APPEAL OF TOWN OF LINCOLN (New Hampshire Water Council)
Argued: November 28, 2018
& Hatfield, LLP, of Portsmouth and Concord (Russell F.
Hilliard and Brooke Lovett Shilo on the brief, and Mr.
Hilliard orally), for the petitioner.
J. MacDonald, attorney general (Mary E. Maloney, assistant
attorney general, on the brief and orally), for the
petitioner, the Town of Lincoln, appeals an order of the New
Hampshire Water Council upholding a decision by the
respondent, the New Hampshire Department of Environmental
Services (DES), ordering the Town to repair the Pemigewasset
River Levee, a fortified embankment with granite block
facing, located along approximately 1, 700 feet of the
northwesterly bank of the East Branch of the Pemigewasset
River in Lincoln. The Water Council found that the Town was
the owner of the levee pursuant to RSA 482:11-a (2013), and
therefore was obligated under the statute to maintain and
repair the levee. We reverse.
record supports the following facts. In 1912, the Franconia
Paper Company constructed the levee on company property along
the Pemigewasset River. In 1959, the levee was damaged by a
flood. At town meeting in March 1960, the residents of the
Town voted to approve a restoration of the levee, to be
performed by the United States Army Corps of Engineers. To
facilitate the project, and in order to secure federal
funding for the restoration under the Flood Control Act of
1936, the residents authorized the Town to enter into
agreements with the Army Corps, and to "acquire any real
estate interests" necessary for the restoration project.
In June 1960, the Town executed an Assurance Agreement with
the Army Corps (the Assurance), obligating the Town to
(a) provide without cost to the United States, all lands,
easements, and rights-of-way necessary for the construction
of the project; (b) hold and save the United States free from
damages due to the construction works; (c) maintain and
operate all the works after completion in accordance with
regulations prescribed by the Secretary of the Army.
order to satisfy these obligations to the Army Corps, and
because the Town did not own the land or the levee, in July
1960 the Town entered into a Right-of-Entry Agreement (the
REA) with the fee owner, the Franconia Paper Company. The REA
granted to the Town and the United States the "right to
enter upon the . . . lands to perform construction work of
any nature necessary in the restoration of the [levee], and
to enter upon said lands at any time to inspect the restored
[levee] with a view to its proper maintenance and
operation." The REA also provided that the Franconia
Paper Company reserved for itself, and its successors and
assigns, all rights in the land that would not interfere with
those it had granted to the Town and the United States.
Pursuant to these agreements, the reconstruction of the levee
was done by the Army Corps.
1971, the Franconia Paper Company, then under a new corporate
name, conveyed certain parcels of land to the Franconia
Manufacturing Corporation by quitclaim deed. The deed
provided that Franconia Manufacturing Corporation was taking
the land subject to the rights previously granted to the Town
and the United States, and provided that both the Town and
the United States held easements enabling them to "enter
the premises via the present access road or by whatever route
is necessary and convenient at any time to inspect the
restored flood control [levee] with a view to its proper
maintenance and operation . . . ." (the 1971 deed). The
1971 deed also provided that
[t]he [Franconia Manufacturing Corporation], by accepting
this conveyance covenants and agrees to assume and discharge
the obligations of the [Franconia Paper Company] (assumed by
the [Franconia Paper Company] by instruments executed . . .
in 1961) to maintain the [levee] on the northerly bank of
said East Branch as constructed by and under the supervision
of the United States Army Engineers.
2011, the levee was severely damaged by Tropical Storm Irene.
In 2014 and 2015, DES inspected the levee and determined that
it was a "dam in disrepair," classifying it as a
"high hazard [potential] dam." See RSA
482:2, I, V (2013). In August 2015, DES issued a Letter of
Deficiency to the Town listing the levee's defects and
requesting that the Town bring the levee back into
compliance. The Town responded to DES, stating that, although
it was not the owner of the levee, it already had plans to
complete the needed repairs. After the Town and DES failed to
agree on how to proceed, DES ordered the Town to repair the
levee, concluding, without express analysis, that the Town
was the owner of the levee. The Town appealed the order to
the Water Council.
Water Council upheld the DES decision in an order on the
parties' cross-motions for summary judgment, interpreting
RSA 482:11-a, which provides that "[t]he owner of a dam
shall maintain and repair the dam so that it shall not become
a dam in disrepair." RSA 482:11-a. Although the Water
Council found that the Town was not the fee owner of the
levee, and had not acquired fee ownership through either the
process of dedication and acceptance, see Hersh v.
Plonski, 156 N.H. 511, 514-16 (2007), or a vote of the
selectmen pursuant to RSA 41:14-a (2012), it also found that
the Town was the owner of the levee within the meaning of RSA
482:11-a. The Water Council stated that
the Town's argument that it is not the owner of the dam
within the meaning of RSA 482:11-a, and therefore not subject
to DES regulatory action is rejected. The Town holds an
easement interest in the dam that is sufficient for purposes
of imposing on [the Town] the repair and maintenance
requirements of [RSA 482:11-a].
The Water Council denied the Town's motion for rehearing,
and this appeal followed.
chapter 541 governs our review of Water Council decisions.
See RSA 21-O:14, III (2012). The party seeking to
set aside the Water Council's order bears the burden of
proof "to show that the [order] is clearly unreasonable
or unlawful." RSA 541:13 (2007). "[A]ll findings of
the [Water Council] upon all questions of fact properly
before it shall be deemed to be prima facie lawful and
reasonable." Id. "[T]he 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." Id. "In reviewing
the Council's findings, our task is not to determine
whether we would have found differently or to reweigh the
evidence, but, rather, to determine whether the findings are
supported by competent evidence in the record."
Appeal of Cook, 170 N.H. 746, 749 (2018).
review the Water Council's rulings on issues of law