The Greenland Planning Board approved Endicott General Partnership’s 79-lot residential subdivision on 212 acres, which included 85 acres of wetlands. Endicott sought a fill and dredge permit, as required by RSA 482-A:3, from the Department of Environmental Services (DES) to construct roads across the protected wetland. The Wetlands Bureau issued a permit for 13 road crossings and required Endicott to mitigate the loss of wetlands by placing some 97 acres under conservation easement and creating additional wetlands.
The Greenland Conservation Commission and the Conservation Law Foundation (CLF) each sought reconsideration of the Wetlands Bureau decision to issue the permit. Upon reconsideration, the Wetlands Bureau revoked the permit. Endicott sought reconsideration of that decision, and the Wetlands Bureau issued a new permit that decreased the number of road crossings to 12, increased the acreage in conservation easement to 106 and imposed a 50-foot upland buffer requirement. These conditions eliminated 13 of the house lots.
The conservation commission and CLF sought reconsideration from the Wetlands Council under the reconsideration and appeal process for fill and dredge permits outlined in RSA 482-A:10. The Wetlands Council affirmed the decision of the Wetlands Bureau, and the conservation commission and CLF appealed to the superior court, which also affirmed the issuance of the permit.
The conservation commission and CLF appealed to the New Hampshire Supreme Court, arguing that the lower court had erred by ruling that the authority of DES to review wetlands permits is limited to assessing the impact of construction on protected wetlands and does not extend to consideration of upland activities on the protected wetlands. The conservation commission and CLF argued that the decision to issue the wetlands permit should have taken into consideration the impact of the subdivision project as a whole, not just the impact of the 12 road crossings on the wetlands. The Supreme Court disagreed, finding that the language of RSA 482-A:3 “plainly establishes the scope of the project review and permitting authority granted to DES[.]” The Court held: “DES is authorized to grant permits for certain enumerated construction activities in or on banks, flats, marshes and swamps in and adjacent to state waters. … DES is not authorized to grant dredge and fill permits for construction activities not listed in the statute or conducted anywhere other than the places listed in the statute.”
The Court noted that upland construction activities, such as the residential development proposed by Endicott, are not without “other forms of DES review,” such as terrain alteration and sewage and waste disposal, under other statutes.
The Court also disagreed with the argument that the lower court incorrectly shifted to the conservation commission and CLF the burden of coming up with alternative designs with less wetland impact. RSA 482-A:10 places the burden on the party seeking to set aside a Wetlands Council decision to prove that the decision was unlawful or unreasonable.
The conservation commission and CLF argued that the lower court erroneously affirmed the issuance of the wetland permit because it didn’t address concerns raised by the Wetlands Bureau in its first revocation of the permit. However, the Court noted that RSA 482-A:10 gives DES the authority to reconsider its decisions and said, “[I]t would have been well within the bureau’s authority to retract the finding [in the original revocation] after receiving additional evidence at the hearing on Endicott’s request for reconsideration.”