489:10 Appeals. –
I. Any person aggrieved by a decision made under RSA 489:7, V, VI(a) or (b), or VII, and any person subject to an order of the department under RSA 489:11 who wishes to appeal shall, within 30 days of the decision, file a notice of appeal with the appeals clerk for a hearing before a joint water-wetland council described in paragraph II. At the time the notice of the appeal is filed, the person shall send a copy of the appeal to the commissioner. If the appeal is of a decision to issue a permit, the person shall also send a copy of the appeal to the permittee. The notice of appeal shall clearly state that it is being filed pursuant to this paragraph.
II. Upon receipt of a notice of appeal filed pursuant to paragraph I, the appeals clerk shall notify the chairperson of the water council established under RSA 21-O:7 and the chairperson of the wetlands council established under RSA 21-O:5-a. The chairperson shall each designate 4 members of their respective councils to sit with a hearing officer appointed under RSA 21-M:3, VIII as a joint council for purposes of the appeal. The interests represented by members of the joint council shall be as diverse as possible based on the council members available to be designated after any recusals are considered.
III. The appeal shall set forth fully every ground upon which it is claimed that the decision complained of is unlawful or unreasonable. Only those grounds set forth in the appeal shall be considered by the joint council.
IV. The joint council shall conduct an adjudicative proceedings as provided in RSA 21-M:3, IX and X, RSA 21-O:14, RSA 541-A, and rules to be adopted by both of the councils for appeals to be heard by the joint council. Until both of the councils have adopted the same rules, the rules of the wetlands council shall apply to any appeal. The burden of proof shall be on the party seeking to set aside the department's decision to show that the decision is unlawful or unreasonable. All findings of the department upon all questions of fact properly before it shall be prima facie lawful and reasonable.
V. If the appeal is of a decision to issue a permit, the permittee may appear and become a party to the appeal as a matter of right. Requests by any other person to intervene in any appeal shall be made and decided upon as provided in RSA 541-A:32.
VI. On appeal, the joint council may affirm the decision of the department or may remand to the department with a determination that the decision complained of is unlawful or unreasonable. In either case, the council shall specify the factual and legal basis for its determination and shall identify evidence in the record created before the council that supports its decision.
VII. Any party aggrieved by a decision of the joint council may appeal to the supreme court as specified in RSA 541.
VIII. In the case of a remand to the department by the joint council, the department shall consider the council's determination and may either reissue the subject decision or order or appeal as provided in paragraph VII.