APPEAL OF LAKE SUNAPEE PROTECTIVE ASSOCIATION & a. (New Hampshire Wetlands Council)
Argued: February 7, 2013
McLane, Graf, Raulerson & Middleton, PA, of Concord (Gregory H. Smith on the joint brief and orally), for petitioner Lake Sunapee Protective Association.
Upton & Hatfield, LLP, of Portsmouth (Justin C. Richardson on the joint brief and orally), for petitioner Town of Newbury.
Michael A. Delaney, attorney general (Evan J. Mulholland, assistant attorney general, on the brief and orally), for the respondent.
The petitioners, Lake Sunapee Protective Association and Town of Newbury, appeal a New Hampshire Wetlands Council decision. The Wetlands Council upheld the grant by New Hampshire Department of Environmental Services (DES) of a shoreland impact permit to the respondent, New Hampshire Department of Fish and Game (F&G), to construct a two-ramp public boat launch with parking on the State's "Wild Goose Property, " located on the shore of Lake Sunapee. The petitioners contend that it was error to uphold DES's decision because DES violated two provisions of the Comprehensive Shoreland Protection Act, now called the Shoreland Water Quality Protection Act (the Act). See RSA ch. 483-B (2001 & Supp. 2012). They argue that DES contravened RSA 483-B:9, IV-b (Supp. 2012) by issuing a permit that was neither necessary nor consistent with the purposes of RSA chapter 483-B and other state law. They also argue that DES violated RSA 483-B:3, II (2001) by failing to enforce a local shoreland setback. We affirm.
The following facts were found by the Wetlands Council, or are otherwise part of the certified record. The Wild Goose Property consists of approximately 135 acres of land in Newbury. It abuts Sunapee State Park and includes a 3.3-acre site along the southwestern shore of Lake Sunapee. The property was formerly the site of the "Wild Goose" cabins.
The State acquired the property in 1990 through its Land Conservation Investment Program, specifically to provide public boat access to Lake Sunapee. See RSA 162-C:6-:7, :10-:11 (2002), :8-:9 (Supp. 2012); Town of Newbury v. N.H. Fish and Game Dep't, 165 N.H. ___, ___(decided June 28, 2013). F&G manages the property. See RSA 233-A:4 (2009) (F&G is charged with carrying out the statewide public boat access program).
In 2004, the New Hampshire Public Water Access Advisory Board (PWAAB) formally advised F&G to develop the 3.3-acre site for public boat access to Lake Sunapee based upon its determination that such access was needed. See RSA 233-A:2, II (2009). On December 17, 2008, F&G applied to DES for the necessary permits to construct the boat launch. In support of those applications, F&G submitted a detailed report describing the project. The report explained that the project "was developed to provide public unlimited powerboat access to Lake Sunapee, thereby fulfilling the mandates of the 1991 . . . 'Public Access Plan for New Hampshire's Lakes, Ponds, and Rivers, '" published by the New Hampshire Office of State Planning. The report observed that "[p]ublic boat access to Lake Sunapee is currently limited to municipal, private and State-owned fee based facilities."
The report stated that, "during the decade-long planning process, " F&G had reviewed numerous "alternative access sites and [a] No-Build Alternative . . . to determine if a more suitable site was available." "The Alternatives Analysis focused on evaluating the environmental conditions, design constraints and costs for alternative public access sites . . . ." An appendix described the analysis in depth.
The report noted that the project did not meet two of the minimum shoreland protection standards set forth in RSA 483-B:9, V (Supp. 2008). First, it did not meet the requirement that within each "50 by 50 foot" segment of waterfront buffer, "a minimum combined tree and sapling score of at least 50 points shall be maintained." RSA 483-B:9, V(a)(2)(D). According to the report, "[f]ive of the 16 Waterfront Buffer blocks on this site will have their tree point count diminished during construction, and in three of these, construction will lower the tree point count below 50 points." Although F&G planned to add "[m]itigation plantings, " which would increase the tree count of the affected segments, one segment would be "irrevocably reduced below 50 points." Second, the project did not meet the requirement that fifty percent of the vegetation within the "natural woodland buffer" be "unaltered." RSA 483-B:9, V(b)(2)(A)(ii).
DES issued the permit on January 7, 2009, after making the following findings:
1. The New Hampshire Office of State Planning (OSP) Public Access Plan for New Hampshire's Lakes, Ponds, and Rivers mandated in 1991 that the state of New Hampshire was to provide the public with unlimited powerboat access to Lake Sunapee.
2. RSA [chapter] 255-A designates [F&G] as the lead agency for boating access within the state and created the Statewide Public Boat Access Program to provide adequate, safe, and environmentally sound public boat access to waters of the state.
3. [F&G] conducted a 30 parameter analysis comparing 13 prospecti[ve] sites. Alternatives to the current site were not selected because they would not provide adequate, safe access to Lake Sunapee and, therefore, would not meet the aforementioned mandates.
4. The purpose and intent of RSA [chapter] 483-B is to fulfill the state's ro[le] as trustee of its waters and to promote public health, safety, and the general welfare by providing for economic development in proximity to the water, conserving shoreline cover and points of access to inland and coastal waters, and protecting public use of waters and recreation.
5. [DES] finds that plans [submitted with F&G's application] provide sufficient evidence to meet the aforementioned purpose and intent of RSA [chapter] 483-B.
The permit allows F&G to alter 80, 500 square feet of the site to construct "a 2-ramp public boat launch with parking facilities for approximately 31 car/trailers and 12 car top spaces." The permit is contingent upon approval of an alteration of terrain permit and wetland impact permit, and requires the installation of erosion and siltation control measures. The plans approved by the permit did not show the local shoreland setback of seventy-five feet. See N.H. Admin. Rules, Env-Wq 1406.09(f) (plans must show "[a]ll . . . applicable local and state setbacks"). The petitioners appealed the grant of the permit to the Wetlands Council.
In April 2009, F&G requested that DES amend the permit. DES issued the amended permit on May 22, 2009. The amended permit allows "[n]o more than 5.9% of the area of the lot within the protected shoreland [to] be covered with impervious surfaces, " unless F&G obtains additional DES approval. See RSA 483-B:4, VII-b (Supp. 2012) (defining "impervious surface" as "any modified surface that cannot effectively absorb or infiltrate water, " such as "paved, gravel, or crushed stone driveways, parking areas, and walkways"). Currently, 5.6% of the lot is covered by impervious surfaces.
Thereafter, DES issued a wetlands impact permit to F&G, and the petitioners appealed this decision to the Wetlands Council as well. The Wetlands Council heard the appeals of the shoreland impact permit and the wetlands impact permit at a four-day consolidated evidentiary hearing. After deliberating for another four days, the Wetlands Council issued a single decision denying the appeal of the wetlands impact permit, and denying the appeal of the shoreland impact permit except as to a ground that is not at issue in this appeal. The Wetlands Council found that there was no "reasonable way to construct a boat ramp on the site" that complied with all of the minimum standards set forth in RSA 483-B:9, V – according to the Wetlands Council, "[t]here is no way to build a boat ramp on the site while still complying with the 50 point rule." See RSA 483-B:9, V(a)(2)(D). The petitioners unsuccessfully moved for reconsideration, and this appeal followed.
Our standard of review of the Wetlands Council's decision is set forth in RSA 541:13 (2007). Appeal of Garrison Place Real Estate Inv. Trust, 159 N.H. 539, 541 (2009); RSA 21-O:14, III (2012). Under RSA 541:13, all of the findings of fact of the Wetlands Council "shall be deemed to be prima facie lawful and reasonable." The petitioners have the burden of demonstrating that the Wetlands Council's decision was "clearly unreasonable or unlawful." RSA 541:13. We must uphold the Wetlands Council's decision except for errors of law, unless we are satisfied, by a clear preponderance of the evidence before us, "that such order is unjust or unreasonable." Id.
For its part, the Wetlands Council must "determine whether the . . . decision [by DES] was unlawful or unreasonable by reviewing the administrative record together with any evidence and testimony the parties to the appeal may present." RSA 21-O:14, I-a (2012) (amended 2012), :5-a, V (2012). The Wetlands Council's appeal hearings are "adjudicative proceedings." RSA 21-O:14, II (2012).
The petitioners argue that DES failed to comply with RSA 483-B:9, IV-b and RSA 483-B:3, II. They contend, accordingly, that the Wetlands Council erred when it ruled that DES's decision to grant the permit was reasonable and lawful.
Resolving these issues requires statutory interpretation. We review an agency's statutory interpretation de novo. See N.H. Dep't of Envtl. Servs. v. Marino, 155 N.H. 709, 713 (2007). We are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Id. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. When the language of the statute is clear on its face, its meaning is not subject to modification. Id. We will neither consider what the legislature might have said nor add words that it did not see fit to include. Id. Furthermore, we interpret statutes in the context of the overall statutory scheme and ...