NH Supreme Court Broadens Scope Of Review For Certain Wetland Permits

by Pierce Atwood LLP

On June 5, 2013, the New Hampshire Supreme Court vacated a decision of the Wetlands Council for failing to consider the total wetlands impact of a project.  The Court’s decision in Appeal of Thomas Morrissey has significant implications for the scope of the wetland permitting authority of the New Hampshire Department of Environmental Services.

The case arose when Lyme, NH property owners (the “petitioners”) appealed a ruling of the Wetlands Council affirming the issuance by the Wetlands Bureau (the “Bureau”) of a wetlands permit to the Town of Lyme. Specifically, the Town was granted a permit to add fill to a local wetland, Post Pond, in order to stabilize the pond’s water level and increase the size of an adjacent recreation area.

The petitioners appealed the issuance of the add-fill permit, arguing that the Bureau improperly issued the add-fill permit without considering the total wetlands impact of the proposed project.  The petitioners’ argument was based on the Bureau’s ruling that it lacked permitting authority over the Town’s lowering of the water level in Post Pond and the Bureau’s subsequent refusal to consider such lowering in its permit review.  In ruling that it lacked permitting authority over the lowering of the water level, the Bureau relied upon the absence of “water level changes” from the activities listed as requiring a permit in RSA 482-A:3, I(a). The Council affirmed the decision of the Bureau, and the petitioners appealed to the New Hampshire Supreme Court.

After dispensing with a number of procedural arguments, the New Hampshire Supreme Court reached the merits of the case and vacated and remanded the decision of the Council.  The Court relied on the fact that, pursuant to DES’s administrative rules (Env-Wt 302.04(a)(4), (17)), an applicant must demonstrate the total wetlands impact of a proposed project.  According to the Court, the Town’s practice of lowering the water level, while not constituting an activity listed in RSA 482-A:3, I(a), was part of the wetlands impact of the project, and thus had to be considered by DES.  Focusing on the purpose of the statute, which is to protect wetlands from the effects caused by dredging and filling within their boundaries, the Court wrote that if “DES could consider only activity that itself requires a permit, its regulatory authority would be severely curtailed and the purpose of the wetlands statute ill-served.”

As a result of this decision, when DES evaluates future permits for projects involving an activity that falls within the scope of RSA 482-A:3 (e.g., adding fill), DES may not decline to consider a related activity (e.g., setting water levels) that itself may not require a wetlands permit, if that activity has a bearing on the total wetlands impact of a proposed project. 

Going forward, applicants should be careful to consider and address impacts of activities that are not specifically listed in RSA 482-A:3, if such activities may be found to contribute to the “total wetlands impact” of a project. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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