Certified Final Objection No. 22 of the
Joint Legislative Committee on Administrative Rules
At its meeting on January 18, 1991, 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 90-313, of the Commissioner of the Department of Environmental Services (Commissioner) containing rules relative to annual (dam) registration fees. The Commissioner responded by letter dated February 7, 1991. 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 90-313. 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 basis upon which the final objection has been entered:
The Committee objected, pursuant to RSA 541-A:3-e, IV(a) and Committee Rule 401.01, that rule Env-Wr 301.04 is beyond the authority of the Commissioner to the extent that it violates Part 1, Article 28-a of the New Hampshire Constitution. Rule Env-Wr 301.04 provides that the annual registration fees for dams shall be paid by each dam owner in the amount specified in RSA 482:8-a. These fees were first established in legislation passed in the 1989 legislative session, well after the 1984 effective date of Art. 28-a. However, the rules do not distinguish between those dam owners that fail to pay that are political subdivisions and those-that are not. 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.
The Committee determined that Pt. 1, Art. 28-a, requires that, unless a political subdivision takes the positive step to approve for funding those programs or responsibilities which are new, modified, or expanded since November, 1984, such programs or responsibilities are unconstitutional as applied to such political subdivisions. The Committee determined that, absent full funding from the state or a decision by the political subdivision to provide the funding, requiring political subdivisions to pay for this new program or responsibility violates Art. 28-a. The Committee also determined that the rules actually-penalize political subdivisions that exercise their constitutional power.-to decline to comply with this unfunded, mandated program or responsibility imposed and enforced by the Department, and that the penalty is in the-form of the levying of administrative fines. The Committee believes that fining the political subdivisions that decline to fund such requirements undercuts the very purpose of the power to so decline.
The Committee rejected the Commissioner's arguments that Art. 28-a does not apply to proprietary activities entered into voluntarily by political subdivisions. The Committee determined that there is no valid basis for differentiating between dam owners that are political subdivisions and all other-dam owners. It is the Committee's belief that there clearly is a valid reason for differentiating between certain types of owners of dams; it is found in Pt. 1, Art. 28-a of the New Hampshire Constitution which itself creates the basis for such differentiation.
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.