Certified Final Objection No. 122 of the

Joint Legislative Committee on Administrative Rules

 

At its meeting on March 24, 2003, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2002-156 containing rules Env-Ws 1900 of the Department of Environmental Services (Department) relative to instream flow. The objection was based upon the issues outlined in the annotations made to the rules by Committee staff.

At its meeting on April 21, 2003, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a revised objection to the objection response for Final Proposal 2002-156. The revised objection was based upon the issues outlined in the annotations made to the objection response for Final Proposal 2002-156 by Committee staff.

At its meeting on May 19, 2003 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2002-156. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:

After a final objection by the committee to a provision in the rule is filed with the director under subparagraph V(f), the burden of proof shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

The following summarizes the bases for the Committees final objection:

Env-Ws 1907.01 and Env-Ws 1907.03

The Committee objected that Env-Ws 1907.01 and Env-Ws 1907.03 are, pursuant to Committee Rules 401.04 and 402.04, beyond the authority of the Department and contrary to legislative intent by conflicting with Part 1, Article 28-a of the New Hampshire Constitution. That constitutional provision states that:

The state shall not mandate or assign any new, modified or expanded programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.

Certified Final Objection No. 122 of the

Joint Legislative Committee on Administrative Rules

Page 2

 

 

Env-Ws 1907.01 would require affected water users and affected dam owners to comply with the provisions of a water management plan adopted under Env-Ws 1900. Env-Ws 1907.03 states that political subdivisions would not be required to comply with rules that impose an unfunded cost in violation of Part 1, Article 28-a or RSA 541-A:25.