Certified Final Objection No. 78 of the

Joint Legislative Committee on Administrative Rules

At its meeting on August 16, 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 96-094 containing proposed rules of the Department of Environmental Services (Department) relative to shoreland protection. The Department responded by letter dated September 23, 1996, received by the Office of Legislative Services on the same date.

At its meeting on November 14, 1996, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-094. 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 bases for the Committee’s final objection:

New Hampshire Constitution Part 1, Article 28-a

The Committee objected that, to the extent that it violates Part 1, Article 28-a of the New Hampshire Constitution, Final Proposal 96-094 is beyond the authority of the Department, pursuant to Committee Rule 401.04, and contrary to legislative intent, pursuant to Committee Rule 402.04. 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 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.

Final Proposal 96-094 would amend Env-Ws 1003, add several definitions under Env-Ws 1002, and create a new chapter, Env-Ws 1400. The rules establish criteria for shoreland development. The Committee determined that political subdivisions will be subject to the requirements imposed by this new program. To the extent that the political subdivisions will incur costs for compliance with such requirements, the Committee concluded that the rules conflict with Part 1, Article 28-a.