April 24, 2009
IN RE HIGHLANDS WATER PROTECTION AND PLANNING ACT RULES: N.J.A.C. 7:38.
On appeal from the Department of Environmental Protection and the Highlands Water Protection and Planning Council.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 24, 2009
Before Judges Skillman and Graves.
Appellant John C. Kasharian challenges the validity of the Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 to -35, and certain regulations adopted to implement its provisions. Appellant's arguments rely in part on agreements under the Federal Clean Water Act, 33 U.S.C.A. §§ 1344 to 1387, entered into between the Department of Environmental Protection (DEP), and the United States Environmental Protection Agency, the United States Fish and Wildlife Service and Army Corps of Engineers. Appellant argues that only the DEP is authorized under these agreements to regulate the State's waters and that the DEP must regulate waters throughout the State in the same manner.
Appellant's arguments are without merit and only require brief discussion. R. 2:11-3(e)(1)(E). Federal regulation under section 404(g) (33 U.S.C.A. § 1344(g)) of the Clean Water Act only applies to navigable waters and freshwater wetlands adjacent to those waters. See MCG Assocs. v. Dep't of Envtl. Prot., 278 N.J. Super. 108, 112 (App. Div. 1994). For a state to assume responsibility for this federal regulation, its regulatory program is only required to be "as stringent as the federal program and . . . comply with all the requirements of the federal regulations." In re Freshwater Wetlands Prot. Act Rules, N.J.A.C. 7:7A-1.1 et seq., 238 N.J. Super. 516, 520 (App. Div. 1989). Therefore, a state may regulate wetlands that are not subject to regulation under the Clean Water Act and a state's regulation of wetlands with respect to which it has been delegated regulatory responsibility under the Clean Water Act may be more stringent than required by federal law.
Insofar as appellant challenges the Highlands Act as allegedly denying equal protection of the law because it subjects land uses in the Highlands region to more stringent regulation than land uses in other parts of the State, our Supreme Court has rejected a similar challenge to the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -58, and the land use management plan adopted thereunder. See Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 219-20 (1991); see also Toms River Affiliates v. Dep't of Envtl. Prot., 140 N.J. Super. 135, 147-48 (App. Div.), certif. denied, 71 N.J. 345 (1976); OFP, L.L.C. v. State, 395 N.J. Super. 571, 595-97 (App. Div. 2007), aff'd o.b., 197 N.J. 418 (2008).
© 1992-2009 VersusLaw Inc.