In re N.J. Dep't Of Envtl. Prot. Waterfront Dev. Permit, Flood Hazard Area Individual Permit & Flood Hazard Area Verification
| Decision Date | 24 November 2021 |
| Docket Number | A-5525-17,A-2208-18 |
| Parties | IN THE MATTER OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION WATERFRONT DEVELOPMENT PERMIT, FLOOD HAZARD AREA INDIVIDUAL PERMIT AND FLOOD HAZARD AREA VERIFICATION, 1500-16-0004.1 WFD16001, 1508-18-0002.1 FHA18001, and 1508-18-0002.1 FHA180002. IN THE MATTER OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION FRESHWATER WETLANDS GENERAL PERMIT #1 AND WATER QUALITY CERTIFICATE PERMIT NO. 1508-18-0002.1 (FWW180001). |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 8, 2021
On appeal from the New Jersey Department of Environmental Protection.
R William Potter argued the cause for appellants Martha Steinberg, Gamal El-Zoghby, Michael Knight, Ricardo Valdes Michael Pierro, Michele Pierro, David Fox, Andreas Beutler Michaela Banck, The New Jersey Conservation Foundation, and Environment New Jersey (Potter and Dickson, attorneys; R William Potter, on the briefs).
Jason Brandon Kane, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Andrew J. Bruck, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Jason Brandon Kane, Deputy Attorney General, on the brief).
Amy Chung, Deputy Attorney General, argued the cause for respondent New Jersey Department of Transportation (Andrew J. Bruck, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; David M. Kahler, Deputy Attorney General, on the brief).
Afiyfa H. Ellington argued the cause for intervenor Westecunk Creek Association (Giordano, Halleran & Ciesla, PC, attorneys; Michael J. Gross and Afiyfa H. Ellington, on the brief).
Daniel A. Greenhouse argued the cause for amicus curiae Save Barnegat Bay (Eastern Environmental Law Center, attorneys; Daniel A. Greenhouse and William D. Bittinger, on the brief).
Before Judges Sabatino, Rothstadt and Mayer.
This consolidated appeal challenges three permits issued by the Department of Environmental Protection ("the DEP") in 2018 to its fellow state agency, the Department of Transportation ("the DOT"). If they are valid, the permits allow the DOT to (1) dredge three waterways that flow into the Barnegat Bay; and (2) deposit the wet dredged material into a nearby earthen pit known as a confined disposal facility ("CDF") in Eagleswood Township in Ocean County. The dredged material placed in the CDF eventually dries out, and can be used for other purposes.
The West Creek CDF was originally built in 1966. Further construction of it took place pursuant to a five-year permit issued in 1983 by the DEP, with the approval of the Army Corps of Engineers ("Army Corps"). The project authorized by that permit involved the dredging of a single waterway, the Westecunk Creek. In the ensuing decades since 1983, the CDF's eastern berm, facing the bay, has substantially eroded and several people have built and occupied homes across from the CDF. The DOT purchased the CDF site in 2006.
The challenged 2018 permits would allow the DOT to relocate soil into and raise the berm walls of the CDF from an above-ground height of about six feet to a height of up to fifteen feet. Doing so increases the cubic volume of the CDF by approximately six times the capacity that had been approved and built in 1983.
Appellants are several residents and two environmental groups who complain the present construction of the CDF disturbs the wetlands and threatens endangered species. Although they do not contest the DEP permits insofar as they authorize the dredging of the waterways, appellants contend the permits concerning the CDF are invalid under the applicable statutes and regulations. As part of that contention, they argue the CDF has been abandoned since 1983.
Among other things, appellants and an amicus environmental organization assert that the DEP improperly issued a "General Permit" under N.J.S.A. 13:9B-23 of the Freshwater Protection Act, N.J.S.A. 13:9B-1 to -30 ("FWPA") for the CDF project. They argue the DEP should have conducted the more rigorous process for issuing what is commonly known as an "Individual Permit" under N.J.S.A. 13:9B-9 of FWPA. For this and other reasons, they seek to rescind the permits and halt the ongoing construction of the CDF.
Respondents, the DEP and the DOT, joined by an intervenor group of boat owners and others who use the waterways being dredged under the permits, argue the permits in question are all valid and comport with the applicable environmental statutes and regulations. As a key part of their defense, respondents contend the current CDF project is merely a fortification of the CDF previously approved in 1983 and that it does not require an Individual Permit under FWPA. Respondents further contend the conditions set forth in the permits adequately protect the environment and local wildlife habitats.
For the reasons that follow, we remand this matter to the DEP for reconsideration and more specific findings addressing whether the CDF project complies with the applicable freshwater wetlands regulations. Among other things, the DEP must (1) address what appears to be the substantial enlargement of the CDF from its 1983 dimensions and whether that is an "expansion" disallowed under a General Permit; (2) address whether the CDF as rebuilt in 1983 was subsequently abandoned; (3) address whether depositing dredged material from three waterways rather than one into the CDF is allowed by a General Permit, and; (4) perform a more fulsome analysis of whether the deviations from the 1983 project are only "minor," giving explicit consideration to the objectors' expert reports.
In all other respects, we reject appellants' legal challenges and affirm on those issues.
This matter specifically concerns permits issued by the DEP's Division of Land Use to the DOT's Office of Maritime Resources ("OMR") approving of permits for two projects: (1) a June 27, 2018 Waterfront Development ("WFD") Individual Permit (in-water) and Flood Hazard Area ("FHA") Individual Permit and Verification, authorizing the DOT to conduct hydraulic maintenance dredging of three channels to improve vessel navigation in the Barnegat Bay (the "dredging project"); and (2) a December 17, 2018 Freshwater Wetlands General Permit No. 1 ("FWWGP1" or "GP1") and combined Water Quality Certificate ("WQC"), together authorizing the DOT to renovate and reconstruct the West Creek CDF on Dock Road, at Block 1, Lot 2.01, in Eagleswood Township to maintain and store the dredged material (the "CDF project").
We recite for completeness the salient aspects of the extensive administrative record. In doing so, we note no adjudicatory factfinding hearings were conducted, although the parties substantially agree on much of the history.
The property in question is Block 1, Lot 2.01 on the Eagleswood Township tax map. Lot 2.01 consists of approximately 25.914 acres on the southern side of Dock Road, a twenty-four-foot wide, two-lane paved roadway with a limited shoulder and no sidewalks. At the eastern dead-end of Dock Road is a waterfront public park and Green Acres recreational pier. Across the street from Lot 2.01 are residential waterfront properties mostly developed after 1983 and, at the time of these appeals, owned by various appellants. The northern boundary of these properties abuts the Westecunk Creek in Eagleswood Township. Farther inland along Dock Road are properties owned by some of intervenor's members, and there is a municipal boat ramp and boat slip area near the inland limit of the Westecunk Creek.
The western boundary of Lot 2.01 ends in a salt marsh that floods during each high tide. The eastern boundary "grades gently to a sharp bay shore line" into Little Egg Harbor. Until 2016, the interior of Lot 2.01 was overgrown by a variety of trees and common reed grass that was "seasonally mowed." To the west and south of Lot 2.01 are portions of the United States Fish and Wildlife Service's Edwin B. Forsythe Wildlife Refuge.
Located on Lot 2.01 is the West Creek CDF, which was originally constructed in 1966. The CDF had been used for the management of dredged sediment from the maintenance dredging of Westecunk Creek in 1966, 1972, and 1983. A CDF is designed to allow the sediment in the slurry from dredge spoils to settle and the liquid to drain back into the waterway. When the material is sufficiently drained, the dried dredged material can be used to increase the size of the CDF's berms or can be removed with trucks and used for other purposes.
The Army Corps had authorized the 1966 and 1972 dredgings of Westecunk Creek, which occurred before the DEP assumed jurisdiction over such activities. The 1983 dredging project was jointly authorized by the DEP's Division of Coastal Resources and the Army Corps.
Private entities had owned the property on which the CDF was located during each of these past dredging events. In December 1982 the property's private corporate owner, Raymond Rosen & Co., granted the DEP's Bureau of Coastal Engineering ("BCE") a one-year, one-time easement "for the use and purpose of depositing spoil and all material excavated, dug, or dredged from the Westecunk Creek together with . . . the right to deposit and leave thereon sand, clay, gravel and other earth material." The easement also gave BCE the ability to excavate ditches, and build and replace retaining embankments or walls, sluiceways, and spillways.
Thereafter on January 5, 1983, the DEP's Tidelands Resource Council issued a blanket revocable license to the BCE for a term of five years to dredge an area of land under the State's existing navigational channels...
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