On appeal from a Final Agency Decision of the Department of Environmental Protection.
Before Judges Petrella, Kestin and Alley.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The appellants*fn1 challenge an administrative regulation, N.J.A.C. 7:7A-5.23, promulgated by the State Department of Environmental Protection (DEP). The regulation authorizes the expansion of certain cranberry growing operations in the Pinelands through the creation of a statewide general permit known as General Permit 23 (GP23 or SGP23). On appeal appellants argue:
I. SGP 23 FAILS TO COMPLY WITH THE STRINGENT IMPACTS MITIGATION REQUIREMENTS OF THE FWPA.
II. SGP 23 IS SUBSTANTIALLY LESS STRINGENT IN NUMEROUS RESPECTS THAN THE FEDERAL PROGRAM:
A. THE ACREAGE IMPACTED UNDER SGP 23 IS FAR GREATER THAN THE ACREAGE IMPACTED UNDER NWP 34.
B. NWP 34 CONTAINS MITIGATION REQUIREMENTS NOT FOUND IN SGP 23.
C. NWP 34 CONTAINS ENDANGERED SPECIES PROTECTION NOT FOUND IN SGP 23.
D. NWP 34 REQUIRES MORE EXACTING CONSIDERATION OF ALTERNATIVE[S] THAN DOES SGP 23.
III. SGP 23 WAS IN VIOLATION OF THE NON-DEGRADATION REQUIREMENTS OF THE SURFACE WATER QUALITY STANDARDS.
IV. NJDEP VIOLATED THE ADMINISTRATIVE PROCEDURE ACT IN PROMULGATING SGP 23 THROUGH CRITICAL MISREPRESENTATION.
New Jersey is reportedly the third largest producer of cranberries in the country, with an approximate yield of 450,000 barrels per year. New Jersey's cranberries are exclusively harvested in the Pinelands.
The Pinelands are classified as Freshwater Wetlands under N.J.S.A. 13:9B-3 and Federal Wetlands under the Clean Water Act (CWA). 33 U.S.C.A. 1344.*fn2 Under the CWA, as head of the Army Corp of Engineers, the Secretary of the Army (Secretary), in conjunction with the United States Environmental Protection Agency (EPA), administers the program as it pertains to wetlands. Federal permits may be issued by the Secretary after notice and opportunity for public hearings for the discharge of dredged or fill material" into and around wetlands. Ibid. New Jersey has adopted its own wetlands protection act and permit program known as the Freshwater Protection Act (FWPA) and the DEP has the responsibility for the administration of these permits, in lieu of the federal agencies. See 33 U.S.C.A. 1342(b). However, the State's decision to issue permits is subject to EPA approval, and the State standards for granting these permits may not be less stringent than the federal standards. 33 U.S.C.A. 1371.
N.J.S.A. 13:9B-9(a) requires that an entity, other than those under the jurisdiction of the Pinelands Commission (see N.J.S.A. 13:9B-6(b)),*fn3 seeking to conduct any regulated activity in freshwater wetlands must possess a FWPA permit. "Regulated activity" is broadly defined in the statute as:
(1) The removal, excavation, disturbance or dredging of soil, sand, gravel, or aggregate material of any kind;
(2) The drainage or disturbance of the water level or water table;
(3) The dumping, discharging or filling with any materials;
(4) The driving of pilings;
(5) The placing of obstructions;
(6) The destruction of plant life which would alter the character of a freshwater wetland, including the cutting of trees[.] N.J.S.A. 13:9B-3.
The federal regulations require permits for "the construction of any canal, ditch, dike or other waterway or structure which drains or otherwise significantly modifies a stream, lake, swamp, bog or any other wetland or aquatic area...." 33 C.F.R. 323.4(a)(1) (iii)(c)(2). But certain cranberry farming activities are exempt from these requirements. 33 C.F.R. 323.4. Permits are not required for discharges of dredged or fill material "for the purpose of installing ditching or other such water control facilities incidental to planting, cultivating, protecting, or harvesting of ... cranberries" in wetlands which have already been established for "such agricultural and silvicultural wetland crop production." 33 C.F.R. 323.4(a)(1)(iii)(C)(1)(ii).
Under 33 U.S.C.A. 1344(e), the federal government has authorized general permits,*fn4 rather than the usual individual ones, where it considers the environmental effect of the wetland activity de minimus.
In New Jersey, N.J.S.A. 13:9B-23 allows the DEP to issue general permits, and states in pertinent part:
(c) The department shall issue additional general permits on a Statewide or regional basis for the following categories of activities, if the department determines, after conducting an environmental analysis and providing public notice and opportunity for a public hearing, that the activities will cause only minimal adverse environmental impacts when performed separately, will have only minimal cumulative adverse impacts on the environment, will cause only minor impacts on freshwater wetlands, will be in conformance with the purposes of P.L. 1987, c. 156 (C. 13:9B-1 et seq.), and will not violate any provision of the federal act:
(5) Activities, as determined by the department, which will have no significant adverse environmental impact on freshwater wetlands, provided that the issuance of a general permit for any such activities is consistent with the provisions of the Federal Act and has been approved by the United States Environmental Protection Agency[.] (N.J.S.A. 13:9B-23(c)(5)).
General permits issued by the State are valid for five years, may be subject to conditions, and may be modified or revoked at any time. N.J.S.A. 13:9B-23(d),(e). Such permits allow the regulated entity to engage in any of its enumerated activities without first having to apply for an individual permit for each activity. N.J.S.A. 13:9B-23(g). Instead, the entity is to provide thirty days advance written notice to the DEP, and is supposed to receive an answer therefrom within thirty days.
Prior to the availability of the State's general permit, the Secretary issued Nationwide Permit #34 (NWP34), for those activities listed in 56 Fed. Reg. 59110, 59144, to allow its holders to engage in "[d]ischarges of dredged or fill material for dikes, berms, pumps, water control structures or leveling of cranberry beds associated with expansion, enhancement, or modification activities at existing cranberry production operations...." The permit holder is not to exceed ten acres of "disturbance per cranberry production operation" measured over the life of the permit, and the activity cannot result in a "net loss of wetland acreage." Ibid. The permit also includes notification requirements and procedures which must be followed by the permittee. However, NWP34 is subject to mitigation requirements and does "not authorize any discharge of dredged or fill material related to other cranberry production activities such as warehouses, processing facilities, or parking areas." Ibid.
A July 21, 1992 "Memorandum to the Field" (RGL 92-02) published in 57 Fed. Reg. 32523, 32524 and issued by federal authorities recognized that cranberry production is a "water dependent activity" because it requires either "wetlands or areas altered to create a wetland environment." Activities classified as "water dependent"*fn5 relieve permit applicants of the need to rebut the presumptions that: (1) "practicable alternatives that do not involve special aquatic sites are presumed to be available" and (2) "all practicable alternatives to the proposed discharge which do not involve a discharge into a special aquatic site are presumed to have less adverse impact on the aquatic ecosystem." 40 C.F.R. 230.10 (a)(3). However, the permittee must satisfy the requirements in 40 C.F.R. 230.10(a) that the proposed discharge is the "least environmentally damaging practicable alternative, after considering aquatic and non- aquatic alternatives as appropriate." 57 Fed. Reg. 32523, 32524.
40 C.F.R. 230.10(a)(2) provides:
An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered.
In its November 1999 letter to the U.S. Fish and Wildlife Service, the EPA stated that both the EPA and the Army Corps of Engineers continue to view the July 21, 1992 memorandum (RGL 92- 02) as a valid statement of national policy.
Additionally, the Secretary has expressed the view that the usage of uplands as an alternative to the expansion of bogs in wetlands need not be mandated on the ground that, "[a]lthough it has been demonstrated that cranberries can be cultivated in former uplands (cranberry bogs are wetlands because of the hydrology that must be maintained), this is technically difficult and typically would not be practicable." Comments at 61 Fed. Reg. 65904.
The State general permit that is the subject of this appeal was promulgated by the DEP and approved*fn6 by the EPA. N.J.A.C. 7:7A-5.23 (formally N.J.A.C. 7:7A-9.23), allows eligible cranberry growers to receive a statewide general permit, known as General Permit 23 (GP23), for their activities in the Pinelands. In order to qualify for a GP23, the applicant must be a "discrete legal entity" that prior to the date of enactment was already in active cranberry production in the Pinelands and "[w]as reported as a cranberry growing operation to the United States Department of Agriculture Cranberry Marketing Committee." N.J.A.C. 7:7A- 5.23 (a).
A GP23 permit can be valid for up to five years. N.J.S.A. 13:9B-23(e). However, the regulation gives the Commissioner the discretion "to modify, suspend, or revoke" GP23 permit authorizations at any time. N.J.A.C. 7:7A-5.23(r). The permit authorizes, but is not limited to, "the construction or expansion of a bog, reservoir, canal, ditch, dike, tail water recovery system, water quality improvement system, or other similar support type facility." N.J.A.C. 7:7A-5.23(b). The construction or expansion of sheds and housing, as well as the establishment of new sites for storing or ...