Appeal of Town of Lincoln

The Town of Lincoln, New Hampshire, appealed a Water Court order upholding a decision by the Department of Environmental Services (DES) ordering the town to repair the Pemigewasset River Levee. The Water Counsel determined the Town owned the levee pursuant to RSA 482:11-a(2013), and therefore was obligated to maintain and repair the levee. In support of its position, DES contends that, in the Assurance, the Town “agreed to take responsibility for the [l]evee’s ongoing maintenance and repair.”1 However, the fact that the Town undertook certain maintenance obligations in the Assurance does not mean that the additional obligations of “ownership” under RSA 482:11-a can or should be imposed upon the Town. The New Hampshire Supreme Court determined that the Water Council’s conclusion the Town “owned” the levee under RSA 482:11-a was dependent on flawed reasoning that Appeal of Michele, 168 N.H. 98 (2015) controlled the outcome of this case. The Supreme Court concluded the Town met its burden to show the Water Council was unreasonable. The Court did not decide the precise degree of ownership that made a person or entity an “owner” for the purposes of RSA 482:11-a, it held that the limited access easement held by the Town in this case fell short of that threshold. Because the Court’s holding on this issue was dispositive of this case, it declined to address the parties’ other arguments. View "Appeal of Town of Lincoln" on Justia Law