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In re Appeal of Adoption of N.J.A.C. 7 7A-1.4

Decided: September 7, 1989.

IN THE MATTER OF APPEAL OF ADOPTION OF N.J.A.C. 7:7A-1.4 (DEFINITION OF "DOCUMENTED HABITATS FOR THREATENED AND ENDANGERED SPECIES" AND "SWALE"), 7:7A-2.5(B)(2), AND 7:7A-2.7(F)


King, Ashbey and Skillman. The opinion of the court was delivered by Ashbey, J.A.D. Skillman, J.A.D., concurring in part and dissenting in part.

Ashbey

[240 NJSuper Page 225] Appellants, New Jersey Conservation Foundation and New Jersey Audubon Society, appeal from the adoption of certain regulations implementing the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 et seq. (the Act) by the Department of

Environmental Protection (DEP). With one exception, we affirm.

In July 1987 the Legislature enacted the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 et seq. N.J.S.A. 13:9B-25a directed DEP to adopt rules and regulations pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. DEP proposed 14 chapters of regulations. Following public hearings and written comments, DEP made changes and published the final regulations. Appellants challenge two of these regulations, asserting that they were procedurally defective and substantively contrary to the Act.*fn1 Appellants also claim on appeal that they are entitled to recover reasonable attorneys fees (not exceeding $10,000) pursuant to the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq.

I

In order to evaluate these claims, it is necessary to examine the general format of the Act, its definitions, the permits required and the exemptions permitted. Under the Act "freshwater wetlands" (N.J.S.A. 13:9B-3) were divided into three categories. Those of "exceptional resource value" were

(1) Those which discharge into FW-1 waters and FW-2 trout production (TP) waters and their tributaries; or*fn2

(2) those which are present habitats for threatened or endangered species, . . . .

[ N.J.S.A. 13:9B-7a]

Freshwater wetlands of "ordinary value" were defined as those not of "exceptional resource value" and which were "certain isolated wetlands, man-made drainage ditches, swales, or detention facilities." N.J.S.A. 13:9B-7b. Freshwater wetlands of

"intermediate resource value" were "all other freshwater wetlands." N.J.S.A. 13:9B-7c.

Under the statute (and the regulations), in addition to permits of varying strictness being required to develop "wetlands," a DEP waiver was required for the development for "transition areas," defined as "land adjacent to a freshwater wetland which minimizes adverse impacts on the wetland or serves as an integral component of the wetlands ecosystem." N.J.S.A. 13:9B-3. Under N.J.S.A. 13:9B-16(b), only wetlands of ordinary resource value required no transition areas.

The relevant primary effective date of the Act was July 1, 1988, but there were certain "grandfather" permit exemptions, primarily for projects previously in the municipal approval process.*fn3 N.J.S.A. 13:9B-4d.

Appellants' challenge to the regulations is narrow. They do not dispute that the regulations carefully tracked most statutory definitions. Appellants contend, however, that two regulations as adopted differed so from the versions proposed that DEP was required to hold new hearings with an opportunity for new public comment. N.J.S.A. 52:14B-4.9; N.J.A.C. 1:30-4.3.

N.J.S.A. 52:14B-4.9 provides that

Any rule proposed by a State agency which revises, rescinds or replaces either (1) any proposed . . . rule . . . shall be considered as a new rule. . . .

N.J.A.C. 1:30-4.3 provides:

(a) Where, following the notice of a proposed rule, an agency determines to make changes in the proposed rule which are so substantial that the changes effectively destroy the value of the original notice, the agency shall give a new notice of proposed rule and public opportunity to be heard.

(b) In determining whether the changes in the proposed rule are so substantial, consideration shall be given to the extent that the changes:

1. Enlarge or curtail who and what will be affected by the proposed rule;

2. Change what is being prescribed, proscribed or otherwise mandated by the rule;

3. Enlarge or curtail the scope of the proposed rule and its burden on those affected by it.

Appellants urge that the changes in question were "substantial," relying upon Insurance Brokers Assn. of N.J. v. Sheeran, 162 N.J. Super. 34, 40, 392 A.2d 203 (App.Div.1978), certif. den. 78 N.J. 408, 396 A.2d 594 (1978). DEP argues to the contrary. In Insurance Brokers, we quoted with approval that "'[the] requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the rule it proposed, partly at least in response to submissions . . . . If [the opposite] were the rule the proceedings might never be terminated.'" Ibid., quoting from International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 (D.C.Cir.1973).

We have carefully reviewed the changes to which appellants refer and reject their challenge to the regulatory "swale" definition (N.J.A.C. 7:7A-1.4) as unfounded. See N.J.S.A. 13:9B-23b; N.J. Guild of Hearing Aid ...


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