## Facts

- A developer obtained local subdivision approval for a 79-lot residential project on a 212-acre parcel that included approximately 85 acres of wetlands and the remainder uplands.
- The developer applied to the New Hampshire Department of Environmental Services (DES) for a wetlands dredge-and-fill permit to fill approximately 42,350 square feet of wetlands at twelve roadway crossing locations to serve the subdivision.
- DES issued the permit with mitigation conditions.
- The Greenland Conservation Commission and Conservation Law Foundation appealed to the New Hampshire Wetlands Council, arguing DES improperly limited its review.
- The challengers contended DES should have considered (a) cumulative impacts of the entire subdivision, including upland construction, on wetlands, and (b) future roadway uses and resulting secondary impacts on wetlands.
- The Wetlands Council affirmed DES’s permit decision; the superior court affirmed; the challengers appealed.

## Issues

1. Whether, under RSA chapter 482-A, DES must consider upland activities, subdivision-wide build-out, cumulative impacts, and secondary effects when deciding a wetlands dredge-and-fill permit, or may limit review to direct impacts within regulated jurisdictional wetlands areas.
2. Whether the Wetlands Council applied the proper standard of review to DES’s determinations when it affirmed issuance of the permit.
3. Whether the council’s affirmance was unlawful or unreasonable, or unsupported by the record.

## Decision

- The New Hampshire Supreme Court affirmed the superior court, leaving the Wetlands Council’s decision in place and the permit intact.
- The court held RSA chapter 482-A did not require DES, in this dredge-and-fill permitting proceeding, to evaluate upland activities or the subdivision as a whole; DES could focus on the direct impacts of the twelve wetlands crossings and associated fill.
- The court held the Wetlands Council applied the correct deferential review to DES’s factual determinations and that the council’s decision was supported by the record and not unlawful or unreasonable.

## Legal Principles

- An agency’s permitting authority is defined by the statute and implementing rules; courts will not expand that authority beyond the statutory jurisdiction.
- Under RSA chapter 482-A, DES’s dredge-and-fill review is confined to impacts within regulated “jurisdictional areas” (wetlands and specified waters/adjacent areas), not upland areas outside that jurisdiction.
- Arguments based on subdivision-wide cumulative impacts and speculative downstream effects of future roadway use do not enlarge DES’s statutory duties in a single wetlands dredge-and-fill permit proceeding.
- On judicial review of administrative wetlands decisions, the relevant question is whether the Wetlands Council’s decision was unlawful or unreasonable; factual determinations receive deference when supported by the record.

## Conclusion

The court upheld a wetlands dredge-and-fill permit for twelve roadway crossings, ruling that DES’s statutory role under RSA 482-A is limited to direct impacts within jurisdictional wetlands areas and that the Wetlands Council’s deferential affirmance was lawful, reasonable, and supported by the evidence.


Greenland Conservation Comm'n v. N.H. Wetlands Council, 913 A.2d 776 (N.H. 2006)