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Doyal v. New Jersey Dep't of Environmental Protection

January 24, 2007

SAMUEL L. DOYAL, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.



On appeal from Department of Environmental Protection, Docket No. ESA 00350-2004S.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 14, 2006

Before Judges Skillman, Holston, Jr. and Grall.

The Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, authorizes issuance of 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[.]" N.J.S.A. 13:9B-23(b). The issue presented by this appeal is whether the word "inland" in N.J.S.A. 13:9B-23(b) modifies not only "lake or pond" but also "a river or stream," thus exempting wetlands that discharge into tidal rivers or streams from the prohibition against issuance of general permits for activities on wetlands that are part of a surface water tributary system. We conclude that the word "inland" in N.J.S.A. 13:9B-23(b) only modifies "lake or pond" and, therefore, a general permit may not be issued for an activity on a wetland that discharges into a tidal river or stream.

Appellant is the owner of a small undeveloped lot in West Cape May. Appellant's lot consists almost entirely of freshwater wetlands. These wetlands drain into a stormwater system, which discharges into Cape Island Creek, a tidal stream that discharges into the Atlantic Ocean.

In 2003, appellant applied to the Department of Environmental Protection (DEP) pursuant to N.J.S.A. 13:9B-23(b) for a general permit, referred to as a GP6, see N.J.A.C. 7:7A- 5.6, to fill the wetlands on his property for construction of a single family house. If an applicant does not qualify for issuance of a general permit under N.J.S.A. 13:9B-23(b), he must apply for an individual permit pursuant to N.J.S.A. 13:9B-9 and N.J.S.A. 13:9B-13. See In re Authorization for Freshwater Wetlands Gen. Permits, 372 N.J. Super. 578, 582 n. 2 (App. Div. 2004); N.J.A.C. 7:7A-1.4; N.J.A.C. 7:7A-4.2(e); N.J.A.C. 7:7A-7.1 to 7.5.

Appellant's application was denied on the grounds that the wetlands on his property are part of a surface water tributary system that discharges into a river or stream and that the wetlands are of exceptional resource value due to the presence in a nearby forest of the southern gray treefrog, a state endangered species. Appellant filed an appeal from this denial, which was referred to the Office of Administrative Law as a contested case.

At the hearing before an Administrative Law Judge (ALJ), the parties stipulated that the wetlands on appellant's lot discharge into Cape Island Creek, which is a tidal stream. However, appellant argued that N.J.S.A. 13:9B-23(b) prohibits issuance of a general permit only for an activity on wetlands that discharge into a non-tidal waterway. In view of the parties' stipulation that the wetlands on appellant's property discharge into a tidal stream, the evidence presented at the hearing related solely to the issue of whether the wetlands are of exceptional resource value because they are part of the habitat of the endangered southern gray treefrog.*fn1

The ALJ found that the wetlands on appellant's property are not part of the habitat of the southern gray treefrog. Notwithstanding this finding, the ALJ upheld the denial of the general permit. The ALJ concluded, without substantial discussion, that the prohibition against issuance of a general permit for an activity on a wetland that discharges into a surface water tributary system only applies to wetlands that discharge into non-tidal waterways. He then found, apparently forgetting the parties' stipulation that the wetlands on appellant's property discharge into a tidal waterway, that appellant had failed to establish this fact. Both parties filed exceptions to the ALJ's recommended decision.

The Commissioner of the DEP issued a final decision that upheld the denial of appellant's application for a general permit but rejected the ALJ's proposed findings and conclusions. The Commissioner concluded that N.J.S.A. 13:9B-23(b) prohibits issuance of a general permit for a regulated activity on any wetlands that discharge into a surface water tributary system, regardless of whether that system is non-tidal or tidal. In reaching this conclusion, the Commissioner relied on the plain language of the statute and its legislative history. The Commissioner also upheld the denial of appellant's application on the alternative grounds that the wetlands are of exceptional resource value because they adjoin a breeding and overwintering habitat for the endangered southern gray treefrog and that appellant's property is within the 150-foot transition area associated with the habitat of this species.

We affirm the denial of appellant's application for a general permit on the ground that N.J.S.A. 13:9B-23(b) prohibits issuance of a general permit for a regulated activity on any wetlands that discharge into a river or stream, regardless of whether it is non-tidal or tidal. This conclusion makes it unnecessary to ...


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