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In re Freshwater Wetlands General Permit Number 16

July 29, 2005


On appeal from the New Jersey Department of Environmental Protection, DEP File Number 0313-01-0002.1, Pinelands Application Number 83-9233.09.

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



Argued November 8, 2004

Before Judges A. A. Rodríguez, Cuff and Hoens.

This appeal concerns execution of a November 2000 settlement approved by the Pinelands Commission (Commission) and affirmed by this court in In re New Jersey Pinelands Commission Resolution PC4-00-89, 356 N.J. Super. 363 (App. Div.), certif. denied, 176 N.J. 281 (2003). That dispute involved how to address the presence of timber rattlesnakes, an endangered species in this State, discovered within a residential development known as "The Sanctuary" in Evesham Township, Burlington County. The development is within the Pinelands area and subject to control by the Commission pursuant to the Pinelands Protection Act (the Act), N.J.S.A. 13:18A-1 to -29, and the Department of Environmental Protection (DEP) pursuant to the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, and implementing regulations.

Appellants Pinelands Preservation Alliance, New Jersey Audubon Society and the Natural Resources Defense Council appeal from two administrative agency actions: first, a freshwater wetlands general permit authorization issued by the Commission, and second, a decision by the DEP Commissioner denying appellants' request for a hearing to review the issuance of the general permit.*fn1 Appellants contend that the DEP Commissioner improperly delegated to the Commission the authority to issue the permit, that the permit issued is inapplicable to the site, and that the permit was improperly issued. We agree with the second and third contentions and reverse and remand for further consideration of the application, including the modified fence plan.

An overview of the Commission's role in overseeing development within the Pinelands, the regulation of freshwater wetlands within this State, and the interaction between the DEP and the Commission is in order.

Under the federal Clean Water Act, 33 U.S.C.A. sections 1251 to 1387 (CWA), the federal government had exclusive regulatory control over the nation's freshwater resources. After enactment of the FWPA and its implementing regulations in July 1988, the DEP became authorized to grant permits for activities that could affect those waters. 33 U.S.C.A. § 1344; N.J.S.A. 13:9B-2, -9. Pursuant to the federal grant of authority, the DEP adopted regulations for Statewide General Permits, under which certain categories of activities could obtain more streamlined authorization; if a general permit did not apply, the activity could still be approved under an individual permit. N.J.A.C. 7:7A-9.1 and -9.2 (readopted and recodified as N.J.A.C. 7:7A-4 and -5); In re Freshwater Wetlands Prot. Act Rules, 351 N.J. Super. 362, 367-69 (App. Div. 2002), aff'd, 180 N.J. 478 (2004).

Meanwhile, in 1978 the federal government established the "Pinelands National Reserve" (Reserve) under the National Parks and Recreation Act. 16 U.S.C.A. § 471i. Congress found that "the Pinelands area in New Jersey, containing approximately 1,000,000 acres of pine-oak forest, extensive surface and ground water resources of high quality, and a wide diversity of rare plant and animal species, provides significant ecological, natural, cultural, recreational, educational, agricultural, and public health benefits. . . ." 16 U.S.C.A. § 471i(a)(1). To facilitate the protection of the Pinelands, Congress appropriated monies to New Jersey "for the acquisition of lands and waters or interests" and asked New Jersey to establish a planning entity to develop a comprehensive management plan (CMP) for the Reserve. 16 U.S.C.A. § 471i(h).

Accordingly, in 1979 the New Jersey Legislature enacted the Act, N.J.S.A. 13:18A-1 to -29. The Act created the Commission, the instrumentality having primary responsibility for planning in the Pinelands, and directed it to adopt the CMP "to serve as the land-use blueprint for the region. . . ." N.J.S.A. 13:18A-4, -8, -14; Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 201 (1991). Under the Act, no development is permitted in the Reserve unless it is reviewed by the Commission and found to be in conformance with the CMP. N.J.S.A. 13:18A-10(c); N.J.A.C. 7:50-4.2. County and local land use plans and ordinances must also conform with and implement the CMP. N.J.S.A. 13:18A-12. In 1980, the Commission adopted the CMP. N.J.A.C. 7:50-1.1 to -7.11.

In January 1993, the DEP and the Commission entered into a memorandum of agreement (MOA) "to establish a framework for the continued protection of wetlands within" the Pinelands. The MOA "does not create any substantive standards under which wetlands and waters will be regulated in the Pinelands Area" but is "solely intended to describe and allocate pre-existing areas of regulatory responsibility to avoid unnecessary duplication" between the Commission and the DEP. Recognizing that an FWPA permit is needed in addition to any approvals required by the CMP for activities involving the discharge of dredged or fill material in Pinelands area wetlands, the MOA provides that the Commission "on behalf of" the DEP "shall administer a process which may authorize regulated activities in waters of the United States in accordance with the Statewide General Permit program at N.J.A.C. 7:7A-9." The Commission, on behalf of the DEP, "may authorize these regulated activities within the Pinelands Area, in accordance with the requirements" of the Act, the CMP, and the rules adopted pursuant to the FWPA. The Commission agreed to provide the DEP with a monthly report describing all permit activity, and with copies of all denials of permit authorizations. On issues that arise under the FWPA rules, an applicant or other affected party "may request reconsideration" by the DEP Commissioner "on any decision to issue or deny an authorization made by the Pinelands Commission staff . . . ." If the matter does not fall within a general permit and an individual permit is required, the permit application will be made to the DEP after the applicant shows that it has completed the approval process before the Commission. The DEP shall not approve any action that would be inconsistent with the CMP.

In July 1998, the predecessors to the developer of "The Sanctuary" received final approval from the Planning Board to sections III, IV and V of the project. Pinelands Resolution, supra, 356 N.J. Super. at 367. Soon thereafter, timber rattlesnakes were observed in the development and the Commission issued a call-up to review the Planning Board approval. Ibid. Litigation ensued, the matter was referred to the Office of Administrative Law, and all of the parties other than the appellants in this case reached a settlement. Id. at 367-69. The agreement contained six primary features: (1) decrease the number of homes to be built by fifty-three; (2) change the layout to limit development on the south side of Kettle Run Creek; (3) maintain a sixty-to eighty-four-acre corridor along Kettle Run Creek, surrounding the known rattlesnake dens, using fencing and culverts, coupled with deed restrictions to maintain open space; (4) place $150,000 in an account to be used for inspecting and maintaining the culverts and fences, monitoring the snakes for fifteen years, relocating the snakes if necessary, and educating the residents on coexisting with rattlesnakes; (5) post another $40,000 in escrow in case additional fencing was necessary; and (6) sell at fair market price approximately 1100 acres of land to the DEP and another 133 acres to Evesham Township for Green Acres Preservation. Id. at 370-71. The third feature, the installation of a fence to protect the snakes and to contain the snakes in their natural habitat, required regulatory approvals, including permits required by the FWPA and a Stream Encroachment Permit. Id. at 372-73. The Commission approved the settlement and the same groups that appear as appellants in these appeals also appealed the agency approval of the settlement. Id. at 371. On appeal, this court affirmed the determination of the Commission to approve the settlement. We recognized that the wisdom of the fence and tunnels was subject to debate, but also noted that the settlement required the developer to obtain all necessary regulatory approvals. Id. at 372-73. This appeal focuses on the issuance of the necessary permits by the Commission. We address the jurisdictional issue first.

In January 1993, the DEP and the Commission entered into an MOA that allocated regulatory responsibility for activities regulated by the FWPA within the Pinelands area. The MOA recognizes that activities within the Pinelands regions that trigger the need for an FWPA permit invariably require approvals pursuant to the Commission's CMP. Therefore, in accordance with the MOA, the Commission has been delegated the authority to administer "a process which may authorize regulated activities in waters of the United States in accordance with the Statewide General Permit program at N.J.A.C. 7:7A-9." The MOA is further memorialized at N.J.A.C. 7:7A-2.9(b)(c). Thus, if the regulated activity is subject to the Pinelands CMP and is eligible for a general permit under N.J.A.C. 7:7A, the Commission reviews the application under the CMP and under the standards established by the DEP for the issuance of the specific general permit. N.J.A.C. 7:7A-2.9(c)(1). Appellants contend that this delegation is improper.

The MOA cites N.J.S.A. 13:1D-9 as authority for the delegation. Section 9q provides that the DEP has the authority to "[c]ontract with any other public agency or corporation incorporated under the laws of this or any other state for the performance of any function under this act. . . ." The Commission is a public agency, N.J.S.A. 13:18A-1 to -29, and regulation of freshwater wetlands is a function of the DEP. N.J.S.A. 13:9B-1 to -30. We interpret the statute as an explicit authorization of the type of relationship established by the MOA. We also note that the MOA expressly provides that DEP retains ultimate authority and oversight. Indeed, the Commission must provide to DEP a monthly report describing all permit activity and provide copies of denials of permit authorizations. In addition, an applicant or other affected person may request consideration by the DEP Commissioner pursuant to N.J.A.C. 7:7A-12.7 of any decision to issue or deny an authorization made by the Commission, although the Commissioner's review is limited ...

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