Appeal of Matthew Lowrie & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0257, Appeal of Matthew Lowrie & a., the
court on September 17, 2018, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
petitioners, Matthew and Katherine Lowrie and Mark and Deborah Pasculano,
appeal a ruling of the New Hampshire Wetlands Council (Wetlands Council or
Council) dismissing their appeal of a wetland Restoration Plan Approval issued
by the New Hampshire Department of Environmental Services (DES) to their
abutting neighbors, the respondents, Bruce and Mary McCarthy, for lack of
jurisdiction. We affirm.

The relevant facts follow. In January 2016, DES issued a “Letter of
Deficiency” to the respondents, after it had received complaints “relative to
alleged turbid water . . . originating from [the respondents’] property after rain
events and entering an adjacent stream and subsequently then entering Lake
Sunapee in Sunapee.” In its letter, DES identified several actions the
respondents needed to take to correct the noted deficiencies including:
reinstalling and maintaining erosion controls on the property; retaining an
environmental professional certified in erosion and sediment control;
submitting monitoring reports to DES; submitting a temporary stabilization
plan to DES by February 2016; and submitting a permanent stabilization plan
to DES by March 2016.

The letter stated that if compliance was not achieved within the time
period set forth, “DES may take further action against [the respondents]
including issuing an order requiring that the deficiencies be corrected and/or
referring the matter to the New Hampshire Department of Justice for injunctive
relief.” In addition, DES indicated that its personnel “may re-inspect the
property at a later date to determine whether [the respondents] have come into,
and are maintaining, full compliance with applicable laws and rules,” and that
DES “reserve[d] the right to pursue monetary penalties for the deficiencies noted
. . . as well as any deficiencies noted in subsequent inspections of the property.”
In response, the respondents engaged an engineering firm and submitted a
“Temporary Stabilization Plan” in February 2016. DES approved the plan in a
letter titled “TEMPORARY STABILIZATION PLAN APPROVAL.” In April 2016, the
respondents’ engineer submitted a permanent stabilization plan.

Subsequently, the respondents’ engineer submitted a wetland impact
assessment and proposed restoration plan to DES. In September 2016, DES
approved the restoration plan in a letter titled “RESTORATION PLAN
APPROVAL.” The approved plan contained 20 specific conditions including
restoring approximately 9,055 square feet of wetlands and requiring the
submission by a qualified environmental consultant of monitoring reports to
DES over an approximately one-year period “to document the success of the
restoration and outline a schedule for remedial actions if necessary.” The letter
stated that the plan approval “does not relieve the [respondents] from the
obligation to obtain other local, state or federal permits that may be required.”

In October, the petitioners appealed to the Wetlands Council. The
petitioners argued that DES acted unlawfully or unreasonably in approving the
restoration plan for a variety of reasons including: “by not requiring an
accounting of all of the destroyed wetlands”; “because [DES] did not require a
sufficient mitigation ratio”; “by not requiring any permits” such as an alteration
of terrain permit, a state wetlands permit, or a federal wetlands permit; by
failing to require “hydrology calculations, water quantity/quality testing, and
ongoing monitoring of water quantity/quality”; and by “not resolv[ing] disputes
on existing wetlands.” (Bolding omitted.) In sum, the petitioners were not
satisfied that the restoration plan required the respondents “to fully address
the stormwater runoff and wetlands destruction that they have unlawfully
caused.” The petitioners requested that the Wetlands Council “revoke the
Approval and remand the matter to DES for further proceedings consistent
with the Council’s findings and rulings.”

The respondents moved to summarily dismiss the petition, arguing, among
other assertions, that because a Restoration Plan Approval is not a “department
permitting decision” as defined by RSA 21-O:14 (Supp. 2017), the Wetlands
Council lacked jurisdiction to hear the appeal. The Wetlands Council agreed,
and, accordingly, granted the respondents’ motion for summary dismissal. The
petitioners unsuccessfully moved for reconsideration, and this appeal followed.

The petitioners raise two issues on appeal. First, they argue that the
Wetlands Council erred by concluding that it lacked jurisdiction to hear the
appeal because the “Restoration Plan Approval” issued by DES is a department
permitting decision subject to appeal to the Council. Second, they argue that
the restoration plan approval constitutes an “after the fact” wetlands permit
subject to appeal to the Council. (Quotation omitted.)

Resolving these issues requires us to interpret the relevant statutory
provisions. This court is the final arbiter of the intent of the legislature as
expressed in the words of the statute considered as a whole. Appeal of Union
Tel. Co., 160 N.H. 309, 317 (2010). In interpreting a statute, we first look to
the language of the statute itself, and, if possible, construe that language
according to its plain and ordinary meaning. Id. Unless we find that the
statutory language is ambiguous, we need not look to legislative intent. Id.
Furthermore, we interpret statutes in the context of the overall statutory

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scheme and not in isolation. Id. We review an agency’s statutory
interpretation de novo. See id. at 314.

The Wetland Council’s jurisdiction to hear appeals is set forth in RSA 21-
O:5-a (Supp. 2017) and RSA 21-O:14. The Council is authorized to “hear all
administrative appeals from department decisions made under RSA 482-A
relative to wetlands . . . and [to] decide all disputed issues of fact in such
appeals in accordance with RSA 21-O:14.” RSA 21-O:5-a, V. A “department
permitting decision” constitutes a “department decision” under RSA 21-O:14,
I(c).

The statute defines a “department permitting decision” as “the
department’s final action to grant in whole or in part, with or without
conditions, or to deny an application or other request for a license as defined in
RSA 541-A:1, VIII.” RSA 21-O:14, I(a). A “license” as defined in RSA 541-A:1,
VIII (2007) is “the whole or part of any agency permit, certificate, approval,
registration, charter or similar form of permission as required by law.”

The petitioners first argue that the Wetlands Council erred “by denying it
had jurisdiction under RSA 21-O:5-a to hear the appeal.” (Bolding and
capitalization omitted.) Their argument is as follows:

The Wetlands Council has broad jurisdictional authority to hear
“appeals from department decisions made under RSA 482-A
relative to wetlands.” RSA 21-O:5-a. Department Decisions are
defined in RSA 21-O:14 to include “Department Permitting
Decisions” and “Department Enforcement Decisions.” RSA 21-
O:14, I(c). Department Permitting Decisions are defined to include
“the department’s final action to grant in whole or in part, with or
without conditions, or to deny an application or other request for
a license as defined in RSA 541:1, VIII.” RSA 21-O:14, I(a)
(emphasis added). RSA 541-A:1, VIII defines a request for a license
as “the whole or part of any agency permit, certificate, approval,
registration, charter or similar form of permission required by law”
(emphasis added).

Putting this together, there is a right to appeal Department
“Permitting Decisions,” which [are] defined to include the “approval
or similar form of permission” to do work where permission is
required. By statute, work in wetlands areas requires approval
and a permit. RSA 482-A:3.

(Ellipses omitted.)

We disagree that the DES decision at issue is a “department permitting
decision.” As set forth above, to qualify as a “department permitting decision,”

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RSA 21-O:14, I(a) requires that such decision be the result of an “application or
other request for a license.” However, the respondents did not make an
application or other request to DES; rather, the restoration plan approval was
requested by DES. The use of the word “approval” did not turn DES’s
discretionary enforcement action into a department permitting decision.
Accordingly, we are not persuaded that the DES restoration plan approval — a
step taken by DES as part of its discretionary authority to investigate and
enforce the wetlands laws under RSA chapter 482-A — constitutes a
“department permitting decision” within the meaning intended by the
legislature. See Appeal of Morgan, 144 N.H. 44, 48 (1999) (explaining that
“decisions to investigate and prosecute are committed to the sound discretion
of the agency” and that “[b]y virtue of its specialized knowledge and authority,
the agency alone is empowered to develop that enforcement policy best
calculated to achieve the ends contemplated by the legislature and to allocate
its available funds and personnel in such a way as to execute its policy
efficiently and economically” (quotation and brackets omitted)).

The petitioners next argue that the restoration plan approval constitutes
an “after the fact” wetlands permit subject to appeal to the Wetlands Council.
In support, they rely upon an administrative rule providing that “[a]pplications
received after work is completed shall be subjected to the same review as any
other application.” N.H. Admin. R., Env-Wt 302.05. Thus, they contend, DES
“cannot bypass the statutory requirement of a permit by simply issuing a
document called a Restoration Plan Approval, thereby depriving [the
petitioners] their rights of notice and appeal associated with the review and
issuance of a wetlands permit.”

The restoration plan approval was not an after-the-fact permit. The
restoration plan approval was issued in response to the respondents
voluntarily complying with the actions identified by DES in its letter of
deficiency. To conclude that the restoration plan approval issued by DES
constituted an after-the-fact permitting decision appealable to the Wetlands
Council under RSA 21-O:14 requires a strained interpretation of the statutory
language not supported by the plain meaning of the words used. See Appeal of
Michele, 168 N.H. 98, 102 (2015) (explaining that we construe all parts of a
statute together to effectuate its overall purpose and avoid an absurd or unjust
result).

Affirmed.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

Eileen Fox,
Clerk

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