Precedent: Strict Application of RSA 482-A:26 to Unauthorized Constructions Over Public Waters

Introduction

This commentary examines the Supreme Court of New Hampshire’s decision in Appeal of Robert Newcomb & a., No. 2024-0387 (May 2, 2025), which affirms the removal order for a privately constructed landing and stairway over Lake Winnipesaukee. The petitioners, Robert and Carolyn Newcomb, challenged an administrative order from the New Hampshire Department of Environmental Services (DES) under RSA 482-A:26, III(a), and a subsequent denial by the New Hampshire Wetlands Council. Central issues included (1) the applicability of RSA 482-A:26 to structures extending beyond the shoreline, (2) preservation of takings, waiver and due-process arguments, (3) estoppel against DES, and (4) the scope of DES’s jurisdiction under RSA 482-A.

Summary of the Judgment

The Supreme Court affirmed the Council’s final order denying the Newcombs’ amended petition. Key holdings:

RSA 482-A:26 applies to any “dwelling over water” extending beyond the mean high-water shoreline of public waters.
Petitioners waived constitutional takings and due-process claims by failing to raise them before the Council.
Estoppel against DES was unreasonable in light of clear statutory prohibitions on structures over public waters.
RSA chapter 482-A is not limited to dredging or filling; its broad public‐trust purpose covers any unregulated alteration of submerged lands.

Analysis

Precedents Cited

RSA 482-A:26, III(a) & IV – Definition and regulation of dwellings over water.
RSA 482-A:10 & RSA 541:13 – Burden of proof and standards of review for administrative appeals.
Allen v. Wetlands Board, 133 N.H. 379 (1990) – State ownership of Lake Winnipesaukee to mean high-water mark.
Appeal of Wilson, 161 N.H. 659 (2011) – Requirement to preserve issues in administrative appeals.
Turco v. Town of Barnstead, 136 N.H. 256 (1992) – Elements of equitable estoppel against a governmental body.
Petition of Perkins, 147 N.H. 652 (2002) – Reasonable reliance requirement for estoppel.
Appeal of Local Gov’t Ctr., 165 N.H. 790 (2014) – Waiver of conflict‐of‐interest objection if not timely raised.

Legal Reasoning

The court applied the two-tiered review framework:

DES’s factual findings under RSA 482-A:10 are prima facie lawful and reasonable.
The Council’s order is reviewed under RSA 541:13 for clear unreasonableness or unlawfulness, with legal questions reviewed de novo.

On the merits, the court held:

Statutory scope: RSA 482-A:26 applies to any structure (“dwelling”) extending beyond the mean high-water shoreline of public waters, regardless of whether submerged lands are privately or publicly owned beneath the water column.
Evidence: DES inspections, shoreline surveys, aerial photographs, and expert testimony established that the Newcombs’ landing and stairway extended over public waters.
Preservation of issues: Takings, waiver, and due-process arguments first raised on appeal or in reconsideration motions were deemed waived under RSA 541:3–4 and related precedent.
Estoppel: Even assuming DES made a misleading representation, reliance was unreasonable given the clarity of the statutory prohibition on over-water structures without a permit.
Jurisdiction: RSA chapter 482-A’s broad public-trust purpose encompasses all unregulated alterations of submerged lands, not only dredging and filling activities.

Impact

This decision confirms that:

Property owners must secure express statutory authorization before extending any private structure over public waters.
Administrative and appellate preservation rules require early presentation of constitutional and process‐based objections.
Equitable estoppel against environmental regulators is disfavored when statutory language plainly conflicts with alleged agency representations.
RSA chapter 482-A will be strictly construed to protect submerged lands and shorelines, reinforcing the public-trust doctrine.

Future permit applicants and litigants should note the high bar for overturning DES and Council decisions: factual findings enjoy prima facie validity, and legal conclusions are upheld absent clear error.

Complex Concepts Simplified

Prima facie lawful and reasonable – A presumption that agency fact-finding is correct unless convincingly contradicted by the record.
Mean high-water shoreline – The average highest level reached by public waters, marking the boundary of state‐owned submerged lands.
Equitable estoppel – A doctrine preventing a party from asserting rights contrary to past conduct or representations when another has reasonably relied to their detriment.
Public‐trust doctrine – The principle that certain natural resources (e.g., navigable waters) are preserved for public use and cannot be privately appropriated without legislative authority.

Conclusion

The Supreme Court of New Hampshire’s decision in Appeal of Robert Newcomb & a. establishes a clear precedent for the strict application of RSA 482-A:26 to any private structure extending over public waters. It underscores the importance of early preservation of constitutional and procedural objections, the limited scope for equitable estoppel against environmental regulators, and the broad protective purpose of New Hampshire’s submerged‐lands statutes. This ruling will guide property owners, regulators, and courts in future disputes over shoreline and submerged‐land uses.