On appeal from the Department of Environmental Protection.
Judges King, Long and R.s. Cohen. The opinion of the court was delivered by Long, J.A.D.
Plaintiff, A.R. Criscuolo and Associates, Inc. Defined Benefit Pension Plan and Trust (Criscuolo) here challenges a decision of the New Jersey Department of Environmental Protection (DEP) granting it only a limited exemption from the provisions of the Freshwater Wetlands Protection Act (FWPA or the Act), N.J.S.A. 13:9B-1 to -30. Criscuolo contends that it is entitled to the statutory exemption prescribed by N.J.S.A. 13:9B-4d(3) in the FWPA for its proposed development, Willow Hill Square, based on its compliance with the conditions of a nationwide permit issued by the Army Corps of Engineers (Corps) pursuant to section 404 of the Clean Water Act of 1977 (Clean Water Act), 33 U.S.C.A. § 1344. 33 C.F.R. § 330.5 (1990). More particularly, Criscuolo argues that DEP erred in enacting N.J.A.C. 7:7A-2.7(g) which impermissibly narrows the plain language of the FWPA; that DEP improperly limited its exemption to the fill of .06 acres of wetlands instead of .83 acres, and that the agency wrongfully denied it an administrative hearing. We have carefully reviewed this record in light of the claims advanced by Criscuolo and have concluded that Criscuolo is wide of the mark in its interpretation of the statute and regulation but that it is on target in its contention that it was entitled to an exemption for the fill of .83 acres of wetlands. Thus, we reverse.
Criscuolo owns a tract of land in South Brunswick Township, Middlesex County, which consists in part of freshwater wetlands.*fn1 Criscuolo planned to subdivide the property into 64 lots,
and to construct a single family house on each. In furtherance of this plan, Criscuolo sought subdivision approval from the South Brunswick Planning Board. During the Planning Board's review of the project, a certified soil scientist/classifier was hired by Criscuolo to verify the wetlands mapping. He concluded that the wetlands line, as delineated by Criscuolo's engineer (Hudson) was essentially accurate and noted that while the line could have been adjusted in some areas, none of the adjustments was significant.
In May 1988, Criscuolo, through Hudson, requested of the Corps a statement that the project could proceed under a nationwide general permit pursuant to 33 C.F.R. § 330.5(a)(14). With the request were supporting documents, including maps depicting the extent and location of wetlands which would be filled so that a road crossing could be built. This request indicated that .06 acres of wetlands would be filled.
On October 12, 1988, the Corps confirmed that it received this request on May 10, 1988, and that the project qualified under a nationwide permit, Permit #26 (33 C.F.R. § 330.5(a)(26)). Under the permit, Criscuolo was permitted to fill up to one acre of wetlands. The Corps' transmission noted that DEP was required to establish the extent of the affected wetlands and to insure that the project complied with the conditions of Nationwide Permit #26 prior to construction.
After obtaining the Planning Board's approval for the subdivision, on December 9, 1988, Criscuolo, again through Hudson, submitted documents to DEP, including the map describing the project and sought a "letter of interpretation to establish whether portions of the subject property are located in a freshwater wetland" and "statement of concurrence that the
subject proposal can proceed as planned under existing Statewide General Permit Number 7:7A-9.2(a)6 and 7:7A-9.2(a)7."
On February 6, 1989, DEP responded by noting a discrepancy between the map depicting the affected wetlands submitted with the December 9, 1988 request and the field location of those wetlands, discovered during a site inspection of the project. Criscuolo was instructed to investigate the discrepancy and inform DEP of how it intended to proceed. DEP also requested copies of all documents sent to the Corps, in order to determine whether Criscuolo qualified for an exemption under the FWPA. DEP and Hudson's staff met and the erroneous map was corrected. As a result of the revisions, the area of wetlands proposed to be filled was amended to .83 acres. Criscuolo also adjusted the configuration of some of the proposed roads in the project to satisfy the Planning Board and to limit the impact on the wetlands as now identified. The Corps was again contacted to confirm that the project still qualified under Nationwide Permit #26.
On June 5, 1989, the Corps confirmed that the revised proposal "continues to comply with the requirements of the nationwide general permit" and that Criscuolo could fill up to one acre of wetlands without further application. On June 30, 1989, Criscuolo requested from DEP an exemption from the FWPA, pursuant to N.J.S.A. 13:9B-4d(3), basing its request on the Corps' continuing approval of the project.
On September 25, 1989, DEP issued its decision granting Criscuolo an exemption from the Act limited to the affected wetlands as depicted on the original erroneous map (.06 acres). DEP did not grant an exemption for the additional affected wetlands as shown on the corrected map.
On October 24, 1989, Criscuolo requested that DEP either modify its September 25, 1989 limited exemption to include those areas of the project which continued to meet the conditions for a nationwide permit, i.e., the wetlands affected by the revised ...