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In re Authorization for Freshwater Wetlands General Permits

372 N.J. Super. 578, 860 A.2d 450 (App. Div. 2004)

ENVIRONMENTAL PROTECTION; WETLANDS; PERMITS—Affected parties and courts are entitled to see the factors that played a role in the Department of Environmental Protection’s decision to grant or deny a wetlands permit; therefore, the Department is required to issue findings of fact in connection therewith.

There was opposition to 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 some land. The LOI and the permit were issued on the basis of the DEP’s conclusion that the wetlands on the property were “isolated wetlands” within the meaning of N.J.S.A. 13:9B-7(b). The opposition contended that the evidence showed that the property consisted of numerous wetlands that were part of an inland tributary system and therefore were not isolated. According to them, the issuance of the permit was in violation of the governing provision of the Freshwater Wetlands Protection Act. The opposition also contended that the DEP did not set forth the required findings of fact as to why it found the wetlands isolated.

In the LOI, the DEP noted that there were certain wetlands, a ditch, and a swale on the property. It stated that the wetlands were found to be isolated; the swale and ditch were found to be “ordinary resource value;” and the swale and ditch were identified as “being priority wetlands by the U.S. Environmental Protection Agency.” After the LOI was issued, its opposition unsuccessfully requested an adjudicatory hearing. The GP6 did not contain findings of fact or an analysis of the materials submitted by the opposition. It concluded only that the wetlands were isolated, permitting disturbance of 0.58 acres of “isolated intermediate resource value wetlands” for the construction of the proposed subdivision. The DEP argued that neither the Freshwater Wetlands Protection Act (FWPA) nor its implementing regulations required it to respond to public comments on any applications for a LOI or a general permit. It contended that it was only required to consider the general public’s comments during its review of a LOI application and during its review of any permit application.

The Appellate Division disagreed, holding that affected parties and a reviewing court must be able to see what factors played a role in decisions made by the DEP. The Court noted that the record in this case contained an abundance of factual material that could easily have supported a contrary determination. For example, the Court had a problem with blindly accepting the DEP’s determination in light of a DEP’s 1986 freshwater wetlands map that seemed to show the wetlands on the property in question as part of an inland tributary system. The Court noted that the map could have been out of date, or that there might have been some expert analysis to support a contrary conclusion. Furthermore, the DEP’s on-site inspections of the property were conducted only during a dry period; therefore, if it had never observed firsthand the “flow” conditions, how could it be confident that the “flow” was simply “sheeting” and not “concentrated,” as it stated in its defense of issuing the permit? For these reasons, the Court remanded the matter to the DEP for a fact-finding analysis.

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