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In re New Jersey Dep't of Environmental Protection

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 developed for the purpose of showing streams on its maps, but rather only for identifying soil types.

On or about September 5, 2006, DEP personnel met with Atkinson's counsel in an attempt to resolve the matter. The Director of the Division of Watershed Management explained in detail how the DEP arrived at its decision regarding the applicability of N.J.A.C. 7:8-5.5(h) to the property. On September 26, 2006, DEP issued its final agency decision. The program director acknowledged the various map resources may contain inaccuracies. He then explained the actions taken to verify the presence of an intermittent stream and to resolve any inaccuracies. Ultimately, the program director determined that the agency's initial determination was correct and denied Atkinson's request for reconsideration. This appeal followed.

On appeal, Atkinson argues that DEP did not adhere to its promulgated stream identification criteria, the C-1 determination is not supported by substantial evidence in the record, the determination was not adequately explained, and the determination effects an improper amendment of the governing regulation, N.J.A.C. 7:8-5.5. DEP responds that its determination is supported by substantial evidence in the record and is consistent with the applicable stormwater management rules.

It is well established that in reviewing a determination by an administrative agency, an appellate court accords due deference to the broad discretion accorded to the agency and reverses an agency's decision only if arbitrary, capricious, or unreasonable. Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 6 (App. Div. 1996) (citing Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296 (1965)). The Supreme Court has explained that:

"Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of the circumstances.

Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." [Worthington v. Fauver, 88 N.J. 183, 204-05 (1982) (quoting Bayshore Sewerage Co. v. Dep't of Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd, 131 N.J. Super. 37 (App. Div. 1974)).]

In light of the executive function of an administrative agency, the judicial capacity to review administrative actions is "severely limited." In re Musick, 143 N.J. 206, 216 (1996). Courts can intervene only in "those rare circumstances" when an agency action is "clearly inconsistent with its statutory mission or other state policy." Ibid.

In conducting this limited review, courts have accorded agency actions a presumption of validity and reasonableness, and accordingly, the burden is on the challenger to overcome these presumptions. Bergen Pines County Hosp. v. Dep't of Human Servs., 96 N.J. 456, 477 (1984). Where the agency's action calls for the application of its inherent expertise, "an even stronger presumption of reasonableness exists." IFA Ins. Co. v. N.J. Dep't of Ins., 195 N.J. Super. 200, 208 (App. Div.), certif. denied, 99 N.J. 218 (1984). This deference is particularly appropriate "when the agency has been delegated discretion to determine the specialized and technical procedures for its tasks." In re Adoption of N.J.A.C. 7:26E-1.13, 377 N.J. Super. 78, 99 (App. Div. 2005) (quoting In re Adopted Amendments to N.J.S.A. 7:7A-2.4, 365 N.J. Super. 255, 264 (App. Div. 2003)), aff'd, 186 N.J. 81 (2006).

DEP is ordinarily given substantial deference, particularly in environmental permitting matters such as this, when technical scientific knowledge is required. Moreover, as this court has found, "'[C]courts ordinarily recognize that an agency's specialized expertise renders it particularly well-equipped to understand the issues and enact the appropriate regulations pertaining to the technical matters within its area.'" In re Stormwater Mgmt. Rules, 384 N.J. Super. 451, 465 (App. Div.) (quoting In re Protest of Coastal Permit Program Rules, 354 N.J. Super. 293, 330 (App. Div. 2002)), certif. denied, 188 N.J. 489 (2006). "'If there is any fair argument in support . . .' of the agency's action, it 'will not be disturbed unless patently corrupt, arbitrary or illegal.'" Id. at 465-66 (quoting N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 563 (1978)).

Thus, as long as an agency acts within the ambit of delegated authority, and the decision it makes is supported by the record and is not arbitrary, capricious or unreasonable, the agency's action will be upheld. Pub. Serv. Elec. & Gas v. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985); In re Health Care Admin. Bd., 83 N.J. 67, 80 (1980); N.J. Guild, supra, 75 N.J. at 561. Accordingly, a reviewing court's inquiry is limited to determining whether the agency action violates the enabling act's legislative policies or the Constitution; whether the record supports the action; and whether the agency reached a conclusion which could not have been made upon a showing of the relevant factors. In re Taylor, 158 N.J. 644, 656 (1999).

N.J.A.C. 7:8-5.5(h) provides the manner in which SWRPAs shall be identified. It 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.

It is undisputed that the intermittent stream identified by DEP appears only on the County Soil Survey Map.

Atkinson argues that DEP ignored the sources specifically identified in the rule. It notes that the NRCS Memo adopted the Web Soil Survey as the "most current" and "official soil survey, superseding previously published reports." Atkinson contends that the adoption of the Web Soil Survey supersedes the various County Soil Surveys referenced in the rule. DEP argues that the Web Soil Survey has been adopted for a limited purpose and does not supplant use of other means, such as a county soil survey and site visits, to identify protected waters.

The NRCS Memo states that it is "the most current and is the official soil survey." It also advises that the Web Soil Survey was a joint effort of federal, state and local soil agencies. The NRCS Memo states that "the Web Soil Survey is intended to provide soils information only. Other geographical data is for location purposes only." By its terms, the notice does not purport to be the definitive source for identification of streams. We, therefore, cannot hold that DEP departed from the provisions of the promulgated rule in its C-1 determination.

We are also satisfied, given our deferential standard of review of the application of agency expertise, that there is substantial evidence in the record to support the C-1 determination and that the determination conforms with the governing rule.

Atkinson does not dispute that the County Soil Survey Map identifies the intermittent stream on the property. It does not dispute three other facts. First, the stream is within the HUC 14 drainage area of a C-1 waterway, which drainage areas are deserving, under the Stormwater Management Rules, of the protection of the buffer. N.J.A.C. 7:8-5.5(h). Second, such protection applies regardless of whether a stream is perennial or intermittent. Ibid. Third, the County Soil Survey Map is one of the types of maps referenced in N.J.A.C. 7:8-5.5(h) for stream identification.

The SWRPA or buffer under the Stormwater Management Rule, N.J.A.C. 7:8-5.5(h), is applicable to the property, since an intermittent stream is mapped on the property. An intermittent stream is shown on the "2002 Soil Survey of Cape May County, New Jersey, Sea Isle City Quadrangle Sheet Number 7 of 13" (Cape May County Soil Survey Map) upstream of and within the same HUC 14 watershed as C-1 waters. DEP reviewed the Atkinson submittals in conjunction with the Cape May County Soil Survey Map. It conducted an on-site inspection on February 10, 2006, and confirmed its earlier determination. The site inspection was undertaken at the request of Atkinson's consultants and they accompanied DEP personnel on the inspection. During the site inspection, DEP confirmed the existence of the waterway depression and slope in the wetland area, which was flowing to a culvert under the Garden State Parkway.

The intermittent stream exists without definable bed and banks but is identifiable as a linear depression, commonly referred to as a "swale." The Stormwater Management Rules do not require that a perennial or intermittent stream be defined by bed and banks in order to have a SWRPA established. N.J.A.C. 7:8-5.5(h)1.1 states: "A . . . special water resource protection area shall be provided on each side of the waterway, measured perpendicular to the waterway from top of bank outwards or from the centerline of the waterway where the bank is not defined . . . ."

Furthermore, Atkinson's reliance on the NRCS Web Soil Survey is misplaced. The Web Soil Survey is not referenced in the Stormwater Management Rules, it was developed for soil identification, not streams, and it does not show details such as intermittent streams.

In summary, we are satisfied that DEP properly applied N.J.A.C. 7:8-5.5(h), that it properly limited the use of the Web Soil Survey, and that its finding of an intermittent stream on the property and its C-1 determination is supported by credible evidence in the record.

Affirmed.


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