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North Byram Concerned Citizens v. New Jersey Department of Environmental

June 6, 2008

NORTH BYRAM CONCERNED CITIZENS, NEW JERSEY HIGHLANDS COALITION, THE NEW JERSEY ENVIRONMENTAL FEDERATION, APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.
SIERRA CLUB-NEW JERSEY CHAPTER, INTERVENOR-APPELLANT.



On appeal from the New Jersey Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 6, 2008

Before Judges Skillman, Winkelstein and Yannotti.

Appellants North Byram Concerned Citizens (NBCC), the New Jersey Highlands Coalition (NJHC), New Jersey Environmental Federation (NJEF), and intervenor Sierra Club-New Jersey Chapter (SCNJ) appeal from a final determination of the New Jersey Department of Environmental Protection (DEP), which found that a portion of the Route 206 reconstruction and widening project in Byram Township is exempt from regulation under the Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 to -35 (the Highlands Act or the Act). For the reasons that follow, we affirm.

I.

The Highlands Act was enacted to provide a "comprehensive approach to the protection of the water and other natural resources" in the Highlands region, which consists of nearly 800,000 acres in eighty-eight municipalities in parts of seven counties of the State. N.J.S.A. 13:20-2. The Highlands Act created "two areas within the Region: a preservation area, in which further development is strictly regulated, and a planning area, in which development consistent with the Act's goals is encouraged." OFP, L.L.C. v. State, 395 N.J. Super. 571, 576 (App. Div.), certif. granted, 193 N.J. 277 (2007).

The Act established a Highlands Water Protection and Planning Council (the Highlands Council), which is required to adopt a regional master plan for the Highlands region. N.J.S.A. 13:20-4; N.J.S.A. 13:20-6(i); N.J.S.A. 13:20-8. In addition, the DEP is required to adopt rules and regulations to establish environmental standards for the preservation area. N.J.S.A. 13:20-32. The DEP also must "establish a Highlands permitting review program to provide for the coordinated review of any major Highlands development in the preservation area based" upon the DEP's rules and regulations. N.J.S.A. 13:20-33(a).

The Act provides that certain projects and activities are exempt from its provisions. N.J.S.A. 13:20-28(a). The projects and activities exempted include (9) the routine maintenance and operations, rehabilitation, . . . or repair of transportation or infrastructure systems by a State entity or local government unit, provided that the activity is consistent with the goals and purposes of [the Highlands Act] and does not result in the construction of any new through-capacity travel lanes; [and] (10) the construction of transportation safety projects and bicycle and pedestrian facilities by a State entity or local government unit, provided that the activity does not result in the construction of any new through-capacity travel lanes[.]

The DEP has adopted rules in furtherance of its responsibilities under the Act. N.J.A.C. 7:38-1.1 to -14.2.

The regulations provide, among other things, that work may not commence on any "major Highlands development" within the preservation area unless the DEP has issued a Highlands Applicability Determination and/or a Highlands Preservation Area Approval. N.J.A.C. 7:38-2.2(a). According to N.J.A.C. 7:38-2.4(b), persons proposing to undertake any activity in the preservation area that requires land use or water permits from the DEP must either stipulate that the project is subject to regulation under the Highlands Act, or obtain a Highlands Applicability Determination that the project or activity is exempt from regulation under the Act.

The DEP's regulations incorporate the statutory exemptions, including the exemption for routine maintenance and repair of transportation systems, N.J.A.C. 7:28-2.3(a)(9), and for transportation safety projects, and bicycle and pedestrian facilities, N.J.A.C. 7:28-2.3(a)(10). In addition, the DEP's regulations amplify the grounds for granting these exemptions. See N.J.A.C. 7:38-2.4(b)(2), (3), (4) and (5).

On September 21, 2005, the New Jersey Department of Transportation (DOT) filed an application with the DEP seeking a Highlands Applicability Determination. The DOT stated that the portion of its Route 206 improvement project in Byram Township constituted a "major Highlands development" under the Highlands Act but was exempt from regulation pursuant to N.J.S.A. 13:20-28(a)(9) because the project constitutes the routine maintenance and repair of a transportation system.

According to the application, the DOT intends to make improvements to Route 206 in Sussex County. The overall length of the project is 8,658 feet, of which 1,233 feet (approximately 14%) is within the preservation area. The DOT stated that it intends to reconstruct, realign, widen and make other operational and safety improvements to the highway from Acorn Street (at milepost 98.4) to just north of the Waterloo Inn (at milepost 99.57) within Byram Township.

The DOT stated that the Route 206 project in Byram Township would affect two distinct areas in the preservation area. In the first area, the DOT will be constructing a new cross-culvert and a new stormwater management control basin. The DOT stated, "[n]o new through capacity travel lanes are being constructed at this location."

The DOT additionally stated that, in the second area, it will be widening the highway to provide a left-turn lane, constructing a four-foot wide raised island with a three-foot wide inside shoulder, and constructing two inside lanes, two outside lanes, as well as a two-foot wide drainage conveyance area. The DOT indicated, "[t]he widening is not adding a new through-capacity travel lane, yet is adding a center turn lane and auxiliary lanes to increase the traffic volumes through the Waterloo/Brookwood Road signalized intersection."

In accordance with N.J.A.C. 7:38-9.2(b), the DOT provided notice of its application to Byram Township, the Highlands Council, the Byram Township Planning Board, the Byram Township Construction Official, the Byram Township Environmental Commission and the Sussex County Planning Division. By letter dated September 30, 2005, the DEP deemed the application complete and on October 19, 2005, the DEP published notice of the application and invited public comment. Comments were ...


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