New Hampshire Case Law
GREENLAND CON., v. N.H. WETLANDS, 2005-578 (N.H. 12-19-2006) GREENLAND CONSERVATION COMMISSION v. NEW HAMPSHIRE WETLANDS COUNCIL & a. CONSERVATION LAW FOUNDATION v. NEW HAMPSHIRE WETLANDS COUNCIL & a. No. 2005-578 Supreme Court of New Hampshire Argued: July 21, 2006 Opinion Issued: December 19, 2006
Baldwin, Callen & Hogan, PLLC, of Concord (Jed Z. Callen on the joint brief) for plaintiff Greenland Conservation Commission, and Thomas F. Irwin, of Concord, on the joint brief and orally, for plaintiff Conservation Law Foundation.
Kelly A. Ayotte, attorney general (Jennifer J. Patterson, senior assistant attorney general, on the brief and orally), for the State of New Hampshire.
McNeill, Taylor & Gallo, P.A., of Dover (Malcolm R. McNeill, Jr.and Lynne M. Dennis on the brief, and Mr. McNeill orally), for intervenor Endicott General Partnership.
Sulloway & Hollis, P.L.L.C., of Concord (Amy Manzelli on the brief), for Newington Conservation Commission, Exeter River Local Advisory Committee, Lamprey River Advisory Committee, and New Hampshire Rivers Council, as amici curiae.
BRODERICK, C.J.
BRODERICK, C.J. The plaintiffs, Greenland Conservation
Commission (GCC) and Conservation Law Foundation (CLF),
appeal an order of the Superior Court (McHugh, J.)
affirming a decision and order (decision) of the New
Hampshire Wetlands Council (wetlands council or council)
that affirmed the issuance of a wetlands permit by the
wetlands bureau (wetlands bureau or bureau) of the New
Hampshire Department of Environmental Services (DES) to
Endicott General Partnership (Endicott). That permit allows
Endicott to fill 42,350 square feet of wetlands, at twelve
locations, for the construction of roadways to serve a
proposed housing development in Greenland. We affirm.
The following facts are drawn from the administrative
record. Before DES issued the permit that gave rise to this
suit, through its wetlands bureau, Endicott received
subdivision approval from the Greenland Planning Board for
a seventy-nine-lot housing development situated on a
212-acre parcel that includes approximately eighty-five
acres of wetlands bordering Norton Brook, two unnamed
tributaries to Norton Brook and several vernal pools. The
remainder of the parcel consists of uplands. See N.H.
Admin. Rules, Env-Wt 101.95 (defining “upland” as “an area
of land that is not a jurisdictional area”); N.H. Admin.
Rules, Env-Wt 101.50 (defining “jurisdictional area” as “an
area that is subject to regulation under RSA chapter 482-A,
as described therein”); RSA 482-A:4, II (2001) (describing
the non-tidal waters and areas regulated by RSA chapter
482-A as encompassing “all surface waters of the state . .
. which contain fresh water, including the portion of any
bank or shore which borders such surface waters, and . . .
any swamp or bog subject to periodical flooding by fresh
water including the surrounding shore”). On June 12, 2002,
Endicott filed a “standard dredge and fill application”
with the DES wetlands bureau, pursuant to RSA 482-A:3, I
(2001), for the construction of roadways across protected
wetlands at thirteen locations.
On March 19, 2003, the bureau granted Endicott a permit
that included the following project description:
Fill a total of 61,150 sq. ft. of palustrine wetlands for
roadway crossings at 13 locations for a 79-lot subdivision
on 212 acres. Approve as mitigation preservation of a
total of 98.6 acres, consisting of 20.7 acres of upland
and 77.9 acres of wetland, to be placed in conservation
easement and held by the Town of Greenland; and creation
of 24,829 sq. ft. (one 10,890 sq. ft. area, and one 13,939
sq. ft. area) of flood plain scrub/shrub and emergent
marsh wetlands constructed as compensation for wetland
impacts within the 100 year flood plain.
The plaintiffs both requested reconsideration of the
decision to issue the permit. After holding a public
hearing on the petition for reconsideration, the bureau
concurred on two of the four proposed grounds for
reconsideration and revoked the permit by letter dated
September 13, 2003.
Endicott, in turn, sought reconsideration of the permit
revocation, and after holding a hearing on Endicott’s
petition for reconsideration, the bureau issued a new
permit, dated February 4, 2004, that included the following
project description:
Fill a total of 42,350 sq. ft. of palustrine wetlands for
roadway crossings at 12 locations, including 4,000 square
feet for the construction of a 100 linear foot bridge, for
a 79-lot subdivision on 212 acres. Approval includes, as
mitigation, the preservation of a total of approximately
106 acres, consisting of approximately 27 acres of upland
and approximately 79 acres of wetland, to be placed in
conservation easement and held by the Town of Greenland;
and, creation of 24,829 sq. ft. (one 10,890 sq. ft. area,
and one 13,939 sq. ft. area) of flood plain scrub/shrub
and emergent marsh wetlands constructed as compensation
for wetland impacts within the 100 year flood plain; and,
execution of the Atlantic White Cedar Management Plan as
prepared by Carex Ecosystems dated 12/6/02, rec’d by DES
12/6/02.
The increased acreage under conservation easement in the new
permit included three entire lots, and the new permit also
called for establishment of a fifty-foot upland buffer that
involved ten more lots.
The plaintiffs appealed the bureau’s decision to the
wetlands council, see RSA 482-A:10, IV-VII (Supp. 2006),
which affirmed. After the council denied their motions to
reconsider, GCC and CLF filed separate appeals in the
superior court, see RSA 482-A:10, VIII, X-XVIII (Supp.
2006), which were consolidated. The superior court affirmed
the council’s decision. This appeal followed.
On appeal, the plaintiffs contend that the trial court
erred by: (1) ruling that DES’ review authority (as
exercised by the wetlands bureau) was limited to assessing
the impact of construction activities in protected wetlands
(i.e., the twelve permitted wetland crossings) and did not
include consideration of the impact that upland activities
(i.e., the entire subdivision) might have upon protected
wetlands; (2) imposing on the plaintiffs the burden to
develop and present alternative designs to the wetlands
bureau; (3) affirming the wetlands council’s decision when
there was no evidence in the record of project alterations
designed to address the issues raised by the wetlands
bureau’s September 13, 2003 permit revocation; (4) failing
to address critical grounds for appeal concerning failures
by Endicott and the bureau to properly address the impacts
of the proposed project; and (5) affirming the council’s
decision, even though the council applied an overly
deferential standard of review and failed to specify the
factual and legal bases of its decision.
The trial court’s review of wetlands council decisions is
governed by RSA 482-A:10, XI (2001), which provides:
On appeal to the superior court, the burden of proof
shall be upon the party seeking to set aside the decision
of the council to show that the decision is unlawful or
unreasonable. The council’s decision shall not be set
aside or vacated, except for errors of law, unless the
court is persuaded, by a preponderance of the evidence
before it, that said decision is unjust or unreasonable.
Conservation Law Found. v. N.H. Wetlands Council, 150 N.H.
1, 3 (2003). We, in turn, will not disturb the trial
court’s decision unless it is unsupported by the evidence
or legally erroneous. Id. at 4.
I
The plaintiffs first argue that the wetlands bureau, the
wetlands council, and the trial court all adopted an
unlawfully narrow view of DES’ statutory scope of review.
On the plaintiffs’ reading, RSA chapter 482-A (2001 & Supp.
2006) obligated the bureau to consider not just the effects
of the filling necessary to construct the twelve approved
wetland crossings, but also the effects of the housing
development as a whole, including upland construction
activities, on protected wetlands. Among other things, the
plaintiffs point to the discharge of stormwater runoff and
habitat fragmentation as negative effects that will result
from the construction of seventy-six homes (seventy-nine
lots minus the three lots placed under conservation
easement) and related infrastructure. According to the
plaintiffs, the trial court erred, as a matter of law,
because its decision concerning the extent of DES’ project
review and permitting authority: (1) violated RSA 482-A:1;
(2) violated DES’ wetland rules; (3) is inconsistent with
DES’ prior implementation of RSA chapter 482-A and its
wetland rules; and (4) is inconsistent with both the permit
the wetlands bureau ultimately issued to Endicott and
representations DES officials made during the permitting
process. We address each argument in turn.
The plaintiffs’ statutory argument rests upon the section
of chapter 482-A titled “Finding of Public Purpose.”
According to that section:
It is found to be for the public good and welfare of this
state to protect and preserve its submerged lands under
tidal and fresh waters and its wetlands, (both salt water
and fresh-water), as herein defined, from despoliation
and unregulated alteration, because such despoliation or
unregulated alteration will adversely affect the value of
such areas as sources of nutrients for finfish, crustacea,
shellfish and wildlife of significant value, will damage
or destroy habitats and reproduction areas for plants,
fish and wildlife of importance, will eliminate,
depreciate or obstruct the commerce, recreation and
aesthetic enjoyment of the public, will be detrimental to
adequate groundwater levels, will adversely affect stream
channels and their ability to handle the runoff of waters,
will disturb and reduce the natural ability of wetlands
to absorb flood waters and silt, thus increasing general
flood damage and the silting of open water channels, and
will otherwise adversely affect the interests of the
general public.
RSA 482-A:1. The plaintiffs argue that the language quoted
above, “combined with basic principles of wetlands
ecology,” establishes the need for the review process
outlined in chapter 482-A to consider not just the impacts
of the twelve wetland crossings, but also the impacts of
the subdivision as a whole, including both its upland and
wetland components. We do not agree.
Chapter 482-A is titled “Fill and Dredge in Wetlands,” and
the permits granted under that chapter are referred to in
the statute as “Excavating and Dredging Permit[s].” RSA
482-A:3, I. The title of a statute is not conclusive of its
interpretation, State v. Rosario, 148 N.H. 488, 491 (2002),
but it is a significant indication of the intent of the
legislature in enacting a statute, see Appeal of Weaver, 150
N.H. 254, 256 (2003). Here, the title of chapter 482-A
strongly indicates that the legislature intended it to
protect wetlands only from the effects caused by dredging
and filling within their boundaries.
The part of the statute that describes the permitting
process provides, in pertinent part:
No person shall excavate, remove, fill, dredge or
construct any structures in or on any bank, flat, marsh,
or swamp in and adjacent to any waters of the state
without a permit from the department. The permit
application together with a detailed plan and a map
showing the exact location of the proposed project . . .
shall be submitted. . . . Fees for minor and major
projects shall be assessed based on the area of dredge,
fill, or construction proposed. . . .
RSA 482-A:3, I. This language plainly establishes the scope
of the project review and permitting authority granted to
DES and exercised by DES through its wetlands bureau. DES
is authorized to grant permits for certain enumerated
construction activities in or on banks, flats, marshes and
swamps in and adjacent to state waters. Id. DES is not
authorized to grant dredge and fill permits for construction
activities not listed in the statute or conducted anywhere
other than the places listed in the statute. See State v.
Simone, 151 N.H. 328, 330 (2004) (“Normally, the expression
of one thing in a statute implies the exclusion of
another.”). The permitting process described in RSA
482-A:3, I, is the way the legislature has determined that
DES shall carry out the purposes described in RSA 482-A:1.
We note, however, that while the scope of chapter 482-A
limits DES to the assessment of construction activities in
wetlands when it issues dredge and fill permits, upland
construction activities such as those proposed by Endicott
in this case are subject to various other forms of DES
review. See, e.g., RSA 485-A:17 (Supp. 2006) (DES permit
required when “any person propos[es] to significantly alter
the characteristics of the terrain, in such a manner as to
impede the natural runoff or create an unnatural runoff”);
RSA 485-A:29 (Supp. 2006) (DES approval required for most
sewage and waste disposal systems). Thus, our determination
that chapter 482-A does not authorize DES to assess the
impacts of upland construction does not mean that
Endicott’s upland construction activities are entirely free
from DES review.
While it may be argued, based upon principles of wetlands
ecology, that the purposes described in RSA 482-A:1 could
be better served by the sort of review process the
plaintiffs advocate — a matter upon which we offer
no opinion — the proper place for making such
arguments is before the legislature. See Scheffel v.
Krueger, 146 N.H. 669, 672 (2001) (“Where the legislature
has made specific exemptions, we must presume no others
were intended. If this is an omission, the courts cannot
supply it. That is for the Legislature to do.” (quotation
and citations omitted)).
The plaintiffs’ regulatory argument is equally unavailing.
According to the plaintiffs, the trial court erred by
ruling that the wetlands bureau had no obligation to assess
the effects of upland construction on protected wetlands
because the administrative rules governing the wetlands
bureau: (1) require the bureau to consider impacts on
wetlands; (2) do not distinguish between direct and
indirect impacts; and (3) do not define the term “project”
to refer only to activities occurring within protected
wetlands. While it is well settled that an administrative
agency must follow its own rules and regulations, Appeal of
Town of Nottingham, 153 N.H. 539, 554-55 (2006), the
plaintiffs’ argument fails for two reasons. First, when read
as a whole, the regulations upon which the plaintiffs base
their argument, New Hampshire Administrative Rules, Env-Wt
302, do not authorize the bureau to assess the impacts of
upland construction upon protected wetlands. See
Nottingham, 153 N.H. at 555 (explaining that agency rules
are construed as a whole and their words are given their
plain and ordinary meanings). What those regulations do
allow is for the bureau to assess the impact of
construction in wetlands and to impose conditions,
including mitigation, in order to protect wetlands.
Moreover, any portion of those regulations that might
purport to authorize the type of assessment advocated by
the plaintiffs would be without effect, because agency
regulations that contradict the terms of a governing
statute exceed the agency’s authority. See Id. Accordingly,
the trial court did nor err by rejecting the plaintiffs’
regulatory argument.
The plaintiffs next argue that the trial court’s decision
was erroneous because in the past, the wetlands bureau has
considered the impacts of upland construction upon
protected wetlands and, on at least one occasion, denied a
permit on that ground. There are two problems with the
plaintiffs’ argument. First, the permitting decision upon
which the plaintiffs rely, concerning a proposed highway
bypass in Troy, did not address the impacts of upland
development on protected wetlands; it addressed the impact
of wetland destruction on the habitat value of upland areas
connected by the 6.9 acres of wetlands that the department
of transportation proposed to dredge and fill. In denying
the Troy permit, DES explained:
The project has severe impacts on significant wetland and
surface water resources that play an integral role in the
habitat value and viability of a large unfragmented
forested ecosystem which includes forested wetlands of
high functional value. Unnecessary destruction of vital
wetland and surface water components of that larger
ecosystem is contrary to the public purpose of RSA
482-A:1. . . .
Based upon the foregoing, the permit application for the
Troy project is not analogous to the application in this
case. If anything, it represents the converse. Second, even
if the situation surrounding the Troy project were
factually analogous, and DES had denied the application on
the grounds advocated by the plaintiffs in this case, i.e.,
the adverse impact upon wetlands resulting from upland
construction, such a decision would have been unlawful, for
reasons we have already explained, and there is no
principle of law that would compel, or even allow, DES to
overstep its statutory authority a second time, simply
because it did so once before. To the contrary, in State
Employees’ Assoc. v. State, 127 N.H. 565 (1986), we held
that even when an agency had erroneously interpreted its
statutory authority for nine years, that was not enough to
change the plain meaning of the statute and legally justify
further agency conduct in conflict with the statute, Id. at
569.
The plaintiffs’ final argument for requiring DES to
consider the effects of upland construction on protected
wetlands is that DES itself, both in the wetlands bureau’s
permit approval document and at the wetlands council
hearing, took actions and made statements demonstrating
that it believed it did have the authority to regulate
upland activities to protect wetlands. In particular, the
plaintiffs point to several conditions the wetlands bureau
placed upon the permit approval, such as the requirement
that three lots not be developed and the establishment of a
fifty-foot buffer zone. Whatever various DES officials may
have said, orally or in writing — and we do not
interpret the actions and statements identified by the
plaintiffs as conflicting with DES’ statutory authority
— those officials were without power to extend the
scope of the agency’s authority, see Nottingham, 153 N.H. at
555, and, as we have explained, RSA chapter 482-A does not
authorize the review process the plaintiffs advocate.
Further, we disagree with the plaintiffs’ argument that the
trial court’s decision was erroneous because its legal
conclusions are inconsistent with the permit ultimately
issued to Endicott. In support of that argument, the
plaintiffs point to the fifty-foot buffer zone that was
made a condition of approval and argue that if the bureau
was without authority to consider or regulate activities
conducted beyond the boundaries of protected wetlands, then
it was also without authority to impose a condition that
impinged upon uplands, a category of terrain that, by
definition, falls outside DES’ wetlands jurisdiction. See
N.H. Admin. Rules, Env-Wt 101.95 (“‘Upland’ means an area of
land that is not a jurisdictional area.”); N.H Admin.
Rules, Env-Wt 101.96 (“‘Upland buffer’ means an area of
land that is contiguous to a jurisdictional resource and
that contributes to the functions and values of that
resource.”).
The plaintiffs’ argument is not persuasive. The plain
meaning of the statute does not prohibit DES from imposing
permit conditions that may have an effect on uplands.
Rather, it limits DES to engaging in such consideration or
regulation only when it arises directly from its assessment
of proposed filling and dredging in wetlands — the
activities that give DES jurisdiction in the first place,
and for which an applicant seeks a permit. See RSA
482-A:11, II (2001) (DES may place conditions upon permits
to protect the public good).
For all of the foregoing reasons, the trial court did not
err by ruling that DES’ review authority was limited to
assessing the impacts of construction activities in
protected wetlands, and did not extend to assessing the
effects of upland construction activities upon such
wetlands.
II
The plaintiffs next argue that the trial court
impermissibly required them to bear the burden of
developing alternative project designs and presenting them
to the wetlands bureau.
The relevant DES regulation requires a permit applicant to
“provide evidence which demonstrates that . . . (1)
[p]otential impacts have been avoided to the maximum extent
practicable; and (2) [a]ny unavoidable impacts have been
minimized.” N.H. Admin. Rules, Env-Wt 302.03(a). On appeal,
both to the wetlands council and to the superior court, the
burden is on the party seeking to set aside a decision to
prove that the decision was unlawful or unreasonable. RSA
482-A:10, V, XI.
At the superior court hearing on the plaintiffs’ appeal of
the wetlands council’s decision, the trial judge asked
CLF’s counsel the following question:
And — not that you are required to, but as part of
your defense of this, you haven’t retained anyone to take
a look at this and say if you cut it to 40 lots, it’s a
doable project without the — you don’t want to make
the 12 crossings et cetera? You don’t have that
information?
In its order, the trial court observed that “[t]he
plaintiffs . . . throughout the permitting process could
have suggested the elimination of specific lots or specific
crossings” and went on to note:
[D]uring the hearing before the Court on June 16, 2005,
they were able to identify four particular crossings each
servicing three proposed house lots and suggested that the
denial of these crossings and elimination of those house
lots would be the “least impacting alternative” in this
case. That argument simply comes too late; it should have
been made to DES when the application was first filed.
According to the plaintiffs, the trial court’s question at
the hearing and the foregoing language from its order
reflect an impermissible shifting of the burden of proof
stated in Rule 302.03(a) from the applicant to the
opponents of the permit application. We do not agree.
It is clear from both the superior court hearing transcript
and the court’s order that the court correctly allocated
the burden of proof. The supposed evidence to the contrary
identified by the plaintiffs must be understood in its
proper context. When the trial judge asked whether the
plaintiffs had retained an expert to determine how many
building lots would constitute adequate minimization of
unavoidable impact, the question presupposed the
correctness of the plaintiffs’ contention that DES had the
authority to assess the impact of upland construction on
protected wetlands. That made the question nothing more than
a hypothetical. Because DES does not, in fact, have the
authority to assess the impacts of upland construction
activities — as the trial court correctly ruled
— the plaintiffs’ failure to present information to
the wetlands bureau concerning the acceptable number of
house lots was, necessarily, immaterial to the court’s
decision to affirm the wetlands council’s decision. So,
too, with the statements in the trial court’s order to
which the plaintiffs object. Those statements are dicta,
and the second one was plainly labeled as such by the
court’s own preface that “the plaintiffs’ strategy [for
opposing the permit application] [was] of no interest.”
In short, there is nothing in the record to support the
plaintiffs’ argument that the trial court based its
decision upon an erroneous burden of proof.
III
The plaintiffs next argue that the trial court erred by
affirming the decision of the wetlands council even though
the record contains no evidence of project alterations
designed to address “key dispositive findings” in the
September 17, 2003 denial.
In the September 17 denial, the wetlands bureau made six
findings “with respect to demonstrated need per Rule
[Env-]Wt 302.01(b) and [Env-]Wt 302.04(a)(1),” one of which
provided that “design alternatives exist, including
alternative lot layouts, that allow development of the
property while eliminating several of the proposed
crossings.” In the plaintiffs’ view, the bureau’s
subsequent decision to reverse its denial and grant the
permit was unlawful, and unsustainable on appeal, because
the bureau ignored that finding in its decision to grant the
permit.
The plaintiffs’ argument is unavailing for several reasons.
First, there is no basis for labeling this finding
“dispositive.” Second, the plaintiffs mischaracterize the
finding as pertaining to avoidance and impact minimization,
see N.H. Admin. Rules, Env-Wt 302.03(a)(1)-(2), when the
September 17 decision characterized it as pertaining to
demonstrated need, see N.H. Admin. Rules, Env-Wt 302.01(b),
302.04(a)(1). Third, the plaintiffs are mistaken in
characterizing the finding as evidence that DES’ review
process involved an assessment of the impact of the project
as a whole, including upland development, upon protected
wetlands. Rather, the finding represented nothing more than
an attempt to minimize the number of wetland crossings,
i.e., direct impacts upon wetlands within DES’ dredge and
fill jurisdiction. In addition, the plaintiffs offer no
legal support for the proposition that the wetlands bureau
was required to specifically address each of the findings
in the September 17 denial in its subsequent decision to
grant the permit. Finally, because DES has the authority to
reconsider its decisions, see RSA 482-A:10, I-III, it would
have been well within the bureau’s authority to retract the
finding after receiving additional evidence at the hearing
on Endicott’s request for reconsideration. Accordingly, the
trial court did not err by affirming the decision of the
wetlands council despite the fact that the project the
bureau ultimately approved did not involve a redesign that
eliminated several wetland crossings.
IV
Next, the plaintiffs argue that the trial court erred by
failing to address six “critical, potentially
outcome-determinative grounds for appeal.” Those grounds
for appeal, discussed at length in the plaintiffs’
post-hearing memorandum, include: (1) the wetlands bureau’s
failure to consider direct impacts upon an Atlantic white
cedar wetland community; (2) the lack of baseline data on
Norton Brook and projections concerning the discharge of
pollutants into the brook; (3) DES’ reliance upon its “site
specific” division to analyze certain impacts upon water
resources rather than having those impacts addressed by the
wetlands bureau; (4) Endicott’s failure to assess the
impacts of wetland crossings upon the quality of water in
adjacent vernal pools; (5) the bureau’s failure to address
significant project-specific wildlife concerns; and (6) the
bureau’s failure to assess either the cumulative impacts of
the project, as required by New Hampshire Administrative
Rules, Env-Wt 302.04(a)(16), or the project’s impacts upon
the function and values of the total wetland complex, as
required by New Hampshire Administrative Rules, Env-Wt
302.04(a)(17).
Review of the plaintiffs’ post-hearing memorandum
demonstrates that the first five arguments are without
merit. Each relies, to a greater or lesser extent, upon a
pair of legally untenable premises. One has already been
addressed: the plaintiffs’ incorrect belief that the RSA
chapter 482-A permitting process authorizes DES to consider
the impacts of upland construction upon protected wetlands.
The second faulty premise is that DES is authorized to
consider not just the impact of dredging and filling in
wetlands, but also the impacts projected to result from the
future use of a structure the construction of which
required permitted dredging and filling. For example, the
plaintiffs contend that DES was obligated to assess the
impact of sand and salt runoff from roadways over wetland
crossings constructed pursuant to the dredge and fill
permit for which Endicott applied. As with their upland
impact argument, the plaintiffs read the scope of RSA
chapter 482-A too broadly. The impacts to wetlands that RSA
chapter 482-A authorizes DES to consider are those created
by excavating, removing, filling, dredging and constructing
structures in or on banks, flats, marshes and swamps in and
adjacent to state waters. RSA 482-A:3. The statute does not
authorize DES to consider impacts created by the subsequent
use of structures constructed under duly issued wetlands
permits. Because the plaintiffs’ first five arguments all
depend upon one or both incorrect legal premises, they are
all without merit.
According to the plaintiffs, the trial court also erred by
failing to address their argument that Endicott failed to
assess, and the wetlands bureau did not properly consider,
the cumulative impacts of the project or its impacts upon
the functions and values of the total wetland complex. The
relevant DES regulations provide:
(a) For any major or minor project, the applicant shall
demonstrate by plan and example that the following factors
have been considered in the project’s design in assessing
the impact of the proposed project to areas and
environments under the department’s jurisdiction: . . . .
(16) The cumulative impact that would result if all
parties owning or abutting a portion of the affected
wetland or wetland complex were also permitted alterations
to the wetland proportional to the extent of their
property rights. For example, an applicant who owns only
a portion of a wetland shall document the applicant’s
percentage of ownership of that wetland and the percentage
of that ownership that would be impacted; (17) The impact
of the proposed project on the values and functions of
the total wetland or wetland complex[.]
N.H. Admin. Rules, Env-Wt 302.04.
In its June 10, 2002 application to the wetlands bureau,
Endicott described the wetlands on its property:
For purposes of the functions and values assessment
completed as part of this application, the wetland areas
on-site were divided into areas A, B, and C. Area A
corresponds to the Norton Brook drainage system, and areas
B and C correspond to the drainage systems of two unnamed
tributaries to Norton Brook. These wetlands areas are all
part of one watershed.
According to the application, “[a]ll impacts to wetlands are
associated with construction of access roadways to service
the subdivision, and the construction of spans and/or box
culverts over Norton Brook, unnamed tributaries to Norton
Brook, and unnamed wetlands.”
To address Rule 302.04(a)(16), the application provided:
“This project has been designed to minimize the amount of
wetland impact relative to the area of wetland on the
property. Any cumulative impacts would be negligible
providing the abutters impacted wetland proportional to
their property rights[.]” Thus, notwithstanding the
plaintiffs’ argument to the contrary, Endicott did address
the cumulative impact factor, and demonstrated in its
application materials that it proposed to fill less than
1.7 percent of the wetlands on the site. That is sufficient
to satisfy the requirements of Rule 302.04(a)(16). Because
the factual basis for the plaintiffs’ argument —
that Endicott failed to address the cumulative impact
factor — is plainly erroneous in light of the
record, the trial court cannot be faulted for declining to
address that argument.
So, too, with the plaintiffs’ argument concerning the
values and functions factor. To address Rule 302.04(a)(17),
the application provided:
Proposed impacts are minimal in relation to the overall
size and character of the wetland areas. The project
proposes to impact only 1.69% of the total wetlands on the
site. Measures will be taken to minimize the effect on the
functions or values of the wetland areas. A functions and
values assessment is included in this application. The
principal functions and values currently provided include
groundwater recharge/discharge, floodflow alteration,
fish and shellfish habitat, sediment/toxicant retention,
nutrient removal, production export, sediment/shoreline
stabilization, wildlife habitat, and uniqueness/heritage
(the wetland system contains potential feeding and
breeding habitat for two “special concern” turtle species
and supports an Atlantic white cedar stand). The
Conservation Easement areas associated with the project
will ensure the large wetland areas on the property
continue to provide these functions and are protected. The
proposed roadways represent fragmentation of habitat from
a wildlife perspective, but the wetlands will remain
contiguous via appropriately sized spans and box culverts.
As suggested by the foregoing passage, the application
materials did indeed include a “Wetland Function —
Value Evaluation Form” for each of the three enumerated
wetland areas on the property. Thus, the record does not
support the plaintiffs’ contention that Endicott failed to
address the values and functions factor, which completely
undermines any argument that the trial court erred in its
treatment of that issue.
Moreover, because the plaintiffs’ argument that the
wetlands board did not properly consider the factors set
out in Rules 302.04(a)(16) and (17) is premised exclusively
upon the erroneous contention that Endicott did not address
those factors in its application, there is no basis for
arguing that the wetlands bureau failed to consider the
project’s cumulative impacts or its impacts upon the values
and functions of the total wetland complex.
V
The plaintiffs further argue that the trial court’s
affirmance of the wetlands council’s decision was legally
erroneous because the council applied an overly deferential
standard of review and failed to specify the factual and
legal grounds for its decision.
Regarding the standard of review, the plaintiffs take issue
with the following portion of the wetlands council’s
decision:
By Rule, the Wetlands Council considers decisions of the
Department of Environmental Services, Wetlands Bureau
(“DES”), to be prima facie reasonable and lawful unless an
appellant can successfully overcome this rebuttable
presumption. An appellant can do this by presenting the
Council with a preponderance of clear and concise evidence
that otherwise persuades the Council such a decision was
unreasonable and/or unlawful. The Council finds that by
Rule it cannot substitute its independent judgment of the
facts and circumstances of a decision for that used by DES
in its own deliberations. It can instead only decide if,
given the facts and circumstances presented to it by (a)
the Certified Record of the particular application and (b)
the interested parties during the formal processes of
review and reconsideration below, that the resulting
Bureau decision was unreasonable and/or unlawful.
In the plaintiffs’ view, the wetlands council unlawfully
extended the statutory presumption of prima facie
lawfulness and reasonableness from questions of fact to the
decision as a whole. We do not agree.
The standard of review for the wetlands council is set
forth in RSA 482-A:10, V, which provides, in pertinent
part:
The appeal shall be determined upon the record below. 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.
While the wording of the wetlands council’s decision is
unconventional, it is not legally erroneous. Rather than
speaking in terms of a decision as a whole, most statements
about the standard of review on appeal are phrased in terms
of the deference due to findings of fact and the lack of
deference accorded to rulings of law. See, e.g., Appeal of
Int’l Bhd. of Police Officers, 148 N.H. 194, 195 (2002)
(“We presume the PELRB’s findings of fact to be lawful and
reasonable. We act as the final arbiter of the meaning of
the statute, however, and will set aside erroneous rulings
of law.” (citation and quotation omitted)). While such
phrasing may be the better practice, there is support in
our prior opinions for the wetlands council’s statement of
its standard of review. When reviewing the decisions of a
variety of state agencies under RSA 541:13, which is phrased
similarly to RSA 482-A:10, V, we have given those decisions
— not just their factual findings — a
presumption of validity. See, e.g., Appeal of Dep’t of
Safety, 123 N.H. 284, 285 (1983) (“The [New Hampshire
Personnel] [C]ommission’s orders come to us with a
presumption of lawfulness and reasonableness.”); Appeal of
National Advertising Co., 122 N.H. 1058, 1060 (1982) (“Both
parties agree that a commissioner[ ] [of public works and
highways’] decision is prima facie lawful. . . .”); State
Farm Mut. Auto. Ins. v. Whaland, 121 N.H. 400, 403 (1981)
(“An order of the [insurance] commissioner is presumed to
be prima facie lawful and reasonable and will be overturned
only when a plaintiff shows by a clear preponderance of the
evidence that it is unreasonable or unlawful.”).
Accordingly, the wetlands council’s statement of its
standard of review, if imprecise, was not incorrect as a
matter of law. Because the wetlands council did not
misstate its standard of review, the trial court,
necessarily, did not err by affirming the wetlands council’s
decision on that issue. Moreover, presuming that the
plaintiffs’ real concern is that the wetlands council
applied a deferential rather than de novo standard of
review to the wetlands bureau’s legal conclusion that RSA
chapter 482-A does not authorize DES to assess the impacts
of upland construction upon protected wetlands, any such
error would have been corrected at the next stage of the
appellate process, when the superior court correctly
applied the de novo standard of review to the wetlands
council’s legal determinations.
Finally, the plaintiffs contend that the trial court erred
by affirming the decision of the wetlands council because
the council failed to specify the factual and legal bases
for its decision to affirm the issuance of Endicott’s
permit.
After the wetlands council issued its decision in favor of
DES, DES moved for clarification, asking the council to
specify the legal and factual bases for its decision. The
council granted DES’ motion, but declined to issue specific
findings of fact or rulings of law, explaining that when an
appellant fails to rebut the presumption that a DES
decision is lawful and reasonable, the council is not
required “to make findings of fact or rulings of law to
explain, or to otherwise justify, how a decision of the
Department was reasonable and/or lawful.”
On appeal to the superior court, the plaintiffs noted,
among other things, that the wetlands council’s decision
failed to identify any of the nineteen grounds for appeal
it had accepted. While agreeing with the plaintiffs that
the wetlands council could have provided more detail in its
decision, the trial court concluded that because the
council seemingly accepted DES’ position on all issues, and
because DES’ findings were well supported in an
administrative record that encompassed more than 4,500
pages — which the trial court reviewed itself
— it was not necessary to remand the case for a more
detailed decision from the wetlands council.
The plaintiffs argue that the plain language of RSA
482-A:10, VI requires the council to specify the factual
and legal bases for all of its decisions — whether
affirming or remanding — in order to ease the burden
on the superior court when it hears appeals from the
wetlands council. DES contends that the statute only
requires factual and legal findings when the council
determines that a DES decision is unlawful or unreasonable
and remands the case. We do not agree.
The statute governing wetlands council review of DES
wetlands permitting decisions provides:
On appeal, the 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. The council shall specify the factual and
legal basis for its determination and shall identify the
evidence in the record that supports its decision.
RSA 482-A:10, VI. While it is perhaps arguable that the
second sentence of paragraph VI directs the council to
specify the factual and legal basis for its determinations
only when it remands a decision to the department, such a
reading is inconsistent with the statute as a whole. See
City of Rochester v. Corpening, 153 N.H. 571, 573 (2006)
(“We interpret statutes in the context of the overall
statutory scheme and not in isolation.” (citation
omitted)). RSA 482-A:10 contemplates not only remands to
the department, but also appeals to the superior court. See
RSA 482-A:10, VIII-XVII. In this case, the council’s failure
to specify the factual and legal basis for its affirmance
deprived the trial court of the benefit of the council’s
expertise in wetland matters, left the court to surmise the
basis for the council’s decision, and obligated the trial
court to undertake its own examination of a lengthy,
complex and highly technical record. This could not have
been the intent of the legislature. See, e.g., RSA 541:6
(1997) (requiring application for rehearing as prerequisite
for judicial appeal of agency decision, signaling
legislative preference for resolution by agency with
specific expertise). Accordingly, we hold that RSA 482-A:10,
VI requires the wetlands council to provide findings and
rulings both when it remands and when it affirms.
Ordinarily, we would remand to the superior court with
instructions to remand to the council to make the requisite
findings and rulings. See Chester Rod & Gun Club v. Town of
Chester, 152 N.H. 577, 583-84 (2005). We need not do so in
this case, however, because the trial court determined, as
a matter of law, based upon its review of the certified
record, that the council’s decision was legally correct.
See Id. at 583. Having reviewed the certified record
ourselves, we hold that it was sufficient for the court to
reach this conclusion. See Id.
Because the order of the trial court is neither legally
erroneous nor unsupported by the evidence, it is affirmed.
Affirmed.
DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.