2005-578, GREENLAND CONSERVATION COMMISSION & a. v. WETLANDS COUNCIL & a.

attorney general, on the brief and orally), for the State of New Hampshire. Kelly A. Ayotte, attorney general (Jennifer J. Patterson, senior assistant

Foundation. of Concord, on the joint brief and orally, for plaintiff Conservation Law brief) for plaintiff Greenland Conservation Commission, and Thomas F. Irwin, Baldwin, Callen & Hogan, PLLC, of Concord (Jed Z. Callen on the joint

NEW HAMPSHIRE WETLANDS COUNCIL & a. to press. Errors may be reported by E-mail at the following address:

NEW HAMPSHIRE WETLANDS COUNCIL & a.

editorial errors in order that corrections may be made before the opinion goes No. 2005-578 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as protected wetlands at thirteen locations.

pursuant to RSA 48 p. 2 2-A:3, I (2001), for the construction of roadways across filed a “standard dredge and fill application” with the DES wetlands bureau, by fresh water including the surrounding shore”). On June 12, 2002, Endicott such surface waters, and . . . any swamp or bog subject to periodical flooding

the following project description: On March 19, p. 2 2003, the bureau granted Endicott a permit that included

contain fresh water, including the portion of any bank or shore which borders RSA chapter 48 p. 2 2-A as encompassing “all surface waters of the state . . . which RSA 482-A:4, II (2001) (describing the non-tidal waters and areas regulated by that is subject to regulation under RSA chapter 482-A, as described therein”); N.H. Admin. Rules, Env-Wt 101.50 (defining “jurisdictional area” as “an area 101.95 (defining “upland” as “an area of land that is not a jurisdictional area”); remainder of the parcel consists of uplands. See N.H. Admin. Rules, Env-Wt two unnamed tributaries to Norton Brook and several vernal pools. The includes approximately eighty-five acres of wetlands bordering Norton Brook, a seventy-nine-lot housing development situated on a 212-acre parcel that Endicott received subdivision approval from the Greenland Planning Board for DES issued the permit that gave rise to this suit, through its wetlands bureau, The following facts are drawn from the administrative record. Before

roadways to serve a proposed housing development in Greenland. We affirm. 4 p. 2 2,350 square feet of wetlands, at twelve locations, for the construction of Endicott General Partnership (Endicott). That permit allows Endicott to fill bureau) of the New Hampshire Department of Environmental Services (DES) to issuance of a wetlands permit by the wetlands bureau (wetlands bureau or Hampshire Wetlands Council (wetlands council or council) that affirmed the Court (McHugh, J.) affirming a decision and order (decision) of the New (GCC) and Conservation Law Foundation (CLF), appeal an order of the Superior BRODERICK, C.J. The plaintiffs, Greenland Conservation Commission

amici curiae. Lamprey River Advisory Committee, and New Hampshire Rivers Council, as Newington Conservation Commission, Exeter River Local Advisory Committee, Sulloway & Hollis, P.L.L.C., of Concord (Amy Manzelli on the brief), for

General Partnership. Lynne M. Dennis on the brief, and Mr. McNeill orally), for intervenor Endicott McNeill, Taylor & Gallo, P.A., of Dover (Malcolm R. McNeill, Jr. and p. 3 Ecosystems dated 1 p. 2 2/6/02, rec’d by DES 12/6/02.

the Atlantic White Cedar Management Plan as prepared by Carex

wetland impacts within the 100 year flood plain; and, execution of

superior court, their motions to reconsider, GCC and CLF filed separate appeals in the emergent marsh wetlands constructed as compensation for and one 13,939 sq. ft. area) of flood plain scrub/shrub and Greenland; and, creation of 24,829 sq. ft. (one 10,890 sq. ft. area, placed in conservation easement and held by the Town of fifty-foot upland buffer that involved ten more lots.

followed. consolidated. The superior court affirmed the council’s decision. This appeal wetland impacts within the 100 year flood plain. see RSA 482-A:10, VIII, X-XVIII (Supp. 2006), which were emergent marsh wetlands constructed as compensation for RSA 482-A:10, IV-VII (Supp. 2006), which affirmed. After the council denied and one 13,939 sq. ft. area) of flood plain scrub/shrub and The plaintiffs appealed the bureau’s decision to the wetlands council, see

acres of upland and approximately 79 acres of wetland, to be included three entire lots, and the new permit also called for establishment of a total of approximately 106 acres, consisting of approximately 27 The increased acreage under conservation easement in the new permit 212 acres. Approval includes, as mitigation, the preservation of a construction of a 100 linear foot bridge, for a 79-lot subdivision on

project description: issued a new permit, dated February 4, 2004, that included the following Greenland; and creation of 24,829 sq. ft. (one 10,890 sq. ft. area,

crossings at 12 locations, including 4,000 square feet for the Fill a total of 42,350 sq. ft. of palustrine wetlands for roadway

after holding a hearing on Endicott’s petition for reconsideration, the bureau Endicott, in turn, sought reconsideration of the permit revocation, and placed in conservation easement and held by the Town of consisting of 20.7 acres of upland and 77.9 acres of wetland, to be revoked the permit by letter dated September 13, 2003. Approve as mitigation preservation of a total of 98.6 acres, bureau concurred on two of the four proposed grounds for reconsideration and permit. After holding a public hearing on the petition for reconsideration, the The plaintiffs both requested reconsideration of the decision to issue the

crossings at 13 locations for a 79-lot subdivision on 212 acres. Fill a total of 61,150 sq. ft. of palustrine wetlands for roadway p. 4 (3) is inconsistent with DES’ prior implementation of RSA chapter 482-A and

permitting authority: (1) violated RSA 482-A:1; (2) violated DES’ wetland rules;

law, because its decision concerning the extent of DES’ project review and infrastructure. According to the plaintiffs, the trial court erred, as a matter of lots minus the three lots placed under conservation easement) and related

effects that will result from the construction of seventy-six homes (seventy-nine the discharge of stormwater runoff and habitat fragmentation as negative activities, on protected wetlands. Among other things, the plaintiffs point to effects of the housing development as a whole, including upland construction 4 to specify the factual and legal bases of its decision.

necessary to construct the twelve approved wetland crossings, but also the though the council applied an overly deferential standard of review and failed 2006) obligated the bureau to consider not just the effects of the filling before it, that said decision is unjust or unreasonable. impacts of the proposed project; and (5) affirming the council’s decision, even scope of review. On the plaintiffs’ reading, RSA chapter 482-A (2001 & Supp. appeal concerning failures by Endicott and the bureau to properly address the and the trial court all adopted an unlawfully narrow view of DES’ statutory

unless the court is persuaded, by a preponderance of the evidence decision shall not be set aside or vacated, except for errors of law, September 13, 2003 permit revocation; (4) failing to address critical grounds for The plaintiffs first argue that the wetlands bureau, the wetlands council, show that the decision is unlawful or unreasonable. The council’s upon the party seeking to set aside the decision of the council to

the evidence or legally erroneous. Id. at 4. in turn, will not disturb the trial court’s decision unless it is unsupported by Conservation Law Found. v. N.H. Wetlands Council, 150 N.H. 1, 3 (2003). We,

alterations designed to address the issues raised by the wetlands bureau’s council’s decision when there was no evidence in the record of project On appeal to the superior court, the burden of proof shall be present alternative designs to the wetlands bureau; (3) affirming the wetlands 482-A:10, XI (2001), which provides: impact that upland activities (The trial court’s review of wetlands council decisions is governed by RSA

assessing the impact of construction activities in protected wetlands (

protected wetlands; (2) imposing on the plaintiffs the burden to develop and

twelve permitted wetland crossings) and did not include consideration of the

that DES’ review authority (as exercised by the wetlands bureau) was limited to On appeal, the plaintiffs contend that the trial court erred by: (1) ruling the interests of the general public. p. 5 silting of open water channels, and will otherwise adversely affect flood waters and silt, thus increasing general flood damage and the will disturb and reduce the natural ability of wetlands to absorb

stream channels and their ability to handle the runoff of waters,

adjacent to any waters of the state without a permit from the

be detrimental to adequate groundwater levels, will adversely affect

any structures in or on any bank, flat, marsh, or swamp in and

commerce, recreation and aesthetic enjoyment of the public, will wildlife of importance, will eliminate, depreciate or obstruct the destroy habitats and reproduction areas for plants, fish and crustacea, shellfish and wildlife of significant value, will damage or

its interpretation, Dredging Permit[s].” RSA 482-A:3, I. The title of a statute is not conclusive of No person shall excavate, remove, fill, dredge or construct

pertinent part: including both its upland and wetland components. We do not agree. The part of the statute that describes the permitting process provides, in wetland crossings, but also the impacts of the subdivision as a whole, process outlined in chapter 482-A to consider not just the impacts of the twelve the effects caused by dredging and filling within their boundaries. strongly indicates that the legislature intended it to protect wetlands only from Appeal of Weaver, 150 N.H. 254, 256 (2003). Here, the title of chapter 482-A significant indication of the intent of the legislature in enacting a statute, affect the value of such areas as sources of nutrients for finfish, see because such despoliation or unregulated alteration will adversely State v. Rosario, 148 N.H. 488, 491 (2002), but it is a herein defined, from despoliation and unregulated alteration, granted under that chapter are referred to in the statute as “Excavating and waters and its wetlands, (both salt water and fresh-water), as Chapter 482-A is titled “Fill and Dredge in Wetlands,” and the permits

with basic principles of wetlands ecology,” establishes the need for the review RSA 482-A:1. The plaintiffs argue that the language quoted above, “combined

protect and preserve its submerged lands under tidal and fresh

A titled “Finding of Public Purpose.” According to that section:

during the permitting process. We address each argument in turn.

It is found to be for the public good and welfare of this state to

The plaintiffs’ statutory argument rests upon the section of chapter 482-

bureau ultimately issued to Endicott and representations DES officials made its wetland rules; and (4) is inconsistent with both the permit the wetlands only to activities occurring within protected wetlands. While it is well settled

p. 6 direct and indirect impacts; and (3) do not define the term “project” to refer

other forms of DES review. the bureau to consider impacts on wetlands; (2) do not distinguish between activities such as those proposed by Endicott in this case are subject to various because the administrative rules governing the wetlands bureau: (1) require in wetlands when it issues dredge and fill permits, upland construction obligation to assess the effects of upland construction on protected wetlands

opinion – the proper place for making such arguments is before the legislature. review process the plaintiffs advocate – a matter upon which we offer no

scope of chapter 482-A limits DES to the assessment of construction activities the plaintiffs, the trial court erred by ruling that the wetlands bureau had no entirely free from DES review. The plaintiffs’ regulatory argument is equally unavailing. According to construction does not mean that Endicott’s upland construction activities are (quotation and citations omitted)). an omission, the courts cannot supply it. That is for the Legislature to do.” made specific exemptions, we must presume no others were intended. If this is See Scheffel v. Krueger, 146 N.H. 669, 672 (2001) (“Where the legislature has

the purposes described in RSA 482-A:1 could be better served by the sort of While it may be argued, based upon principles of wetlands ecology, that

the purposes described in RSA 482-A:1. We note, however, that while the 482-A:3, I, is the way the legislature has determined that DES shall carry out implies the exclusion of another.”). The permitting process described in RSA chapter 482-A does not authorize DES to assess the impacts of upland most sewage and waste disposal systems). Thus, our determination that unnatural runoff”); RSA 485-A:29 (Supp. 2006) (DES approval required for of the terrain, in such a manner as to impede the natural runoff or create an required when “any person propos[es] to significantly alter the characteristics

. . . . assessed based on the area of dredge, fill, or construction proposed N.H. 328, 330 (2004) (“Normally, the expression of one thing in a statute shall be submitted . . . . Fees for minor and major projects shall be anywhere other than the places listed in the statute. See State v. Simone, 151 fill permits for construction activities not listed in the statute or conducted in and adjacent to state waters. Id. DES is not authorized to grant dredge and enumerated construction activities in or on banks, flats, marshes and swamps its wetlands bureau. DES is authorized to grant permits for certain review and permitting authority granted to DES and exercised by DES through RSA 482-A:3, I. This language plainly establishes the scope of the project

and a map showing the exact location of the proposed project . . . department. The permit application together with a detailed plan p. 7 7

denying the Troy permit, DES explained: wetlands that the department of transportation proposed to dredge and fill. In destruction on the habitat value of upland areas connected by the 6.9 acres of development on protected wetlands; it addressed the impact of wetland Employees’ Assoc. v. State purpose of RSA 482-A:1 . . . ., 12 p. 7 7 N.H. 565 (1986), we held that even when an time, simply because it did so once before. To the contrary, in components of that larger ecosystem is contrary to the public State would compel, or even allow, DES to overstep its statutory authority a second for reasons we have already explained, and there is no principle of law that resulting from upland construction, such a decision would have been unlawful, advocated by the plaintiffs in this case, i.e., the adverse impact upon wetlands factually analogous, and DES had denied the application on the grounds converse. Second, even if the situation surrounding the Troy project were analogous to the application in this case. If anything, it represents the Based upon the foregoing, the permit application for the Troy project is not

proposed highway bypass in Troy, did not address the impacts of upland First, the permitting decision upon which the plaintiffs rely, concerning a Unnecessary destruction of vital wetland and surface water permit on that ground. There are two problems with the plaintiffs’ argument. which includes forested wetlands of high functional value. construction upon protected wetlands and, on at least one occasion, denied a value and viability of a large unfragmented forested ecosystem surface water resources that play an integral role in the habitat The project has severe impacts on significant wetland and

authority. regulations that contradict the terms of a governing statute exceed the agency’s assessment advocated by the plaintiffs would be without effect, because agency portion of those regulations that might purport to authorize the type of

because in the past, the wetlands bureau has considered the impacts of upland The plaintiffs next argue that the trial court’s decision was erroneous

plaintiffs’ regulatory argument.

See id. Accordingly, the trial court did nor err by rejecting the

conditions, including mitigation, in order to protect wetlands. Moreover, any for the bureau to assess the impact of construction in wetlands and to impose given their plain and ordinary meanings). What those regulations do allow is 555 (explaining that agency rules are construed as a whole and their words are upland construction upon protected wetlands. See Nottingham, 153 N.H. at Rules, Env-Wt 302, do not authorize the bureau to assess the impacts of upon which the plaintiffs base their argument, New Hampshire Administrative argument fails for two reasons. First, when read as a whole, the regulations Appeal of Town of Nottingham, 153 N.H. 539, 554-55 (2006), the plaintiffs’ that an administrative agency must follow its own rules and regulations, the agency’s authority, p. 8 statutory authority – those officials were without power to extend the scope of

actions and statements identified by the plaintiffs as conflicting with DES’

DES officials may have said, orally or in writing – and we do not interpret the developed and the establishment of a fifty-foot buffer zone. Whatever various upon the permit approval, such as the requirement that three lots not be

upland construction activities upon such wetlands. particular, the plaintiffs point to several conditions the wetlands bureau placed activities in protected wetlands, and did not extend to assessing the effects of DES’ review authority was limited to assessing the impacts of construction For all of the foregoing reasons, the trial court did not err by ruling that

jurisdiction. (DES may place conditions upon permits to protect the public good). uplands, a category of terrain that, by definition, falls outside DES’ wetlands place, and for which an applicant seeks a permit. See RSA 482-A:11, II (2001) and dredging in wetlands – the activities that give DES jurisdiction in the first or regulation only when it arises directly from its assessment of proposed filling an effect on uplands. Rather, it limits DES to engaging in such consideration statute does not prohibit DES from imposing permit conditions that may have The plaintiffs’ argument is not persuasive. The plain meaning of the

did have the authority to regulate upland activities to protect wetlands. In resource and that contributes to the functions and values of that resource.”). hearing, took actions and made statements demonstrating that it believed it (“‘Upland buffer’ means an area of land that is contiguous to a jurisdictional wetlands bureau’s permit approval document and at the wetlands council of land that is not a jurisdictional area.”); N.H Admin. Rules, Env-Wt 101.96

See N.H. Admin. Rules, Env-Wt 101.95 (“‘Upland’ means an area

then it was also without authority to impose a condition that impinged upon regulate activities conducted beyond the boundaries of protected wetlands, approval and argue that if the bureau was without authority to consider or plaintiffs point to the fifty-foot buffer zone that was made a condition of permit ultimately issued to Endicott. In support of that argument, the decision was erroneous because its legal conclusions are inconsistent with the Further, we disagree with the plaintiffs’ argument that the trial court’s

plaintiffs advocate. upland construction on protected wetlands is that DES itself, both in the explained, RSA chapter 482-A does not authorize the review process the

further agency conduct in conflict with the statute,

The plaintiffs’ final argument for requiring DES to consider the effects of

was not enough to change the plain meaning of the statute and legally justify agency had erroneously interpreted its statutory authority for nine years, that p. 9 9

an expert to determine how many building lots would constitute adequate was first filed. proper context. When the trial judge asked whether the plaintiffs had retained too late; it should have been made to DES when the application evidence to the contrary identified by the plaintiffs must be understood in its order that the court correctly allocated the burden of proof. The supposed It is clear from both the superior court hearing transcript and the court’s

the permit application. We do not agree. burden of proof stated in Rule 302.03(a) from the applicant to the opponents of foregoing language from its order reflect an impermissible shifting of the According to the plaintiffs, the trial court’s question at the hearing and the

that information? you don’t want to make the 12 crossings et cetera? You don’t have impacting alternative” in this case. That argument simply comes and say if you cut it to 40 lots, it’s a doable project without the – crossings and elimination of those house lots would be the “least proposed house lots and suggested that the denial of these able to identify four particular crossings each servicing three [D]uring the hearing before the Court on June 16, 2005, they were

specific crossings” and went on to note: permitting process could have suggested the elimination of specific lots or In its order, the trial court observed that “[t]he plaintiffs . . . throughout the

defense of this, you haven’t retained anyone to take a look at this And – not that you are required to, but as part of your

council’s decision, the trial judge asked CLF’s counsel the following question: At the superior court hearing on the plaintiffs’ appeal of the wetlands

unreasonable. RSA 482-A:10, V, XI. seeking to set aside a decision to prove that the decision was unlawful or the wetlands council and to the superior court, the burden is on the party been minimized.” N.H. Admin. Rules, Env-Wt 302.03(a). On appeal, both to to the maximum extent practicable; and (2) [a]ny unavoidable impacts have evidence which demonstrates that . . . (1) [p]otential impacts have been avoided The relevant DES regulation requires a permit applicant to “provide

them to the wetlands bureau. to bear the burden of developing alternative project designs and presenting The plaintiffs next argue that the trial court impermissibly required them

p. 10 the court’s own preface that “the plaintiffs’ strategy [for opposing the permit

Those statements are dicta, and the second one was plainly labeled as such by decision to grant the permit. and unsustainable on appeal, because the bureau ignored that finding in its

minimization, mischaracterize the finding as pertaining to avoidance and impact

addition, the plaintiffs offer no legal support for the proposition that the i.e., direct impacts upon wetlands within DES’ dredge and fill jurisdiction. In nothing more than an attempt to minimize the number of wetland crossings, too, with the statements in the trial court’s order to which the plaintiffs object. upland development, upon protected wetlands. Rather, the finding represented immaterial to the court’s decision to affirm the wetlands council’s decision. So, subsequent decision to reverse its denial and grant the permit was unlawful, involved an assessment of the impact of the project as a whole, including bureau concerning the acceptable number of house lots was, necessarily, several of the proposed crossings.” In the plaintiffs’ view, the bureau’s mistaken in characterizing the finding as evidence that DES’ review process alternative lot layouts, that allow development of the property while eliminating N.H. Admin. Rules, Env-Wt 302.01(b), 302.04(a)(1). Third, the plaintiffs are 302.04(a)(1),” one of which provided that “design alternatives exist, including September 17 decision characterized it as pertaining to demonstrated need, see

see N.H. Admin. Rules, Env-Wt 302.03(a)(1)-(2), when the

no basis for labeling this finding “dispositive.” Second, the plaintiffs The plaintiffs’ argument is unavailing for several reasons. First, there is September 17, 2003 denial. project alterations designed to address “key dispositive findings” in the decision of the wetlands council even though the record contains no evidence of

correctly ruled – the plaintiffs’ failure to present information to the wetlands

respect to demonstrated need per Rule [Env-]Wt 302.01(b) and [Env-]Wt In the September 17 denial, the wetlands bureau made six findings “with

The plaintiffs next argue that the trial court erred by affirming the

assess the impacts of upland construction activities – as the trial court proof. more than a hypothetical. Because DES does not, in fact, have the authority to argument that the trial court based its decision upon an erroneous burden of upland construction on protected wetlands. That made the question nothing In short, there is nothing in the record to support the plaintiffs’

of the plaintiffs’ contention that DES had the authority to assess the impact of minimization of unavoidable impact, the question presupposed the correctness structures in or on banks, flats, marshes and swamps in and adjacent to state p. 11 those created by excavating, removing, filling, dredging and constructing impacts to wetlands that RSA chapter 482-A authorizes DES to consider are argument, the plaintiffs read the scope of RSA chapter 482-A too broadly. The dredge and fill permit for which Endicott applied. As with their upland impact

302.04(a)(17). wetland complex, 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 of the project, as required by New Hampshire Administrative Rules, Env-Wt concerns; and (6) the bureau’s failure to assess either the cumulative impacts

salt runoff from roadways over wetland crossings constructed pursuant to the

pools; (5) the bureau’s failure to address significant project-specific wildlife

the plaintiffs contend that DES was obligated to assess the impact of sand and construction of which required permitted dredging and filling. For example, but also the impacts projected to result from the future use of a structure the 11 is authorized to consider not just the impact of dredging and filling in wetlands,

impacts of wetland crossings upon the quality of water in adjacent vernal impacts addressed by the wetlands bureau; (4) Endicott’s failure to assess the analyze certain impacts upon water resources rather than having those pollutants into the brook; (3) DES’ reliance upon its “site specific” division to

construction upon protected wetlands. The second faulty premise is that DES permitting process authorizes DES to consider the impacts of upland addressed: the plaintiffs’ incorrect belief that the RSA chapter 482-A extent, upon a pair of legally untenable premises. One has already been

baseline data on Norton Brook and projections concerning the discharge of

the first five arguments are without merit. Each relies, to a greater or lesser Review of the plaintiffs’ post-hearing memorandum demonstrates that

impacts upon an Atlantic white cedar wetland community; (2) the lack of memorandum, include: (1) the wetlands bureau’s failure to consider direct grounds for appeal, discussed at length in the plaintiffs’ post-hearing

crossings. ultimately approved did not involve a redesign that eliminated several wetland decision of the wetlands council despite the fact that the project the bureau reconsideration. Accordingly, the trial court did not err by affirming the after receiving additional evidence at the hearing on Endicott’s request for

because DES has the authority to reconsider its decisions, six “critical, potentially outcome-determinative grounds for appeal.” Those Next, the plaintiffs argue that the trial court erred by failing to address

I-III, it would have been well within the bureau’s authority to retract the finding

September 17 denial in its subsequent decision to grant the permit. Finally, wetlands bureau was required to specifically address each of the findings in the wetlands areas are all part of one watershed.

p. 12 systems of two unnamed tributaries to Norton Brook. These drainage system, and areas B and C correspond to the drainage areas A, B, and C. Area A corresponds to the Norton Brook 12

tributaries to Norton Brook, and unnamed wetlands.” construction of spans and/or box culverts over Norton Brook, unnamed

part of this application, the wetland areas on-site were divided into

described the wetlands on its property: construction of access roadways to service the subdivision, and the According to the application, “[a]ll impacts to wetlands are associated with

ownership that would be impacted; ownership of that wetland and the percentage of that For purposes of the functions and values assessment completed as wetland shall document the applicant’s percentage of

In its June 10, 2002 application to the wetlands bureau, Endicott

N.H. Admin. Rules, Env-Wt 302.04.

and functions of the total wetland or wetland complex[.] department’s jurisdiction: (17) The impact of the proposed project on the values the proposed project to areas and environments under the been considered in the project’s design in assessing the impact of

For example, an applicant who owns only a portion of a wetland proportional to the extent of their property rights. or wetland complex were also permitted alterations to the parties owning or abutting a portion of the affected wetland (16) The cumulative impact that would result if all . . . .

one or both incorrect legal premises, they are all without merit. wetlands permits. Because the plaintiffs’ first five arguments all depend upon demonstrate by plan and example that the following factors have (a) For any major or minor project, the applicant shall

regulations provide: the functions and values of the total wetland complex. The relevant DES properly consider, the cumulative impacts of the project or its impacts upon their argument that Endicott failed to assess, and the wetlands bureau did not According to the plaintiffs, the trial court also erred by failing to address

created by the subsequent use of structures constructed under duly issued waters. RSA 482-A:3. The statute does not authorize DES to consider impacts appropriately sized spans and box culverts. p. 13 wildlife perspective, but the wetlands will remain contiguous via

proposed roadways represent fragmentation of habitat from a continue to provide these functions and are protected. The the project will ensure the large wetland areas on the property cedar stand). The Conservation Easement areas associated with two “special concern” turtle species and supports an Atlantic white

wetland system contains potential feeding and breeding habitat for

stabilization, wildlife habitat, and uniqueness/heritage (the 13 nutrient removal, production export, sediment/shoreline alteration, fish and shellfish habitat, sediment/toxicant retention, premised exclusively upon the erroneous contention that Endicott did not provided include groundwater recharge/discharge, floodflow

court erred in its treatment of that issue.

not properly consider the factors set out in Rules 302.04(a)(16) and (17) is this application. The principal functions and values currently Moreover, because the plaintiffs’ argument that the wetlands board did wetland areas. A functions and values assessment is included in taken to minimize the effect on the functions or values of the only 1.69% of the total wetlands on the site. Measures will be functions factor, which completely undermines any argument that the trial the plaintiffs’ contention that Endicott failed to address the values and enumerated wetland areas on the property. Thus, the record does not support include a “Wetland Function – Value Evaluation Form” for each of the three As suggested by the foregoing passage, the application materials did indeed

record, the trial court cannot be faulted for declining to address that argument. address the cumulative impact factor – is plainly erroneous in light of the

character of the wetland areas. The project proposes to impact

Because the factual basis for the plaintiffs’ argument – that Endicott failed to site. That is sufficient to satisfy the requirements of Rule 302.04(a)(16). materials that it proposed to fill less than 1.7 percent of the wetlands on the address the cumulative impact factor, and demonstrated in its application Proposed impacts are minimal in relation to the overall size and

functions factor. To address Rule 302.04(a)(17), the application provided: So, too, with the plaintiffs’ argument concerning the values and

Thus, notwithstanding the plaintiffs’ argument to the contrary, Endicott did providing the abutters impacted wetland proportional to their property rights[.]” area of wetland on the property. Any cumulative impacts would be negligible has been designed to minimize the amount of wetland impact relative to the To address Rule 302.04(a)(16), the application provided: “This project fact properly before it shall be prima facie lawful and reasonable. p. 14 unreasonable. All findings of the department upon all questions of department’s decision to show that the decision is unlawful or

burden of proof shall be on the party seeking to set aside the

A:10, V, which provides, in pertinent part:

unlawful. that the resulting Bureau decision was unreasonable and/or during the formal processes of review and reconsideration below, The appeal shall be determined upon the record below. The

The standard of review for the wetlands council is set forth in RSA 482-

fact to the decision as a whole. We do not agree. presumption of prima facie lawfulness and reasonableness from questions of In the plaintiffs’ view, the wetlands council unlawfully extended the statutory such a decision was unreasonable and/or unlawful. clear and concise evidence that otherwise persuades the Council can do this by presenting the Council with a preponderance of

Record of the particular application and (b) the interested parties the facts and circumstances presented to it by (a) the Certified by DES in its own deliberations. It can instead only decide if, given judgment of the facts and circumstances of a decision for that used The Council finds that by Rule it cannot substitute its independent

successfully overcome this rebuttable presumption. An appellant to be prima facie reasonable and lawful unless an appellant can Department of Environmental Services, Wetlands Bureau (“DES”), By Rule, the Wetlands Council considers decisions of the impacts upon the values and functions of the total wetland complex. following portion of the wetlands council’s decision: Regarding the standard of review, the plaintiffs take issue with the

legal grounds for its decision. an overly deferential standard of review and failed to specify the factual and wetlands council’s decision was legally erroneous because the council applied The plaintiffs further argue that the trial court’s affirmance of the

wetlands bureau failed to consider the project’s cumulative impacts or its address those factors in its application, there is no basis for arguing that the the council is not required “to make findings of fact or rulings of law to explain,

fails to rebut the presumption that a DES decision is lawful and reasonable, specific findings of fact or rulings of law, explaining that when an appellant for its decision. The council granted DES’ motion, but declined to issue

permit. factual and legal bases for its decision to affirm the issuance of Endicott’s

moved for clarification, asking the council to specify the legal and factual bases After the wetlands council issued its decision in favor of DES, DES wetlands council applied a deferential rather than that issue. Moreover, presuming that the plaintiffs’ real concern is that the court, necessarily, did not err by affirming the wetlands council’s decision on decision of the wetlands council because the council failed to specify the Because the wetlands council did not misstate its standard of review, the trial just their factual findings – a presumption of validity. Finally, the plaintiffs contend that the trial court erred by affirming the is phrased similarly to RSA 482-A:10, V, we have given those decisions – not reviewing the decisions of a variety of state agencies under RSA 541:13, which standard of review to the wetlands council’s legal determinations. appellate process, when the superior court correctly applied the de novo wetlands, any such error would have been corrected at the next stage of the authorize DES to assess the impacts of upland construction upon protected to the wetlands bureau’s legal conclusion that RSA chapter 482-A does not

its standard of review, if imprecise, was not incorrect as a matter of law. unreasonable or unlawful.”). Accordingly, the wetlands council’s statement of only when a plaintiff shows by a clear preponderance of the evidence that it is opinions for the wetlands council’s statement of its standard of review. When is presumed to be prima facie lawful and reasonable and will be overturned Whaland, 121 N.H. 400, 403 (1981) (“An order of the [insurance] commissioner highways’] decision is prima facie lawful . . . .”); State Farm Mut. Auto. Ins. v. (1982) (“Both parties agree that a commissioner[ ] [of public works and rulings of law. reasonableness.”); Appeal of National Advertising Co., 122 N.H. 1058, 1060 of the deference due to findings of fact and the lack of deference accorded to [C]ommission’s orders come to us with a presumption of lawfulness and most statements about the standard of review on appeal are phrased in terms of Safety, 123 N.H. 284, 285 (1983) (“The [New Hampshire Personnel]

While such phrasing may be the better practice, there is support in our prior and will set aside erroneous rulings of law.” (citation and quotation omitted)). reasonable. We act as the final arbiter of the meaning of the statute, however, 195 (2002) (“We presume the PELRB’s findings of fact to be lawful and

See, e.g., Appeal of Int’l Bhd. of Police Officers, 148 N.H. 194,

legally erroneous. Rather than speaking in terms of a decision as a whole, While the wording of the wetlands council’s decision is unconventional, it is not p. 16 16

record. This could not have been the intent of the legislature.

that supports its decision. for its determination and shall identify the evidence in the record unreasonable. The council shall specify the factual and legal basis determination that the decision complained of is unlawful or

decision from the wetlands council. 541:6 (1997) (requiring application for rehearing as prerequisite for judicial reviewed itself – it was not necessary to remand the case for a more detailed See, e.g., RSA record that encompassed more than 4,500 pages – which the trial court undertake its own examination of a lengthy, complex and highly technical not agree. surmise the basis for the council’s decision, and obligated the trial court to of the benefit of the council’s expertise in wetland matters, left the court to to specify the factual and legal basis for its affirmance deprived the trial court superior court. See RSA 482-A:10, VIII-XVII. In this case, the council’s failure A:10 contemplates not only remands to the department, but also appeals to the the overall statutory scheme and not in isolation.” (citation omitted)). RSA 482- department or may remand to the department with a Corpening, 153 N.H. 571, 573 (2006) (“We interpret statutes in the context of reading is inconsistent with the statute as a whole. See City of Rochester v. determinations only when it remands a decision to the department, such a paragraph VI directs the council to specify the factual and legal basis for its RSA 482-A:10, VI. While it is perhaps arguable that the second sentence of issues, and because DES’ findings were well supported in an administrative concluded that because the council seemingly accepted DES’ position on all that a DES decision is unlawful or unreasonable and remands the case. We do wetlands council could have provided more detail in its decision, the trial court grounds for appeal it had accepted. While agreeing with the plaintiffs that the

On appeal, the council may affirm the decision of the

permitting decisions provides: The statute governing wetlands council review of DES wetlands

statute only requires factual and legal findings when the council determines court when it hears appeals from the wetlands council. DES contends that the that the wetlands council’s decision failed to identify any of the nineteen whether affirming or remanding – in order to ease the burden on the superior the council to specify the factual and legal bases for all of its decisions – The plaintiffs argue that the plain language of RSA 482-A:10, VI requires

On appeal to the superior court, the plaintiffs noted, among other things,

and/or lawful.” or to otherwise justify, how a decision of the Department was reasonable p. 17 17

was legally correct. of law, based upon its review of the certified record, that the council’s decision DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

unsupported by the evidence, it is affirmed. remands and when it affirms. Because the order of the trial court is neither legally erroneous nor requires the wetlands council to provide findings and rulings both when it See id. ourselves, we hold that it was sufficient for the court to reach this conclusion.

not do so in this case, however, because the trial court determined, as a matter Rod & Gun Club v. Town of Chester, 152 N.H. 577, 583-84 (2005). We need remand to the council to make the requisite findings and rulings. See Chester Ordinarily, we would remand to the superior court with instructions to

agency with specific expertise). Accordingly, we hold that RSA 482-A:10, VI appeal of agency decision, signaling legislative preference for resolution by