2009-037, APPEAL OF GARRISON PLACE REAL ESTATE INVESTMENT TRUST

the wetlands council’s order. council remanded the matter to DES. Garrison Place now appeals. We reverse Hampshire Wetlands Council (wetlands council or council). The wetlands

withdrawal permit subject to certain conditions. Condition 5 required USA permit pursuant to RSA chapter 485-C. On July 1, 2004, DES granted the Springs, Inc. filed a request with DES for a large groundwater withdrawal

respondent, Town of Barrington (town), appealed the issuance to the New

The following facts are drawn from the administrative record. USA

by the New Hampshire Department of Environmental Services (DES). The to the petitioner, Garrison Place Real Estate Investment Trust (Garrison Place), DUGGAN, J. This appeal arises from the issuance of a wetlands permit

Kenney on the brief, and Mr. Beliveau orally), for the respondent. Pierce Atwood, LLP, of Portsmouth (Mark E. Beliveau and Michele E.

to press. Errors may be reported by E-mail at the following address: orally), for the petitioner. Mosca Law Office, of Manchester (Edward C. Mosca on the brief and

(New Hampshire Wetlands Council) APPEAL OF GARRISON PLACE REAL ESTATE INVESTMENT TRUST page is: http://www.courts.state.nh.us/supreme.

No. 2009-037 editorial errors in order that corrections may be made before the opinion goes Wetlands Council Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 22 as groundwater withdrawal would have no negative effect on the prime wetland

p. 2 Both parties appealed.

Conditions 5 and 6 of the withdrawal permit assured that the large

appealable to the superior court. RSA 482-A:10, VIII (2001) (amended 2008).

natural functions and values in any significant way.” It also found that “not damage or destroy the affected wetlands complex or adversely affect its operation of the monitoring devices “affects three very small areas” and would for reconsideration, and the town appealed to the wetlands council.

Under the statutory scheme then in effect, decisions of the council were 2 decision relative to the prime wetlands as required by RSA 482-A:11, IV.” separate and specify the ‘clear and convincing evidence’ it used to support its

convincing evidence] that the activity will not result in a significant net loss.”

forth in RSA 482-A:1. Specifically, DES determined that the installation and Garrison Place’s request for a wetlands permit. DES denied the town’s motion

the case to DES, finding “that DES failed, in its written decision, to properly

wetlands council, ruling that “DES did not specifically state [by clear and

the water level of the prime wetland. monitoring devices would not result in the significant net loss of any values set forth in RSA 482-A:1.” RSA 482-A:11, IV (Supp. 2008). DES approved public hearings in determining that the installation and operation of the six human activity, will not result in the significant net loss of any of the values set information acquired in the groundwater withdrawal permit proceedings and hearing, that the proposed activity, either alone or in conjunction with other In October 2006, DES issued an amended decision. DES relied upon

convincing evidence it relied upon to reach its decision. The superior court remanded the matter to DES to specify the clear and for reconsideration, which the council granted in part. The council remanded

On September 26, 2006, the superior court affirmed the decision of the

groundwater withdrawal if the monitoring devices detect any adverse impact on

the basis of all information considered by the department, and after public

prime wetland. The wetlands council denied the town’s appeal. The town filed a motion

occur.” Condition 6 requires that USA Springs immediately stop or reduce the various “Mitigation Requirements” to apply “[i]n the event that adverse impacts Barrington Prime Wetland #40 (the prime wetland). Condition 6 set forth the department is able, specifically, to find clear and convincing evidence on retain the six monitoring devices. DES may not issue such a permit “unless request with DES to obtain a Prime Wetlands permit that would allow it to

In November 2004, Garrison Place filed an after-the-fact

Garrison Place constructed six monitoring devices in and adjacent to the

large groundwater withdrawal on groundwater and wetlands, including Springs to implement a wetlands monitoring program to track the impact of the wetlands council denied. This appeal followed. this proceeding.” p. 3 set forth in RSA 482-A:1.” Garrison Place moved for a rehearing, which the withdrawal permit] will not result in the significant net loss of any of the values unreasonable.” RSA 541:13 (2007).

which is set forth in RSA 482-A:10, V: consider the standard of review governing appeals to the wetlands council, was clearly unreasonable or unlawful. Addressing that issue requires us to

groundwater withdrawal permit relative to [the prime wetland] as binding in

triggers the mitigation requirement of Condition 6 of the [groundwater preponderance of the evidence before it, that such order is unjust or vacated except for errors of law, unless the court is satisfied, by a clear reasonable; and the order or decision appealed from shall not be set aside or

and convincing evidence that supports the issuance of the wetlands permit,

“not treating the findings made in connection with the USA Springs’ large 3 groundwater withdrawal permitted to USA Springs under RSA 485-C”; and (3) evidence” supporting its conclusion “that an impact to a prime wetland which the term ‘other human activity’ in RSA 482-A:11, IV to encompass the large therefore, remanded the matter to DES to set forth “clear and convincing where there is an adverse impact to the prime wetland.” The wetlands council, questions of fact properly before it shall be deemed to be prima facie lawful and

to be that the wetlands council’s order, ruling that DES failed to identify clear

groundwater withdrawal permit relative to [the prime wetland]”; (2) “construing

“clear and convincing evidence” because “Condition 6 contemplates a scenario RSA 541:13, which provides: “[A]ll findings of the [wetlands council] upon all

With respect to the first issue, we understand Garrison Place’s argument

findings made in connection with the issuance of USA Springs’ large required to accept as clear and convincing evidence in this proceeding the mitigation requirements of the groundwater withdrawal permit could serve as unreasonably by: (1) “failing to follow the superior court’s order that DES is loss to wetlands values. The council rejected DES’ conclusion that the Our standard of review of the wetlands council’s decision is set forth in convincing evidence” supporting its finding that there would be no significant

Garrison Place argues the wetlands council acted unlawfully and

council determined that DES had again failed to set forth the “clear and

a motion for reconsideration, which DES denied.

The town appealed to the wetlands council. In September 2008, the

reduction or the cessation of the large groundwater withdrawal. The town filed because the monitoring devices would provide the data needed to require the functions and values in any significant way.

p. 4 affected wetlands complex or adversely affect its natural constructing other structures) will not damage or destroy the

collecting data (without additional dredging, filling or

related human activity such as walking to the monitors and installation and operation of the monitoring devices, including size (per Prime Wetland Report received March 18, 1991). The 4

was lengthy and detailed. It provided:

square feet. [The prime wetland] is approximately 29.1 acres in

482-A:1.” The DES decision that set forth the clear and convincing evidence

legislative intent.”

affects three very small areas totaling approximately two

unreasonable and/or unlawful.” a. The installation and operation of the six monitoring devices

will not result in the significant net loss of any of the values set forth in RSA monitoring devices, either alone or in conjunction with other human activity, DES found that “the installation and operation of the six specified

used by DES in its own deliberations.” Id. independent judgment of the facts and circumstances of a decision for that plain and unambiguous, we need not look beyond [it] for further indications of 543. As noted by the council itself, the council “cannot substitute its

we ascribe the plain and ordinary meanings to words used.” concise evidence that otherwise persuades the [c]ouncil such a decision was the burden of presenting “the [c]ouncil with a preponderance of clear and review of DES decisions is deferential. The party appealing to the council bears Under the plain language of RSA 482-A:10, V, the wetlands council’s

Spectacular, 138 N.H. 298, 300 (1994) (quotation omitted). fact properly before it shall be prima facie lawful and reasonable. add words which the lawmakers did not see fit to include.” Appeal of Astro unreasonable. All findings of the department upon all questions of omitted). “Courts can neither ignore the plain language of the legislation nor department’s decision to show that the decision is unlawful or State v. Comeau, 142 N.H. 84, 86 (1997) (quotation

143 N.H. 638, 643 (1999) (quotation omitted). “When a statute’s language is

“[W]e first examine the language found in the statute and where possible,

544 (2006) (setting forth wetlands council’s standard of review). See Greenland Conservation Comm’n v. N.H. Wetlands Council, 154 N.H. 529,

burden of proof shall be on the party seeking to set aside the The appeal shall be determined upon the record below. The withdrawal authorized [

p. 5 significant net loss of any of the values set forth in RSA 482-A:1. support its conclusion that such an impact will not result in the functions and values in any significant way.” collecting data,” would not “adversely affect [the prime wetland’s] natural “including related human activity such as walking to the monitors and

from the monitoring devices assure that the large groundwater The installation of the monitoring devices and collection of data adverse impacts to wetlands, including [the prime wetland]. withdrawal permit]. DES has not set forth the clear and convincing evidence it used to groundwater withdrawal authorized by the [groundwater the values set forth in RSA [482-A:1] as a result of the large

operating the six monitoring devices. It specifically found that the devices,

phased manner, or stopped completely, to mitigate or prevent impact to the prime wetland, the Council finds and concludes that wetland] assure that there will be no significant loss of any of

paragraph a of its order, DES focused on the proposed activity of installing and activity” will result in the p. 5 significant net loss of any wetlands values. In “the proposed activity, either alone or in conjunction with other human We disagree. Under RSA 482-A:11, IV, DES must determine whether

requires that the groundwater withdrawals be reduced in a Condition 6 contemplates a scenario where there is an adverse including adverse impact to wetlands, occur. Condition 6 impacts to wetlands, including the prime wetland at issue. As the mitigation requirements in the event that adverse impacts, withdrawals. The monitoring devices installed in [the prime mitigation requirements in the event that there are adverse Condition 6 of the [groundwater withdrawal permit] concerns

and stated that: On appeal, the wetlands council concluded that the DES order was inadequate

Condition 6 of the [groundwater withdrawal permit] specified needed to require reductions or the cessation of the large water natural conditions of [the prime wetland] by providing the data permit] will have no negative effect on the health, vitality, and

for the six monitoring wells that are the subject of this permit. location, installation, monitoring and reporting requirements the [groundwater withdrawal permit] specified the details of the Withdrawal Permit No. LGWP-2004-0003 . . . . Condition 5 of b. On July 1, 2004 the Department issued large Groundwater before any significant loss of RSA 482-A:1 values occurs.

address the remaining issues.

monitoring devices themselves, in addition to the mitigation requirements of impacts should not result in the significant loss of wetlands values because the significant net loss of” wetlands values. As DES stated, however, such adverse

reversing the decision of DES. Because we reverse on this issue we need not

p. 6 6 are triggered by an adverse impact “that such an impact will not result in the

RSA 482-A:10, V. Therefore, the wetlands council acted unreasonably in to require reductions or the cessation of the large water withdrawals.”

BRODERICK, C.J.