In re Town of Nottingham

Decision Date19 May 2006
Docket NumberNo. 2004–601.,2004–601.
Citation153 N.H. 539,904 A.2d 582
CourtNew Hampshire Supreme Court
Parties Appeal of the TOWN OF NOTTINGHAM Appeal of the Town of Barrington Appeal of Save Our Groundwater (New Hampshire Department of Environmental Services).

Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (E. Tupper Kinder and Richard C. Bell on the brief, and Mr. Kinder orally), for petitioner Town of Nottingham.

Pierce Atwood LLP, of Portsmouth (Mark E. Beliveau on the brief and orally), for petitioner Town of Barrington.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief), for petitioner Save Our Groundwater.

Soltani/Mosca P.L.L.C., of Epsom (Edward C. Mosca on the brief and orally), for the respondent, USA Springs, Inc.

Steven B. Conklin, by brief, pro se.

Kelly A. Ayotte, attorney general (Jennifer J. Patterson, senior assistant attorney general, on the brief), for the State, as amicus curiae.

Jenkins Legal Services, of Eaton Center (Linda A. Jenkins on the brief), for the New Hampshire Program of the American Friends Service Committee, as amicus curiae.

Duddy Law Offices, P.L.L.C., of Bedford (Roy A. Duddy on the memorandum), for Public Citizen, as amicus curiae.

Gordon R. Blakeney, Jr., of Concord, on the memorandum, and Sack Goldblatt Mitchell, of Ottawa, Ontario, Canada (Steven Shrybman on the memorandum), for Maude Barlow and the Blue Planet Project, as amici curiae.

DALIANIS, J.

The petitioners, Town of Nottingham, Town of Barrington and Save Our Groundwater (SOG), appeal the issuance by the New Hampshire Department of Environmental Services (DES) of a large groundwater withdrawal permit to the respondent, USA Springs, Inc. We affirm.

The following facts were found by DES or appear on the record before us. On May 24, 2001, USA Springs applied to DES for a large groundwater withdrawal permit, see RSA 485–C:21 (2001) (amended 2005), proposing to withdraw up to 439,200 gallons of water per day from a spring and three bedrock wells for the purpose of bottling water. Following completion of hydrogeologic testing at the site, USA Springs submitted the results of its testing and analysis in a Final Report dated February 3, 2003.

DES denied the application on August 12, 2003, based upon failure to meet regulatory requirements with respect to both water quantity and water quality. At USA Springs' request, DES granted a rehearing, but again denied the application. The second denial was based only upon issues relating to water quality.

On December 29, 2003, MyKro Waters, Inc. (MyKro Waters), on behalf of USA Springs, sent DES a letter which stated that it was "being submitted as [a] Preliminary Application for a Large Groundwater Withdrawal Permit for a proposed bottling plant." The letter stated that in accordance with prior communications with DES, "the required information as specified in [New Hampshire Administrative Rules,] Env–Ws 388.10 is already on file with the Department in the February 3, 2003 [Final Report] ... and subsequent submissions pertaining to DES comments."

On March 10, 2004, MyKro Waters, on behalf of USA Springs, wrote to DES to "document completion" of its final application for a large groundwater permit. DES approved the application and issued a large groundwater withdrawal permit on July 1, 2004. The petitioners appeal.

At the time this appeal was filed, RSA 485–C:21, VI provided that appeals from a DES decision would be in accordance with RSA chapter 541. RSA 485–C:21, VI. Thus, our standard of review is provided by RSA 541:13 (1997):

Upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of [DES] to show that the same is clearly unreasonable or unlawful, and all findings of [DES] upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.

This case involves the application of and interplay among various State statutes, as well as claims under administrative rules, the common law and the Federal and State Constitutions. RSA chapter 485–C, the Groundwater Protection Act, clearly applies to the large groundwater withdrawal permit at issue. In particular, RSA 485–C:4, XII (2001) directs the commissioner of DES to adopt rules in relation to, among other things, "[a]ll new groundwater withdrawals of 57,600 gallons or more in any 24–hour period." The petitioners claim a number of violations of RSA chapter 485–C and the administrative rules promulgated thereunder. In addition, Nottingham and SOG assert that the statement of policy in RSA chapter 481, entitled "State Dams, Reservoirs and Other Water Conservation Projects," requires DES to consider public trust issues in its evaluation of groundwater withdrawal permit applications. Nottingham and Barrington also contend that USA Springs' proposed project is subject to RSA chapter 482–A, entitled "Fill and Dredge in Wetlands." Nottingham raises an additional claim of error under the Administrative Procedure Act, RSA chapter 541–A, and both it and SOG assert the applicability of RSA chapter 21–O.

We will first clarify the law applicable to this case by addressing the petitioners' claims under RSA chapter 481 and RSA chapter 482–A. We will then address SOG's constitutional takings claim and the issues raised under RSA chapter 541–A and RSA chapter 21–O. Finally, we will turn to the petitioners' claims under RSA chapter 485–C and the rules promulgated thereunder.

I. RSA 481:1 and the Public Trust Doctrine

Nottingham and SOG raise a number of issues dealing with RSA 481:1 and the public trust doctrine. Nottingham argues that the policy expressed in RSA 481:1 applies to large groundwater withdrawals governed by RSA chapter 485–C, and that DES erred in "conclud[ing] that it has no obligation or authority to consider the public trust mandate to manage the groundwater resource to the maximum public benefit."

Section one of RSA chapter 481, State Dams, Reservoirs and Other Water Conservation Projects, sets forth the following declaration of policy:

The general court finds that an adequate supply of water is indispensable to the health, welfare and safety of the people of the state and is essential to the balance of the natural environment of the state. Further, the water resources of the state are subject to an ever-increasing demand for new and competing uses. The general court declares and determines that the water of New Hampshire whether located above or below ground constitutes a limited and, therefore, precious and invaluable public resource which should be protected, conserved and managed in the interest of present and future generations. The state as trustee of this resource for the public benefit declares that it has the authority and responsibility to provide careful stewardship over all the waters lying within its boundaries. The maximum public benefit shall be sought, including the assurance of health and safety, the enhancement of ecological and aesthetic values, and the overall economic, recreational and social well-being of the people of the state. All levels of government within the state, all departments, agencies, boards and commissions, and all other entities, public or private, having authority over the use, disposition or diversion of water resources, or over the use of the land overlying, or adjacent to, the water resources of the state, shall comply with this policy and with the state's comprehensive plan and program for water resources management and protection.

RSA 481:1 (2001). Nottingham asserts that this statute directs DES, "in administering RSA 485–C, ... to consider ‘the interest of present and future generations' and the ‘maximum public benefit’ in assessing any application to withdraw groundwater." SOG also appears to contend that RSA 481:1 imposes a public trust obligation upon DES.

USA Springs, on the other hand, argues that RSA 481:1 is "the statement of purpose [for] an entirely different Chapter" and is therefore inapplicable to RSA chapter 485–C. In addition, the State, as amicus curiae, contends that "[w]hile the language of RSA 481:1 sets ambitious general public policy goals for the state as a whole, it does not impose a duty on DES to engage in any particular analysis or make any specific finding prior to issuing an individual groundwater withdrawal permit." Rather, the State argues, the more specific provisions of RSA chapter 485–C control over RSA 481:1, the more general statute. See State v. Rix, 150 N.H. 131, 133, 834 A.2d 273 (2003) ("A specific law is deemed to control a specific case over a general law.").

We agree with USA Springs and the State that RSA chapter 485–C provides the criteria that DES must follow in issuing groundwater withdrawal permits and that RSA 481:1 imposes no specific additional test that DES must apply.

RSA chapter 485–C, the Groundwater Protection Act, contains its own statement of purpose, which references the State's "general responsibility for groundwater management in the public trust and interest." RSA 485–C:1, II (2001). It does not incorporate RSA 481:1 by reference. As previously noted, RSA 485–C:4, XII directs DES to adopt rules relating to large groundwater withdrawals, and it specifically instructs that these rules shall include:

(a) Criteria and procedures for requiring persons to identify and address impacts of withdrawals on surface waters, subsurface waters, water-related natural resources, and public, private, residential, and farm wells within the anticipated zone of contribution to the withdrawal.
(b) Requirements relative to conservation management plans which demonstrate the need for the proposed withdrawals, to be submitted by the persons seeking approval for a withdrawal.
(c) Procedures
...

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