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In re Authorization for Freshwater Wetlands General Permits

November 16, 2004

IN RE AUTHORIZATION FOR FRESHWATER WETLANDS GENERAL PERMITS, WATER QUALITY CERTIFICATION AND WAIVER OF TRANSITION AREA FOR ACCESS.


On appeal from the New Jersey Department of Environmental Protection, Nos. 0710-01-0005.1 and 0710-01-0005.2.

Before Judges Conley, Braithwaite and Lisa.

The opinion of the court was delivered by: Conley, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 4, 2004

Appellant, Preserve Old Northfield (POND), challenges a Letter of Interpretation (LOI) and a Freshwater Wetlands General Permit No. 6 (GP6) issued by the New Jersey Department of Environmental Protection (DEP) for activities near or adjacent to the properties of POND's members.*fn1 The LOI and the permit were issued on the basis of DEP's conclusion that the wetlands on the property were"isolated wetlands" within the meaning of N.J.S.A. 13:9B-7(b). Appellant contends, to the contrary, that the credible evidence in the record shows that the property consists of numerous wetlands which are part of an inland tributary system and therefore not isolated and that, therefore, the issuance of the permit was violative of the governing provision of the Freshwater Wetlands Protection Act. It also contends that DEP did not set forth the required findings of fact as to why it found the wetlands isolated and, that, indeed, the record contains insufficient data to support such findings. We agree that the necessary findings of facts are absent from both the LOI and the GP6 and remand for further proceedings. We do not address the sufficiency of the record argument as it is impossible to do so without specific factual findings by DEP.

The LOI and GP6 permit were issued by DEP after a long and arduous process, entailing submission of voluminous correspondence and evidentiary materials, including a number of expert reports and videotapes, submitted by the objectors, several site investigations by DEP and a meeting between DEP and interested persons. The process began in February 2001, when Daniel Markowitz of Maramark Builders, L.L.C. (Markowitz), submitted an application to DEP seeking DEP authorization to fill 0.19 acres of freshwater wetlands in connection with construction of a roadway, a cul-de-sac, and an eleven-single family-residential-home development on a site located on West Hobart Gap Road in Livingston Township, Essex County. A portion of a DEP 1986 Freshwater Wetlands map (located in the record at Aa163) shows significant wetlands on the property. The depiction of these wetlands on the map suggests interconnection with wetlands coursing throughout the area.

LOI's are letters issued by DEP to applicants in order to establish whether the site of the proposed activity is located in or adjacent to a freshwater wetland or transition area. These letters: (1) identify the presence or absence of wetlands, State open waters, or transition areas; (2) verify or delineate the boundaries; or (3) assign a wetland a resource value classification. N.J.S.A. 13:9B-8; N.J.A.C. 7:7A-1.4. A LOI, however,"does not grant approval [to the applicant] to conduct any regulated activities. The sole function of [a LOI] is to provide or confirm information about the presence or absence, boundaries, and/or resource value classification of freshwater wetlands, transition areas and/or State open waters." N.J.A.C. 7:7A-3.1(b). It is through the permitting process that one may obtain authorization to disturb wetlands. N.J.S.A. 13:9B-3, -9(a), -23.

The Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, defines a freshwater wetland as

[A]n area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation.... [N.J.S.A. 13:9B-3.]

Further:

[t]he department, in designating a wetland, shall use the 3-parameter approach (i.e. hydrology, soils and vegetation) enumerated in the April 1, 1987 interim-final draft"Wetland Identification and Delineation Manual" developed by the United States Environmental Protection Agency and any subsequent amendments thereto.... [Ibid.]

The regulations adopted pursuant to the FWPA likewise state that the designation of freshwater wetlands shall be based upon the three-parameter approach: hydrology, soils and vegetation. N.J.A.C. 7:7A-2.3(a).

The FWPA sets forth three classifications of wetlands: exceptional resource value, intermediate resource value and ordinary resource value. N.J.S.A. 13:9B-7. Freshwater wetlands of"exceptional value" are defined as wetlands that"discharge into... trout production waters and their tributaries" or provide"habitats for threatened or endangered species." N.J.S.A. 13:9B-7(a). Freshwater wetlands of"ordinary value" are defined as wetlands that"do not exhibit the characteristics [for wetlands of exceptional resource value] and which are certain isolated wetlands, man-made drainage ditches, swales, or detention facilities." N.J.S.A. 13:9B-7(b). Freshwater wetlands of intermediate resource value are all freshwater water wetlands which are neither of exceptional resource value nor of ordinary value. N.J.S.A. 13:9B-7(c). Only freshwater wetlands classified as exceptional resource value or intermediate resource value require adjacent transition areas for construction purposes. N.J.S.A. 13:9B-16(a).

As we have said, a person proposing to engage in a regulated activity in a freshwater wetland must apply to DEP for a permit. N.J.S.A. 13:9B-3, -9(a) and -23. Here, a general permit was sought.*fn2 DEP's issuance of general permits is specifically governed by N.J.S.A. 13:9B-23(b). It provides:

The department shall issue a general permit for an activity in a freshwater wetland which is not a surface water tributary system discharging into an inland lake or pond, or a river or stream, and which would not result in the loss or substantial modification of more than one acre of freshwater wetland, provided that this activity will not take place in a freshwater wetland of exceptional resource value.... The provisions of this subsection shall not apply to any wetlands designated as priority wetlands by the United States Environmental Protection Agency.

[Emphasis added.]

Thus, the applicant must establish (1) that the wetlands are not part of a surface water tributary system discharging into a lake, pond, river or stream, (2) that the proposed disturbance of the wetlands does not affect more than an acre, and (3) that wetlands of exceptional value are not involved. It is the first criteria that is the focus of this appeal.

A GP6 for"non-tributary wetlands" is codified at N.J.A.C. 7:7A-5.6(a). It"is the isolated wetlands general permit required by DEP pursuant to N.J.S.A. 13:9B-23b." In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488 (2004). A GP6"authorizes regulated activities in freshwater wetlands, transition areas adjacent to those wetlands, and/or State open waters, if the freshwater wetlands and/or State open waters are not part of a surface water tributary system discharging into an inland lake or pond, or a river or stream." N.J.A.C. 7:7A-5.6(a).

Wetlands are"[p]art of a surface water tributary system" if:

[C]onnected to a surface water*fn3 that discharges into a lake, pond, river, stream or other surface water feature. The connection may be through any surface water feature, whether regulated or not, including a stormwater or drainage pipe. The connection may be through a secondary flow channel or other feature. However, the connection may be through overland flow only if there is evidence of scouring, erosion, or concentrated flows. The connection may not be through groundwater alone. Wetlands adjacent to a surface water are connected to the surface water and are part of the surface water tributary system.

[N.J.A.C. 7:7A-1.4 (emphasis added).]

The property at issue consists of three lots shaped like a large isosceles triangle, with the base of the triangle abutting West Hobart Gap Road. It is surrounded by extensive residential development. It contains a number of wetlands. In his application, Markowitz identified the property as"seven (7) wooded acres." He described the property as containing two"isolated" wetlands (totaling 0.19 acres) that were not classified as EPA Priority Wetlands, and further noted that"[h]istorical land disturbance ...


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