On June 19, 2026, Governor Ayotte signed into law SB 445, An Act relative to adjudicative proceedings where there is a council or board with jurisdiction (the “Act”). The Act, which became effective on August 18, 2026, reads like a housekeeping bill, but made a series of subtle but significant changes to the administrative process for adjudicating certain decisions of the Department of Environmental Services (“DES” or the “Department”). Principally, the Act removed the requirement that DES hold a hearing before issuing final decisions to impose administrative fines for alleged violations of environmental laws or to suspend or revoke certain licenses, permits, or approvals. In other words, the Act removed the opportunity to be heard before DES imposes a fine or revokes a permit, requiring now that aggrieved parties appeal DES’s final decisions to one of four environmental councils—Water, Wetlands, Air Resources, and Waste Management—with statutory authority to adjudicate DES permitting and enforcement decisions. See RSA 21-O:14.
As amended, RSA 125-C:13 now authorizes the Department to suspend or revoke an air permit without first holding a hearing. RSA 149-M:12, II, relating to revocation or suspension of solid waste permits, was similarly amended. RSA 482-A:13 and RSA 483-B:18, III(b) now authorize assessment of wetlands and shoreland fines up to $5,000 per violation without any pre-decision opportunity to be heard. In total, the Act removed the pre-decision hearing requirement from over 30 provisions across over a dozen chapters. In addition to the statute-specific amendments, the Act amended the Administrative Procedure Act (“APA”) to exempt any administrative agency from the requirement “to provide for an adjudicative proceeding prior to making a final decision” where the agency decision is otherwise appealable to a council (or board) that provides notice and an opportunity to be heard. RSA 541-A:30, IV (as amended).
To address potential due process implications of this change in process, the Act amended RSA 21-O:14, governing appeals to the environmental councils, to provide that administrative fine decisions “shall not become effective for 30 days following the date of the decision, or if an appeal is filed to a council, until the council issues a decision.” RSA 21-O:14, V (as amended). Meaning, although the Department’s decision to impose a fine is final, it does not become effective for 30 days to allow aggrieved parties to seek review before a council. The APA was amended to include a similar provision with an exception for decisions involving circumstances that the Department unilaterally adjudges present “an immediate risk to human health or the environment.” RSA 541-A:30, IV (as amended). Such decisions are effective and enforceable upon issuance—again, without any pre-decision hearing opportunity.
The change in process from a pre-decision hearing to a post-decision appeal (with suspended enforcement) may seem innocuous—where an appeal has been filed no administrative fine or permit revocation can be enforced until the council renders a decision. However, the change has potentially significant burden shifting implications. Ostensibly, where the Department is required to hold a hearing before issuing an administrative fine, RSA 541-A should require the Department to prove its claim of violation. Before the councils, however, the burden rests on the aggrieved party to prove, by a preponderance of the evidence, that the Department’s decision was “unlawful or unreasonable”—the standard of review under RSA 21-O:14 and council procedural rules. Further, unlike the prior mandatory hearing requirement, an appeal to a council does not guarantee a hearing. RSA 21-O:14 requires that appellants set forth in a Notice of Appeal “every ground upon which it is claimed that the decision complained of is unlawful or unreasonable.” RSA 21-O:14, I-a(a). The Hearing Officer has authority to dismiss appeals that do not sufficiently plead claims that meet this standard. Therefore, unlike the prior automatic hearing opportunity, the change in administrative process means aggrieved parties may not see their “day in court” when facing potentially significant fines or consequential permit revocations from DES. For those who are successful, the council appeal process can be lengthy, complex, and costly where retention of experienced legal counsel is advised. Further, council authority is limited: they may only affirm the decision or remand it back to DES for further consideration—there is no possibility for vacatur.
In addition to the changes in process, the Act made another notable change: it removed the requirement that the Hearing Officer appointed by the New Hampshire Attorney General’s Office be a qualified attorney with a statutorily expressed preference for “a retired justice of the superior or supreme court.” As amended, the statute now only requires that the Hearing Officer have a Juris Doctor degree from an accredited college or university and have experience in the conduct of administrative adjudicative hearings and the application of law to facts. RSA 21-M:3, VIII(a) (as amended). Thus, the Hearing Officer charged with, among other things, “decid[ing] all questions of law” and “issu[ing] decision on all motions and on the merits” of appeals that often involve complex legal issues need not have passed the bar exam. RSA 21-M:3, IX(e) and (f). While intended to expand the pool of potential candidates, the change contrasts sharply with the prior emphasis on qualified attorneys, i.e. lawyers licensed to practice law.
Fundamentally, SB 445 did not expand the Department’s enforcement authority, but it materially changed when and where that authority can be contested. Practitioners should heed the 30-day clock to appeal final administrative fine and revocation decisions. Practitioners should also be mindful that the preliminary notice of appeal and settlement-discussion track under RSA 21-O:14, I-b is available for revocation decisions, which are now defined as “department permitting decision[s]”, but not for administrative fines, which are defined as “department enforcement decision[s]”.