2004-601, APPEAL OF THE TOWN OF NOTTINGHAM & a.

orally), for the respondent, USA Springs, Inc. Soltani/Mosca P.L.L.C., of Epsom (Edward C. Mosca on the brief and

brief), for petitioner Save Our Groundwater. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

orally), for petitioner Town of Barrington. Pierce Atwood LLP, of Portsmouth (Mark E. Beliveau on the brief and

Town of Nottingham. Kinder and Richard C. Bell on the brief, and Mr. Kinder orally), for petitioner Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (E. Tupper Errors may be reported by E-mail at the following address: errors in order that corrections may be made before the opinion goes to press. Opinion Issued: May 19, 2006 Argued: September 15, 2005

(New Hampshire Department of Environmental Services)

No. 2004-601 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Department of Environmental Services

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as water quality. p. 2 the application. The second denial was based only upon issues relating to

testing and analysis in a Final Report dated February 3, 2003.

quality. At USA Springs’ request, DES granted a rehearing, but again denied 2

communications with DES, “the required information as specified in [New

hydrogeologic testing at the site, USA Springs submitted the results of its

withdrawal permit,

withdrawal permit to the respondent, USA Springs, Inc. We affirm. meet regulatory requirements with respect to both water quantity and water

proposed bottling plant.” The letter stated that in accordance with prior Preliminary Application for a Large Groundwater Withdrawal Permit for a bedrock wells for the purpose of bottling water. Following completion of USA Springs, sent DES a letter which stated that it was “being submitted as [a] On December 29, 2003, MyKro Waters, Inc. (MyKro Waters), on behalf of

On May 24, 2001, USA Springs applied to DES for a large groundwater

Department of Environmental Services (DES) of a large groundwater DES denied the application on August 12, 2003, based upon failure to

withdraw up to 439,200 gallons of water per day from a spring and three

The following facts were found by DES or appear on the record before us.

and Save Our Groundwater (SOG), appeal the issuance by the New Hampshire DALIANIS, J. The petitioners, Town of Nottingham, Town of Barrington

memorandum), for Maude Barlow and the Blue Planet Project, as amici curiae. Goldblatt Mitchell, of Ottawa, Ontario, Canada (Steven Shrybman on the Gordon R. Blakeney, Jr., of Concord, on the memorandum, and Sack

memorandum), for Public Citizen, as amicus curiae. Duddy Law Offices, P.L.L.C., of Bedford (Roy A. Duddy on the

amicus curiae. for the New Hampshire Program of the American Friends Service Committee, as Jenkins Legal Services, of Eaton Center (Linda A. Jenkins on the brief),

attorney general, on the brief), for the State, as amicus curiae. Kelly A. Ayotte, attorney general (Jennifer J. Patterson, senior assistant

Steven B. Conklin, by brief, pro se. applicability of RSA chapter 21-O.

p. 3 Procedure Act, RSA chapter 541-A, and both it and SOG assert the

Nottingham raises an additional claim of error under the Administrative subject to RSA chapter 482-A, entitled “Fill and Dredge in Wetlands.” Nottingham and Barrington also contend that USA Springs’ proposed project is

issues in its evaluation of groundwater withdrawal permit applications.

thereunder. petitioners’ claims under RSA chapter 485-C and the rules promulgated and Other Water Conservation Projects,” requires DES to consider public trust RSA chapter 541-A and RSA chapter 21-O. Finally, we will turn to the the statement of policy in RSA chapter 481, entitled “State Dams, Reservoirs rules promulgated thereunder. In addition, Nottingham and SOG assert that

then address SOG’s constitutional takings claim and the issues raised under

claim a number of violations of RSA chapter 485-C and the administrative

evidence before it, that such order is unjust or unreasonable. petitioners’ claims under RSA chapter 481 and RSA chapter 482-A. We will

withdrawals of 57,600 gallons or more in any 24-hour period.” The petitioners to adopt rules in relation to, among other things, “[a]ll new groundwater issue. In particular, RSA 485-C:4, XII (2001) directs the commissioner of DES

law, unless the court is satisfied, by a clear preponderance of the We will first clarify the law applicable to this case by addressing the appealed from shall not be set aside or vacated except for errors of prima facie lawful and reasonable; and the order or decision

Protection Act, clearly applies to the large groundwater withdrawal permit at

upon all questions of fact properly before it shall be deemed to be

Federal and State Constitutions. RSA chapter 485-C, the Groundwater statutes, as well as claims under administrative rules, the common law and the This case involves the application of and interplay among various State

withdrawal permit on July 1, 2004. The petitioners appeal.

same is clearly unreasonable or unlawful, and all findings of [DES] seeking to set aside any order or decision of [DES] to show that the Upon the hearing the burden of proof shall be upon the party

C:21, VI. Thus, our standard of review is provided by RSA 541:13 (1997): from a DES decision would be in accordance with RSA chapter 541. RSA 485- At the time this appeal was filed, RSA 485-C:21, VI provided that appeals

permit. DES approved the application and issued a large groundwater DES to “document completion” of its final application for a large groundwater On March 10, 2004, MyKro Waters, on behalf of USA Springs, wrote to

submissions pertaining to DES comments.” Department in the February 3, 2003 [Final Report] . . . and subsequent Hampshire Administrative Rules,] Env-Ws 388.10 is already on file with the resources management and protection. p. 4 and with the state’s comprehensive plan and program for water to, the water resources of the state, shall comply with this policy

water resources, or over the use of the land overlying, or adjacent

private, having authority over the use, disposition or diversion of agencies, boards and commissions, and all other entities, public or state. All levels of government within the state, all departments,

economic, recreational and social well-being of the people of the

enhancement of ecological and aesthetic values, and the overall shall be sought, including the assurance of health and safety, the waters lying within its boundaries. The maximum public benefit

and responsibility to provide careful stewardship over all the

resource for the public benefit declares that it has the authority of present and future generations. The state as trustee of this which should be protected, conserved and managed in the interest

limited and, therefore, precious and invaluable public resource

a public trust obligation upon DES. Hampshire whether located above or below ground constitutes a

of purpose [for] an entirely different Chapter” and is therefore inapplicable to

withdraw groundwater.” SOG also appears to contend that RSA 481:1 imposes general court declares and determines that the water of New generations’ and the ‘maximum public benefit’ in assessing any application to an ever-increasing demand for new and competing uses. The administering RSA 485-C, . . . to consider ‘the interest of present and future the state. Further, the water resources of the state are subject to

USA Springs, on the other hand, argues that RSA 481:1 is “the statement

resource to the maximum public benefit.”

RSA 481:1 (2001). Nottingham asserts that this statute directs DES, “in state and is essential to the balance of the natural environment of

authority to consider the public trust mandate to manage the groundwater

indispensable to the health, welfare and safety of the people of the

Conservation Projects, sets forth the following declaration of policy:

485-C, and that DES erred in “conclud[ing] that it has no obligation or

The general court finds that an adequate supply of water is

Section one of RSA chapter 481, State Dams, Reservoirs and Other Water

RSA 481:1 applies to large groundwater withdrawals governed by RSA chapter and the public trust doctrine. Nottingham argues that the policy expressed in Nottingham and SOG raise a number of issues dealing with RSA 481:1

I. RSA 481:1 and the Public Trust Doctrine withdrawals, and it specifically instructs that these rules shall include:

resources are being adversely affected by the withdrawals. contribution to the withdrawal. withdrawals if hydrogeologic data indicate that water-related residential, and farm wells within the anticipated zone of

applicant must prove and DES must demand.” contention that “[c]ompliance with the rules is the bare minimum which the and valid rules promulgated thereunder. We therefore reject Nottingham’s RSA 48 p. 5 5-C:4, XII directs DES to adopt rules relating to large groundwater

refers have “generally been developed . . . through tort law.” It then argues that common law. It first acknowledges that the common law concepts to which it adversely affected by the proposed withdrawal or order reduced SOG asserts that a public trust in groundwater is also established by waters, water-related natural resources, and public, private,

reviewing a groundwater application is circumscribed by RSA chapter 48 p. 5 5-C (2001). It does not incorporate RSA 481:1 by reference. As previously noted, RSA 485-C:4, XII. We conclude that the scope of DES’ consideration in groundwater management in the public trust and interest.” RSA 485-C:1, II statement of purpose, which references the State’s “general responsibility for

supply at no initial capital cost to persons whose wells are address impacts of withdrawals on surface waters, subsurface as provided by department rules, for provision of alternative water for withdrawals or order the applicant to provide a response policy, (c) Procedures by which the department may deny permission statute. provisions of RSA chapter 48 p. 5 5-C control over RSA 481:1, the more general submitted by the persons seeking approval for a withdrawal. groundwater withdrawal permit.” Rather, the State argues, the more specific which demonstrate the need for the proposed withdrawals, to be (b) Requirements relative to conservation management plans

apply. RSA chapter 48 p. 5 5-C, the Groundwater Protection Act, contains its own

(a) Criteria and procedures for requiring persons to identify and

particular analysis or make any specific finding prior to issuing an individual

permits and that RSA 481:1 imposes no specific additional test that DES must provides the criteria that DES must follow in issuing groundwater withdrawal We agree with USA Springs and the State that RSA chapter 48 p. 5 5-C

to control a specific case over a general law.”).

See State v. Rix, 1 p. 5 50 N.H. 131, 133 (2003) (“A specific law is deemed

for the state as a whole, it does not impose a duty on DES to engage in any “[w]hile the language of RSA 481:1 sets ambitious general public policy goals RSA chapter 48 p. 5 5-C. In addition, the State, as amicus curiae, contends that include.”

p. 6 the legislature might have said or add words that the legislature did not

state . . . .” Under the second interpretation, the direct object is the phrase in or on any bank, flat, marsh, or swamp in and adjacent to any waters of the direct object is “structures”: “No person shall . . . remove . . . any structures

that no additional public trust test must be applied, we reject this argument.

statute that is not there; namely, “water.” “The starting point in any statutory purposes of RSA 482-A:3, I. This interpretation, however, adds a word to the

no obvious direct object. Two interpretations are possible. Under the first, the

criteria that DES must follow in issuing groundwater withdrawal permits, and have held a prime wetlands hearing pursuant to RSA 482-A:11, IV (2001). RSA 482-A:3, I (Supp. 2005) (amended 2003, eff. July 1, 2006) and should

from Barrington Prime Wetland #40 constitutes a removal of that water for

We find RSA 482-A:3, I, to be ambiguous in that the word “remove” has

omitted).

In re Juvenile 2003-604-A, 151 N.H. 719, 720 (2005) (citation chapter 485-C and the regulations promulgated thereunder provide the sole

consistent with its public trust obligations.” In light of our holding that RSA should have required USA Springs to apply for a dredge and fill permit under and the operations of private wells. . . . DES has not explained how this is

department.” Nottingham and Barrington argue that the drawdown of water or swamp in and adjacent to any waters of the state without a permit from the to the statute that the legislature did not see fit to include.” remove, fill, dredge or construct any structures in or on any bank, flat, marsh, RSA 482-A:3, I, provides, in part, that “[n]o person shall excavate,

proposed groundwater withdrawal. In particular, they contend that DES lower the water table over a broad area thus impacting both natural resources chapter 482-A, entitled “Fill and Dredge in Wetlands,” to USA Springs’ Nottingham and Barrington argue that DES erred in not applying RSA

II. RSA chapter 482-A and Barrington Prime Wetland #40

asking us to add to them. “It is not the function of this court to add provisions

Nottingham also argues that “DES’ decision will allow USA Springs to

Richards, 134 N.H. 148, 162, cert. denied, 502 U.S. 899 (1991).

is not asking us to interpret the statutory and regulatory provisions; it is the statutory and regulatory scheme governing groundwater withdrawals. SOG We decline SOG’s invitation to engraft common law tort principles onto

guidelines for application of the public trust doctrine.” here;” or “[s]aid differently, New Hampshire’s reasonable use rule provides “[t]he standards which have evolved for private disputes can apply equally well forth in RSA 482-A,”

p. 7 values for submerged lands under tidal and fresh waters and its wetlands as set in contamination of water in their wells.

has been no finding of a public purpose [for the taking], and no compensation.”

that define adverse impacts for a major withdrawal to include “[a] net loss of cause early wear on homeowner’s pumping equipment, and result or new wells to maintain water availability, decrease well pressure, the level of water in homeowners’ wells, require deepening of wells

and Federal Constitutions. It argues: USA Springs is an unconstitutional taking of property in violation of the State SOG then asserts that USA Springs’ permit must be revoked because “there

the anticipated zone of contribution to the withdrawal.” DES has adopted rules related natural resources, and public, private, residential, and farm wells within address impacts of withdrawals on surface waters, subsurface waters, water- holding a public hearing under RSA 482-A:11, IV. also reject Nottingham and Barrington’s argument that DES erred in not Springs, Inc. will (and during pump testing already did) decrease withdrawal is not subject to the permitting requirements of RSA 482-A:3, I, we [T]he hydro-geological reality is that the mining of water by USA

SOG contends that granting a large groundwater withdrawal permit to

III. Taking

except as provided in this subdivision.” that include “[c]riteria and procedures for requiring persons to identify and below the natural mean high water level of any public waters of this state, excavate, remove, or dredge any bank, flat, marsh, swamp, or lake bed that lies Because we conclude that USA Springs’ proposed groundwater

criteria for wetlands monitoring and reporting, id. 388.20(c).

supports Nottingham and Barrington’s position. This conclusion does not

We note, for instance, that RSA 485-C:4, XII(a) directs DES to adopt rules similar wording of RSA 482-A:21, I (2001), which provides: “No person shall RSA 482-A:3, I. permitted) activity;” it merely means that the activity is not regulated under destructive result [as filling or dredging wetlands] amount to unregulated (i.e.,

We need not determine which interpretation is correct, as neither

permit from the department.” This interpretation finds some support in the flat, marsh, or swamp in and adjacent to any waters of the state without a “any bank, flat, marsh, or swamp”: “No person shall . . . remove . . . any bank, p. 8 8

unless the property has been rendered useless for certain purposes.

the Federal, as well as the State, Constitutions, they “are not created by the argument. We note, however, that while property interests are protected under considered “private property” requiring condemnation proceedings SOG has cited case law from other jurisdictions in support of its takings

not gathered into natural water-courses.” of groundwater, did not state a claim for compensation.” owner has the entire and unqualified ownership of all water found in his soil, land. In this case, plaintiffs’ complaint, alleging only a deprivation of the flow assertion of a property right, however, actually rejects the view that “each land- Florida Supreme Court: the use of ground water is not a loss of the use or enjoyment of the overlying Summit County, 721 N.E.2d 4 p. 8 82, 488 (Ohio Ct. App. 1998), held: “The loss of omitted), cert. denied, 444 U.S. 965 (1979). Similarly, the court in Smith v. Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663, 668 (Fla.) (citations

injunction, or regulated by law, but the right of user is not lying under the land. . . . This “right of user” may be protected by The right to use water does not carry with it ownership of the water

of the claim. subterranean water flows.” (Citations omitted.) The case SOG cites for its We find this distinction fatal to SOG’s takings claim. As stated by the SOG has standing and has preserved the issue, and we will address the merits is only to a reasonable user or management.” Id. of absolute ownership of the groundwater beneath one’s land, “the right of each his own property, in view of the similar rights of others.” Id. Therefore, instead each [land-owner] to a reasonable exercise of his own right, a reasonable use of maxim, ‘. . .” Sic utere,’ &c., therefore applies, and, as in many other cases, restricts taking for purposes of part I, article 12 of the State Constitution has occurred . 577 (1 p. 8 862). Rather, Bassett adopted the doctrine of reasonable use: “The

unconstitutional taking . . . because landowners have a property right in it in its motion for rehearing. We will assume without deciding, however, that asserts that “[p]ollution or diminution of one’s drinking water is an protected under the United States Constitution’s Fifth Amendment). SOG inquiring, in a federal taking claim, whether Monsanto had a property interest (1992)); see also Ruckelshaus v. Monsanto Co., 467 U.S. 9 p. 8 86, 1000 (1984) (first Adams v. Bradshaw, 135 N.H. 7, 14 (1991), cert. denied, 503 U.S. 960

interest in what is allegedly being taken. “In the absence of a property right, no USA Springs also challenges SOG’s claim for failure to show a property

claim and that it has not preserved the issue because it failed to properly raise USA Springs first contends that SOG lacks standing to bring a takings hearing.” RSA 541-A:1, IV (1997).

p. 9 admitted to the proceeding as a party.

by law to be determined by an agency after notice and an opportunity for a

Nottingham has failed, however, to point us to any evidence that it was

proceeding in which the legal rights, duties, or privileges of a party are required it is considered a contested case.” “Contested case,” in turn, is defined as “a commence an adjudicative proceeding if a matter has reached a stage at which entitled as a right to be admitted as a party.” RSA 541-A:1, XII (1997). person or agency named or admitted as a party, or properly seeking and in the permit proceeding as a party.” “Party” is statutorily defined as “each 9

We also note that in its motion for adjudicative hearing, filed on July 20, 2004, the trial court’s action thereon were contained in the record before this court). case are in fact provided to the supreme court.”); purported motion to substitute or add a party, where neither the motion nor

us. however, does not appear to be included in the portion of the record provided to intervene in the USA Springs proceeding. DES’ decision on this motion, case.” RSA 541-A:31, I (1997) provides in relevant part that “[a]n agency shall

applicant’s proposal relative to the rights of the municipality and participated

and necessary for the court to decide the questions of law presented by the in support of contention that plaintiff was not a real party in interest, a Cf. Cook v. CIGNA Ins. Co., 139 N.H. 486, 488 (1995) (refusing to consider,

Our review of the record reveals that in May 2003, Nottingham moved to hearing because “consideration of the application had become a contested Specifically, Nottingham argues that DES should have held an adjudicative record”). that such a hearing was required under RSA 541-A:31 and DES’ own rules. was a party to the USA Springs proceeding. It states that it “contested the questions presented “with appropriate references to the appendix or to the party’s brief shall contain statement of facts material to consideration of

shall be responsible for ensuring that all or such portions of the record relevant

adjudicative hearing, which they requested in July 2004. Nottingham argues Nottingham’s argument appears to be based upon the assertion that it

property interest under New Hampshire law.

differs materially from our own,

Nottingham and SOG argue that DES erred in failing to hold an

IV. Adjudicative Hearing

76, 123 (Fed. Cl. 2005), and conclude that SOG has not shown a protected

do not find persuasive cases from jurisdictions in which the law of water rights as state law.” Ruckelshaus, 467 U.S. at 1001 (quotations omitted). Thus, we existing rules or understandings that stem from an independent source such Constitution. Rather, they are created and their dimensions are defined by regarding the proposed withdrawal. RSA 485-C:21, III, V (2001). p. 10 contribution, and for the submission by such municipality to DES of comments request of the governing body of any municipality within the anticipated zone of

provides for the holding of a public hearing on the application upon the timely

need not address this argument further. 10

administrative agency due process requires a meaningful opportunity to be water within the anticipated zone of contribution to the well.” The statute also the applicant to the governing bodies of each municipality and each supplier of withdrawal of 57,600 gallons or more “shall be forwarded by certified mail by presence of significant social issues. It first argues, quoting

failed to demonstrate that it was a party to the USA Springs proceeding, we contention that this is a contested case. reject its argument that it is entitled to an adjudicative hearing based upon its failed to refer us to evidence in the record of its purported party status, we interpreted to also allow access to an adjudicative proceeding to a municipality 163, 168 (1975), that “[w]here issues of fact are presented for resolution by an Protection of New Hampshire Forests v. Site Evaluation Committee, 115 N.H.

the permit is denied.” adjudicative hearing. Specifically, it asserts the right to an adjudicative SOG contends that its federal and State constitutional rights require an

permit.” (Emphasis added.) As we have previously noted that Nottingham has which was a party to the permit proceeding and is aggrieved by the grant of a

submit comments to the agency make one a party. Because Nottingham has would violate principles of due process and equal protection unless it is municipality to an adjudicative hearing if the permit is granted, the regulation argues that “[a]lthough the regulation is silent as to the right of the opportunity to be heard under RSA 485-C:21. RSA 485-C:21, II (2001) N.H. Admin. Rules, Env-Ws 388.23(f). Nottingham applicant with an opportunity for a hearing in accordance with RSA 541-A:31 if a hearing under Rule 388.23(f), which provides that DES “shall provide the For similar reasons, we reject Nottingham’s argument that it is entitled to

hold, does the entitlement to notice of the proceedings and the opportunity to proceeding. See Appeal of Toczko, 136 N.H. 480, 486 (1992). Nor, we now issue before an administrative agency does not make one a party to the definition of contested case is met because it was entitled to notice and an We have noted, however, that the ability to call a public hearing on an

Nottingham makes a similar argument on appeal, contending that the

heard.” (Emphasis added.) a status equivalent to that of a party entitled to notice and opportunity to be that certain “language [in RSA 485-C:21] provides affected municipalities with Nottingham did not refer to itself as a party or an intervenor, but rather argued hearing p. 11 any action is to be taken regarding SOG’s underlying contention that a formal

agencies to engage in activities not authorized by their governing statute. If

briefed and, therefore, decline to address it.

cites, and we note that it is not this court’s function to “prod” administrative 11

entail.

this proceeding. Accordingly, we conclude that this issue was not adequately

examine the following three factors: to similarly “prod” DES. We find no support for SOG’s premise in the cases it whether “due process requires meaningful cross-examination,” we would was a forum in which substantial public rights are decided.” It then urges us agency] stopped behaving as a mere permitting agency and recognized that it

that the additional or substitute procedural requirements would

gallons of the public’s groundwater,” it for the legislature to determine. not address this argument.

should be required “for the DES to adjudicate the removal of millions of makes no developed argument as to why it has a right to cross-examination in

under the State Constitution as a basis for this alleged right. To determine Finally, SOG contends that “[w]ith the prodding of this court [another

152 N.H. 477, 483-84 (2005). the function involved and the fiscal and administrative burdens

SOG neither cites nor discusses the foregoing three-factor analysis, and

Bagley, 128 N.H. 275, 285 (1986). In re Eduardo L., 136 N.H. 678, 686 (1993) (quotations omitted); see Petition of

of cross-examination.” Read broadly, SOG’s brief appears to cite due process

procedural safeguards; and (3) the government’s interest, including used, and the probable value, if any, of additional or substitute presented in this case, due process requires a hearing on public use, loss to an erroneous deprivation of such interest through the procedures (1) the private interest affected by the official action; (2) the risk of

SOG next claims an entitlement to a hearing based upon an alleged right

SOG also argues that because “a constitutional takings issue” is

heard was provided by the public hearings on USA Springs’ permit application. opportunity to be heard.” Id. We similarly conclude that an opportunity to be ‘public hearings’ on applications for site and facility, . . . provided an heard.” That case held, however, that the statute in question, “[i]n requiring p. 12 . . . .”

efficient use of, and need for, the proposed withdrawal in the permit application

conservation management plan and description of need to demonstrate the

388.05, in turn, provides in part, that “[t]he applicant shall prepare a water the need for the proposed withdrawals,” RSA 485-C:4, XII(b) (2001). Rule of both the statutory language and DES’ regulations is that ‘need’ and ‘efficient “[r]equirements relative to conservation management plans which demonstrate Nottingham, on the other hand, argues that “[t]aken in context, the clear intent permit is a term of art used to describe efficiency or conservation.”

and SOG’s interpretation of the statutes. (Supp. 2005), an action that would have been unnecessary under Nottingham RSA 485-C:21, VI, as the more specific statute, should control. withdrawals of 57,600 gallons or more in any 24-hour period,” including under this section shall be in accordance with RSA 541.” It then argues that C:21, VI, which directs that “[r]ehearings and appeals from a decision of [DES] and others, that “[n]eed in the context of a large groundwater withdrawal

[DES] may be appealed in accordance with RSA 21-O:7, IV,” RSA 485-C:21, VI 485-C:4, XII directs DES to adopt rules relating to “new groundwater need, as required by statute and DES’ rules, for its proposed withdrawal. RSA 21-O:14.” USA Springs contends that RSA 21-O:7 conflicts with RSA 485- DES stated, in its denial of motions for rehearing filed by the petitioners

N.H. Admin. Rules, Env-Ws 388.05(a).

legislature amended RSA 485-C:21, VI in 2005 to provide that “[d]ecisions of The petitioners argue that USA Springs failed to make the showing of decisions made under RSA 482-A relative to wetlands, in accordance with RSA A. Need

review by the Water Council.” VI. RSA chapter 485-C and DES Rules its terms, exclude any step in the appeal process, such as an intermediate statutes, arguing that because RSA chapter 541 is “procedural, it does not by

as the more specific statute, it controls over RSA 21-O:7. We note that the an explicit procedure for appeals, RSA 485-C:21, VI excludes any other, and, We agree with USA Springs that the two statutes conflict: in providing functions and responsibilities of the division of water other than [DES] council shall hear and decide all appeals from [DES] decisions relative to the IV (2000) (amended 2003, 2004), which provides, in part, that “[t]he water

N.H. at 133. Nottingham and SOG, on the other hand, attempt to reconcile the

intermediate appellate review before the water council pursuant to RSA 21-O:7, Nottingham and SOG argue that they should have been afforded

V. Appeal under RSA chapter 21-O scheme, p. 13 where sustainability is dealt with in other parts of the statutory and regulatory

concepts of sustainability and public interest into the term need, particularly

this proposed withdrawal was “desirable[] or useful,” needs and demands.” We conclude that DES could reasonably have found that

in RSA 481:1.” Again, we can find no statutory or regulatory basis to import of the extracted groundwater is not contrary to the public interest, as declared environment to tolerate and sustain the withdrawal and, that the proposed use

proposes the withdrawal of a specified amount of groundwater “[t]o meet the[se]

that its proposed withdrawal is both reasonable in terms of the ability of the

water for which there is increasing consumer demand.” The Report then project will produce for consumers in the general public, healthy drinking require a demonstration by the applicant that the extraction level was be nearly 12% annually in the years ahead.” It also states that the “proposed

for withdrawals in excess of 57,600 gallons per day one must first establish 13

conduct an analysis of need, Nottingham asserts: “For example, it did not indicates that the growth rate for consumer demand for bottled water sales will

requirement. Similarly, Barrington argues that “in order to demonstrate ‘need’

see, e.g., RSA 485-C:4, XII(a); N.H. Admin. Rules, Env-Ws 388.18, and proffered by the petitioners. For instance, in arguing that DES failed to demand for bottled drinking water in the United States” and “research [that]

useful.”

by its business plan.” We can find no statutory or regulatory basis for such a

We note that we are not persuaded by any of the definitions of need cites both “data [that] clearly indicate that there is a strong existing public with RSA 485-C:4, XII(b) and Rule 388.05. reasonably have concluded that USA Springs’ description of need complied

desirable, or useful.”

patently unreasonable.” We disagree, at least in part. The description of need in USA Springs’ February 3, 2003 Final Report

Id.

(unabridged ed. 2002). Thus, RSA 485-C:4, XII(b) and Rule 388.05 require

definition of “need” in Webster’s dictionary is “a want of something requisite, meaning.” Kenison v. Dubois, 152 N.H. 448, 451 (2005). The most relevant statutory terms are undefined, we ascribe to them their plain and ordinary The legislature has failed to define “need” in RSA chapter 485-C. “When

that allows it to simply approve any amount requested by an applicant is determine what “need” means. Nottingham argues that “DES’ interpretation something different from “efficient use,” however, we would still have to Even if we were to accept Nottingham’s contention that “need” means

applicant.” use’ are two different concepts, both of which must be satisfied by an advanced by the entire statutory scheme.” p. 14 to adequately brief it. an argument, however, we would consider it waived due to Nottingham’s failure

legislature’s intent in enacting them, and in light of the policy sought to be appears. In particular, “[o]ur goal is to apply statutes in light of the standards or regulations for an applicant to meet.” Even if we took this to be interpretation should be guided by the statutory context in which the term

regulation and with the purpose which the regulation is intended to serve.” interpretation to determine if it is consistent with the language of the regulations, “that deference is not total. We still must examine the agency’s regulations.” settled that an administrative agency must follow its own rules and See State v. Hermsdorf, 135 N.H. 360, 365 (1992). whole rather than in segments.

in its brief that “DES should have developed a stringent set of permitting different from the statutory term before us, we agree with USA Springs that our validity of DES’ regulations themselves. Nottingham makes a passing comment We note that neither Nottingham nor Barrington appears to challenge the

(quotation omitted).

Finally, while we accord deference to an agency’s interpretation of its own rules in assessing USA Springs’ application. “The law of this State is well Appeal of Alley, 137 N.H. 40, 42 (1993). (2000) (quotation omitted). We also look at the rule we are construing as a and ordinary meanings to words used.” Appeal of Flynn, 145 N.H. 422, 423 When interpreting agency rules, “where possible, we ascribe the plain not reasonably essential.” Not only is this a definition of a compound term

testatrix intended.” Appeal of Gallant, 125 N.H. 832, 834 (1984). contradict the terms of a governing statute exceed the agency’s authority.” Appeal of Morin, 140 N.H. 515, 519 (1995), and “agency regulations which agency “must also comply with the governing statute, in both letter and spirit,”

Attitash Mt. Service Co. v. Schuck, 135 N.H. 427, 429 (1992). An

Nottingham and Barrington argue that DES also failed to follow its own

B. DES’ Failure to Follow its Own Rules rigid meaning. However, they do not cover that which is merely desirable and words ‘necessities and needs’ . . . are rather relative terms having no fixed or Amoskeag Trust Co., 99 N.H. at 347. arising in the interpretation of a will, which itself was guided by “[w]hat the interpretation of the Groundwater Protection Act a purported definition of need (2003) (quotation omitted). We therefore decline to import into an

N.H. 346, 348 (1955) (citation omitted), for the following definition: “[T]he Finally, Barrington and SOG cite Amoskeag Trust Co. v. Wentworth, 99

for groundwater withdrawal applications. we have already determined that RSA 481:1 imposes no specific additional test unmitigated adverse impacts occur as required by Env-Ws 388. p. 15 data contained in its application. This approach ensures that no impacts based upon a conservative “worst case” interpretation of

uncertainties associated with its withdrawal test and potential

monitoring, reporting, and mitigation program to address interpreted. USA Springs also proposed an environmental contradictions exist in how data from the withdrawal test can be

address impacts to water users and water resources.” DES then noted: the conceptual hydrologic model, the model shall: environmental monitoring, reporting and mitigation would be required to this hydrologic model “as the basis for concluding that very limited

known and unknown model parameters. response to the Department’s comments and acknowledged that associated with the withdrawal that could occur given the (2) Estimate the reasonably suspected hydrologic scenario(s)

understanding the impacts of the proposed withdrawal; and (1) Identify the data gaps and their significance to

(f) Where data gaps are identified during the development of

“presented two conflicting conceptual models” and that USA Springs had used in the available data may exist and that the model may later need to be refined: Admin. Rules, Env-Ws 388.04 (c)(2). Rule 388.06 itself contemplates that gaps hydrologic model of the withdrawal in accordance with Env-Ws 388.06.” N.H. major withdrawal permit is that the applicant “[d]evelop a conceptual submittals it made in August 12, 2003 and September 11, 2003 in were isolated from each other and that they were closely connected.” DES regulations provide that one of the requirements for obtaining a

acknowledged that the hydrologic model in USA Springs’ first application

Report. However, it did substantially revise its application in the model posited “simultaneously that the bedrock and overburden aquifers conceptual [hydrologic] model put forth in its February 2003 Final USA Springs never fully reconciled the contradictions in the

In its decisions and findings related to the issuance of the permit, DES

model from USA Springs that “contained direct contradictions.” Specifically, Nottingham argues that DES erred in accepting a conceptual hydrologic

1. Conceptual hydrologic model

erred in interpreting its rules. We address each claim of error in turn. Thus, as we read Nottingham’s and Barrington’s briefs, they argue that DES monitoring, reporting and mitigation programs, we cannot say that DES’ p. 16 Accordingly, in light of USA Springs’ proposed implementation of impact situations, including impact monitoring, reporting and/or mitigation programs.

impact is: provided the available information does not suggest that an

hydrologic model. The rules then provide mechanisms for dealing with these

withdrawal permit,”

adverse impacts from the large withdrawal will not occur,

available data will be insufficient to develop a completely accurate conceptual Alley, 137 N.H. at 42, we conclude that it anticipates situations in which the Looking at the applicable regulatory scheme as a whole, cf. Appeal of

during the permit application process,” id. 388.21(a)(1). these rules.” mitigation from the start of operation to prevent adverse impacts anticipated Ws 388.08 that are necessary to complete impact assessments required by id. 388.20(i), and “[a] withdrawal permit requires “impact monitoring and reporting program [is made] a condition of the Id. 388.20. In addition, the regulations contemplate situations in which an

accordance with these rules, is not sufficient to verify that from the withdrawal. in Env-Ws 388.21 is effective in preventing adverse impacts (2) It is necessary to ensure that impact mitigation identified

b. Will occur immediately; and

a. Irreversible; or

data gaps, limitations, or insufficiencies identified in Env-Ws 388.06 and Env-

(1) Available information, including work completed in

Ws 388.06(f) as a result of the data gaps or complexity of the geology.” program when: (a) A permittee shall conduct impact monitoring and reporting

Id. 388.09(c). Rule 388.20 provides in part:

388.09(c), a withdrawal testing program “shall be designed to address critical for impact monitoring, reporting and/or mitigation. Pursuant to Rule Data gaps are also contemplated in the rules for withdrawal testing and

388.06(f).

describe limitations to the estimate of the withdrawal effects identified in Env- Id. 388.06. In addition, Rule 388.08(f) provides that “[t]he applicant shall

388:17. to refine the model to complete the report required in Env-Ws (g) The conceptual hydrologic model shall identify data needed and Env-Ws 388.16. p. 17 recharge condition required by Env-Ws 388.06(h), Env-Ws 388.14,

analyses for the effects of precipitation and met the 180 day no net

decision. The addendum provided by USA Springs corrected the on August 12, 2003, several hours after the Department issued its revised its analyses and submitted an addendum to its application

in its Final Decision dated August 12, 2003. USA Springs then

interpretation of those rules.

of withdrawal is sustainable,” it accepted a pumping test during which the state of dynamic equilibrium that promotes a conclusion that the proposed rate testing that “[i]f the test is designed properly, water levels should come into a deficiency to USA Springs in a letter dated April 11, 2003 . . . and

conditions, constituted either a failure to follow its own rules or an erroneous

analysis: findings indicate, however, that USA Springs did submit supplemental Nottingham argues that although DES stated prior to USA Springs’ before and during the test. The Department described this during the withdrawal test that included the effects of precipitation 3. Stabilization of wells during testing analyses initially completed by USA Springs used data collected

obtained under poor testing conditions, but adjusted to meet the specified effects under specified conditions. We cannot say that DES’ acceptance of data do not require testing under ideal conditions, but testing designed to estimate Rules, Env-Ws 388.09(a) (emphases added). We conclude that the regulations maximum rates without recharge from rainfall or snowmelt.” N.H. Admin. model withdrawal conditions, that is, 180-days of continuous operation at the data[,] [i]nstead of requiring another test or supplemental data . . . .” DES’ designed to estimate the effect of the withdrawal under conceptual hydrologic Pursuant to Rule 388.09(a), “[a] withdrawal testing program shall be

actually adjust field data to this no recharge condition. The

“testing under very poor conditions, which adversely impacted the quality of

Env-Ws 388.14, and Env-Ws 388.16, but the analysis did not precipitation to groundwater as required by Env-Ws 388.06(h), it claimed reflected conditions of 180 days of no net recharge from In February 2003, USA Springs provided a conceptual model that

Nottingham argues that DES erred in accepting a report based upon

2. Poor testing conditions

interpretation of those rules. constituted either a failure to follow its own rules or an erroneous acceptance of USA Springs’ ambiguous conceptual hydrologic model impacts from the large withdrawal will not occur,”

p. 18 groundwater, an issue later addressed in a condition in the approved permit.

that the available information may not be “sufficient to verify that adverse

large withdrawal” except for impacts associated with contaminated impacts that occur as a result of the withdrawal will not be: USA Springs “adequately address[ed] the probable impacts of the proposed water level impacts from occurring.” It then found that the final proposal by

accordance with Env-Ws 388.20. 2. A monitoring and reporting program is implemented in demonstrates that the withdrawal will:

whether such impacts will occur. For instance, Rule 388.20(a) contemplates (ii) An irreversible impact; and

1. There is sufficient information to verify that any adverse

forward by USA Springs “could proactively prevent adverse water quantity or b. Result in impacts that can and will be mitigated, provided:

information in the report produced in accordance with Env-Ws 17 withdrawal may occur and, moreover, that there may be uncertainty as to 388.23,” id. 388.23(b) (emphasis added), when, among other things, “[t]he “shall issue or renew a major withdrawal permit described pursuant to Env-Ws and mitigation. Id. 388.20, 388.21. In fact, Rule 388.23(b) directs that DES for monitoring instead of requiring accurate data.” rather require the implementation of measures such as monitoring, reporting which allowed a deficient application to be approved by substituting conditions Nevertheless, the rules do not mandate denial of the application, but

388.16(e)(3), and that “potentially might occur,” id. 388.16(e)(2). 388.20(a), and Rule 388.16 refers to adverse impacts that “might occur,” id. mitigation plan.” DES found that the monitoring and reporting program put N.H. Admin. Rules, Env-Ws necessitating the development of an acceptable monitoring, reporting and proposed withdrawal will partially dewater bedrock and overburden aquifers

DES’ rules anticipate that adverse impacts due to the proposed

the applicant to satisfy its burden of proof, DES again carved out an exception

DES stated: “The withdrawal test for USA Springs demonstrated that the In its December 11, 2003 findings and decision on motion for rehearing,

and overburden aquifers but does not know the extent. Instead of requiring asserts: “DES concedes that the proposal will partially dewater both bedrock wells did not stabilize prior to termination of the test. Nottingham further with Env-Ws 388.20.” p. 19 obtain approval of an impact monitoring and reporting program in accordance

an interpretation would be unreasonable.” a reduction to 75% of permitted capacity), 19

and verify that adverse impacts will not occur, the applicant shall develop and

regulations could be interpreted to allow DES’ “wait and see” approach, “such Reporting Program referenced in Env-Ws 388.20,” and that even if the implementation of the [Stage I management procedure], (calling for “DES has accepted the illusory protection of the Impact Monitoring and Nevertheless, DES adopted a permit condition which requires required by the rule (Env-Ws 388.21).” (Emphasis added.) The source of the water levels assuming 180 days of pumping without recharge. require . . . [it to] provide mitigation on a schedule more stringent than that DES found, however, that “USA Springs’ plan and permit conditions observations under operating conditions are necessary to validate test results the standard. permit condition is unreasonable because it is less stringent than groundwater levels projected for 180 day[s] with no recharge. The groundwater is drawn down to a level 15 feet below the [of the] words used,” only when the

exposes the public resource to risk.” Specifically, Nottingham argues that In its regulations, DES uses a conservative standard of modeling

Nottingham argues: conditional approach. For instance, Rule 388.04(c)(14) provides that “[w]hen

5. Imposition of a condition less stringent than regulatory standard

erroneous.

interpretation of its rules in accordance with the “plain and ordinary meanings contended that the rules themselves are invalid and we cannot say that DES’

As indicated above, however, DES’ rules expressly contemplate a follow its own rules or an erroneous interpretation of those rules. monitoring, reporting and mitigation conditions constituted either a failure to Accordingly, we cannot say that DES’ approval of a permit imposing

Nottingham contends that “DES substituted the requirement of a

4. Adoption of a “wait and see” approach

order the applicant to provide a response policy.” RSA 485-C:4, XII(c). DES to adopt procedures by which it “may deny permission for withdrawals or Id. 388.23(b)(2), b. Furthermore, the governing statute expressly authorizes recharge to the bedrock aquifer to be of the same magnitude as p. 20 of the withdrawal. The Department finds USA Springs estimate of

Env-Ws 388.” It elaborated as follows:

and/or 2) Monitoring data collected during the long-term operation

specifically necessary for the Department to issue a permit in accordance with

1) Published research relevant to a particular geologic setting; to derive estimates of recharge rates for almost any aquifer from: water supply is developed. In fact it is standard industry practice

impractical and “inconsistent with industry practices,” but also “[n]ot found, however, that “[d]etermining this value for a bedrock aquifer is” not only water from each separate precipitation event recharges the bedrock aquifer.” It

separate precipitation events is a regulatory requirement when a

attempt was made [by USA Springs] to determine how quick[ly] and how much

where the analysis of the exact timing of recharge associated with

less stringent than that standard.

In its July 1, 2004 decisions and findings, DES acknowledged that “[n]o because DES did not require the applicant to prove what the recharge rate is.” extraction at a rate greater than the natural recharge rate “is unreasonable The Department is not aware of any instance in New England

Nottingham, we reject its argument that the Stage I management procedure is

according to withdrawal capacity measured in gallons per minute. Nottingham argues that the permit condition prohibiting groundwater

6. Extraction at greater than the natural recharge rate

that the 180-day no-recharge projection is a standard in the sense asserted by withdrawal will not be considered adversely impacted.”). As we do not agree well with a capacity greater than 10 gallons per minute for 4 hours after the Admin. Rules, Env-Ws 388.18(c)(1); see also id. 388.18(d) (“A private residential

omitted), in Rule 388.18 supports DES’ position, as private wells are protected meanings [of the] words used,” Appeal of Flynn, 145 N.H. at 423 (quotation for drawdown in a private well.” (Emphasis added.) The “plain and ordinary (up to 10 gallon[s] per minute for private residential wells) and not a threshold (Env-Ws 388.18) protect private wells based upon minimum yield requirements “State law and the large groundwater withdrawal permitting requirements DES’ view, as stated in its July 1, 2004 decisions and findings, is that

defined, see id. 388.16(c). to estimate effects, see id. 388.09(a); and (3) by the use of which, impacts are Env-Ws 388.06(h); (2) under which the withdrawal testing program is designed upon which the conceptual hydrologic model is based, see N.H. Admin. Rules, the sense urged by Nottingham; rather, it is an assumed state or condition: (1) no-recharge projection. As USA Springs points out, that is not a “standard” in disagreement appears to be in Nottingham’s characterization of the 180-day p. 21 21

associated with the withdrawal.”

and stratified-drift aquifer maps. hydrologic cycle and a water budget calculation for the study area” describing: the study area. (6) United States geological survey geologic, bedrock lineament,

(5) National resource conservation service maps; and shall be based on information including but not limited to: withdrawal; and (4) Published reports;

including testing and production reports; hydraulic boundaries, recharge patterns, and the interaction of water bodies (3) Department records for existing water users and resources

(2) Historic water level data;

conducted on site to date; For instance, Rule 388.06(l) requires preparation of “[a] description of the water, consumption, discharge, and recharge of water to and from (1) A summary of the results from any hydrogeologic investigations

Rule 388.06(c), however, provides: “The conceptual hydrologic model natural resources, existing water uses, and the proposed

“[a] comprehensive description of the groundwater flow regime that describes recharge, and discharge; N.H. Admin. Rules, Env-Ws 388.06(l). Rule 388.06(m) requires preparation of

related occurrences are required as part of the conceptual hydrologic model. (3) The location and amounts of natural and artificial loss of

(2) The distribution and availability of water necessary to maintain

(1) The amounts and timing of precipitation, runoff, storage,

a calculation of actual recharge rates. Rather, descriptions of certain rechargeerroneous interpretation of those rules. We see nothing in DES’ rules requiring actual recharge rate constituted either a failure to follow its own rules or an We cannot say that DES’ failure to require USA Springs to prove the

practice for similar environments. recharge rates generally estimated based on standard industry dewater bedrock and overburden aquifers p. 22 for USA Springs demonstrated that the proposed withdrawal will partially

rehearing.”

those findings and decisions, however, DES stated that “[t]he withdrawal test

2003 and then again on September 11, 2003 as part of its request for then supplemented its original information by [submissions] on August 12, supplemental information after [DES’] August 12, 2003 decision. USA Springs

complete and correct.” Springs had adequately amended its application. Later in the same section of 22 information in the report produced in accordance with Env-Ws 388.17 is withdrawal permit described pursuant to Env-Ws 388.23 . . . [w]hen the

contradictions” in its conceptual hydrologic model. subsequently complied with the requirements of Env-Ws 388 by submitting

support Barrington’s argument and undercut DES’ later position that USA

Rule 388.23 (b) provides, in part, that DES “shall issue or renew a major monitoring and reporting program that could proactively prevent In submittals dated September 11, 2003, USA Springs proposed a that “USA Springs has not amended its application to correct the DES then noted: findings approving the permit, however, DES noted that “USA Springs findings on USA Springs’ motion for rehearing (acceptable monitoring, reporting and mitigation plan.” (Emphasis added.)

Taken out of context, that specific December 11, 2003 finding appears to

“by imposing a set of ‘conditions subsequent’ to the grant of the application.” attempting to circumvent the requirement of complete and correct information submissions cited by DES in its July 1, 2004 decisions and findings), it found “to submit ‘complete and correct’ information about its withdrawal”; and (2) consequently is not complete and correct.” In its July 1, 2004 decisions and i.e., after the supplemental Specifically, Barrington notes that in DES’ December 11, 2003 decisions and “does not contain all of the information required by Env-Ws 388.17 and application, DES stated that it could not approve the application because it still not complete or correct.” Barrington nevertheless argues that DES issued the permit “while finding

to USA Springs, DES violated Rule 388 by: (1) failing to require USA Springs

12, 2003 findings and decisions related to the denial of USA Springs’ first

Barrington argues that by issuing a large groundwater withdrawal permit

7. Complete and Correct Data/Conditional Permit

Geological Survey source is not contrary to a reasonable interpretation of DES’ acceptance of USA Springs’ recharge estimate based upon a United States Id. 388.06(c) (emphases added). Accordingly, we conclude that DES’ completion” of USA Springs’ final application.

p. 23 substitute for complete and correct information. Barrington’s argument that a monitoring and reporting program cannot requirements of [the applicable regulations].” For similar reasons, we reject

388.” Finally, on March 10, 2004, MyKro Waters wrote to DES to “document

a preliminary application and relied upon information already on file with DES. application must include. comprehensively addressing this uncertainty in accordance with the submit a “major withdrawal permit application” and specifies what that

submitted after completion of the tasks described in this letter, per Env-Ws 23

On December 29, 2003, MyKro Waters submitted a letter that purported to be

withdrawal testing data by stating accurately that there is uncertainty, and by application, it acted contrary to Rule 388.10, which requires an applicant to

its preliminary application, and stated that a “[f]inal permit application will be

mitigation program to address all impacts that could occur.” denied on August 12, 2003, and again, on rehearing, on December 11, 2003. USA Springs then proposed an environmental monitoring, reporting, and in circumstances. Barrington notes that USA Springs’ initial application was USA Springs’ final application was “adequate because it correctly assesses law by approving a resubmitted, previously-denied application absent a change Barrington argues that to the extent DES treated these letters as a new information about its withdrawal,” and find no error in DES’ determination that DES failed to require USA Springs “to submit ‘complete and correct’

By letter dated February 24, 2004, MyKro Waters submitted a supplement to

contradictions in its conceptual [hydrologic] model[,] . . . [t]o account for this, “informal and incomplete letters” as an application, or violated New Hampshire Barrington argues that DES either violated its own rules by accepting deal with such situations. Accordingly, we reject Barrington’s argument that contaminated groundwater). 8. Resubmission of Same Application

with DES’ July 1, 2004 position that while USA Springs “never reconciled

contemplate using impact monitoring, reporting and/or mitigation programs to due to insufficiencies in the available data. We also concluded that the rules (except for impacts associated with the alteration of the flow of which a completely accurate conceptual hydrologic model cannot be developed We concluded above that the regulatory scheme contemplates cases in

Thus, the December 11, 2003 “failure to amend” finding is not inconsistent

address the probable impacts of the proposed large withdrawal Department finds USA Springs’ final proposal to adequately adverse water quantity or water level impacts from occurring. The previously applied for and denied by the board.

of the application had occurred or that the second application was either that a material change of circumstances affecting the merits

it is distinguishable because this case is more like

resubmission of potentially voluminous records. Accordingly, we find no error. consider the argument preserved. merely promotes efficiency and obviates the need for duplication and be extended to this case, we agree with USA Springs that Morgenstern is more 147 N.H. 558 (2002). Assuming without deciding that defendant’s second application for a variance without first finding Fisher ’s reasoning could

apply to an RSA chapter 485-C case, and argues that even if it were applicable, USA Springs questions whether Fisher – a zoning case – should even regulation is intended to serve.” variance previously requested and ultimately denied by the [zoning] board.” Id. at 191.

denied, . . . [t]he second proposal must be materially different.” We therefore incorporation of previously-submitted information. Indeed, such a practice “consider a second proposal for the same project that has been previously

[T]he board committed an error of law when it approved

at 188. We held:

“[w]e still must examine the agency’s interpretation to determine if it is Fisher was a zoning case challenging the granting of a second application interpretation of its own regulation is entitled to “great deference,” although

in the stated purpose of the regulations that would conflict with allowing for rehearing, it did argue the general principle that for a board or agency to raised below. Although Barrington did not specifically cite Fisher in its motion Barrington’s Fisher argument was not preserved because it was not properly Fisher v. City of Dover, 120 N.H. 187 (1980). USA Springs first argues that based on no change in events,” its approval of the application was contrary to “Mykro Waters’ letters to be a resubmission of the already denied application, Barrington further argues, however, that to the extent DES considered

and DES, by its actions, implicitly interpreted the regulation to allow it. DES’

Rule 388.10, as noted above, is silent on this issue, and we see nothing

(quotation omitted).

points out, however, Rule 388.10 does not expressly preclude such a practice previously-submitted information into a new application. As USA Springs Barrington’s argument assumes that an applicant cannot incorporate p. 25 25

legislature is free to amend it if it disagrees with our construction.

extent that the statutory language upon which we rely remains in force, the

BRODERICK, C.J.