Concord — December 13, 2006 — The Executive Council approved two more “dug-in” boathouses on Lake Winnipesaukee yesterday, resurrecting the debate over the controversial practice.

Outgoing Councilor Peter Spaulding sharply criticized the Department of Environmental Services for what he characterized as support for the dug-in boathouses.

“It creates a bad image for the state, particularly for your department, to be saying that these dug-in boathouses are good for the environment,” Spaulding said. “I strongly believe that they are not.”

New Hampshire bans the construction of boathouses at the existing shoreline. In an attempt to skirt the regulation, many property owners have built boathouses inland from the shoreline and then dredged the lakebed so the water meets the new boathouse. But last year, after state officials endorsed numerous applications for the dug-in boathouses, a superior court judge ruled that DES was too lenient in approving the boathouse permits.

The state has since appealed the decision to the New Hampshire Supreme Court, a move that Spaulding said gave the impression that DES is a cheerleader for the boathouses. DES Commissioner Tom Burack denied that characterization yesterday, saying that he and Attorney General Kelly Ayotte appealed in order to get clarification on the law.

DES “takes no position on whether boathouses are a good thing or a bad thing,” said Burack, who took over DES last month after being nominated by Gov. John Lynch.

Until the Supreme Court decides the issue, DES and the Executive Council can review dug-in boathouse proposals on a case-by-case basis.

But Spaulding – who last year called dug-in boathouse construction an environmentally destructive practice of the “idle rich” – roundly rejected Burack’s reasoning for the appeal.

“You’re giving them sort of the good housekeeping seal of approval to the fact that these are part of environmental protection,” said Spaulding, a Hopkinton Republican. “I would say exactly the opposite: That it’s wrong for your department to be pushing this appeal to the Supreme Court.”

If developers or property owners disagreed with the superior court decision, they could have appealed, he said. Yesterday’s meeting was the last of Spaulding’s term; last month, he lost reelection to Democrat John Shea.

Both boathouses passed the council with a vote of 3-to-2; Spaulding and Councilor Deb Pignatelli, the sole Democrat on the current council, cast the dissenting votes. Pignatelli called the boathouses a “blight on the landscape and an attempt to get around the no-boathouse-building law.” The council’s history of approving the projects, she said, will only inspire more applications.

“I would expect to see a lot more of these because people now know that they can get through the council and they are approved by the Department of Environmental Services,” Pignatelli said.

Critics of the dug-in boathouses say that the practice harms lakeshores and can cause increased runoff. In the Belknap County Superior Court case, opponents challenged two boathouse permits. Judge Harold Perkins ruled that DES had failed to account for the Comprehensive Shoreland Protection Act, which safeguards the area within 250 feet of a lake’s high-water mark.

Since the ruling, DES hasn’t approved new dug-in boathouses, Burack said last month. But DES has brought previously permitted proposals to the Executive Council, which has to sign off on the projects. Last month, councilors approved two of the boathouses.

The state needs the Supreme Court to weigh in because the superior court ruling left questions unanswered, Burack said.

“The issue, as raised by Judge Perkins’s decision, goes beyond just boathouses. It affects essentially any kinds of construction or activities that might occur within certain areas of the shoreland covered by the Shoreland Protection Act,” he said.

The Superior Court decision “changed a historical interpretation that we thought was correct,” Ayotte said. “It’s important to have that final decision in the Supreme Court, because a trial court decision on this issue is not binding.”