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Dziobek v. New Jersey Department of Environmental Protection

OAL Dkt. No, ESA 9880-02 (Department of Environmental Protection) (Unpublished)

WETLANDS; PERMITS—Where evidence shows that a small amount of wetlands are located within a sloping area where water flows into a ditch, it is an applicant’s burden to show that the wetlands are isolated and not subject to the more stringent permitting requirements that would apply to non-isolated wetlands.

A property owner applied for a Statewide General Permit seeking to fill approximately .16 acre of freshwater wetlands located within the rear portion of his property for the storage of equipment for an on-site business. There was a nearby ditch connecting to several culverts. It enabled water flowing from the ditch to empty into a river several hundred feet away. It was disputed whether the wetlands were connected to, and drained into, this ditch. Therefore, the owner had the burden of proving that the wetlands were isolated and thus not Environmental Protection Agency priority wetlands. If the wetlands qualified as isolated, they would have warranted issuance of the General Permit. If not, the owner had to meet the more stringent requirements for an individual permit.

The Department of Environmental Protection (DEP) believed the wetlands were connected to the ditch and denied the owner’s application. It maintained that the wetlands were non-isolated because they connected to the ditch that was contiguous to a stream which flowed into the nearby river, and therefore could not be filled or disturbed under a General Permit. On appeal, the ALJ held that the DEP’s expert, who concluded that the wetlands were non-isolated, was entitled to deference and that it was the owner’s burden to prove the contrary. The ALJ also found that the owner’s expert’s testimony did not outweigh the DEP expert’s testimony. The owner’s expert failed to point to any surveys, tests, photographs or other data to support his conclusion that the wetlands were isolated and that water did not reach the adjacent ditch. The owner argued that the DEP’s expert never observed water flowing from the site to the ditch during his investigations. However, the ALJ found that this alone did not lead to the conclusion that the wetlands were isolated. The DEP’s evidence showed at least a portion of the area sloped and flowed into the ditch. For that reason, the ALJ affirmed the DEP’s denial of the owner’s application.

The Commissioner of the New Jersey Department of Environmental Protection adopted the ALJ’s decision.

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