May 10, 2011
IN THE MATTER OF TREATMENT WORKS APPROVAL 09-0026.
On appeal from the New Jersey Department of Environmental Protection, Treatment Works Approval No. 09-0026.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 30, 2011
Before Judges Axelrad and J. N. Harris.
The American Littoral Society and Pinelands Preservation Alliance appeal from a final determination of the New Jersey Department of Environmental Protection ("DEP"), issuing treatment works approval ("TWA") to the Jackson Township Municipal Utilities Authority ("JTMUA") to construct and operate two pumping stations, sanitary sewer lines and force mains to serve a 965 unit age-restricted development and two community centers ("Jackson Valley") in Jackson Township ("Jackson"). Appellants challenge the approval as arbitrary and capricious, arguing: (1) it is inconsistent with DEP regulations adopted in July 2008, N.J.A.C. 7:15-5.24, that prohibit the installation of sewer service systems in the environmentally sensitive area on which they claim the proposed project is to be built; (2) the DEP failed to conduct a consistency review as required by N.J.A.C. 7:15-3.1(a), concerning the environmental sensitivity of the area to have sewer service; and (3) the approval violates the objectives and policies of the National Parks and Recreation Act of 1978 (NPRA), 16 U.S.C.A. § 471i, because it allows the developer to install sewer pipes in the Pinelands National Reserve ("PNR"). We affirm.
On January 29, 2009, the DEP received, and determined as administratively complete, the JTMUA's application for a treatment works approval for the proposed project. At the DEP's request, the JTMUA provided additional submissions in March 2009. On April 13, 2006, the DEP issued TWA No. 09-0026 to the JTMUA granting it permission to construct and operate two pumping stations, sanitary sewer lines and force mains to service 965 age-restricted homes and two community centers in accordance with the preliminary and final site plan and subdivision, Section 1 & 2, for Jackson Valley and the technical specifications in an engineering plan of November 2006, revised February l7, 2007.
Appellants filed an appeal. On December 9, 2009, we granted intervenor status to Hovbilt, Inc. ("Hovbilt"), the developer of the proposed Jackson Valley development.
The essential facts are undisputed. Arthur P. Havighorst,
III., vice president and general counsel of Hovbilt, certified as to the history of the proposed development. Hovbilt is the owner of approximately 650 acres of property in Jackson, Ocean County, the site on which Jackson Valley is to be developed. The property is part of Jackson's Affordable Housing Plan approved by Judge Eugene Serpentelli, A.J.S.C. on January 10, 2000 following a fairness hearing. The proposed development is also located in the PNR.
The DEP's consideration of appropriate development in Jackson pursuant to its Water Quality Management Planning process began following the adoption of the Water Quality Planning Act, N.J.S.A. 58:11A-l to -16. The currently applicable Jackson Wastewater Management Plan ("WMP") was adopted on August 27, 1998, as part of the Ocean County Northern Planning Area Wastewater Management Plan. 30 N.J.R. 3861(a) (Oct. 19, 1998). A comparison of a map of the Jackson Valley project, the l998 Ocean County WMP map, and a map of Jackson's WMP reveals that the proposed development is within an existing sewer service area.
In late 2005, Hovbilt applied to the township and county planning boards for development approvals for the Jackson Valley project. On January 17, 2007, Hovbilt obtained Final Approval from the Ocean County Planning Board for the proposed development. On February 26, 2007, Hovbilt obtained Preliminary and Final Subdivision Approval, General Development Plan Approval, and Preliminary and Final Site Plan Approval from Jackson's Planning Board.
The proposed sewerage collection system was detailed on the plans approved by both boards. Before Hovbilt could construct the sewerage collection system as approved by the Final Site Plan Approval, it was required to obtain TWA from the DEP. As the JTMUA would be the party owning the sewerage collection system after its construction, the JTMUA was designated as the applicant for TWA. Accordingly, Hovbilt filed its plans with the JTMUA, which reviewed and approved them. The Ocean County Municipal Utilities Authority granted approval for the TWA application in January 2009, after which the JTMUA submitted the application to the DEP.
The application and accompanying submissions reflect the following prior authorizations and approvals for the project:
* Stream Encroachment Permit No. 1511-96-0007.9 SEA, issued September 4, 2001, and reissued September 27, 2006.
* Freshwater Wetlands Letter of Interpretation No. 1511-03-0024.1-FWW030001, originally issued October 17, 1997, reissued August 11, 2004, and revised February 7, 2007.
* JTMUA Resolution No. 2007-5l adopted February 22, 2007, authorizing execution of state permits for Jackson Valley.
* August 22, 2007 letter from the U.S. Fish & Wildlife ("USFW") Service concluding the only federally listed or proposed endangered or threatened flora or fauna under Service protection within the vicinity of the site was swamp pink (Helonias bullata), which would not be adversely affected by the proposed development upon implementation of USFW recommendations.
* DEP letter of July 25, 2008, authorizing Hovbilt's Freshwater Wetlands Statewide General Permit #10 (1511-03-0024.l FWW 06001) and Water Quality Certification. Implementation of the USFW recommendations was an express Permit Specific Condition.
* Pinelands Commission Certificate of Filing No. 2007-0188.00l, dated October 9, 2008, for road improvement plan for Jackson Valley.
A DEP Tracking/Routing Report shows the status of other related approvals were confirmed on February 9, 2009, at which time Water Quality Management Planning status was checked and the proposed treatment works was determined to be "consistent" with the applicable Water Quality Maintenance Plan ("WQMP"). The challenged TWA permit was issued by the DEP to the JTMUA on April 8, 2009.
We begin our analysis of appellants' challenges by acknowledging well-established legal principles. Judicial review of administrative action is limited. See Pub. Serv. Elec & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985). Administrative agencies enjoy a "strong presumption of reasonableness" in the exercise of statutorily-delegated responsibility. In re Stream Encroachment Permit, 402 N.J. Super. 587, 596-97 (App. Div. 2008) (quoting Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). A reviewing court must not "second-guess those judgments of an administrative agency which fall squarely within the agency's expertise." In re Stream Encroachment Permit, supra, 402 N.J. Super. at 597.
We afford "great deference to an agency's interpretation and implementation of its rules enforcing the statutes for which it is responsible." In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004) (citing In re Distrib. of Liquid Assets upon Dissolution Reg'l High Sch. Dist. No. l, 168 N.J. 1, 10-11 (2001)).
In particular, the "DEP is given great deference when it applies its considerable expertise and experience to the difficult balance between development and conservation." Crema v. N.J. Dep't of Envtl. Prot., 192 N.J. Super. 505, 510 (App. Div.), certif. denied, 96 N.J. 306-07 (1984). The party challenging the DEP's decision to issue a permit "has the burden of demonstrating, not that the agencies' action was merely erroneous, but that it was arbitrary." Ibid. (internal quotations omitted).
Appellate review of agency action is limited to three inquiries: (1) whether the agency action violates the enabling act's express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings upon which the agency based application of legislative policies; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors. Pub. Serv. Elec & Gas Co., supra, 101 N.J. at 103.
"We will defer to the agency's expertise in enforcing its authorizing statute, and its construction of its own regulations, and we will not second-guess the wisdom of the agency's policy decisions." In re Fair Lawn Borough, Bergen Cnty, Motion of Landmark at Radburn, 406 N.J. Super. 433, 443 (App. Div.) (citing Shim v. Rutgers, 191 N.J. 374, 384 (2007)), certif. denied, 199 N.J. 542 (2009). See also In re A. Fiore & Sons, Inc., 305 N.J. Super. 192, 203 (App. Div. 1997), aff'd, 158 N.J. 105 (l999); In re Crown/Vista Energy Project, Boiler Stack No. l, Log 01-92-0857, 279 N.J. Super. 74, 79 (App. Div.), certif. denied, 140 N.J. 277 (1995).
The relevant regulations for the issuance of TWA are N.J.A.C. 7:14A-22.1 to -22.24 (administrative requirements) and N.J.A.C. 7:14A-23.1 to -23.34 (technical requirements). Appellants do not contend that any of these requirements were not satisfied.
Rather, appellants base their claim on a relatively new regulation, N.J.A.C. 7:15-5.24, entitled "Delineation of sewer service areas." The relevant subsections read as follows:
(a) Sewer service may only be provided to areas that are not identified as environmentally sensitive areas at (b) below . . . except as provided at (e) through (h) below. Nothing in this section shall preclude the wastewater management planning agency from excluding additional areas from sewer service based on local planning objectives, the lack of wastewater treatment capacity or other environmental concerns, including, but not limited to, source water protection.
(b) Environmentally sensitive areas shall be defined based on a composite geographic information systems (GIS) analysis, as any contiguous area of 25 acres or larger consisting of any of the following features alone or in combination:
l. Areas mapped as endangered or threatened wildlife species habitat on the Department's Landscape Maps of Habitat for Endangered, Threatened or Other Priority Species. . . ;
2. Areas mapped as Natural Heritage Priority Sites . . .;
3. Special water resource protection areas along a Category One waters and their tributaries established under the Stormwater Management rules, N.J.A.C. 7:8. . .;
4. Wetlands as mapped pursuant to N.J.S.A. 13:9A-1 and 13:9B-25. . . ; and
[N.J.A.C. 7:15-5.24(a), (b) (emphasis added); R. 2008, d. 163, effective July 7, 2008.]
Appellants also rely on N.J.A.C. 7:15-3.1(a), entitled, "Water quality management plan consistency requirements," which states as follows:
All projects and activities affecting water quality shall be developed and conducted in a manner that does not conflict with this chapter or adopted WQM plans. . . . The Department shall conduct the consistency determination review or other consistency review for a Department permit concurrently with the Department's review of the permit application. The Department shall not issue the permit if the Department finds the project or activity to be inconsistent with a WQM plan or this chapter. [(Emphasis added).]
Appellants argue that TWA No. 09-0026 allows the JTMUA to install sewer service in an environmentally sensitive area in violation of N.J.A.C. 7:15-5.24. Accordingly, appellants assert that the DEP's issuance of this approval violates N.J.A.C. 7:15-3.1(a), which bars any "project or activity" that is "inconsistent . . . with this chapter."
The DEP responds that N.J.A.C. 7:15-5.24 is inapplicable to the TWA process. According to the agency, whether a site can be categorized as an "environmentally sensitive area" pursuant to N.J.A.C. 7:15-5.24(b) is not a determination made in the TWA context. Rather, only when a WQMP or WMP is to be adopted, revised, amended or updated does the DEP review whether a sewer service area is located within an environmentally sensitive area.
A review of the regulations supports the DEP's position. N.J.A.C. 7:15-5.23(a) requires wastewater management planning agencies to update their WMPs every six years unless an alternate schedule is established. A wastewater management planning agency may also submit a WMP at any other time prior to the period when such submission is required. See N.J.A.C. 7:15-5.23(i). WMPs are submitted "as requests to amend areawide WQM plans in accordance with the procedures specified in N.J.A.C. 7:15-3.4." N.J.A.C. 7:15-5.3.
Among other requirements, any WMP update submission must include a "demonstration of compliance with the criteria at N.J.A.C. 7:15-5.24." N.J.A.C. 7:15-5.23(h)(4). Similarly, applications for a WQMP amendment must contain documentation "necessary to determine compliance with the criteria established at N.J.A.C. 7:15-5.24 and 5.25." N.J.A.C. 7:15-3.4(g)(2). It is in this context that the DEP can determine whether a sewer service area improperly extends into an environmentally sensitive area. Further, before a planning agency can amend a WQMP, it must first "[p]rovide for publication of public notice of proposed amendments in the New Jersey Register and in a newspaper of general circulation in the designated area." N.J.A.C. 7:15-3.4(d)(4). The planning agency must also "[p]rovide for adequate public comment periods and opportunities for public hearings before the designated planning agency decides whether to approve an amendment." N.J.A.C. 7:15-3.4(d)(5). Thus, interested parties like appellants are given an opportunity to weigh in on proposed amendments to a WQMP before they can be approved.
Finally, N.J.A.C. 7:15-5.24(e) provides that an "applicant for a Water Quality Management plan amendment, including wastewater management plans, wastewater management plan updates or site specific amendments may rebut the presumption that the environmental data identified in (b) above is correct by providing" certain enumerated information. This provision lends further support to the DEP's position that it is only concerned with whether a sewer service area is located in an environmentally sensitive area when it is faced with an application for a WQMP or WMP amendment or update.
The consistency review required for the issuance of TWA is much narrower than appellants claim. A purpose of the regulations applicable to the TWA review process is to "ensure that sewage generating facilities are located within the appropriate sewer service area as determined by the applicable water quality management plans." N.J.A.C. 7:14A-22.1(a)(6). N.J.A.C. 7:14A-22.5(k) provides that "[t]reatment works shall be constructed in a manner which is consistent with the provisions of the appropriate wastewater management plan."
In conducting the consistency review of a TWA application, the DEP is concerned only with whether the proposed treatment works are within an existing sewer service area and consistent with the relevant WQMP. The DEP is not required to re-examine whether an existing sewer service area is in an environmentally sensitive area each and every time a sewer line or pumping station is installed. Appellants have provided no evidence the proposed development was not within an existing sewer service area as established by Jackson's WMP and Ocean County's WQMP when the TWA application was approved. Moreover, the record reveals the DEP conducted the required consistency review on February 9, 2009.
Aside from the consistency review, considerations involved in reviewing a TWA application focus on whether the infrastructure can handle the additional wastewater generated by the proposed project. Quoting the DEP's then-chief of water compliance, we noted that the regulations applicable to the review of a TWA application require the DEP:
[T]o ensure that the sewer lines that the project will be discharging into have sufficient capacity in order to carry the wastewater without backing up into basements or coming out of manholes[;] that the receiving facility has the capacity to accept both the actual flow and the future committed flow from other new projects; and that the amount of water taken, transferred and returned is sufficient for aquifer and surface water recharge. [N.J. Dep't of Envtl. Prot. v. Town & Country Developers, Inc., 396 N.J. Super. 280, 286-87 (App. Div. 2007) (internal quotation marks omitted).]
These determinations are within the DEP's area of expertise and are entitled to substantial deference. See In re Stream Encroachment Permit, supra, 402 N.J. Super. at 597.
Thus, even if the proposed development is now deemed by the DEP to be within an "environmentally sensitive area" as defined in N.J.A.C. 7:15-5.24(b), such determination has no effect on the TWA issued by the DEP to the JTMUA in April 2009.*fn1
We also find unpersuasive appellants' challenge to the TWA as violative of the objectives and policies underlying the NPRA. Appellants base their entire argument on general policy statements in the NPRA and case law. See 16 U.S.C.A. § 471i(b)(1) (stating that one of the "purposes" of the NPRA is to "protect, preserve and enhance the significant values of the land and water resources of the Pinelands area"); Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 201 (1991) (noting the "paramount objective of both federal and state governments" is to protect the Pinelands "from overdevelopment and consequent ecological degradation"). Appellants cite no statutory or case law that prohibits construction of the proposed project within the PNR or the issuance of the TWA.
We note the location of the Jackson Valley development within the PNR was taken into account at various stages throughout the lengthy planning process. The DEP sought comment from the Pinelands Commission on all proposed amendments and revisions to WQMPs and WMPs that could affect the PNR. See N.J.A.C. 7:15-3.7(a), entitled "Coordination with Pinelands program," which was in effect at least as of February 5, 1996.
29 N.J.R. 2142(a) (May 5, 1997). Accordingly, the importance of the PNR was considered when the relevant WQMP and WMPs were amended to extend the sewer service area to include the site of the proposed project.
Regulations applicable to the issuance of a TWA also require an applicant to submit copies of any relevant Pineland Commission approvals or certificates of filing. See N.J.A.C. 7:14A-22.8(a)(11). The record reveals the JTMUA submitted the Pineland Commission's certificate of filing, which states that "the proposed road improvements in the Pinelands Area do not raise a substantial issue with the standards of the permitted use standards of the [Pinelands Comprehensive Management Plan]."
Appellants make the bald assertion in their brief that the proposed development site is a habitat to specific "threatened or endangered species" without any citation to the record. To the contrary, the August 22, 2007 letter from the USFW Service reflects a review of the site and conclusion that "[e]xcept for swamp pink, no other federally listed or proposed endangered threatened flora or fauna under Service jurisdiction are known to occur within the vicinity of the proposed project site" and expressly requires implementation of its recommendations regarding swamp pink as an express Specific Condition of Permit No. 10 issued on July 25, 2008. Appellants do not assert that Hovbilt failed to comply with these recommendations.
Finally, appellant's assertion that "failure to protect the ecologically important land of the Pinelands National Reserve could jeopardize federal funding" is speculative and unfounded. Appellants' citation to 16 U.S.C.A. § 471i(g) to support the argument that "failure to comply with NPRA could cause New Jersey to be liable for reimbursement or offset of all Federal funds previously granted to it" is misleading. This provision is invoked only when New Jersey's designated planning entity fails to obtain the Secretary of the Interior's approval of its comprehensive management plan for the PNR within thirty-six months after the date funds are first provided. See 16 U.S.C.A. § 471i(g)(5). Appellants do not cite any other provision to suggest that allowing the construction of the proposed project will place New Jersey at risk of losing federal funding.
The present appeal is simply a last ditch effort to prevent the construction of a project that has been involved in the development process for over a decade. It is clear from the record that Hovbilt and the JTMUA obtained the requisite regulatory approvals to ensure Jackson Valley is constructed in accordance with the applicable environmental standards.