Certified Final Objection No. 75 of the
Joint Legislative Committee on Administrative Rules
At its meeting on June 21, 1996, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 96-045 containing proposed rules Env-Ws 415 of the Department of Environmental Services (Department) relative to permits for activities under RSA 485-A:17 that significantly alter the terrain or occur in or on the borders of the surface waters of the state. The Commissioner of Environmental Services (Commissioner) responded by letter dated July 3, 1996, which was received by the Office of Legislative Services on that same day.
At its meeting on September 20, 1996, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-045. 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 of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter 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 basis for the Committee's final objection:
Env-Ws 415 Violation of Part 1, Article 28-a
The Committee objected that Env-Ws 415 is, pursuant to Committee Rule 401.04, beyond the authority of the Commissioner and, pursuant to Committee Rule 402.04, contrary to legislative intent by violating Part 1, Article 28-a of the New Hampshire Constitution. Part 1, Article 28-a, provides 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.
This proposal readopts with amendments the rules Env-Ws 415 governing permits for activities under RSA 485-A:17 that significantly alter the terrain or occur in or on the border of the surface waters of the state. Such activities include dredging, earth moving, excavating, timber harvesting operators, and mining.
The rulemaking notice for Initial Proposal 96-045 was published in the New Hampshire Rulemaking Register on March 8, 1996. The Part 1, Article 28-a statement submitted by the Department in that notice stated that "costs are the same as costs that have been imposed since May 1981 when the rules were originally adopted." The Committee determined that, while these rules might not increase the cost of compliance for an entity that was previously subject to the rules, the proposed amendments expand the scope of the requirements. In the Committee's view this could have the effect of imposing compliance upon entities that were not previously subject to the rules.
Previously, permits for RSA 485-A:17 activities were only required if an activity would disturb more than 100,000 square feet. Now, permits also will be required if there is disturbance to more than 50,000 square feet within the "protected shoreland". This change is made pursuant to changes in RSA 483-B:6 (Comprehensive Shoreline Protection Act) which requires a permit under RSA 485-A:17 to "conduct an activity resulting in a contiguous disturbed area exceeding 50,000 square feet".
This change in applicability was evident to the Committee in Env-Ws 415 by examining the amendments to the definition of "to significantly alter the characteristics of the terrain" in Env-Ws 415.02(y) and to the requirement of a permit in Env-Ws 415.03 for such activities. The Committee concluded in its preliminary objection that, if any municipality not previously subject to the rules must now comply with the rules because of these or other amendments, then a violation of Part 1, Article 28-a may occur.
In the response letter of July 3, 1996, the Commissioner stated that the change in jurisdiction, from 100,000 square feet to 50,000 square feet, occurred in the statute, not as a result of the rules. The letter stated, "Since the Legislature did not exempt municipalities from complying with the provisions of RSA 483-B, the rules are consistent with Legislative intent."
The Committee noted on September 20, 1996 that it has addressed in prior final objections this issue of legislative intent in statutes and Part 1, Article 28-a. In the Committee's view, both the statutes and Part 1, Article 28-a of the Constitution can be read together. The Committee determined that the Env-Ws 415 rules in Final Proposal 96-045 acknowledge RSA 483-B by noting the change in applicability but do not address Part 1, Article 28-a of the Constitution by accounting for political subdivisions who choose not to fund increased costs.
As the state's fundamental law, Part 1, Article 28-a of the Constitution in the Committee's view always carves out a potential exception to the applicability of statutes. The Committee determined that RSA 483-B simply shall not apply to political subdivisions in the circumstances noted by Part 1, Article 28-a of the Constitution. In contrast, the rules will now state that permits will be required if there is a disturbance to more than 50,000 square feet of protected shoreland instead of more than 100,000 square feet. This modified requirement appeared to the Committee to impose a cost, which did not exist before, upon political subdivisions which excavate their property between 50,000 and 100,000 square feet. This cost has not been fully funded by the state, and the rules provide no exception to political subdivisions who do not choose to fund the increased cost.
The Committee also determined that legislative intent in this regard to rules is further supported by RSA 541-A:25, I, which reiterates the constitutional prohibition against unfunded state mandates.
The Committee concluded that, despite the Department's assertions, the rules violate Part 1, Article 28-a, to the extent explained above, and therefore the rules are beyond the agency's authority and contrary to legislative intent for that reason.