Green. Conservation Comm'n v. N.H. Wetlands Council

• Decision Date: 19 December 2006
• Docket Number: No. 2005–578.,2005–578.
• Citation: 913 A.2d 776,154 N.H. 529
• Court: New Hampshire Supreme Court
• Parties: GREENLAND CONSERVATION COMMISSION v. NEW HAMPSHIRE WETLANDS COUNCIL and another. Conservation Law Foundation v. New Hampshire Wetlands Council and another.

154 N.H. 529

913 A.2d 776

GREENLAND CONSERVATION COMMISSION

v.NEW HAMPSHIRE WETLANDS COUNCIL and another.

Conservation Law Foundation

v.New Hampshire Wetlands Council and another.

No. 2005–578.

Supreme Court of New Hampshire.

Argued: July 21, 2006.

Opinion Issued: Dec. 19, 2006.

Baldwin, Callen & Hogan, P.L.L.C., of Concord (Jed Z. Callen, on the joint brief) for plaintiff Greenland Conservation Commission, and Thomas F. Irwin, of Concord, on the joint brief and orally, for plaintiff Conservation Law Foundation.

Kelly A. Ayotte, attorney general (Jennifer J. Patterson, senior assistant attorney general, on the brief and orally), for the State of New Hampshire.

McNeill, Taylor & Gallo, P.A., of Dover (Malcolm R. McNeill, Jr. and Lynne M. Dennis, on the brief, and Mr. McNeill orally), for intervenor Endicott General Partnership.

Sulloway & Hollis, P.L.L.C., of Concord (Amy Manzelli, on the brief), for Newington Conservation Commission, Exeter River Local Advisory Committee, Lamprey River Advisory Committee, and New Hampshire Rivers Council, as amici curiae.

BRODERICK, C.J.

The plaintiffs, Greenland Conservation Commission (GCC) and Conservation Law Foundation (CLF), appeal an order of the Superior Court (McHugh, J.) affirming a decision and order (decision) of the New Hampshire Wetlands Council (wetlands council or council) that affirmed the issuance of a wetlands permit by the wetlands bureau (wetlands bureau or bureau) of the New Hampshire Department of Environmental Services (DES) to Endicott General Partnership (Endicott). That permit allows Endicott to fill 42,350 square feet of wetlands, at twelve locations, for the construction of roadways to serve a proposed housing development in Greenland. We affirm.

The following facts are drawn from the administrative record. Before DES issued the permit that gave rise to this suit, through its wetlands bureau, Endicott received subdivision approval from the Greenland Planning Board for a seventy-nine-lot housing development situated on a 212–acre parcel that includes approximately eighty-five acres of wetlands bordering Norton Brook, two unnamed tributaries to Norton Brook and several vernal pools. The remainder of the parcel consists of uplands. See N.H. Admin. Rules, Env–Wt 101.95 (defining "upland" as "an area of land that is not a jurisdictional area"); N.H. Admin. Rules, Env–Wt 101.50 (defining "jurisdictional area" as "an area that is subject to regulation under RSA chapter 482–A, as described therein"); RSA 482–A:4, II (2001) (describing the non-tidal waters and areas regulated by RSA chapter 482–A as encompassing "all surface waters of the state ... which contain fresh water, including the portion of any bank or shore which borders such surface waters, and ... any swamp or bog subject to periodical flooding by fresh water including the surrounding shore"). On June 12, 2002, Endicott filed a "standard dredge and fill application" with the DES wetlands bureau, pursuant to RSA 482–A:3, I (2001), for the construction of roadways across protected wetlands at thirteen locations.

On March 19, 2003, the bureau granted Endicott a permit that included the following project description:

Fill a total of 61,150 sq. ft. of palustrine wetlands for roadway crossings at 13 locations for a 79–lot subdivision on 212 acres. Approve as mitigation preservation of a total of 98.6 acres, consisting of 20.7 acres of upland and 77.9 acres of wetland, to be placed in conservation easement and held by the Town of Greenland; and creation of 24,829 sq. ft. (one 10,890 sq. ft. area, and one 13,939 sq. ft. area) of flood plain scrub/shrub and emergent marsh wetlands constructed as compensation for wetland impacts within the 100 year flood plain.

The plaintiffs both requested reconsideration of the decision to issue the permit. After holding a public hearing on the petition for reconsideration, the bureau concurred on two of the four proposed grounds for reconsideration and revoked the permit by letter dated September 13, 2003.

Endicott, in turn, sought reconsideration of the permit revocation, and after holding a hearing on Endicott's petition for reconsideration, the bureau issued a new permit, dated February 4, 2004, that included the following project description:

Fill a total of 42,350 sq. ft. of palustrine wetlands for roadway crossings at 12 locations, including 4,000 square feet for the construction of a 100 linear foot bridge, for a 79–lot subdivision on 212 acres. Approval includes, as mitigation, the preservation of a total of approximately 106 acres, consisting of approximately 27 acres of upland and approximately 79 acres of wetland, to be placed in conservation easement and held by the Town of Greenland; and, creation of 24,829 sq. ft. (one 10,890 sq. ft. area, and one 13,939 sq. ft. area) of flood plain scrub/shrub and emergent marsh wetlands constructed as compensation for wetland impacts within the 100 year flood plain; and, execution of the Atlantic White Cedar Management Plan as prepared by Carex Ecosystems dated 12/6/02, rec'd by DES 12/6/02.

The increased acreage under conservation easement in the new permit included three entire lots, and the new permit also called for establishment of a fifty-foot upland buffer that involved ten more lots.

The plaintiffs appealed the bureau's decision to the wetlands council, see RSA 482–A:10, IV–VII (Supp. 2006), which affirmed. After the council denied their motions to reconsider, GCC and CLF filed separate appeals in the superior court, see RSA 482–A:10, VIII, X–XVIII (Supp. 2006), which were consolidated. The superior court affirmed the council's decision. This appeal followed.

On appeal, the plaintiffs contend that the trial court erred by: (1) ruling that DES' review authority (as exercised by the wetlands bureau) was limited to assessing the impact of construction activities in protected wetlands (i.e., the twelve permitted wetland crossings) and did not include consideration of the impact that upland activities (i.e., the entire subdivision) might have upon protected wetlands; (2) imposing on the plaintiffs the burden to develop and present alternative designs to the wetlands bureau; (3) affirming the wetlands council's decision when there was no evidence in the record of project alterations designed to address the issues raised by the wetlands bureau's September 13, 2003 permit revocation; (4) failing to address critical grounds for appeal concerning failures by Endicott and the bureau to properly address the impacts of the proposed project; and (5) affirming the council's decision, even though the council applied an overly deferential standard of review and failed to specify the factual and legal bases of its decision.

The trial court's review of wetlands council decisions is governed by RSA 482–A:10, XI (2001), which provides:

On appeal to the superior court, the burden of proof shall be upon the party seeking to set aside the decision of the council to show that the decision is unlawful or unreasonable. The council's decision shall not be set aside or vacated, except for errors of law, unless the court is persuaded, by a preponderance of the evidence before it, that said decision is unjust or unreasonable.

Conservation Law Found. v. N.H. Wetlands Council, 150 N.H. 1, 3, 834 A.2d 193 (2003). We, in turn, will not disturb the trial court's decision unless it is unsupported by the evidence or legally erroneous. Id. at 4, 834 A.2d 193.

I

The plaintiffs first argue that the wetlands bureau, the wetlands council, and the trial court all adopted an unlawfully narrow view of DES' statutory scope of review. On the plaintiffs' reading, RSA chapter 482–A (2001 & Supp. 2006) obligated the bureau to consider not just the effects of the filling necessary to construct the twelve approved wetland crossings, but also the effects of the housing development as a whole, including upland construction activities, on protected wetlands. Among other things, the plaintiffs point to the discharge of stormwater runoff and habitat fragmentation as negative effects that will result from the construction of seventy-six homes (seventy-nine lots minus the three lots placed under conservation easement) and related infrastructure. According to the plaintiffs, the trial court erred, as a matter of law, because its decision concerning the extent of DES' project review and permitting authority: (1) violated RSA 482–A:1 ; (2) violated DES' wetland rules; (3) is inconsistent with DES' prior implementation of RSA chapter 482–A and its wetland rules; and (4) is inconsistent with both the permit the wetlands bureau ultimately issued to Endicott and representations DES officials made during the permitting process. We address each argument in turn.

The plaintiffs' statutory argument rests upon the section of chapter 482–A titled "Finding of Public Purpose." According to that section:

It is found to be for the public good and welfare of this state to protect and preserve its submerged lands under tidal and fresh waters and its wetlands, (both salt water and fresh-water), as herein defined, from despoliation and unregulated alteration, because such despoliation or unregulated alteration will adversely affect the value of such areas as sources of nutrients for finfish, crustacea, shellfish and wildlife of significant value, will damage or destroy habitats and reproduction areas for plants, fish and wildlife of importance, will eliminate, depreciate or obstruct the commerce, recreation and aesthetic enjoyment of the public, will be detrimental to adequate groundwater levels, will adversely affect stream channels and their ability to handle the runoff of waters, will disturb and reduce the natural ability of wetlands to absorb flood waters and silt, thus increasing general flood damage and the silting of open water channels, and will otherwise adversely affect the interests of the general public.

RSA 482–A:1. The plaintiffs argue that the language quoted above, "combined with basic...