On appeal from Department of Environmental Protection, Division of Coastal Resources.
Pressler, Shebell and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by
The essential issue presented by this appeal is whether wetlands which the Army Corps of Engineers authorized to be filled prior to the effective date of the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, and which are therefore exempt from regulation under that legislation, are nevertheless subject to regulation by the Department of Environmental Protection (DEP) under the Waterfront Development Act, N.J.S.A. 12:5-1 to -11.
The Union County Utilities Authority (UCUA) was created to implement a county solid waste management program, including the construction of a resource recovery facility. The site of the UCUA's proposed facility is a 22 acre parcel in Rahway bordered to the south and east by the Rahway River. In the past the site was used for illegal dumping and as a result was filled to a depth of eight to fourteen feet with tar, wood, glass, slag, asphalt, plastic and other types of solid waste. The site also contains seventeen pockets of isolated wetlands totalling less than half an acre, which resulted from the collection of rainwater in small depressions on the surface of the dump. These wetlands do not have any hydrologic connection to each other or to the Rahway River.
Since the site for the proposed resource recovery facility is located on the Rahway River and thus is subject to the Waterfront Development Act, the UCUA was required to obtain a waterfront development permit. The UCUA's application for this permit included a plan to replace the isolated pockets of wetland on its site with approximately one acre of intertidal wetlands which would be located along the Rahway River. The UCUA proposed to construct a public recreation area on this part of the site consisting of a ten foot wide boardwalk/path
system for walking, jogging, bird watching and fishing, picnic areas and a small public parking lot.
In addition to a waterfront development permit, the UCUA was required to apply for numerous other federal, state and local permits. One of these permits was a "nationwide permit" from the Army Corps of Engineers authorizing the UCUA to fill the isolated wetlands on its site. Based in part on the results of a joint visit to the site on March 4, 1987 by representatives of the Army Corps and the DEP, the Army Corps issued a nationwide permit to the UCUA on December 28, 1987.
After considering written and oral comments of members of public and staff evaluations, the DEP granted the UCUA's application for a waterfront development permit on January 8, 1990. The appellants filed a notice of appeal on February 21, 1990.*fn1 The UCUA sold bonds for the construction of its facility and held a groundbreaking in late December of 1991. Appellant moved for a stay of the permit on December 23, 1991, which we denied. Appellants then moved for a stay before the Supreme Court, which also denied their application.*fn2
Appellant contends that the DEP violated one of its own regulations in issuing a waterfront development permit to the UCUA. The regulation relied upon by appellants provides that "[i]n general, development of all kinds is prohibited in Wetlands," unless the DEP finds that the proposed development "[r]equires water access or is water-oriented as a central purpose of the basic function of the ...