Skip to main content

Strong v. Department of Environmental Protection

OAL Dkt. No. ESA 8127-02 (Department of Environmental Protection 2004)

ENVIRONMENTAL PERMITS; LETTERS OF INTERPRETATION—A Letter of Interpretation is not an application for a permit and one cannot use such a letter as permission to conduct activities that require a general permit, a transitional waiver or an individual permit.

The Department of Environmental Protection (DEP) issued a Letter of Interpretation (LOI) to a property owner setting forth that freshwater wetlands and transition areas were present within the area of disturbance on the owner’s property. The LOI also indicated that the wetlands were of intermediate resource value, and that the standard transition area required adjacent to these wetlands was fifty feet. The owner appealed the LOI, but provided no factual or legal basis for its appeal. It claimed only that the lot was part of a major subdivision which had been approved by the local municipal planning board, and that an exemption from the requirements of obtaining a DEP Freshwater Wetlands or Open Water Fill Permit had already been received by letter from the DEP.

The Administrative Law Judge (ALJ) found there to be no genuine issue of fact, and that the owner had failed to demonstrate that the LOI was defective or invalid. The ALJ pointed out that an LOI is not the grant of denial of a permit, and that the owner still retained the right to file for an individual wetlands permit or for a general permit pursuant to the Freshwater Wetlands Protection Act. For those reasons, the ALJ granted the DEP’s motion for summary judgment.

The DEP’s Commissioner affirmed the ALJ’s decision. In the affirmation, it was pointed out that an LOI identifies whether there are any freshwater wetlands, State open waters or transition areas on a site or a portion of a site. An LOI also lists the resource value classification for any wetlands on the site. The Commissioner pointed out that the owner had not submitted any facts to dispute that there were wetlands within the footprint of disturbance on the site, or that the wetlands were not of intermediate resource value. Alternatively, the owner was under the mistaken impression that the purpose of its LOI application was to obtain permission to proceed with a development project for the site subject to the LOI, and that somehow this permission was denied. The Commissioner also pointed out that an LOI is neither approved nor denied by the DEP, it is simply DEP’s determination of the natural resources on a site. Additionally, one cannot seek permission to conduct activities in a freshwater wetland, transition area or State open water by use of an application for an LOI. For such permission, one must apply for a general permit, a transitional area waiver, or an individual freshwater wetlands or open water fill permit.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •