Certified Final Objection No. 12 of the

Joint Legislative Committee on Administrative Rules

At its meeting on May 25, 1990, the Joint Legislative Committee on Administrative Rules (Committee) voted to make a preliminary objection to Final Proposal 90-35, containing proposed rules of the Commissioner of the Department of Environmental Services relative to protective well radii for private wells. The Commissioner responded on June 13, 1990 by amending some of the proposed rules to address the Committee's concerns and by explaining why other amendments were not made.

At a meeting on June 27, 1990, the Committee voted, pursuant to RSA 541-A:3-c, V(c), to make a final objection to the rules in Final Proposal 90-35. The final objection has been filed with the Acting Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of this 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.

The following outlines the rules to which the Committee objects and the reasons for the final objection:

1. Env-Ws 1002.15, Env-Ws 1007.05 through 1007.11

The Committee objected that these rules relative to protective well radii for private wells are not in the public interest because, pursuant to Committee Rules 403.01(d) and 403.02(c), they are not clear and understandable and capable of uniform application.

Specifically, the rules do not mention how they relate to the siting of wells on existing property when a septic system application is not involved, and the Committee determined that the rules are therefore unclear.

2. Env-Ws 1007.05(b)

The Committee determined that this rule is 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 application.

This rule includes protective well radii in feet which are not specifically stated in the statute. It was unclear to the Committee whether the actual radius in Env-Wr, 1007.05(b), adopted under RSA 485:35-a, will apply to all wells after the effective date of the statute or, instead, after the effective date of the rules.

 

3. Env-Ws 1007.06(b)

The Committee objected that the rule is contrary to the public interest, pursuant to Committee Rule 403.01(d), by not being clear and understandable and contrary to legislative intent, pursuant to Committee Rule 402.02, by leading to oral rulemaking in violation of RSA 541-A:3.

This rule refers to pipes "SDR-26 or equivalent", but the designation was not further explained or defined in the rule itself.

4. Env-Ws 1007.07, 1007.08, 1007.09(b)

The Committee objected that these rules a-re not in the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application and contrary to legislative intent, pursuant to Committee Rule 402.02, by allowing requirements to be set orally in violation of RSA 541-A:3.

Env-Ws 1007.07 and 1007.08 state the circumstances under which the protective well radii are "accorded full recognition". Similarly, Env-Ws 1007.09(b) refers to a "recognized" protective well radius. The Committee determined that it was unclear what the phrases meant or to what they entitle the property owner.

5. Env-Ws 1007.10, 1007.09(b)

The Committee objected that these rules are not in the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application.

RSA 674:37, I requires that no plat for a subdivision "shall be filed or recorded unless it is prepared and certified by a licensed land surveyor." Pursuant to RSA 485:35-a, VIII, a septic system plan and release form must be filed with the Registry of Deeds showing the actual protective well radius if the on-lot protective well radius is different than the optimum prescribed standard. RSA 310-A:54, IV states that measuring property to locate property lines and layout of land is "land surveying." Rule Env-Ws 1007.10 and Env-Ws 1007.09(b) govern the recording of plans and non-protective well radii, respectively, reiterate the statutory requirements of RSA 485:35-a, VIII, and refer to the location of the well and property lines. A land surveyor is not mentioned in these rules, however, such as in Env-Ws 1007.10, which allows a "reasonable facsimile of the plan" such as "sketch to scale or with distances shown" to be filed.

The Rockingham County Register of Deeds testified before the Committee on May 25, 1990, that pursuant to RSA 478:1-a, no register of deeds "shall file or record a plat of a subdivision, or a plat prepared f or the purpose of showing existing property lines, if such plat has not been prepared and certified by a licensed 'land surveyor." Pursuant to RSA 478:13-a, a certain format is required for "all plans submitted for recording." As a result, the Register had refused for recording one of the amended septic system plans under RSA 485:35-a, VIII since it was not prepared or certified by a licensed land surveyor, and it appeared to be a plan under RSA 478:13-a or a plat under RSA 478:1-a.

The Committee therefore determined that the current text of the rules Env-Ws 1007.10 and 1007.09(b) is unclear about whether a land surveyor is needed in complying with RSA 485:35-a, VIII when subdivisions are involved.

6. Env-Ws 1007.11(a)(9), (b)

The Committee objected that these rules are not in the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application.

The Committee had made a preliminary objection to Env-Ws 1002.15(b) and 1007.09(c) on May 25, 1990, on the grounds that the rules were not in the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application and were contrary to legislative intent, pursuant to Committee Rule 402.02, by allowing requirements to be set orally in violation of RSA 541-A:3. These rules referred to the "standard release form" required by RSA 485-35-a, VIII without including the requirements on the form. As part of the response to the preliminary objection the agency included the required information in rule Env-Ws 1007.11.

Pursuant to RSA 435:35-a, VIII, the water well contractor must use the standard release form "to alert the owner to the consequences" of installing a well in an alternative location to that indicated on the approved septic system plan when the well cannot be installed at the planned location due to the condition of the lot or the placement of buildings. As stated in the statute, "Prior to installing the well in the identified alternative location, the well contractor shall, using the standard release form, obtain a written acknowledgment, from the property owner, or the owner's agent, that the consequences are understood."

Rule Env-Ws 1007.11(a)(9) states that the form shall contain "a statement that the owner understands that s/he has no cause of action against the State of New Hampshire or any owner of the abutting property if the well becomes contaminated as a result of the decreased set-back distance." Pursuant to Env-Ws 1007.11(b) the owner must sign and record the form with the Registry of Deeds. Although the rule may be correct as to the ultimate legal consequences of an alternative well location, whether a cause of action will actually exist is up to the courts to decide. By including it on the form as a statement the owner must acknowledge by his/tier signature, the department appears to require the owner to release the State and abutters from any civil liability and waive whatever rights the owner may have to sue, if the well becomes contaminated and set-back distance is a factor. The Committee determined that the rules Env-Ws 1007.11(a)(9) and (b) were therefore unclear by appearing to require a waiver of rights.