Cayten v. New Hampshire Department of Environmental Services

Summary

The New Hampshire Supreme Court considered an abutter’s challenge to a dredge and fill permit issued for construction of a dug-in boathouse on Squam Lake. The court held that dismissed petitioners could not use the statutory intervention provision to bypass wetlands-council reconsideration and appeal requirements. It also held that wetlands avoidance-and-minimization standards applied to protected-wetland impacts but not to the upland boathouse, and remanded with instructions to strike the disputed petitioners.

Holdings

1. RSA 482-A:10, XII does not create a bypass around the statutory reconsideration and appeal process. Persons excluded by the Wetlands Council who did not seek reconsideration could not use paragraph XII to regain party status in the superior court.
2. The Wetlands Bureau properly retained jurisdiction over the entire project but was required to apply RSA chapter 482-A and Rule Env-Wt 302.03 only to the lakebed dredging and bank-excavation portions within protected wetlands, not to the boathouse located entirely landward of the bank.

Questions Presented

1. Whether RSA 482-A:10, XII allowed property owners who had been excluded by the Wetlands Council and had not sought reconsideration of that exclusion to become parties in the superior court appeal.
2. Whether the Wetlands Bureau and Wetlands Council were required to apply the wetlands statute's avoidance-and-minimization standards to the upland portion of a dug-in boathouse project.

Disposition

reversed_and_remanded