, and there are brush and trees on all four dikes. It is assumed that before the state accepts title to the dam, these dam safety deficiencies will be corrected, or alternatively as specified in this bill, the Department will correct the deficiencies with funding from sources other than the Department. Therefore, the Department did not include any expenditure estimates for these major repairs.

This bill also conditions the acquisition of the dam on the establishment of a Smith Pond Dam Maintenance Fund to finance the costs for annual operation and maintenance, as well as future repair and reconstruction of the dam. This fund will be an interest-bearing trust, funded by sources other than state, county or local funds. All costs for annual operation and maintenance or future repairs, therefore, will be restricted expenditures from the Smith Pond Dam Maintenance Fund.

The Department of Fish and Game states any costs can be absorbed within the Department's existing budget. The Department estimates that the cost to acquire the easements identified in this bill will be $380 and annual easement monitoring costs will be $200.