Certified Final Objection No. 69 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 94-053 containing proposed amendments to rules of the Department of Environmental Services (Department) relative to drinking water supplies. The Department responded by letter dated July 22, 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 94-053. 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. Similarly, although the New Hampshire Rulemaking Manual was amended in August, 1994, the version of the Manual that was in effect at the time of the commencement of the rulemaking proceeding contained the provisions of the uniform system of numbering and drafting (Ls-A 400) with which the Department was required to comply.

1. Violation of the Uniform System of Numbering and Drafting

The Committee objected, pursuant to RSA 541-A:3-e, IV, that the rules are contrary to legislative intent pursuant to Committee Rule 402.02(a) by conflicting with RSA 541-A:3-a, VIII, and contrary to the public interest pursuant to Committee rules 403.01(d) and 403.02(c) by not being clear and understandable and capable of uniform enforcement.

Agencies are required, pursuant to RSA 541-A:3-a, VIII, to comply with the uniform system of numbering and drafting developed by the Director of Legislative Services. There are many instances in which the rules do not comply with the uniform system. Due to the number of such violations, the rules to which the final objection has been filed have not been identified individually in this text. However, the paragraph below lists the violations by type as well as the provisions of the uniform system of numbering and drafting violated. (The individual rules have been identified in the annotations to the rules made by the Committee's Attorney. Copies of the rules with the annotations made by the Committee's Attorney can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114 in the State House, at the normal copying rate of $0.20 per page.)

The uniform system of numbering and drafting violations to which the Committee objected include, but are not limited to: including substantive provisions in definitions (violates Ls-A 402.14); incorrect numbering of tables (violates Ls-A 402.25); failing to include criteria for discretionary decision-making or failing to indicate how such criteria will be applied, or both (violates Ls-A 402.17); including recommendations in rule text (violates Ls-A 402.19); failing to use proper introductory language for rules (violates Ls-A 402.03); and reserving sections inappropriately (violates Ls-A 402.30).

2. Violation of Part I, Article 28-a

The Committee objected that Final Proposal 94-053 is, pursuant to Committee Rule 401.04, beyond the authority of the Commissioner and, pursuant to Committee Rule 402.04, contrary to legislative intent by violating Pt. 1, Art. 28-a of the New Hampshire Constitution. The Committee concluded that the rules violate Pt. 1, Art. 28-a whenever they are not proposed pursuant to federal requirements or go beyond what is required by the federal requirements. Such provisions have been identified in Commissioner Robert W. Varney's July 22, 1994, letter to the Committee.

The constitutional provision in question, Pt. 1, Art. 28-a, 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.

The Committee has consistently embraced the position 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. As indicated above, the Committee determined that the Department has imposed requirements that will cause political subdivisions to incur costs without such costs being funded by the state. The Committee decided that the statutes and federal regulations that the rules implement could be implemented so as not to violate Pt. 1, Art. 28-a by providing that political subdivisions that choose not to fund compliance with such provisions shall not be required to comply with them.