Certified Final Objection No. 18 of the

Joint Legislative Committee on Administrative Rules

At its meeting on December 19, 1990, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, IV, to enter a preliminary objection to Final Proposal 90-214 of the Commissioner of the Department of Environmental Services (Commissioner) containing rules relative to protection of state surface waters. The Commissioner responded by letter dated January 16, 1991, by amending some of the proposed rules to address some of the Committee's concerns.

At a special meeting on March 8, 1991, the Committee voted, pursuant to RSA 541-A: 3-e, V(c), to enter a final objection to Final Proposal 90-214. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:3-e, VI:

After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule-to establish that. the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

The following outlines the rules to which the Committee objects and the reasoning upon which the final objection has been based:

Env-Ws 403.03(e) and (h)

The Committee objected that, pursuant to RSA 541-A:3-e, IV(a) and Committee Rule 401.01, rules Env-Ws 403.03(e) and Env-Ws 403.03(h) are beyond the authority of the Commissioner to the extent that they violate Part 1, Article 28-a of the New Hampshire Constitution.

Rules Env-Ws 403.03(e) and Env-Ws 403.03(h) concern municipal permits and permittees. Rule Env-Ws 403.03(e) contains requirements relative to recordkeeping that are not included in the existing rules, and those requirements may, require new expenditures by political subdivisions. Rule Env-Ws 403.03(h) allows the Department to impose new requirements without regard to whether the political subdivisions will incur increased costs as a result of compliance. Pursuant to Part 1, Article 28-a of the New Hampshire Constitution, the state shall not mandate or assign any new, modified or expanded programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.

In the Committee's view, Pt. 1, Art. 28-a,requires that, unless a political subdivision takes the positive step to approve them for funding, the new, expanded or modified programs or responsibilities would be unconstitutional. Rules Env-Ws 403.03(e) and Env-Ws 403.03(h) do not give the political subdivisions a mechanism to exercise their constitutional power to decline, by formal vote or otherwise, to comply with these unfunded mandates.

The Commissioner's response to the preliminary objection stated that "RSA 485-A:12 (formerly RSA 149:8) requires the Division to enforce water classifications and makes it unlawful for any person or persons to dispose of waste which will lower water quality below its adopted classification. RSA 149:8 was originally enacted many years prior to 1984. We therefore believe that this is not a new requirement and is not subject to objection based on Part 1, Art. 28-a of the New Hampshire Constitution."

There has been only one case that has reached the New Hampshire Supreme Court that addresses Pt. 1, Art. 28-a, and it is New Hampshire Municipal Trust Workers' Compensation Fund vs. Flynn, No. 89-069, (N.H. S.Ct. April 11, 1990). In that case it was argued by the State that agencies are allowed, Pt. 1, Art. 28-a notwithstanding, to make changes to existing legislative schemes. This argument was based upon the claim that Pt. 1, Art. 28-a permits agencies to adopt new rules under statutory authority that existed prior to the effective date of Pt. 1, Art. 28-a, and that such new requirements are not within the scope of that provision. Id. at 7. The Court concluded, however, that the, controlling opinion as to what the amendment means is the opinion of the electorate and the electorate did not understand this amendment to exclude pre-existing regulatory schemes, including both statutes and rules. The Court found that Pt. 1, Art. 28-a is applicable to regulatory schemes: (1) that existed when Art. 28-a became effective but which have been subsequently amended,, and (2) that came into existence after Art. 28-a became effective.

The Committee concluded that the Commissioner made the same claim and assertions as were rejected in the Flynn case by New Hampshire's highest court. Additionally, at the March 8, 1991 meeting, Assistant Commissioner John Dabuliewicz agreed, stating orally that "the basis for the response on these rules was "incorrect and inappropriate." Asst. Commissioner Dabuliewicz also offered additional reasons for the position taken by the Commissioner. As an agency, pursuant. to RSA 541-A: 3-e., V(b), is allowed to respond to a preliminary objection once and the response must be in writing, the additional reasons offered by Asst. Commissioner Dabuliewicz were not properly part of the response to the preliminary objection.


For more information on the background for this final objection, copies of a transcript of agency testimony before the Committee on March 8, 1991 and related documents are available from the Office of Legislative Services at the normal rate of $.20 per page.