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In Re Review and Revision of the Decision to Deny Freshwater General Permit No. 7

405 N.J. Super. 204, 963 A.2d 1218 (App. Div. 2009)

ENVIRONMENTAL PROTECTION — A court is required to give deference to factual determinations made by state agencies and even stronger deference should be granted to an agency that has been delegated discretion to determine the specialized and technical procedures for its acts.

Two landowners owned adjacent parcels of land. Both properties were designated as “freshwater wetlands.” One year after he acquired his parcel, the owner of parcel 1 purchased a storm drainage easement from the predecessor in title to the owner of parcel 2. The owner of parcel 2 obtained his property subject to, and with knowledge of, the easement. When the owner of parcel 1 purchased the easement, a man-made freshwater ditch was located on both landowners’ properties. The ditch on parcel 1 contained freshwater wetlands of ordinary resource value. The freshwater wetlands within the ditch area located on parcel 2 had both ordinary and intermediate resource value. The owner of parcel 1 applied for, and obtained, permission from the municipal planning board to subdivide one of his lots to construct a warehouse. He only installed the foundation for the warehouse. Several years later, the New Jersey Department of Environmental Protection (DEP) authorized the owner of parcel 2 to install a parallel piping system in the ditch on both owners’ properties. The DEP also permitted the owner of parcel 2 to raise the bottom contour elevations of the ditch. The DEP did not require a permit for either of these activities. One year later, the owner of parcel 1 applied for and obtained a use variance permitting him to construct an indoor ice skating rink on the foundation. While he was building the ice rink, the owner of parcel 1 needed to relocate the ditch to align it with the drainage piping installed by the owner of parcel 2. All appropriate municipal approvals were obtained to perform this work.

Three years later, the DEP notified the owner of parcel 1 that the removal and relocation of the freshwater wetlands ditch on parcel 2 required a permit. The owner of parcel 1 was advised that he could either: (a) restore and stabilize the area to its previous condition; or (b) submit applications to the DEP for a freshwater wetlands permit. Initially, the owner of parcel 1 was denied a permit by the DEP. The owner of parcel 1 then sought, and, after an adjudicatory hearing, was given, a freshwater wetlands general permit by the DEP. He successfully argued that his activity within the wetlands on parcel 2 involved only ordinary resource value wetlands and not intermediate resource value wetlands. This type of wetlands qualified it for the issuance of a general permit for human-made ditches. Issuance of the permit also required compliance with the Stormwater Management Rules (SMR) if the contemplated activities constituted a “major development.” The DEP determined that since the activity disturbed less than one acre of wetlands and no impervious surface of point discharge was placed within the wetlands, this did not constitute a major development, and the SMR did not apply to the project. The DEP issued detailed findings of fact and an explanation of its decision. A copy of the decision was sent to the owner of parcel 2 with notification that he had thirty days to request a hearing contesting the decision. The owner of parcel 2 never asked for a hearing.

The owner of parcel 2 then brought an action in the Appellate Division to review the agency’s decision. The Court upheld the DEP’s findings, holding that a final agency decision would not be reversed unless the agency’s ruling was arbitrary, capricious or unreasonable, or if it lacked fair support in the evidence, or if it violated the legislative policies behind the statute governing the agency. Even stronger deference should be granted when an agency, as in the instant case, has been delegated discretion to determine the specialized and technical procedures for its tasks. The Court ruled that there was substantial credible evidence in the record to support the DEP’s findings.


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