News & Thought Leadership from Sulloway & Hollis

June 19, 2018

NH Department of Environmental Services Requires Showing of “Need” to Build New Docks

The case of Appeal of N. Miles Cook, III, No. 2017-0142 (N.H. May 4, 2018) involved the appeal of a Department of Environmental Services (DES) denial of an application to build a dock. The underlying statute at issue, NH RSA 482-A, gives the DES the power to regulate new dock installations, but does not expressly state that applicants must prove “need” for the particular dock or dock design. On the other hand, the regulations adopted by the DES (Env-Wt 302.01(a) and 302.04(a)(1)) require the applicant to demonstrate the “need” for a new dock permit. The New Hampshire Supreme Court held that, although the statute did not expressly incorporate a “need” requirement, it was reasonable for the DES to require permit applicants to demonstrate “need” in connection with the issuance of a permit, and that such a requirement did not exceed the DES’ administrative authority under the statute. Unfortunately for the DES, however, it did not define “need” in its regulations.

As the Supreme Court typically does when faced with determining the meaning of undefined terms, it adopted the dictionary definition of “need” as being “requisite, desirable, or useful.” Because the DES did not apply the Court’s definition of “need” during the application review process, the Court sent the application back to the DES for further consideration using the Supreme Court’s definition of “need.”