Certified Objection No. 4 of the
Joint Legislative Committee on Administrative Rules
At Its meeting on May 18, 1987, the Joint Legislative Committee on Administrative Rules, pursuant to RSA 541-A:3-e, V(a), voted to make a preliminary objection to several proposed rules of the Water Resources Division of the Department of Environmental Services in Final Proposal, Notice Number 87-21. These rules govern water use registration and reporting. Pursuant to RSA 541-A:3-e, V(b) the Director of the Division responded on May 28, 1987 by amending some of the rules to which objection had been made.
At its meeting on June 19, 1987, the Committee voted pursuant to RSA 541-A: 3-e, V(c) to file a final objection to, some of the proposed rules under Notice Number 87-21. This final objection is hereby filed in certified form with the Director of Legislative Services for publication in the New Hampshire Rulemaking Register. The legal effect of this certified 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 the 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 falls 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 Is the text of the Committee's objection:
1. Wr 101.29 The Committee objects to this rule as being contrary to the public interest because, pursuant to Committee Rule 403.01(d), it is not clear and understandable. This rule defines a "facility' as a "physical location where water is withdrawn, treated or utilized and may include a number of individual points of use within one site in close proximity, or owned by one person." The Committee decided that the phrase "in close proximity" is unclear and subjective and may lead to the rule not being uniformly enforced. It is the water user who first must decide if he has one facility or several since pursuant to proposed rule Wr 701.01(c) each facility must be registered individually.
2. Wr 701.02 The Committee objects to the rule as being contrary to the public interest because, pursuant to Committee rule 403.01(d), it is not clear and understandable and, pursuant to Committee rule 403.02(c), it is not capable of being uniformly enforced. This rule specifies which water users are exempted from registration and reporting. The rule states that "certain uses which are of limited duration, frequency or quantity shall be exempt including: (a) one time or occasional uses of water in excess of600,000 gallons per 30 day period such as: (1) filling swimming pools, (2) fire fighting.', The Committee decided that the phrases "limited duration" and "occasional uses" are vague and therefore may lead to the rule not being uniformly enforced since some users may incorrectly presume they are exempted.
3. Wr 703.01 The Committee objects to the rule as being contrary to the public interest because, pursuant to Committee rule 403.01(d), it is not clear and understandable since the rule includes a statement which is a recommendation and. not a rule. The sentence states, "Water meters shall be the preferred method of measurement. "Rules are requirements by definition, and pursuant to Ls-A 103.05(c) of the New Hampshire Rulemaking Manual recommendations shall not be mixed in with rules but set apart as a separate statement such as an appendix so it is clear what is being required.
4. Wr 704.03(e)(4) The Committee objects to the rule as being contrary to the public interest. This rule states that the water user shall provide information on any changes which hav6 occurred In the last quarter including a et major facility expansion, modification of relocation. "The Committee decided that (1) pursuant to Committee rule 403.01(d) it is not clear and understandable since the word "major" has not been explained or defined, and (2) pursuant to Committee rule 403.02(c), the rule might not be uniformly enforced since each water user may have his own idea of what constitutes a "major" facility expansion, modification or relocation.
5. Wr 704.05 The Committee objects that the rule as written is beyond the agency's authority. This rule states that water users "shall allow personnel from the Department of Environmental Services to verify the facility physical location, method of measurement, point of withdrawal and release." As written the rule would apparently require the water user to permit inspections on his property whether he consents or not. This would only be possible pursuant to court order under RSA 595-B, however. Since no permit is involved from the Division, there is no implied consent for an inspection. Moreover, the rule may apparently apply only to Division personnel and -not to personnel of the entire Department of Environmental Services because the rule is adopted under the authority of the Division director.