On appeal from the Adoption of Rules by the Department of Environmental Protection.
King, Ashbey and Skillman. The opinion of the court was delivered by King, P.J.A.D.
[238 NJSuper Page 517] This is an appeal by the New Jersey Builders Association (NJBA) challenging certain regulations promulgated by the New Jersey Department of Environmental Protection (DEP) which implement the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to -30 (the Act or Wetlands Act). We invalidate N.J.A.C. 7:7A-2.7(d)(1) and (2) because it improperly limits the
statutory exemption extended to certain municipal approvals by N.J.S.A. 13:9B-4d. We reject the challenges to the other regulations.
The Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to -30, was signed into law on July 1, 1987; five of its provisions became effective immediately, with the remainder of the provisions becoming effective July 1, 1988, except that three sections (dealing with transition area requirements) could not be implemented until July 1, 1989. At the same time the Wetlands Act was codified, the Legislature amended two sections of the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -20, specifically N.J.S.A. 58:10A-5 and N.J.S.A. 58:10A-6, to make the two Acts consistent.
This is a background of the Act and its design. N.J.S.A. 13:9B-2 sets out the Legislature's findings and declarations describing why it enacted the Freshwater Wetlands Protection Act. Freshwater wetlands are areas inundated or saturated by surface water or ground water at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions (hydrophytic vegetation). N.J.S.A. 13:9B-3. The Act divided freshwater wetlands into three categories. In the first, and most highly protected category, are freshwater wetlands of exceptional resource value. These wetlands are defined by their discharge points and by whether they are present habitats for threatened or endangered species or whether they have been established as suitable for breeding, resting or feeding by threatened or endangered species during the normal period those species would use the habitat. N.J.S.A. 13:9B-7a(2). There are two lesser protected categories: freshwater wetlands of ordinary value, which are defined as those wetlands which do not exhibit the characteristics of freshwater wetlands of exceptional resource value and which are certain isolated wetlands, man-made drainage ditches, swales or detention facilities, N.J.S.A. 13:9B-7b; and freshwater wetlands of intermediate resource value, which are all
freshwater wetlands not included within the other two categories. N.J.S.A. 13:9B-7c.
Because the Legislature found that these freshwater wetlands protect and preserve drinking water supplies, provide a natural means of flood and storm drainage protection, serve as a transition zone between dry land and water courses retarding soil erosion, provide essential breeding, spawning, nesting and wintering habitats for a major portion of the State's fish and wildlife and maintain a critical base flow to surface waters through their gradual release of stored flood waters and ground water, particularly during a drought, it concluded that these inland waterways and freshwater wetlands need vigorous protection. N.J.S.A. 13:9B-2. The Legislature asserted that
The Legislature then determined that, in this State, pressures for commercial and residential development define the pace and pattern of land use. Therefore, it was in the public interest to establish a program for systematic review of activities in and around freshwater wetland areas "designed to provide predictability in the protection of freshwater wetlands." Ibid. The Legislature declared
One of the main purposes of this legislation was to provide the State with the statutory authority necessary to assume implementation of the federal wetlands protection program, which previously had been administered by the U.S. Army Corps of Engineers pursuant to § 404 of the Federal Clean Water Act of 1977, 33 U.S.C.A. § 1344. Under the federal
§ 404 program, the Army Corps of Engineers was entitled to regulate only the "filling in" of freshwater wetlands (40 C.F.R. § 232.1, § 232.2(b), (e), (f)).
Because of the limited regulation of freshwater wetland areas by the federal government and virtually nonexistent regulation of those same areas by the State, the Legislature decided to enact a statutory scheme which would not only regulate any activity which could occur in freshwater wetlands, but which would also assume the regulatory function over disposal of dredged or fill material heretofore provided by the Army Corps of Engineers under the § 404 program (N.J.S.A. 13:9B-2). The Clean Water Act, 33 U.S.C.A. § 1344, also permits a state to assume the regulatory program for the discharge of dredged or fill material into state-controlled waters. 33 U.S.C.A. § 1344(g), (h). However, in order to be approved for assumption, the state program must be as stringent as the federal program and must comply with all the requirements of the federal regulations. 33 U.S.C.A. 1344(g), (h); 40 C.F.R. § 232-233. 40 C.F.R. § 233.1(c) specifically provides that "nothing in this part precludes a state from adopting or enforcing requirements which are more stringent or from operating a program with greater scope, than required under this part." Furthermore, the State's program regulating discharges of dredged or fill material into state-regulated waters must be comprehensive; "partial state programs are not approvable under § 404." 40 C.F.R. § 233.1(b).
Thus, to assume the federal § 404 program, as the Legislature expressly directed, the DEP had to have the power to regulate all discharges of dredged or fill material into state-regulated waters. State-regulated waters are all waters within a state's boundary over which the state has jurisdiction, "other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to
their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto. . . ." These waters are federally regulated. 33 U.S.C.A. § 1344(g)(1); Accord, 40 C.F.R. § 232.2(p). Because the State intended to regulate the discharge of the dredged and fill materials into State waters, the Legislature had to amend the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -20, to give the DEP power to exercise this necessary control. To that end, N.J.S.A. 58:10A-5 and 58:10A-6 were amended to provide that authority.
Because of the federal requirement that the state assumption program be total, the DEP also had to amend N.J.A.C. 7:14A-3.1, which had listed certain types of discharges which were exempt from the permit requirements of the New Jersey Pollutant Discharge Elimination System (NJPDES), which implemented the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -60. Prior to the amendment, the discharge of dredged or fill material into freshwater wetlands and state open waters was exempt from the NJPDES permit requirements. In order to eliminate this conflicting provision from the regulations and to promote consistency between the Water Pollution Control Act and the Wetlands Act, N.J.A.C. 7:14A-3.1 was amended to exempt only discharges of dredged or fill material into federal waters; the amendment provided that such discharge would be prohibited, however, without an NJPDES permit, which "shall be a freshwater wetlands permit or an Open Water Fill permit. . . ." N.J.A.C. 7:14A-3.1(b)2i.
The regulations governing freshwater wetlands also had to be redrafted to cover the permitting process for the discharge of dredged or fill materials. Thus, N.J.A.C. 7:7A-1.4 defined State open waters in a manner consistent with the federal statutory and regulatory definition: State open waters were exempted from the freshwater wetlands permit requirement but were made subject to an ...