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The Fallout From Falls Way

March 2010 

There are times when the legislative process in our state capital departs from the carefully deliberative approach to lawmaking it is intended to be in favor of something more akin to a grand game of Whack-a-Mole, which it often becomes.  This scenario plays out whenever the New Hampshire Supreme Court rules in a manner that is unsatisfying to someone who has the time and resources to do something about it.  A legislative Band-Aid is introduced to address the newfound failings of the law, perceived or otherwise.  Predictably, the Greenland Conservation Commission v. NH Wetlands Council ruling in 2006 did not disappoint. 

The Greenland case spawned House Bill 222, an environmental bill aimed at wetlands impacts and advertised as the legislative response to the outrage stemming from the Falls Way subdivision, which was the subject of the lawsuit. If passed, HB 222 will allow the Department of Environmental Services (DES) to regulate indirect impacts to wetlands in addition to the direct impacts it considers in a dredge and fill permit. The bill was introduced in January of 2009 and, as of this writing, continues to make its way through the New Hampshire House and eventually the Senate.    

The bill neither tells us precisely what indirect impacts it contemplates nor does it elaborate on how much regulation the department is to impose.  It doesn’t even tell us when the department will apply its added authority.  In fact, the entire bill is no more than a single sentence added to an existing statute.  It reads in full: “As part of its decision-making relative to these purposes, the department may consider the impacts from non-wetland portions of a project and the impacts from the project’s post-construction use and maintenance.”  Note that the word “may” allows the department to act at its own discretion, which is tantamount to giving the department the ability to establish its own jurisdictional boundaries, which is an unprecedented amount of leash for a state agency. Ironically, DES neither wants such open-ended authority nor does it feel that the environment will gain any added protections as a result. Think about that, the legislature is pursuing environmental policy that its own Commissioner of DES openly opposes as unnecessary and seriously problematic. Still, this inconvenient truth has done nothing to stop the agents of change.   

The shortcomings of this language are shrugged off by the bill proponents as something that can be fixed in rulemaking, or better yet, amended in the Senate after it passes the House. Put another way, House members are supposed to vote in favor of a bill that is admittedly flawed in order to rectify the untenable assault on the environment that comes post-Greenland. Such assurances that urgency is needed are touted as self evident but the call to arms by the environmental community to plug the indirect impact loophole does not hold up under scrutiny and examination of the evidence.   

First, consider what actually happened in the Greenland case, the facts of which are largely unknown to the lawmakers who will vote to “fix” the problems the decision presented. The developer owned a 212 acre tract of land that earned subdivision approval in 2002 for a 79 lot housing development from the local planning board.  He then applied to DES for a standard dredge and fill permit for the roadway to access the property.  As part of the approval for that permit, DES required 98 acres of land to be set aside in permanent conservation and another half acre of new marshland to be created.  Enter stage right the Conservation Law Foundation (CLF) and the Greenland Conservation Commission (GCC). 

These two groups, who became the plaintiffs in the eventual lawsuit, appealed the issuance of the wetland permit, causing it to be subsequently revoked in favor of a new and more stringent permit, this time requiring an additional 50 percent reduction in wetland impacts, a new 100 foot bridge and an additional 8 acres of conservation land to be set aside. More importantly, and this is vitally important, DES established a 50 foot upland buffer area from wetlands along 10 of the building lots as a condition of the permit issuance.  Remember that the proponents of HB222 are saying that DES currently lacks the authority to regulate uplands.  Yet here we have an upland buffer area of which the court took note and deemed it to be legal and binding.  What gives? 

Still unhappy, CLF and the GCC unsuccessfully appealed the second permit.  Undaunted, they next appealed to the Rockingham Superior Court where the decision to grant the permit was once again upheld.  Eventually, and after four years of this haggling, all parties found themselves in the state Supreme Court.  This court, as had each court, council, board and bureau before it, ruled in favor of the DES permit issuance and by default the developer.  With all of the avenues of appeal exhausted, the developer could finally begin the project. The only problem was that it was now 2006 and the housing balloon was about to pop.  

A subtlety of the Greenland case is that the environmental advocates complained that DES failed to consider impacts far beyond the typical fodder of a dredge and fill permit. In their decision, the justices said that even if DES had sought to regulate indirect impacts in the manner that the environmentalists were demanding, they did not possess the authority to do so.  And there’s the rub. CLF wants the department to look at supposed impacts that DES has no current interest in addressing. DES department heads have testified that they are well satisfied with their ability to assess impacts and are particularly confident that the Falls Way development in Greenland will not adversely impact the nearby wetlands. Indeed, there has been no actual environmental disaster brought to the attention of the legislature in a full year of testimony that would suggest an urgent response, yet this false sense of urgency more than anything else is what has propelled HB222 forward. 

One representative of CLF testifying in favor of HB222 gave this reason to pass something, anything: “…we don’t want any more projects falling through the cracks.”  Presumably he was referring to Falls Way. This ridiculous characterization of the Greenland situation can only be made with the confidence that no one is checking the facts.  The Falls Way project was proposed in 2002 when the housing market was poised for its record-setting run. Even though the developer won every appeal and argument along the way, the environmentalists successfully stalled the project long enough to miss the market window, cause serious financial harm and leave the project to struggle through this down market. Falling through the environmental cracks? Such hubris. 

Ironically, the fans of HB222 assure us that this bill is intended to clarify the statute so that DES can exercise whatever discretion it needs on a case-by-case basis and prevent the type of litigation that occurred in Greenland. The opposite outcome is far more likely.  Let’s look at the clarity that the new language is supposed to bring. If there is a Greenland 2 with similar circumstances, DES might well act as it did before by imposing restrictions and mitigation appropriate for the situation without getting too crazy about indirect impacts. Someone will be unhappy and claim that DES should have done more. As it winds its way up the litigatory ladder, the N.H. Supreme Court will consider the words of the legislature. DES “may” consider indirect impacts. “May” means that it is their discretion to act or not to act on indirect impacts; judgment to DES and the developer. Such is the nature of hasty legislation.  At best it is of little worth and at worst it causes more harm than good.   

Editors Note:  Since the writing of this article, HB222 did not garner sufficient votes to pass and was instead referred to interim study where it will stay while the Land Use Commission completes its work and files its report.

 

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