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In re New Jersey Dep't of Environmental Protection

July 14, 2008

IN THE MATTER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION CATEGORY I WATERSHED DETERMINATION DATED SEPTEMBER 26, 2006.


On appeal from a Final Agency Decision of the Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 9, 2008

Before Judges Cuff and Lisa.

Appellant Atkinson Development Group, L.L.C. (Atkinson) received local approval to develop a multi-unit, age-restricted residential complex on property owned by it in Upper Township, Cape May County. The development site lies within the Seaville Coastal Hamlet Center as designated by the Coastal Area Facility Review Act (CAFRA) and the State Development and Redevelopment Plan for Cape May County.

In the course of its preliminary development work, Atkinson submitted a request to the New Jersey Department of Environmental Protection (DEP) for confirmation that a Category One (C-1) stream did not exist on the property. The presence of a C-1 stream requires a 300-foot buffer between the stream and any development. Atkinson appeals from a determination that a C-1 stream is present on the property. We affirm.

A brief review of the regulatory framework will place our discussion in context. C-1 waters are among the most pristine in the State. N.J.A.C. 7:9B-1.4. The exceptional characteristics of C-1 waters require such waters to have special protection. The Stormwater Management Rules provide "special water resource protection areas" commonly known as "SWRPAs" or "buffers," for those areas of C-1 waters so defined therein. N.J.A.C. 7:8-5.5(h). The width of the buffers is generally 300 feet, measured on each side. Ibid. See also In re Stormwater Management Rules, 384 N.J. Super. 451, 459 (App. Div.), certif. denied, 188 N.J. 489 (2006).

If a stream lies within a drainage area (known as a "HUC 14"),*fn1 and drains into a C-1 waterway, the buffer protections of N.J.A.C. 7:8-5.5(h) apply. The buffer applies to a perennial or intermittent stream. Ibid. N.J.A.C. 7:8-5.5(h) identifies either United States Geological Survey (USGS) or county soil mapping to identify the existence of such streams. N.J.A.C. 7:8-5.5(h) provides:

Special water resource protection areas shall be established along all waters designated Category One at N.J.A.C. 7:9B and perennial or intermittent streams that drain into or upstream of the Category One waters as shown on the USGS Quadrangle Maps or in the County Soil Surveys, within the associated HUC 14 drainage.

The Atkinson property lies within a HUC 14 drainage area. Therefore, any intermittent stream on the property that drains into a C-1 waterway is afforded the 300-foot buffer protection. Ibid.

On September 21, 2005, Atkinson submitted a letter to DEP with a map showing a 1973 Soil Survey of Cape May County (County Soil Survey Map). It showed an intermittent stream on the property. The stream receives the protection of SWRPA or buffer because it is in the HUC 14 drainage area of a C-1 waterway (Corson Inlet and Ludlam Bay).

On December 6, 2005, DEP sent a letter to Atkinson's consultant which confirmed the existence of the stream and SWRPA on Atkinson's property. Atkinson requested reconsideration of the DEP's SWRPA determination.

On February 10, 2006, DEP personnel visited the property accompanied by Atkinson's consultant. The site visit confirmed the existence of the intermittent stream on Atkinson's property.

In an April 6, 2006 letter, Atkinson's consultant informed the DEP that a Natural Resources Conservation Service (NRCS) Web Soil Survey did not show any stream on Atkinson's property. Atkinson argued that the 300-foot buffer protection should not be applied to it. The NRCS issued a May 1, 2006 advisory memo (NRCS Memo), which shows that the Web Soil Survey, upon which Atkinson relies, was not ...


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