Based on the further investigation, the department shall:

1. (a) Ascertain the rights of the owner of the outlet by considering whether:

   1. (1) The dam is registered with the department;
   2. (2) Flowage is within any clear deeded flowage limits;
   3. (3) Base flows are sufficient to accommodate downstream riparian rights;
   4. (4) The operation is in accordance with any deeded rights associated with the former mill dam act, RSA 482:17 through RSA 482:41, if applicable; and
   5. (5) Any other factors that are within the jurisdiction of the department under RSA 482 have been identified by the owner as affecting the rights of the owner;

2. (b) Ascertain the rights of the public and owners of property above and below the outlet, by considering the following:

   1. (1) Whether there is public access to the impoundment or the stream below the outlet via a government-owned access point;
   2. (2) The extent to which the impoundment or the stream below the outlet is used for fishing, including whether the impoundment is stocked by the New Hampshire fish and game department;
   3. (3) What range of water levels is optimum for the ecological health of the impoundment and the stream below the outlet;
   4. (4) The extent to which the impoundment or the stream below the outlet is used for navigation and what range of water levels is optimum for such navigation;
   5. (5) The extent to which the impoundment or the stream below the outlet is used for swimming and what range of water levels is optimum for swimming; and
   6. (6) The extent to which the impoundment or the stream below the outlet is used for other recreation and range of what water levels is optimum for such other recreation; and
3. (c) In making its determination, consider all information and testimony presented as part of the proceeding.

Source. #4278, eff 6-30-87; ss by #5662, eff 7-1-93, EXPIRED: 7-1-99 New. #8414, eff 8-20-05 (formerly Env-Wr 401.03); ss by #10510, eff 1-22-14; ss by #13980, eff 5-24-24