Certified Final Objection No. 33 of the

Joint Legislative Committee on Administrative Rules

At its meeting on December 20, 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 91-175 containing proposed rules of the Department of Environmental Services (Commissioner) relative to filtration/disinfection of surface drinking water supplies. The Commissioner responded by letter dated December 23, 1991.

At its meeting on January 17, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 91-175. 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 summarizes the basis upon which the final objection has been entered:

1. Env-Ws 380.22(a)(9)a. and Env-Ws 380.22(b)(4)a.

The Committee objected that rules Env-Ws 380.22(a)(9)a. and Env-Ws 380.22(b)(4)a., pursuant to RSA 541-A:3-e, IV(b) and (c), and Committee rules 402.02(a) and (b), 403.01(d), and 403.02(c) are contrary to legislative intent and contrary to the public interest as discussed below.

These two rules contain provisions which allow public water systems to take samples of water for analysis at certain specified points "if the division determines that such points are more representative of disinfected water quality within the distribution system." The rule then states that such determinations would be "based on" the four criteria listed in the rules. The Committee concluded that the rules are still silent as to what procedure will be used for such determinations by the Division. The Committee also concluded that the use of "based on" makes the rules unclear as to how the criteria will be applied for such decisions made by the Division. The Committee therefore determined that the rules are contrary to the public interest by not being clear and understandable and capable of uniform enforcement. As the rulemaker is the Commissioner, the Committee also determined that these problems of lack of specificity amounted to a delegation of oral rulemaking authority in violation of RSA 541-A:3 and RSA 541-A:12, III(e), and that the rules are therefore contrary to legislative intent by violating these statutes.


2. Env-Ws 380.27

The Committee objected that rule Env-Ws 380.27 is beyond the authority of the Commissioner, pursuant to RSA 541-A:3-e, IV(a) and Committee rule 401.04, to the extent that the rule violates Part 1, Article 28-a of the New Hampshire Constitution.

This rule states that "all water systems which use surface water and do not meet all requirements of Env-Ws 380.04(e) and (f) shall construct and place in service facilities for filtration of surface water in compliance with this part and shall complete specific tasks according to the" schedule in paragraphs (a) through (c). The requirement of compliance with Env-Ws 380.04(e) and (f) is placed upon privately owned systems as well as publicly owned systems.

The Committee concluded that the rule appeared to violate the provisions of Pt. 1, Art. 28-a of the New Hampshire Constitution, which provides that:

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.

It is the position of the Committee that, unless a political subdivision takes the positive step to approve them for funding, the new expanded or modified programs or responsibilities are unconstitutional as applied to that political subdivision. The Committee determined that, to the extent that this rule requires political subdivisions to install filtration systems, the installation of which will require additional expenditures not funded by the state or approved for funding by the local legislative bodies, the rules conflict with the constitutional provision cited above. Therefore, the Committee objected that the rules are beyond the Commissioner's authority because they violate Pt. 1, Art. 28-a.

In his objection response, the Commissioner asserted that Pt. 1, Art. 28-a does not apply to those functions which are not governmental but proprietary in nature. The Commissioner also pointed out that the federal government has imposed the requirements though the federal Safe Drinking Water Act. Through an agreement entered between the federal government and New Hampshire in August of 1978, which allows New Hampshire to have primary enforcement responsibility, New Hampshire is obligated to adopt drinking water regulations which are no less stringent than the federal regulations. The Commissioner stated that if municipalities in New Hampshire do not meet the requirements imposed by the state, then they will be subject to federal enforcement. The Commissioner further warned that "this situation might place municipalities in the position of dealing with EPA enforcement personnel who are less likely to be familiar with or sympathetic to the concerns of New Hampshire municipalities than are state staff."

With respect to the applicability of Pt. 1, Art. 28-a, the constitution itself makes no distinction between governmental and proprietary functions. The Committee has consistently rejected the argument that such a distinction is constitutionally permissible. Finally, the observation by the Commissioner does not address, in the Committee's view, the question of whether or not the rule is consistent with the constitution. Instead, the observation is related to the potential practical consequences of a decision by a municipality to exercise its constitutional rights.