Jackson Conservation Commission tells NHDES Great Brook flows may be inadequate; Black Mountain counsel warns of legal action

At its June 1, 2026 meeting the Jackson Conservation Commission formally entered into the minutes a May 7 letter to the Jackson Selectmen and the New Hampshire Department of Environmental Services (NHDES) that flagged concerns about water diverted from Great Brook to Whitney’s Pond for snowmaking and recommended permit, design and monitoring actions.

The commission’s letter, prepared by chair Ben Halcyon and discussed by members, cites an NHDES inspection that observed roughly 95% of flow being diverted to Whitney’s Pond and expresses concern that the bypassed reach of Great Brook may not receive adequate flow to support aquatic habitat or provide aquatic organism passage. The letter also notes sediment observed entering the Wildcat River system from Great Brook and downstream of the Moody Farm Bridge and requests NHDES and the Town verify whether current withdrawals, pond storage, and refill timing meet state water quality and quantity standards.

The commission asked that ongoing and future Black Mountain Community Corporation (BMCC) construction include approved wetland and site-disturbance permits with silt controls in place and monitored, that any diversion structure include an overflow/spillway to prevent dam overtopping, and that diversion structures be designed to guarantee adequate flows for aquatic passage. The letter references the Town’s River Conservation District Zoning Regulations, the 2005 Wildcat River Comprehensive River Management Plan (CRMP), RSA 36-A:2 governing conservation commissions, and cites USGS StreamStats modeling that the 1.728 million gallons-per-day figure could exceed the watershed’s modeled inflow up to 40% of the time during major snowmaking months.

Commissioners discussed paying an invoice from Sean Sweeney of Headwaters Hydrology and confirmed they would check references for an excavation contractor recommended to assist with restoration work; Ken Kimball moved to enter the May 7 response letter into the minutes and the motion passed unanimously.

Black Mountain disputed the commission’s assertions. The record includes an April 3 letter from Cooper Cargill Chant attorney Christopher T. Meier, provided to the commission and attached to the minutes, arguing BMCC holds an easement over the Whitney’s Pond property that authorizes snowmaking withdrawals and that BMCC holds an NHDES Water Withdrawal Permit (ID #20410) allowing up to 1.728 million gallons per day. Meier’s letter called the commission’s draft “rife with inaccurate and/or unsupported statements” and warned that publishing the draft could prompt litigation to prevent publication and recover damages. The letter also asserted that the Wild and Scenic Rivers designation does not abrogate private, preexisting water rights.

The commission’s May 7 letter acknowledges that historical diversions to Whitney’s Pond occurred and frames its role as advisory: to review activities, monitor conditions, and advise the Selectmen and NHDES. The letter recommended the Town and NHDES ensure any diversion design provides leakage or bypass flows adequate for aquatic habitat, clarify Whitney’s Pond’s role and access as a fire pond, and coordinate withdrawal rates with seasonal and drought variability.

Erik Mogensen, identified in the meeting record as President and General Manager of Black Mountain Community Corporation, told commissioners he found the conservation commission’s response letter “ridiculously out of line.” The commission recorded that it looks forward to working constructively with the Town, NHDES and BMCC to balance snowmaking needs with water quality and downstream riparian interests.

Next steps recorded in the minutes include the commission’s request that the Selectmen and NHDES consider the recommendations; the minutes attach the May 7 letter, April 6 CC minutes and BMCC’s April 3 counsel letter. The record does not show any enforcement action by the commission; the matters the letter raises rest with NHDES, the Town Select Board, and any permitting processes those bodies pursue.