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Ocean County Chapter Inc. of Izaak Walton League of America v. Department of Environmental Protection

April 16, 1997

OCEAN COUNTY CHAPTER INC. OF THE IZAAK WALTON LEAGUE OF AMERICA, A NONPROFIT CORPORATION, APPELLANT,
v.
THE DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENERGY AND LIFETIME HOMES OF NEW JERSEY, INC., A NEW JERSEY CORPORATION, RESPONDENTS.



On appeal from the Department of Environmental Protection.

Approved for Publication June 30, 1997.

Before Judges Long, Skillman and A.a. Rodriguez. The opinion of the court was delivered by Skillman, J.A.D.

The opinion of the court was delivered by: Skillman

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Appellant Ocean County Chapter, Inc. of the Izaak Walton League of America appeals from a settlement between respondents Department of Environmental Protection (DEP) and Lifetime Homes of New Jersey, Inc. (Lifetime) regarding the delineation of wetlands on a 208 acre tract of land bordering on Barnegat Bay in Berkeley Township owned by Lifetime.

Lifetime proposes to construct a major residential development project on its property. Consequently, Lifetime began Discussions with the United States Army Corps of Engineers (Army Corps) in 1986 regarding a wetlands delineation of its property. At that time, freshwater wetlands were regulated by the Army Corps pursuant to § 404 of the federal Clean Water Act, 33 U.S.C. § 1344, and were not subject to regulation by the DEP. Lifetime's consultants subsequently prepared a wetlands delineation using the methodology contained in the 1987 Corps of Engineers Wetland Delineation Manual (1987 Army Corps Manual), and submitted it to the Army Corps for approval. In February 1988, the Army Corps approved the delineation, noting that its approval was effective for two years.

On July 1, 1987, the Legislature enacted the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30. Under this legislation, the freshwater wetlands on Lifetime's property were subject to regulation by both the Army Corps and the DEP from July 1, 1988 until March of 1994, at which time the DEP assumed the regulatory jurisdiction previously exercised by the Army Corps and generally became the only regulator of freshwater wetlands within New Jersey. In performing this responsibility, the DEP uses the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989 Federal Manual), which is more stringent than the 1987 Army Corps Manual.

In a pre-application conference letter dated August 27, 1990, the DEP advised Lifetime that it would accept the Corps' wetlands delineation "if development is not proposed within the wetlands or wetlands buffer area." The DEP also advised Lifetime to file an application for a letter of interpretation. Consequently, Lifetime applied to the DEP for a letter of interpretation verifying the freshwater wetlands delineation previously approved by the Army Corps in 1991. However, the DEP notified Lifetime that it could not accept the Army Corps determination because it was not based on the 1989 Federal Manual.

On April 3, 1991, Lifetime filed a petition with the Commissioner of the DEP for a declaratory ruling that the DEP is required to use the same wetlands delineation manual used by the Army Corps and to accept the wetlands delineation of Lifetimes' property previously adopted by the Army Corps. The petition noted that the DEP staff had utilized the 1989 Federal Manual rather than the 1987 Army Corps Manual in determining the extent of wetlands on the property. The petition also noted that after the DEP staff refused to accept the Army Corps wetlands delineation, the Army Corps conducted another inspection of the site and reviewed additional monitoring data, as a result of which it reconfirmed the validity of its previous wetlands delineation. Appellant filed a brief in opposition to Lifetime's petition, arguing that the FWPA required the DEP to use the 1989 Federal Manual rather than the 1987 Army Corps Manual.

On June 24, 1993, Commissioner Weiner issued an order which denied the part of Lifetime's petition which sought to require the DEP to accept the Army Corps' wetlands delineation, noting that the DEP's staff had concluded that the wetlands line "appears to contain serious flaws." The Commissioner also rejected Lifetime's argument that the DEP was required to use the 1987 Army Corps Manual in delineating all wetlands. However, the Commissioner concluded that "based on the unique facts and circumstances" of this case, the DEP should use the 1987 Army Corps Manual to delineate the wetlands on Lifetime's property. The Commissioner noted that the DEP's staff had informally advised "Lifetime in 1990 that it would accept the wetlands line approved by the Army Corps in 1988 so long as development was not proposed in 'wetlands' or in the 'wetlands buffer area'" and that Lifetime relied upon that representation in entering into a settlement of Mount Laurel litigation. Accordingly, the Commissioner referred the matter to the Office of Administrative Law (OAL) to adjudicate the delineation of the wetlands on Lifetime's property as a "contested case."

On August 19, 1993, appellant sent a letter to Commissioner Fox, who had succeeded Commissioner Weiner, objecting to the former Commissioner's decision to use the 1987 Army Corps Manual in delineating the wetlands upon Lifetime's property. On September 23, 1993, the Commissioner responded by a letter which stated that "since the delineation issue is being referred to the , ... the most appropriate way to address [appellant's] concerns on the delineation issue would be in the context of the contested case proceedings." Consequently, Commissioner Fox suggested that appellant move to intervene before the OAL. She also indicated that "if this matter eventually returns to the Appellate Division, it will have been helpful if the factual record developed in the OAL includes the delineation that would arise through the use of the 1989 Federal Manual and what delineation differences, if any, would result from the use of that manual instead of the 1987 Corps Manual."

Subsequently, Administrative Law Judge (ALJ) Fidler denied appellant's motion to intervene, because appellant had failed to establish either of the grounds for intervention set forth in N.J.A.C. 1:1-16.1(a), which limits intervention before the OAL to a party "who has a statutory right to intervene or who will be substantially, specifically and directly affected by the outcome of a contested case." However, the ALJ granted appellant "permission to participate" in the proceeding pursuant to N.J.A.C. 1:1-16.5, "limited to the right to file a statement or brief and the right to file exceptions to the initial decision."

Thereafter, Lifetime and the DEP exchanged technical data, conducted site investigations and engaged in extensive negotiations regarding the wetlands delineation of the property which ...


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