On appeal from State of New Jersey, Department of Environmental Protection and Energy.
Petrella, Baime and Conley. The opinion of the court was delivered by Baime, J.A.D.
[269 NJSuper Page 548] The Freshwater Wetlands Protection Act (N.J.S.A. 13:9B-1 to -30) (FWPA) provides a comprehensive regulatory scheme for the protection of New Jersey's freshwater wetlands. Toward this end, the Legislature instituted a permit program to be administered by the Department of Environmental Protection and Energy (DEPE) with stringent criteria designed to discourage disturbance of wetland areas. Certain classes of activities are exempted from the broad reach of the Act. These include projects for which the developer obtained site plan or subdivision approval pursuant to the Municipal Land Use Law (N.J.S.A. 40:55D-1 to -136) (MLUL) prior to the effective date of the FWPA. N.J.S.A. 13:9B-4d(1).
Appellant M. Alfieri Co., Inc. sought an exemption on the basis that its predecessor in title obtained final site plan approval under the Municipal Planning Act (N.J.S.A. 40:55-1 to -67) (MPA) in 1968. The MPA was repealed when the Legislature enacted the MLUL. Alfieri asserted, however, that a sewer moratorium prevented it from developing the property and that the period of site plan approval was tolled under both the MPA and the MLUL. The DEPE denied Alfieri's application on the ground that the statutory exemption applied only to approvals granted by local authorities under the MLUL. We agree with this determination. However, we remand the matter to the DEPE for further proceedings to determine whether Alfieri had obtained a permit from the United States Army Corps of Engineers and was thus exempt from the requirements of the FWPA.
The subject property is comprised of 13.345 acres located in the Township of Little Falls. On April 4, 1968, Fenlon Manor, Alfieri's predecessor in title, obtained final subdivision approval from the Township's planning board pursuant to the MPA. Alfieri purchased the property in 1970 and obtained final subdivision approval in July of that year. The subdivision approval was perfected on October 23, 1970, when the subdivision map was filed with the Passaic County Registrar. Alfieri posted a performance bond shortly thereafter.
After the bond was posted, Alfieri received notice from the DEPE that it intended to impose a sewer moratorium that would include its site because the Township's treatment plant had reached or exceeded its capacity. In later correspondence, dated February 20, 1973, the DEPE indicated that exceptions to the moratorium would be made "where building permits, final subdivision and site plan approvals ha[d] been granted" prior to its letter. The DEPE further noted that "consideration [would] be given to situations [involving] hardship[s] . . . or other special circumstances" in order to "minimize the impact" of the sewer moratorium.
Despite the DEPE's references to "exceptions," Alfieri never sought an exemption from the moratorium. Instead, it simply halted development of the project.
The moratorium remained in effect until January 1989. Shortly before it was vacated, Alfieri sought a determination from the Army Corps of Engineers that its delineation of wetlands on the site was correct. Although the record does not specifically indicate the extent of wetlands on the property, Alfieri claimed that less than one acre was involved. On November 16, 1988, the Corps agreed with Alfieri's wetlands delineation.
We digress to note Alfieri's contention that the property falls within the purview of a federal "[n]ationwide [p]ermit." A nationwide permit, also known as a permit by regulation, allows certain activities which have relatively insignificant impact on wetlands without further review by the Corps. See 33 C.F.R. § 323.2(h). Nationwide permit no. 26 authorizes the filling of less than one acre of wetlands. See 33 C.F.R. app. A § 330 (formerly 33 C.F.R. § 330.5(a)(26)). As we will note later in our opinion, Alfieri contends that the Corps' letter accepting its wetlands delineation constituted authorization under nationwide permit no. 26 which, under certain circumstances, is exempt from the FWPA. We thus quote the Corps' letter verbatim.
We strongly recommend that development of the site avoid the discharge of dredged or fill material into the delineated waters of the United States. If this can be accomplished, a Department of the Army permit will not be required and no further contact with this office is necessary. If this cannot be accomplished, an individual permit may be required if the proposed activity does not meet the criteria or special conditions of an existing nationwide general permit (33 C.F.R. Part 330). (Emphasis added.)
On May 16, 1990, Alfieri applied to the DEPE for an exemption from the permit requirements of the FWPA. In its letter, Alfieri claimed that the project was exempt because it and its predecessor in title had obtained subdivision approval for development of the property under the MPA. The DEPE denied Alfieri's application on the ground that the subdivision approval predated the MLUL and that municipal subdivision grants under the MPA, the predecessor statute, did not provide grounds for an exemption.
On November 11, 1991, Alfieri submitted a more detailed request for an exemption in which it argued that a subdivision approval under the MPA had essentially the same effect as one granted under the MLUL. As an alternative basis for an exemption, Alfieri claimed that development of the property required filling less than one acre of wetlands and, therefore, the project was authorized by federal regulation.
The DEPE granted Alfieri's request for a hearing and transferred the matter to the Office of Administrative Law. On July 9, 1992, an administrative law Judge issued an initial decision in which she concluded that projects having received subdivision approval under the MPA were not exempt from the FWPA. The Judge refused to consider Alfieri's claim that development of the property was covered by nationwide permit no. 26 because that contention had not been advanced in a timely manner and was not supported by sufficient documentation. The Judge also determined that the sewer moratorium had no impact upon application of the FWPA. On September 25, 1992, the Commissioner of the DEPE adopted the findings and Conclusions contained in the initial decision and denied Alfieri's request for an exemption. This appeal followed.
Alfieri contends that projects for which subdivision approvals were granted under the MPA are exempt from the FWPA. Likewise, it contends that projects for which subdivision applications were submitted under the MPA are exempt from the FWPA. Alfieri further argues that the MPA regulated subdivisions in essentially the same way as the MLUL and, therefore, the constitutional right to equal protection demands that approvals under each statute be treated in similar fashion. Alfieri also claims that its project is authorized under nationwide permit no. 26 and is thus exempt from the FWPA. Alfieri's final argument is that the subdivision approval period was tolled by reason of the sewer moratorium and that it would be unfair to now apply the FWPA's stringent wetlands requirements. We examine these contentions seriatim.
We begin our analysis with a brief overview of the FWPA and its ...