HB 503-FN – AS INTRODUCED
2009 SESSION
06/05
HOUSE BILL 503-FN
AN ACT relative to the state’s authority to lease submerged land.
SPONSORS: Rep. J. Garrity, Rock 6
COMMITTEE: Resources, Recreation and Development
This bill establishes a framework for the state to lease submerged land.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
09-0689
06/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to the state’s authority to lease submerged land.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subparagraph; Application of Receipts. Amend RSA 6:12, I(b) by inserting after subparagraph (276) the following new subparagraph:
(277) Moneys deposited in the submerged lands fund established under RSA 483-C:13.
2 New Subdivision; Submerged Lands Leasing Program. Amend RSA 483-C by inserting after section 1 the following new subdivision:
Submerged Lands Leasing Program
483-C:2 Definitions. In this subdivision:
I. “Commercial fishing activity” means any activity involving the landing or processing of shellfish, finfish, or other natural products of the sea or other activities directly related to landing or processing shellfish, finfish, or natural sea products. Commercial fishing activity includes loading or selling those products and fueling.
II. “Commissioner” means the commissioner of the department of environmental services.
III. “Department” means the department of environmental services.
IV. “Dockominium” means slip space that is sold or leased by a lessee of submerged lands to a boat or vessel owner for more than one year.
V. “Fair market rental value,” for all uses of submerged lands except slip space rented or otherwise made available for private use for a fee, means the municipally assessed value per square foot for the adjacent upland multiplied by a reduction factor based on the use of the leased submerged land under RSA 483-C:3. For slip space rented or otherwise made available for private use for a fee, the fair market rental value is the gross income from that space multiplied by a reduction factor under RSA 483-C:3, based on the use of the leased submerged land.
VI. “Gross income” means the total annual income received by a lessee from seasonal or transient rental to the general public of slip space over submerged land. For dockominiums, slips that are part of a residential condominium, boat clubs, and other facilities with slip space that is not rented or leased to the general public, the commissioner shall determine gross income by calculating a regional average slip space rental fee and applying that to the portion of total linear length of slip space made available to private users for any portion of that year.
VII. “Large-scale project” means a project that extends beyond localized development adjacent to a single facility or property. Large-scale project does not include a project such as a pier, marina, boatyard, or utility cables and pipelines serving neighboring communities or islands. Large-scale project includes, but is not limited to, an offshore wind farm, an offshore tanker port, an interstate or international pipeline or cable and similar projects.
VIII. “Occupying,” in terms of a structure or alteration, means covering the total area of the structure or alteration itself to the extent that the area within its boundaries is directly on or over the state-owned lands.
IX. “Permanent” means occupying submerged and intertidal lands owned by the state during 7 or more months during any one calendar year.
X. “Slip space” means the area adjacent to a pier or float that is used for berthing a boat.
483-C:3 Submerged Lands Leasing Program. The commissioner shall establish a submerged lands leasing program to lease, for a term not to exceed 30 years and with conditions the commissioner considers reasonable, the right to dredge, fill, or erect permanent causeways, bridges, marinas, wharves, docks, pilings, moorings, or other permanent structures on submerged and intertidal land owned by the state. The commissioner may refuse to lease submerged lands if he or she determines that the lease will unreasonably interfere with customary or traditional public access ways to or public trust rights in, on, or over the intertidal or submerged lands and the waters above those lands.
I. For fill, permanent causeways, bridges, marinas, wharves, docks, pilings, moorings, or other permanent structures and for nonpermanent structures occupying a total of 500 square feet or more of submerged land or occupying a total of 2,000 square feet or more of submerged land if used exclusively for commercial fishing activities:
(a) The commissioner shall charge the lessee a base rent that practically approximates the fair market rental value of the submerged land. The reduction factors for use categories are as follows:
(1) A reduction factor of 0 percent or no rental fee, for nonprofit organizations or publicly owned facilities that offer free public use or public use with nominal user fees. Public uses include, but are not limited to, municipal utilities and facilities that provide public access to the water, town wharves, walkways, fishing piers, boat launches, parks, nature reserves, swimming or skating areas, and other projects designed to allow or enhance public recreation, fishing, fowling, and navigation and for which user fees are used exclusively for the maintenance of the facility.
(2) A reduction factor of 1 percent for commercial fishing uses of renewable aquatic resources. Commercial uses of renewable aquatic resources include, but are not limited to, facilities that are directly involved in commercial fishing activities. Such facilities include, but are not limited to, fish piers, lobster impoundments, fish processing facilities, and floats or piers for the storage of gear.
(3) A reduction factor of 2 percent for any slip space rented or otherwise made available for private use by commercial fishing boats for a fee.
(4) A reduction factor of 2 percent for water-dependent commerce, industry, and private uses. Water-dependent commerce, industry, and private uses other than commercial uses of renewable aquatic resources include, but are not limited to, all facilities that are functionally dependent upon a waterfront location, can not reasonably be located or operated on an upland site, or are essential to the operation of the marine industry. Such facilities include, but are not limited to, privately owned piers and docks, cargo ports, private boat ramps, shipping and ferry terminals, tug and barge facilities, businesses that are engaged in watercraft construction, maintenance, or repair, aquariums, and the area within marinas occupied by service facilities, gas docks, breakwaters, and other structures not used for slip space.
(5) A reduction factor of 4 percent for any slip space rented or otherwise made available for private use for recreational boats for a fee. For facilities that include slip space under constructive easement, the rental fee may be reduced proportionally by the ratio of linear length of slip space within the area under constructive easement to the total linear length of all slip space within the facility.
(6) A reduction factor of 2 percent for upland uses and fill. Upland uses include, but are not limited to, all uses that can operate in a location other than on the waterfront or that are not essential to the operation of the marine industry. These facilities include, but are not limited to, residences, offices, restaurants, and parking lots. Fill shall include the placement of solid material other than pilings or other open support structures upon submerged lands. When the commissioner determines that the municipally assessed value of the adjacent upland is not an accurate indicator of the value of submerged land, he or she may require the applicant to provide an appraisal of the submerged land. The appraisal must be approved by the commissioner.
(b) After October 1, 2010, the commissioner may revalue all existing rents to full fair market rental value. Rents for all uses except slip space may be adjusted annually until the full fair market rental value is reached. Thereafter, the commissioner may revalue rents for all uses except slip space every 5 years. Rents for slip space may fluctuate annually depending on the gross income of the facility.
(c) The commissioner may also lease a buffer zone of not more than 30 feet in width around a permanent structure located on submerged or intertidal land, provided that the lease is necessary to preserve the integrity and safety of the structure.
(d) Any existing or proposed lease may be subleased for the period of the original lease for the purpose of providing berthing space for any boat or vessel.
(e) No portion of an existing or proposed lease may be transferred from a person subleasing that portion to provide berthing space for any boat or vessel except for a transfer to heirs upon death of the sublessee holder or a transfer to the original leaseholder subject to terms agreed to by the lessor and sublessee at the time of the sublease.
(f) The commissioner may grant the proposed lease unless he or she finds that, in addition to any other required findings the proposed lease:
(1) Will unreasonably interfere with navigation.
(2) Will unreasonably interfere with fishing or other existing marine uses of the area.
(3) Will unreasonably diminish the availability of services and facilities necessary for commercial marine activities.
(4) Will unreasonably interfere with ingress and egress of riparian owners.
II. The commissioner shall develop terms and conditions for dredging, impounded areas, and underwater cables and pipelines.
III. The commissioner shall charge an administrative fee of $100 for each lease in addition to any rent. A fee of $200 shall be charged for a lease application that is received after work has begun for the proposed project.
IV. The commissioner may establish a reasonable minimum rent to which any lease shall be subject, not to exceed $100 per year.
483-C:4 Lease Renewal. A lessee who is in compliance with all terms of his or her lease may apply at any time to renew the lease. The commissioner shall approve the lease renewal if the existing lease complies with or can be amended to comply with all applicable laws, rules, and public trust principles in effect at the time of the renewal application. This section applies to all leases in effect on the effective date of this section and to all leases executed on or subsequent to the effective date of this section.
483-C:5 Easements. The commissioner may grant assignable easements for a term not to exceed 30 years for the use of submerged and intertidal lands under RSA 483-C:3. The grantee shall pay an administrative fee of $100 for each easement at the time of processing and a registration fee of $50 every 5 years. An administrative fee of $200 shall be charged for an easement application that is received after work has begun for the proposed project. The commissioner may refuse to grant an easement for the use of submerged and intertidal lands if he or she determines that the easement will unreasonably interfere with customary or traditional public access ways to or public trust rights in, on, or over the intertidal or submerged lands and the waters above those lands. The commissioner may grant an easement for submerged and intertidal lands if a structure:
I. Is for the exclusive benefit of the abutting upland owner for charitable purposes under section 501(c)(3) of the United States Internal Revenue Code.
II. Occupies a total of 500 square feet or less of submerged and intertidal land for any lawful purpose and is permanent.
III. Occupies a total of 2,000 square feet or less of submerged and intertidal land for the exclusive purpose of commercial fishing activities and is permanent.
483-C:6 Adjustment of Terms. The commissioner may adjust from time to time, consistent with the provisions of this subdivision, conditions applicable to any leasehold or easement entered into under this subdivision in any parcel of state-owned submerged or intertidal land.
483-C:7 Review of Uses. In the case of easements, the commissioner shall review from time to time the purposes for which the land conveyed has actually been used, and, in the event any such purpose is found to be inconsistent with the criteria under RSA 483-C:5 for eligibility for an easement, the easement shall terminate and the commissioner may enter into a leasehold agreement with the holder of the easement in accordance with RSA 483-C:5.
483-C:8 Constructive Easements. The owner of any structure actually upon submerged and intertidal lands on October 1, 1975 is granted a constructive easement for a term of 30 years on the submerged land directly underlying the structure. Beginning on January 1, 2010, the department shall undertake a registration program for all structures granted constructive easements. Constructive easements are subject to administrative and registration fees for easements under RSA 483-C:5. The commission shall develop, by rules adopted under RSA 541-A, procedures, rules, and registration forms necessary for this section.
483-C:9 Consultation. The commissioner may consult with any agencies or organizations he or she considers appropriate in developing and implementing terms, conditions, and consideration for conveyances under this subdivision. The commissioner may determine to make proprietary conveyances under this subdivision solely on the basis of the issuance of environmental or regulatory permits by other appropriate state agencies.
483-C:10 Rulemaking Authority. The commissioner shall authorize the New Hampshire coastal program to adopt and administer rules under RSA 541-A related to leasing lands submerged under the waters of the state.
483-C:11 Public Compensation. When the commissioner determines that the public should be compensated for the loss or diminution of traditional and customary public uses resulting from the activities proposed by the lessee, he or she may negotiate with the lessee to provide walkways, boat launching ramps, parking space, or other facilities as a condition of the lease. The determination of loss or diminution of traditional and customary public uses and appropriate public compensation shall be made in consultation with local municipal officials.
483:12 Appeals. Any person aggrieved by a decision of the commissioner under this subdivision may, within 30 days of the decision, appeal to the New Hampshire dredge management task force.
483:13 Fund Established. All revenues from the submerged lands leasing program shall be deposited in a separate and distinct fund to be known as the submerged lands fund. This fund shall be nonlapsing and continually appropriated to the commissioner to be expended in accordance with this subdivision.
483:14 Annual Report. The department shall prepare and submit a written report to the speaker of the house of representatives, the president of the senate, the house clerk, the senate clerk, the governor, and the state library on or before November 1, 2010 and every year thereafter. The report shall include the following information:
I. A complete account of the income and expenditures pertaining to submerged lands during the preceding calendar year.
II. A summary of the department’s management activities during the preceding calendar year regarding leases, easements, and other appropriate subjects.
III. A description of the proposed budget.
2 Effective Date. This act shall take effect 60 days after its passage.
LBAO
09-0689
01/15/09
HB 503-FN - FISCAL NOTE
AN ACT relative to the state’s authority to lease submerged land.
FISCAL IMPACT:
The Department of Environmental Services states this bill will have an indeterminable fiscal impact on state general fund expenditures and revenue in FY 2009 and each year thereafter. There is no fiscal impact on county and local expenditures or revenue.
METHODOLOGY:
The Department of Environmental Services states this bill establishes a framework for the state to lease submerged land and places responsibility for the implementation of the program on the Department. The Department assumes it would need to increase the number of staff in order to the implement the lease program but has no way to determine the number of staff that would be needed. The Department is not able to estimate expenditures or revenues associated with this bill as there no statewide inventory of structures on submerged land or any projection of requests to lease submerged lands to base any estimates.
This bill does not contain an appropriation or establish positions.