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Dziobek v. New Jersey Department of Environmental Protection

2005 WL 2620904 (N.J. Super. App. Div. 2005) (Unpublished)

PERMITS—A court will not interfere with an agency’s credibility of testimony decisions in permitting matters just because the court doubts the wisdom or the conclusion of the agency.

A property owner was denied an application for a General Permit 6 (GP6) from the New Jersey Department of Environmental Protection (DEP) to allow filling a very small portion of its property consisting of freshwater wetlands. “The proposed filled area would [have been] used for the storage of landscaping and construction equipment.” The critical issue was “whether the proposed fill area [met] the definition of ‘isolated wetlands.’” A general permit “authorizes the placement of fill in freshwater wetlands identified as ‘isolated,’ namely, those which are not part of a surface water tributary system discharging into a lake, river or stream.” It was undisputed that water flowing through a drainage ditch adjacent to the applicant’s property eventually passed “through a series of watercourses and empti[ed] into [a river].” Therefore, according to the Appellate Division, if the applicant’s wetlands drained “into the ditch” they were not isolated but were part of a surface water tributary system and could not be filled under a GP6. A DEP site inspection concluded that the wetlands were part of a surface water tributary system based on the wetlands “being contiguous to, and connected with,” the ditch. A hearing was held before an Administrative Law Judge, where testimony was heard. The Administrative Law Judge found that the applicant did not meet the “burden of proving by a preponderance of the credible evidence that the wetlands [were] isolated.” The DEP commissioner adopted that decision.

On appeal, the Appellate Division pointed out that agency decisions “carry with them the presumption of reasonableness.” It pointed out that a court “will not vacate an agency’s determination simply because of doubts as to its wisdom or because [the court] might have come to a different conclusion if [it] were to make the original determination.” Consequently, once the Appellate Division reviewed the record and was “satisfied that the Commissioner’s decision [was] supported by competent and credible evidence in the record,” it upheld the DEP’s denial of the permit. Fundamentally, the Court rejected the applicant’s contention that because the agency’s expert’s testimony “was based primarily upon his visual inspection from the adjoining property [and] it was not supported by engineering surveys, elevations and the like, his testimony did not constitute ‘competent’ evidence.” According to the Court, such issues “relate to the weight to be attributed to the evidence, not its admissibility.”

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