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Society for Environmental Economic Development v. New Jersey Department of Environmental Protection

Decided: July 15, 1985.

SOCIETY FOR ENVIRONMENTAL ECONOMIC DEVELOPMENT, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT



On appeal from the Adoption of Administrative Regulations, N.J.A.C. 7:13 By the Commissioner of the Department of Environmental Protection.

Pressler, Brody and Cohen. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

[208 NJSuper Page 3] On May 21, 1984, following a series of hearings, the Department of Environmental Protection (DEP) promulgated comprehensive regulations governing development in fresh-water flood hazard areas, N.J.A.C. 7:13-1.1 to 7.1, inclusive. Appellant Society for Environmental Economic Development, an association of developers and property owners, challenges three provisions of the regulations: the so-called 20% net fill rule, N.J.A.C. 7:13-4.7(d); the creation of a category of Projects of Special Concern, N.J.A.C. 7:13-5.1, et seq., subject to discrete jurisdictional,

procedural, and substantive regulation; and the so-called grandfather clause, N.J.A.C. 7:13-1.4(d), which makes the comprehensive regulations applicable to applications accepted by DEP as complete on or after January 15, 1984.

We have considered the challenges to these provisions of the comprehensive regulations in accordance with the well-settled principles of administrative law which accord a presumption of validity to regulations which fall within the scope of the statutorily delegated authority and are not ultra vires on their face, and which require liberal construction of the enabling statute in order to effectuate the legislative purpose where questions of public health, safety and welfare are involved. See, e.g., GATX Term. Corp. v. Environmental Prot. Dep't, 86 N.J. 46 (1981); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544 (1978). As so tested, we conclude that the challenged provisions meet the criteria of validity.

We consider first the 20% net fill rule. N.J.A.C. 13:4-7(d)(1) provides:

The volume of net fill and structures to be placed on an applicant's property shall be limited to occupying 20 percent of the total volume of net-fill which:

i. Is from within the flood fringe area of delineated streams or within the 100-year flood plain, but outside of encroachment lines, of non-delineated streams; and

ii. Which is also from between the natural or existing ground surface, which ever is lower, and the level of the flood hazard design elevation along delineated streams or the 100-year storm elevation along non-delineated streams.

The first basis of appellant's challenge to this provision is the contention that DEP failed to provide the public with any technical justification for the 20% net fill rule during either the pre-proposal or proposal process, thus depriving the public of an opportunity to challenge the predicates on which the rule was based. This defect, it urges, could not have been cured by the post-adoption technical justification.

Our review of the record satisfies us that there was sufficient pre-adoption explanation to permit the substance of the rule to be adequately dealt with by its opponents and that

there is in fact adequate technical justification to support the designation of 20% as the net fill maximum. William Whipple, administrator of the Water Supply Administration, Division of Water Resources, of the DEP and the hearing officer who presided at the hearings, made a preliminary statement at the hearings explaining the rule and responded at some length to the questioning of the rule by its opponents. It is also clear that DEP, in reaching the 20% maximum, relied on a variety of pertinent studies, including an internal report entitled "Rationale for 20% Net Fill Restriction," prepared by Mr. Whipple in July, 1983, and an internal memorandum dealing with "fill" questions, referring to a 1980 National Science Foundation publication entitled, "A Report on Flood Hazard Mitigation." Moreover, the notice of adoption of the comprehensive regulations published in the New Jersey Register on May 21, 1984, included an extensive explanation for the rule and a reference to the technical publications which supported it, including studies of the National Science Foundation and the United ...


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