hb 0516

CHAPTER 2

HB 516-LOCAL - FINAL VERSION

AN ACT relative to the standard of review for requests for excavating and dredging permits, relative to an appropriation for the expansion of the Port of Portsmouth, and relative to additional powers and duties of the Pease development authority.

SPONSORS: Rep. E. Smith, Ches 26; Rep. Rodeschin, Sull 20; Rep. Graham, Hills 57; Rep. Rausch, Rock 77; Sen. Clegg, Dist 14; Sen. Morse, Dist 22; Sen. Prescott, Dist 23; Sen. Kenney, Dist 3

I. Changes the standard of review for requests for excavating and dredging permits.

II. Eliminates a contingency on an appropriation for the dredging of Hampton-Seabrook harbor.

III. Grants authority for the Pease development authority to enter into an agreement with the Department of the Army concerning the Shoreline Erosion Control Demonstration Project.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

2:1 New Paragraph; Excavating and Dredging Permit; Certain Exemptions. Amend RSA 482-A:3 by inserting after paragraph I the following new paragraph:

I-a. In reviewing requests proposed, sponsored, or administered by the department of transportation, there shall be a rebuttable presumption that there is a public need for the requested project, and that the department of transportation has exercised appropriate engineering judgment in the project's design.

2:2 Excavating and Dredging Permits; Appeals. Amend RSA 482-A:10, V to read as follows:

V. The council on appeal shall hold a non-evidentiary hearing as provided in its rules. The hearing shall be noticed in accordance with RSA 482-A:8 and RSA 482-A:9. The department shall provide the council with its record of decision upon receiving notice of the hearing. The appeal shall be determined upon the record below. The burden of proof shall be on the party seeking to set aside the department's decision to show that the decision is unlawful or unreasonable. On appeal of requests proposed, sponsored, or administered by the department of transportation, there shall be a rebuttable presumption that there is a public need for the requested project, and that the department of transportation has exercised appropriate engineering judgment in the project's design. All findings of the department upon all questions of fact properly before it shall be prima facie lawful and reasonable.

2:3 Excavating and Dredging Permits; Appeals. Amend RSA 482-A:10, XI to read as follows:

XI. On appeal to the superior court, the burden of proof shall be upon the party seeking to set aside the decision of the council to show that the decision is unlawful or unreasonable. On appeal of requests proposed, sponsored, or administered by the department of transportation, there shall be a rebuttable presumption that there is a public need for the requested project, and that the department of transportation has exercised appropriate engineering judgment in the project's design. The council's decision shall not be set aside or vacated, except for errors of law, unless the court is persuaded, by a preponderance of the evidence before it, that said decision is unjust or unreasonable.

2:4 Purpose Amended; 1991 Appropriation; Port Authority. Amend 1991, 351:5, as amended by 1992, 260:20, 1994, 204:1, 2000, 15:1, 2000, 292:10, and 2003, 240:27 to read as follows:

351:5 Appropriation; Port Authority. The expansion of the Port of Portsmouth funded in this section shall include an [~~11-acre~~] expansion of [~~the north yard of~~] the port, the construction of [a] an up to 750-foot pier, dredging projects including associated mitigation to maintain channels and harbor, a hydrodynamic study of Hampton and Seabrook, renovation of any commercial fish piers that may be transferred to the port authority, and the rip-rap project on River Street in Seabrook. The sums hereinafter detailed are hereby appropriated for the project specified:

(The funds appropriated in subparagraph A for the Port of Portsmouth expansion shall not be expended, encumbered, or obligated in any way unless an action plan, which shall include construction documents, prepared by the New Hampshire Port Authority shall be approved by the capital budget overview committee, the fiscal committee, and the governor and council. $1,500,000 of the total amount appropriated herein is hereby released for the purpose of final design and bid documents. $1,800,000 of the total amount appropriated is designated for wetland mitigation. $400,000 of the total amount appropriated is designated for the Hampton-Seabrook hydrodynamic study. The remaining $14,600,000 is designated for construction, renovation, and dredging projects including associated mitigation. This appropriation shall be nonlapsing until the project is completed. The New Hampshire Port Authority shall not encumber, obligate, or expend any funds from this appropriation for renovation or dredging projects without the prior approval of the capital budget overview committee. The total amount that may be expended for renovation and dredging projects including associated mitigation shall not exceed a total of $1,000,000. In addition, for the biennium beginning July 1, 2003, the sum of $1,000,000 shall be expended for the dredging of Hampton - Seabrook harbor[~~, provided that the Army Corps of Engineers takes responsibility for completion and funding of future harbor dredging projects~~].)

2:5 New Section; Pease Development Authority; Additional Powers and Duties. Amend RSA 12-G:42 by inserting after section XIII the following new section:

XIV. Be authorized to enter into a memorandum of agreement with the Department of the Army concerning the construction of the Shoreline Erosion Control Demonstration Project in Seabrook, New Hampshire, as authorized by Section 227(3) of the Water Resources Development Action of 1996, Public Law 104-303, as amended. Incident to the execution of the agreement and the acceptance of federal aid, the authority is authorized to take all actions required of the authority under the agreement, including, but not limited to:

(a) Execute an indemnification agreement in the name of the authority and the state with and for the benefit of the United States for damage arising from construction, operation, maintenance, repair, replacement, rehabilitation, monitoring and adaptive management of the project;

(b) Accept, as between the Corp of Engineers and the authority, the obligations imposed on an operator of the project under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980, 42 U.S.C. section 9601, et seq., as amended;

(c) Operate, maintain, repair, replace and rehabilitate the project or any functional portion of the project upon notification from the department;

(d) Provide or acquire all lands, easements, rights of way, and suitable borrow and dredged or excavated material disposal areas that the Department determines the authority must provide for the construction, operation, maintenance, repair, replacement, rehabilitation, monitoring and adaptive management of the project; and

(e) Bear half the costs for services provided in connection with non-binding alternative dispute resolution as may be necessary under the agreement.

2:6 Pease Development Authority; Powers and Duties. Amend RSA 12-G:42, IX to read as follows:

IX. Have the responsibility for and jurisdiction over the state-owned commercial piers and facilities at Portsmouth, Rye Harbor, and Hampton Harbor [~~except as provided in RSA 12-A:7-a~~], including the establishment of fees and rents associated with the use of such facilities.

2:7 Repeal. RSA 12-A:7-a, relative to the establishment of the bureau of marine services, is repealed.