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In the Matter of Modification of Freshwater Wetlands Statewide

April 20, 2011

IN THE MATTER OF MODIFICATION OF FRESHWATER WETLANDS STATEWIDE GENERAL PERMITS, WATER QUALITY CERTIFICATION AND WAIVER OF TRANSITION AREA FOR ACCESS


On appeal from a final decision of the Department of Environmental Protection, Division of Land Use Regulation, DEP Docket Nos. 0710-01-0005.1, 0710-01-0005.2, and 0710-02-0004.1.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2011

Before Judges Lisa and Alvarez.

Preserve Old Northfield (POND) appeals from the April 8, 2009 issuance of a Modified General Permit No. 6 (GP6) by the New Jersey Department of Environmental Protection (DEP) to Daniel Markowitz c/o Maramark Builders, LLC (Maramark) on the basis that, in violation of its due process rights, it was excluded from the DEP's fact-finding process. It also contends the permit issued in error because the DEP failed to develop "a reasonable factual record" in support of the decision. We affirm.

A.

POND is a neighborhood association organized, as stated in its brief, "to preserve environmentally sensitive lands in the Township of Livingston." Litigation regarding this permit has spanned many years: a detailed background and procedural history may be found in two prior reported decisions. See In re Freshwater Wetlands Statewide General Permits, 185 N.J. 452 (2006) [hereinafter Maramark II]; In re Authorization for Freshwater Wetlands General Permits, 372 N.J. Super. 578 (App. Div. 2004) [hereinafter Maramark I].

The proceedings commenced February 21, 2001, when Maramark sought a letter of interpretation (LOI),*fn1 a GP6, and a modified General Permit No. 10 (GP10), ancillary to its development of property located at Block 5100, Lots 32, 33, and 41, in Livingston Township. Maramark planned to subdivide the land, and construct an eleven-unit residential development and roadway with cul-de-sac on the triangle-shaped property, a total of 9.5 acres.

As can be inferred from ten years of litigation and two reported opinions, this permitting process has spawned a great deal of opposition from neighbors who alleged that if the DEP approved the project, significant harm would result. In addition to the generalized injury to the public from the loss of wetlands located on the site, POND and others feared adjoining landowners already affected by flooding would find those problems dramatically worsened.

It is undisputed the property contains isolated*fn2 freshwater wetlands subject to the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30. An existing manmade ditch runs along the northwestern property line adjacent to contiguous Lots 37 and 38. A second ditch is located on Lot 33 generally perpendicular to the northwestern ditch and merges with it at the southern corner of Lot 37. DEP has verified the existence of the following isolated wetlands: (1) 0.064-acre wetland, (2) 0.136-acre wetland, (3) 0.178-acre wetland, (4) 0.071-acre wetland, (5) 0.132-acre wetland, (6) 0.081-acre wetland/swale, and (7) 0.138-acre wetland.

This appeal is from the remand proceedings conducted after Maramark I. There, we required the DEP to engage in a more comprehensive factual determination on the issues raised by POND as to the LOI, GP6, and GP10, specifically, its assertion that wetlands on the property in question were part of an inland surface water tributary system.

On remand, the DEP conducted a fact-finding meeting with Maramark and objecting parties on July 20, 2005. Thereafter, POND provided additional comments by letter on July 27, 2005. On September 7, 2005, DEP conducted an inspection of the property to identify and document on-site vegetation, and to determine if the on-site wetlands were indeed part of a surface water tributary system. On December 1, 2005, after two days of continuous rainfall, the DEP conducted a follow-up inspection. This site visit led to identification of an additional wetland, contiguous to one other isolated, and one other non-isolated, wetland. The classification of all three wetlands was changed to non-isolated.

These inspections generated a twenty-three-page fact-finding report, including a consolidated administrative history of the matter, responses to public comments, and a description of the site based not only on submitted materials but the DEP's own inspections. In the report, the DEP confirmed four of the wetlands were ecologically isolated, as there was no scarring, erosion, or concentrated flows from the source. See N.J.A.C. 7:7A-1.4.

The absence of erosion, scarring, or concentrated flows was crucial, as it indicated no connection to a surface water tributary system. The DEP did not observe water exiting two of the wetlands following two days of continuous rain, noted an impediment to the direct flow of water from one of the wetlands to the nearest drainage ditch,*fn3 and determined that erosion and scarring found on one of the lots was unrelated to the wetlands. The DEP also found the wetlands on the property were of only intermediate, not exceptional, resource value, and were not State open waters or United States Environmental Protection Agency (EPA) priority wetlands. See N.J.S.A. 13:9B-7(c).

On March 23, 2006, however, the EPA determined that a 0.08-acre wetland on Lot 32, connected to an inlet, established a surface water connection to the Passaic River. That wetlands area was therefore considered ...


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