In re Freshwater Wetlands
Decision Date | 16 November 2004 |
Citation | 372 N.J. Super. 578,860 A.2d 450 |
Parties | In re Authorization for FRESHWATER WETLANDS GENERAL PERMITS, Water Quality Certification and Waiver of Transition Area for Access. |
Court | New Jersey Superior Court |
Rutgers Environmental Law Clinic, for appellant Preserve Old Northfield (Judith Weinstock, on the brief).
Peter C. Harvey, Attorney General, for respondent New Jersey Department of Environmental Protection (Patrick DeAlmeida, Deputy Attorney General, of counsel; Lisa A. Runyon, Deputy Attorney General, on the brief).
Lum, Danzis, Drasco & Positan, Roseland, for amicus curiae Township of Livingston (Dennis J. Drasco, of counsel and on the brief; Kevin J. O'Connor, on the brief).
Before Judges CONLEY, BRAITHWAITE and LISA.
The opinion of the court is delivered by
CONLEY, P.J.A.D.
Appellant, Preserve Old Northfield (POND), challenges a Letter of Interpretation (LOI) and a Freshwater Wetlands General Permit No. 6 (GP6) issued by the New Jersey Department of Environmental Protection (DEP) for activities near or adjacent to the properties of POND's members.1 The LOI and the permit were issued on the basis of DEP's conclusion that the wetlands on the property were "isolated wetlands" within the meaning of N.J.S.A. 13:9B-7(b). Appellant contends, to the contrary, that the credible evidence in the record shows that the property consists of numerous wetlands which are part of an inland tributary system and therefore not isolated and that, therefore, the issuance of the permit was violative of the governing provision of the Freshwater Wetlands Protection Act. It also contends that DEP did not set forth the required findings of fact as to why it found the wetlands isolated and, that, indeed, the record contains insufficient data to support such findings. We agree that the necessary findings of facts are absent from both the LOI and the GP6 and remand for further proceedings. We do not address the sufficiency of the record argument as it is impossible to do so without specific factual findings by DEP. The LOI and GP6 permit were issued by DEP after a long and arduous process, entailing submission of voluminous correspondence and evidentiary materials, including a number of expert reports and videotapes, submitted by the objectors, several site investigations by DEP and a meeting between DEP and interested persons. The process began in February 2001, when Daniel Markowitz of Maramark Builders, L.L.C. (Markowitz), submitted an application to DEP seeking DEP authorization to fill 0.19 acres of freshwater wetlands in connection with construction of a roadway, a cul-de-sac, and an eleven-single-family-residential-home development on a site located on West Hobart Gap Road in Livingston Township, Essex County. A portion of a DEP 1986 Freshwater Wetlands map (located in the record at Aa163) shows significant wetlands on the property. The depiction of these wetlands on the map suggests interconnection with wetlands coursing throughout the area.
LOI's are letters issued by DEP to applicants in order to establish whether the site of the proposed activity is located in or adjacent to a freshwater wetland or transition area. These letters: (1) identify the presence or absence of wetlands, State open waters, or transition areas; (2) verify or delineate the boundaries; or (3) assign a wetland a resource value classification. N.J.S.A. 13:9B-8; N.J.A.C. 7:7A-1.4. A LOI, however, N.J.A.C. 7:7A-3.1(b). It is through the permitting process that one may obtain authorization to disturb wetlands. N.J.S.A. 13:9B-3, -9(a), -23.
Further:
The regulations adopted pursuant to the FWPA likewise state that the designation of freshwater wetlands shall be based upon the three-parameter approach: hydrology, soils and vegetation. N.J.A.C. 7:7A-2.3(a).
The FWPA sets forth three classifications of wetlands: exceptional resource value, intermediate resource value and ordinary resource value. N.J.S.A. 13:9B-7. Freshwater wetlands of "exceptional value" are defined as wetlands that "discharge into ... trout production waters and their tributaries" or provide "habitats for threatened or endangered species." N.J.S.A. 13:9B-7(a). Freshwater wetlands of "ordinary value" are defined as wetlands that "do not exhibit the characteristics [for wetlands of exceptional resource value] and which are certain isolated wetlands, man-made drainage ditches, swales, or detention facilities." N.J.S.A. 13:9B-7(b). Freshwater wetlands of intermediate resource value are all freshwater water wetlands which are neither of exceptional resource value nor of ordinary value. N.J.S.A. 13:9B-7(c). Only freshwater wetlands classified as exceptional resource value or intermediate resource value require adjacent transition areas for construction purposes. N.J.S.A. 13:9B-16(a).
As we have said, a person proposing to engage in a regulated activity in a freshwater wetland must apply to DEP for a permit. N.J.S.A. 13:9B-3, -9(a) and -23. Here, a general permit was sought.2 DEP's issuance of general permits is specifically governed by N.J.S.A. 13:9B-23(b). It provides:
Thus, the applicant must establish (1) that the wetlands are not part of a surface water tributary system discharging into a lake, pond, river or stream, (2) that the proposed disturbance of the wetlands does not affect more than an acre, and (3) that wetlands of exceptional value are not involved. It is the first criteria that is the focus of this appeal.
A GP6 for "non-tributary wetlands" is codified at N.J.A.C. 7:7A-5.6(a). It "is the isolated wetlands general permit required by DEP pursuant to N.J.S.A. 13:9B-23b." In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488, 852 A.2d 1083, 1089 (2004). A GP6 "authorizes regulated activities in freshwater wetlands, transition areas adjacent to those wetlands, and/or State open waters, if the freshwater wetlands and/or State open waters are not part of a surface water tributary system discharging into an inland lake or pond, or a river or stream." N.J.A.C. 7:7A-5.6(a).
Wetlands are "[p]art of a surface water tributary system" if:
The property at issue consists of three lots shaped like a large isosceles triangle, with the base of the triangle abutting West Hobart Gap Road. It is surrounded by extensive residential development. It contains a number of wetlands. In his application, Markowitz identified the property as "seven (7) wooded acres." He described the property as containing two "isolated" wetlands (totaling 0.19 acres) that were not classified as EPA Priority Wetlands, and further noted that "[h]istorical land disturbance activities of unknown time and origin has [sic] resulted in extensive alteration of pre-existing contours and soil profiles."4
At the time of his application to DEP, Markowitz sent notice thereof to the neighboring property owners and others, as then required by N.J.A.C. 7:7A-9.5(b) (recodified as N.J.A.C. 7:7A-10.9, effective Aug. 3, 2001, see 33 N.J.R. 3045 (Sept. 4, 2001)). The notice stated:
The Department welcomes comments and any information that you may provide concerning the presence of wetlands, open water or transition areas on the referenced parcel. Written comments should be submitted within 15 days of receiving this letter. Comments will be accepted until the Department makes a decision on the application.
The onslaught of evidential material submitted to DEP in opposition to the application began in February 2001 and continued through to February 2002. DEP received numerous letters and a petition from members of appellant and other adjacent property owners objecting to the permits because they were concerned about...
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