The Town of Nottingham, the Town of Barrington and Save Our Groundwater (SOG) appealed the issuance by the New Hampshire Department of Environmental Services (DES) of a large groundwater withdrawal permit to USA Springs, Inc. The permit, issued pursuant to RSA 485-C, the Groundwater Protection Act, allows the withdrawal of up to 439,200 gallons of water per day from a spring and three bedrock wells for the purpose of bottling water. The Court upheld the DES decision.
The petitioners asserted several claims, resulting in a lengthy decision by the Court, including:
RSA 481:1 and the Public Trust Doctrine
Nottingham and SOG argued that DES erred when it concluded that it had no obligation or authority to consider the declaration of policy set forth in RSA 481:1, State Dams, Reservoirs and Other Water Conservation Projects. They asserted that the public trust mandate to manage groundwater resources to the maximum public benefit contained in RSA 481:1 must be considered by DES when assessing any application to withdraw groundwater. USA Springs countered that RSA 481:1 is inapplicable and that RSA 485-C is the controlling statute. The Court agreed, finding the criteria to be considered by DES within RSA 485-C, the Groundwater Protection Act, contains its own statement of purpose that references the state’s “general responsibility for groundwater management in the public trust and interest.” RSA 485-C:1, II.
RSA Chapter 482-A and Barrington Prime Wetland #40
Nottingham and Barrington argued that DES erred by not requiring USA Springs to apply for a dredge and fill permit under RSA 482-A:3, I and that DES should have held a prime wetlands hearing pursuant to RSA 482-A:11, IV. The petitioners argue that the drawdown of water from Barrington Prime Wetland #40 constitutes a removal of water requiring a dredge and fill permit. The Court held that USA Springs’ proposed groundwater withdrawal is not subject to the permitting requirements of RSA 482-A:3, I.
Taking
SOG asked the Court to find that granting a large groundwater permit to USA Springs is an unconstitutional taking of property in violation of the state and federal constitutions. SOG argued that the mining of water “will decrease the level of water in homeowners’ wells, require deepening of wells or new wells to maintain water availability, decrease well pressure, cause early wear on homeowners pumping equipment and result in contamination of water in their wells” resulting in a taking. SOG argued that the permit must be revoked because there has been no finding of a public purpose for the taking and no compensation. In order to sustain a claim of taking, the claimant must show a property interest in what is allegedly being taken. In the absence of a property right, no taking has occurred.
The Court disagreed and cited Bassett v. Company, 43 N.H. 569 (1862) that adopted the doctrine of reasonable use, which restricts each landowner to a reasonable exercise of his own right, a reasonable use of his own property, in view of the similar rights of others. Thus, instead of absolute ownership of the groundwater beneath one’s land, the right of each is to a reasonable use or management. The Court concluded that SOG did not show a protected property interest under New Hampshire law.
Right to an Adjudicative Hearing
Nottingham and SOG argued that DES erred in failing to hold an adjudicative hearing, which they requested in July 2004. Nottingham argued that such a hearing was required under RSA 541-A:31 and DES’ own rules. RSA 541-A:31, I provides that an agency shall commence an adjudicative proceeding if a matter has reached a stage at which it is considered a contested case. The statute defines “contested case” as “a proceeding in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after notice and an opportunity for a hearing.” RSA 541-A:1, IV. The Court declined to find that Nottingham was a party to the proceeding and thus had no statutory right to a hearing under RSA 541-A:31. In coming to this conclusion, the Court noted that Nottingham failed to present any evidence that it was admitted to the proceeding as a party. Moreover, when Nottingham moved for an adjudicative hearing on July 20, 2004, it did not refer to itself as a party or intervenor, but rather argued that the statute provides affected municipalities with a status “equivalent to that of a party” entitled to notice and opportunity to be heard. Nottingham argued that the definition of contested case is met because it was entitled to notice and an opportunity to be heard under RSA 485-C:21. RSA 485-C:21, II provides that copies of an application for a groundwater withdrawal of 57,600 gallons or more must be sent by the applicant to the governing bodies of each municipality affected and also provides for the holding of a public hearing on the application upon the timely request of the governing body of any municipality within the anticipated zone of contribution, and for the submission by such municipality to DES of comments regarding the proposed withdrawal.
The Court concluded, however, that neither the ability to call a public hearing on an issue before an administrative agency, nor the entitlement to notice of the proceedings and the opportunity to submit comments to the agency, make one a party. Since Nottingham was not a party to the proceedings, it did not have a right to hearing under RSA 541-A:31, I.
Resubmission of the Same Application
Barrington argues that DES either violated its own rules by accepting “informal and incomplete letters” as an application, or violated New Hampshire law by approving a resubmitted, previously-denied application absent a change in circumstance.
USA Springs applied to DES for its permit on May 24, 2001. It filed its final report on 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. DES subsequently granted a rehearing but again denied the application based upon issues relating to water quality.
On December 29, 2003, Mykro Waters, Inc., on behalf of USA Springs, sent DES a letter that 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 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. DES approved the application and issued the permit on July 1, 2004.
Barrington argued that for a board or agency to consider a second proposal for the same project that has been previously denied, the second proposal must be materially different. Fisher v. City of Dover, 120 N.H. 187 (1980). In Fisher, the Court held that a municipal zoning board of adjustment could not approve an applicant’s second application for a variance without first finding either that a material change of circumstances affecting the merits of the application had occurred or that the second application was for a use that materially differed in nature and degree from the use previously applied for and denied by the board.
USA Springs urged the Court to find instead that its second application was properly accepted by DES according to Morgenstern v. Town of Rye, 147 N.H. 558 (2002). In that case, the Court found that a zoning board of adjustment was required to consider a second variance application because the applicant “did not merely resubmit substantially the same application for a variance, but, at the town’s invitation, submitted a new proposal in an effort to meet the town’s concerns.” The Court held that USA Springs’ new application supplemented its prior one in response to comments made by DES in denying the prior application and was, therefore, not “substantially the same application.”
Local land use boards should keep this distinction in mind when they vote to deny an application. If the denial can be construed as “an invitation to submit a new proposal to meet the board’s concerns,” the board may be required to accept another application on the same request.
RSA Chapter 485-C and DES Rules
The Court ruled on several other claims made by the petitioners alleging DES failed to follow various provisions of Chapter 485-C and its own rules. For example, the petitioners argue that USA Springs failed to make a showing of need, as required by DES rules, for its proposed withdrawal. The Court, noting that the legislature did not define the term “need,” turned to the dictionary definition of the word, desirable or useful, to find that DES could reasonably have found the proposed withdrawal “desirable or useful” and therefore could reasonably conclude the USA Springs’ description of need complied with both the statute and agency rule.
Other claims made by the petitioners that DES failed to follow its own rules were likewise found to be without merit.
The Court noted that it relied on the statutory language in force at the time of DES’ decision to uphold the large groundwater withdrawal permit issued to USA Springs and pointed out that the legislature is free to amend that statutory language if it disagrees with the Court’s construction.