Certified Final Objection No. 68 of the

Joint Legislative Committee on Administrative Rules

At its meeting on July 15, 1994, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 94-019 containing proposed rules of the Department of Environmental Services (Department) relative to creation of emergency action plans by the owners of dams. The Department responded in writing on August 18, 1994.

At its special meeting on November 30, 1994, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 94-019. 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.

Please note that this rulemaking proceeding was commenced prior to the effective date of Laws, 1994, 412, which recodified RSA 541-A. Therefore, RSA 541-A as it existed prior to the 1994 legislation was the applicable law for this proceeding.

The following summarizes the basis for the Committee's final objection:

Env-Wr 506

The Committee objected that Env-Wr 506 violates Committee rules 401.04 and 402.04 by being beyond the authority of the Commissioner and contrary to legislative intent to the extent that Env-Wr 506 conflicts with Part 1, Article 28-a of the New Hampshire Constitution.

Pt. 1, Art. 28-a of the New Hampshire Constitution 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.

In its statement in the rulemaking notice relative to Part 1, Art. 28-a of the N.H. Constitution, the Department stated its position that the proposed rules do not violate Article 28-a because "the activities regulated by the proposed rules are not peculiar to municipalities but rather are proprietary functions in which a municipality can engage if it chooses to do so." Even before RSA 541-A:3-l took effect on 5/6/92, the Committee had rejected this argument in its final objections to numerous Env rules. However, as the Committee noted in its final objection to Env-Ws 421 on 2/19/93, the adoption of RSA 541-A:3-l has eliminated the "proprietary v. governmental" distinction as a basis for arguing that Art. 28-a is not violated by an agency's rules.

Under RSA 541-A:3-l, II, protection from unfunded state mandates extends to "maintenance of buildings and other municipal facilities or other facilities or functions undertaken by a political subdivision." It is the view of the Committee that municipal ownership of a dam would be encompassed by this provision.

In its response letter, the Department did not reiterate the argument made in its 28-a statement regarding proprietary functions. Instead, the Department argued that there is no 28-a violation because all costs are attributable to the statute. The Committee rejected this argument. To satisfy the statutory requirements regarding emergency action plans (EAPs), the dam owner must only write a document that spells out the actions that will be taken to warn authorities and persons downstream if there's an impending or actual sudden release of water. However, the rules set specific requirements for the development of an EAP, such as a dam breach analysis, inundation mapping and creation of an emergency communication system, that are not found in the statutes. To the extent that such requirements would necessitate further expenditures by political subdivisions that own dams, the Committee determined that the rules violate Part 1, Art. 28-a.

The Department also argued that there is no violation of Art. 28-a because this rulemaking action is a readoption of rules which implement a statute that became law prior to the adoption of Art. 28-a. The Committee determined that this was not a valid argument. Because the violation of Art. 28-a is created by requirements contained only within the rules, the effective date of the statute is irrelevant. The rules on this subject first became effective after the passage of Art. 28-a.

In regards to the relevance of the type of rulemaking action, the Committee determined there would be no violation of Art. 28-a only if the rules were originally effective prior to the effective date of Art. 28-a, and any subsequent rulemaking proceedings, including the one in question, were readoptions without amendments. As just noted, rules on this subject did not become effective prior to Art. 28-a. Additionally, this rulemaking action is not a straight readoption, but a readoption with amendment.