Certified Final Objection No. 76 of the

Joint Legislative Committee on Administrative Rules

At its meeting on July 19, 1996, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 96-080 containing proposed rules of the Department of Environmental Services relative to surface water quality. The Commissioner of Environmental Services (Commissioner) responded by letter dated August 1, 1996, received by the Office of Legislative Services on August 2, 1996.

At its meeting on September 20, 1996, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-080. 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:13, VI:

After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. 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 for the Committee’s final objection:

Env-Ws 430.26

The Committee objected that Env-Ws 430.26 is, pursuant to Committee Rule 401.04, beyond the authority of the Commissioner by violating Part 1, Article 28-a of the New Hampshire Constitution. That constitutional provision states 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 subdivisions 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.

Env-Ws 434.02, the rule that Env-Ws 430.26 will replace, governs permit limitations in low flow conditions. Env-Ws 434.02 does not prohibit the use of seasonal variations in flows to determine the permit limitations for discharges of pollutants into receiving waters. Representing the City of Rochester, Attorney Andrew W. Serell testified, and the Committee concluded, that under the extant rules and consistent with both the Clean Water Act and the regulations of the United States Environmental Protection Agency, the Department has discretion to allow such seasonal variations in flow to be considered in determining permit limitations. The Committee also heard testimony that use of such flow would allow those regulated (including political subdivisions) to comply with the rules without incurring increased costs.

Attorney Serell further testified, and the Committee further concluded, that Env-Ws 430.26, the rule intended to replace Env-Ws 434.02, specifically prohibits the use of seasonal variations in flow to determine permit limitations for discharges of pollutants. In the Committee’s view, this has the effect of eliminating a method of determining permit limitations that would allow permittees to comply with less stringent requirements, and therefore incur lower costs for compliance, The Committee determined that Env-Ws 430.26 violates the prohibition in Part 1, Article 28-a against unfunded state mandates, to the extent that political subdivisions must now comply with more stringent requirements that increase costs of compliance