July 22, 2011
ATLANTIC CITY ELECTRIC CO. AND JERSEY CENTRAL POWER AND LIGHT CO., APPELLANTS,
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.
On appeal from the adoption of N.J.A.C. 7:13 by the Department of Environmental Protection.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued on January 3, 2011
Before Judges Lisa, Reisner and Sabatino.
Appellants are utility companies that construct and maintain electric transmission lines and facilities. They challenge the legality of regulations promulgated by the Department of Environmental Protection (DEP) under the Flood Hazard Area Control Act (FHACA), N.J.S.A. 58:16A-50 to -101. Under prior regulations, the installation and maintenance of linear development infrastructure (LDI), which consists primarily of utility poles, towers, and power lines, was generally unregulated. The new regulations require permits for the construction of these facilities and also prescribe standards for vegetation management related to them. The new regulations also reduced the net fill allowance in these areas from twenty percent to zero percent. The new rules were first proposed and published on October 2, 2006. See N.J.A.C. 7:13. They were ultimately adopted on October 2, 2007, and published on November 5, 2007.
Appellants argue that (1) because DEP failed to adequately explain its change in position regarding the need for FHACA regulation of LDI, the rules violate the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25; (2) the vegetation management provisions of the new rules create irreconcilable conflicts with other state and federal laws and regulations pertaining to electric transmission lines and facilities; and (3) the new zero net fill standard is arbitrary and capricious. For the reasons that follow, we reject these arguments and conclude that the new rules are valid.
The FHACA, initially enacted in 1962, authorizes the DEP to adopt rules "concerning the development and use of land in any delineated floodway which shall be designed to preserve its flood carrying capacity and to minimize the threat to the public safety, health and general welfare." N.J.S.A. 58:16A-55(a). The DEP is further statutorily directed to provide for "the waiver, according to definite criteria, of strict compliance with the rules and regulations, where necessary to alleviate hardship." N.J.S.A. 58:16A-55(b).
We need not trace in detail the history of rules promulgated pursuant to this authority. All parties agree that in earlier versions of the rules, LDI were deemed non-regulated uses and did not require permits, provided they were properly anchored to withstand flooding and erosion. The basis for this status was a finding by DEP that LDI did not present a sufficiently significant disturbance of flood hazard areas to affect flood flow or elevations.
The 1995 version of the rules was set to expire on June 30, 2005. DEP planned a comprehensive revision of the rules, but, to prevent expiration of the existing rules, it readopted the existing rules as an interim measure until the new rules could be formulated. The record of that process includes comments and responses published on February 6, 2006, which revealed mixed positions regarding the issue now before us.
On the one hand, DEP noted that exempt activities that were of an insignificant nature should remain exempt. It cited as an example "the placement of utility poles [and] jacking of utility lines beneath channels" as examples, stating that "[s]ince these activities, when done properly, do not contribute to flooding or environmental degradation, the [DEP] is not considering removing all such exemptions from the chapter." On the other hand, DEP noted its obligation to amend its rules from time to time based on its experience in administering them, and, in that regard, specifically pointed to "[r]ecent flooding events [that] served to underscore the need for comprehensive revisions to the rules." Accordingly, DEP was considering a number of amendments "such as further restricting the placement of fill in flood hazard areas [and] stricter requirements for structures in flood hazard areas," acknowledging that it had not, at that time,"determined the full extent of the changes to be included in the anticipated proposal."
DEP's reference to "recent flooding events" pertained to an unusual number of severe flooding incidents in 2004 and 2005, causing substantial damage and dislocation along the Delaware River. Between 1995 and 2005, the National Flood Insurance Program in New Jersey paid more than $241,000,000 in claims. A rainstorm spanning several days in the spring of 2005 flooded approximately 3,500 homes and caused the evacuation of more than 5,500 people. In response to these events, Acting Governor Codey established the Delaware River Flood Mitigation Task Force on April 18, 2005. The Task Force was chaired by the DEP Commissioner and included among its members experts in the field of flood management, some of whom were representatives of relevant federal agencies, such as the Federal Emergency Management Agency (FEMA) and the United States Army Corps of Engineers.
The work of the Task Force was ongoing during the readoption of rules process. In the February 6, 2006 published comments and responses, one commenter suggested that DEP should not wait for the Task Force to issue its final report before proposing new rules. DEP responded that it did not intend to wait until the Task Force made its final recommendations before proposing revisions to the FHACA rules. It further stated that "[i]f the Task Force report recommends that further changes should be made to this chapter, the [DEP] will consider those changes and propose amendments as appropriate."
The Task Force issued its final report on August 22, 2006. DEP published its proposed new rules, those that are now before us, on October 2, 2006. DEP incorporated some of the Task Force's recommendations, including its recommendation to reduce the twenty percent net fill standard to zero percent in flood hazard areas.
The new regulations set forth a broad scheme of addressing "regulated activities" in "regulated areas." N.J.A.C. 7:13-2.1(a). Generally, a permit is required to conduct a regulated activity within a regulated area. Ibid. The new rules provide for five types of permits: permits-by-rule, general permits, individual permits, emergency permits, and CAFRA*fn1 permits. N.J.A.C. 7:13-2.1(b).
Because it considers certain activities to have the potential to exacerbate flooding, DEP regulates those activitieswithin flood hazard areas*fn2 and riparian zones*fn3 . Regulated activities include the removal of vegetation in the riparian zone, alteration of the topography of the land, establishment of an impervious surface, storage of unsecured materials, and construction. N.J.A.C. 7:13-2.4. DEP also regulates a substantial amount of water in the State, including all non-coastal and non-manmade waterways draining more than fifty acres of land. N.J.A.C. 7:13-2.2(a)1-3.
Based on the definition of "regulated activities," the placement and maintenance of LDI now require a permit, which was not required under the previous rules. Further, the new rules require that future projects within the riparian zone avoid tree and vegetation clearing and require the re-planting of vegetation disturbances. Finally, with respect to the issues on appeal, the new rules have replaced the twenty-percent net fill standard with a zero-percent standard.
Permits-by-rule allow specified activity without prior DEP approval, as long as the conduct conforms with the permit specifications. N.J.A.C. 7:13-7.1. One such permit-by-rule pertains to the placement of LDI. N.J.A.C. 7:13-7.2(c). The conditions for permits-by-rule are stringent, and include a prohibition on trees being cleared, cut or removed within the riparian zone. N.J.A.C. 7:13-7.2(c)1.iii, 2.iv, 3.ii. Also, vegetation that is disturbed must be replanted within six months. N.J.A.C. 7:13-7.2(c)1.iv, 2.v, 3.iii, 5.iii. In appellants' comments, they explained that often the removal of trees and vegetation is critical to the installation and maintenance of LDI.
As part of the permit-by-rule requirements for open-frame utility towers, the footings must be constructed at or below grade. N.J.A.C. 7:13-7.2(c)2.i. Appellants' comments noted three problems with this requirement. First, it is often necessary to construct towers in the flood fringe*fn4 or floodway*fn5 .
Second, footings must be placed above the flood elevation because of the possibility of the steel tower frame corroding in the water. Third, requiring the footings to be situated below grade increases the impact on the environment, due to increased maintenance.
Restrictions on vegetation disturbance also apply as part of the new permit-by-rule requirements for underground utility lines that are "jacked," or directionally drilled, under a channel or waterway. N.J.A.C. 7:13-7.2(c)3.ii--iii. DEP stated that these permits were required because of "the potential for utility lines to be incorrectly jacked under waterways and threaten the integrity of the channel." Appellants, and PSE&G Services Corp., explained in their comments that the restriction may prevent the jacking of lines because it may be necessary to remove vegetation and trees to use the technology.
In response to these comments, DEP noted that tree removal should not be permitted automatically. Instead, it should only be considered through the individual permit application process. Further, there is a general permit available for continued routine maintenance on structures existing prior to the passage of the new regulations. N.J.A.C. 7:13-7.2(b)1. That general permit would extend to general maintenance on LDI built under the new regulations.
The new rules also created General Permit 8 for the construction of utility lines across a body of water draining less than fifty acres of water. N.J.A.C. 7:13-8.10. Such utility lines are required to comply with the standards for riparian zone vegetation disturbance as set forth in N.J.A.C. 7:13-10.2. N.J.A.C. 7:13-8.10(b)4. Appellants note that there are few qualifying waterways in the state to which this general permit would apply. In response, DEP acknowledged that, if the general permit did not apply to a particular project, then construction of LDI would need to satisfy the requirements for an individual permit.
Similar to permits-by-rule and general permits, individual permits also contain standards for vegetation removal according to Table C in N.J.A.C. 7:13-10.2. N.J.A.C. 7:13-10.2(r)1.
If an applicant cannot satisfy the requirements of the individual permit, the regulatory scheme provides for hardship exceptions. N.J.A.C. 7:13-9.8. This requires satisfaction of any one of these three criteria: (1) there is no feasible prudent alternative; (2) the cost of compliance is unreasonably high in relation to the compliance benefits; or (3) DEP and the applicant agree to alternative protective measures. N.J.A.C. 7:13-9.8(a).
Finally, hardship waivers are available if all four of the following criteria are satisfied: (1) because of extraordinary circumstances, compliance would constitute undue hardship; (2) the proposed activity would not pose a threat to continuous or nearby property; (3) the proposed activity would not threaten the environment or the public health, safety or welfare; and (4) the applicant did not create the hardship. N.J.A.C. 7:13-9.8(b).
Appellants' comments to the proposed rules asserted several potential conflicts between federal and state non-FHACA regulations. The Federal Emergency Regulatory Commission (FERC) and the New Jersey Board of Public Utilities (BPU) both prescribe standards for vegetation management around power lines.
The Federal Power Act requires that "[a]ll users, owners and operators of the bulk-power system shall comply with the reliability standards that take effect under this section." 16 U.S.C.A. § 824o(b)(1). The reliability standards are developed and enforced by the North American Electric Reliability Corporation (NERC). See 16 U.S.C.A. § 824o(c).
NERC requires that transmission owners must develop and implement their own Transmission Vegetation Management Plan (TVMP). NERC suggests several methods of clearing vegetation, including wholesale and selective mechanical clearing, herbicides, and pruning. Ultimately, the TVMP is developed by the individual line owner according to myriad factors including local conditions. The clearance areas around lines (areas in which vegetation is cleared to prevent vegetation-related power outages) must be sufficient to avoid outages in light of local conditions, and the time-frame in which the owner will return to manage any vegetation encroachment. According to appellants, the interval between clearings may be as long as four to five years. The horizontal clearance distances relied upon by appellants in their TVMP are established according to the National Electrical Safety Code (NESC) standard, as required by the BPU. N.J.A.C. 14:5-9.6(b).
The BPU also imposes vegetation management restrictions on line owners similar to those of NERC. Owners must file their management plan with the BPU. N.J.A.C. 14:5-9.5(d). These requirements restrict the height of trees and other vegetation in the wire zone, and the type of vegetation that grows in the border zone and within three feet of a structure. N.J.A.C. 14:5-9.6.
We begin our analysis by setting forth well-settled principles of judicial review of the actions of administrative agencies. A court will not reverse an agency's decision unless: "(1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record." Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007). Courts generally afford substantial deference to an agency's interpretation of a statute that it is charged with enforcing. R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999).
Administrative regulations are presumed to be valid. N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999). They are also accorded a presumption of reasonableness. A.A. Mastrangelo, Inc. v. Comm'r of Dep't of Envtl. Prot., 90 N.J. 666, 683-84 (1982). A finding of ultra vires action is disfavored. N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561 (1978).
The scope of judicial review of administrative regulations is extremely limited. In the face of a contention that a regulation is unreasonable and, therefore, invalid, we have explained the standard thusly:
[R]egulations which fall within the scope of the statutorily delegated authority and are not ultra vires on their face are presumed to be valid. The party challenging such action has the burden of overcoming that strong presumption.
Moreover, 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. If there is any fair argument in support . . . [of the agency's action, it] will not be disturbed unless patently corrupt, arbitrary or illegal. [In re Stormwater Mgmt. Rules, 384 N.J.
Super. 451, 465-66 (App. Div.) certif. denied, 188 N.J. 489 (2006) (citations and quotation marks omitted).]
Courts have a "strong inclination to defer to agency action provided it is consistent with the legislative grant of power." Lewis v. Catastrophic Illness in Children Relief Fund, 336 N.J. Super. 361, 370 (App. Div.), certif. denied, 168 N.J. 290 (2001).
When an administrative agency interprets and applies a statute it is charged with administering in a manner that is reasonable, not arbitrary or capricious, and not contrary to the evident purpose of the statute, that interpretation should be upheld, irrespective of how the forum court would interpret the same statute in the absence of regulatory history. [Blecker v. State, 323 N.J. Super. 434, 442 (App. Div. 1999), quoted in Reck v. Director, Div. of Taxation, 345 N.J. Super. 443, 448 (App. Div. 2001), aff'd, 175 N.J. 54 (2002).]
"'Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of 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. N.J. Dep't of Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd o.b., 131 N.J. Super. 37 (App. Div. 1974)). The test, therefore, is one of rational basis. Ibid.
Under the FHACA, DEP has the authority to "delineate and mark flood hazard areas, . . . adopt land use regulations for the flood hazard area, to control stream encroachments, . . . and to integrate the flood control activities of the municipal, county, State, and Federal Governments." N.J.S.A. 58:16A-50b. Rules and regulations adopted by DEP may not become effective until the notice and public hearing requirements of the APA are first satisfied. N.J.S.A. 58:16A-59. The requirements of the FHACA are to be "liberally construed to effectuate the purpose and intent thereof." N.J.S.A. 58:16A-64.
Against these standards, we now consider the three arguments appellants have raised in their challenge to the rules.
Appellants' first contention is that DEP violated the APA by failing to provide a reasoned analysis for its decision to adopt the new rules. Appellants further contend that they were unable to adequately comment on the proposed rules because DEP did not refer in its proposal to the Task Force Report, upon which it relied in promulgating the new rules. We find these arguments unpersuasive.
Generally, the APA requires that an agency must follow four steps before adopting new rules. First, prior to the adoption, amendment, or repeal of a rule, an agency must give a minimum of thirty days' notice of its intended action. N.J.S.A. 52:14B-4a(1). The notice must contain "a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, and the time when, the place where, and the manner in which interested persons may present their views thereon." Ibid.
Second, the agency must prepare a statement for public distribution that summarizes rules and explains the purpose and effect of the changes in a clear and concise manner. N.J.S.A. 52:14B-4a(2). The agency must identify the specific legal authority under which its actions are authorized and must discuss the proposed rule's impact on several specified areas of state concern. Ibid.
Third, interested parties must have the opportunity to "submit data, views, or arguments, orally or in writing" to the agency regarding the proposed rule. N.J.S.A. 52:14B-4a(3). The agency is required to fully consider all such views submitted. Ibid. A public hearing must be held if there is sufficient public interest, or at the request of a legislative committee or governmental agency. Ibid.
Finally, the agency must prepare for the public a report which details the written and oral submissions concerning the rule and the agency's responses. N.J.S.A. 52:14B-4a(4).
Appellants do not specifically allege that DEP failed to comply with these requirements. Rather, they argue that DEP has so altered its prior regulatory scheme that, as a basic principle of administrative law, it was required to but did not provide a "reasoned analysis for the change." Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm. Mut. Auto. Ins., 463 U.S. 29, 42, 103 S. Ct. 2856, 2866, 77 L.Ed.2d 443, 457 (1983). Appellants also argue that DEP improperly relied upon the Task Force Report and therefore denied appellants the ability to offer "meaningful public comment prior to promulgation." Sierra Club v. Costle, 657 F.2d 298, 398 (D.C. Cir. 1981).
We address the second point first. Although the October 2, 2006 publication of the proposed new rules did not reference the Task Force Report, DEP clearly published its intention to incorporate any then-forthcoming Task Force recommendations in its February 2, 2006 responses to comments related to the renewal of the 1995 rules. Indeed, appellants quote extensively from DEP's responses to these comments and include them in their appendix. Further, after DEP published the proposed new rules on October 2, 2006, the Task Force Report was further referenced by DEP in its responses to comments to the proposed rules. Commenters were clearly aware of the Task Force Report and that it was being considered in the development of the new rules, because a number of commenters*fn6 specifically referred to the Task Force Report. We are satisfied from our review of the record that the regulated community, including appellants, was fairly placed on notice that DEP was considering recommendations in the Task Force Report as a basis for the new rules.
We also reject appellants' argument that DEP did not provide a sufficient analysis for amending its prior rules tonow regulate the construction and maintenance of LDI in affected areas. The proposal included extensive discussion of why DEP was promulgating the new FHACA rules. See In re The Adoption of Amendments to N.J.A.C. 6:11-8.4 and N.J.A.C. 6:11-8.5, 249 N.J. Super. 52, 60 (App. Div.) (noting that the full explanation of rationale satisfies the State Farm burden), certif. denied, 127 N.J. 551 (1991). The proposal for the new rules comprised hundreds of pages of the New Jersey Register. Each section thoroughly discussed the changes proposed vis-a-vis the prior rules and DEP's rationale in proposing the new rules. We are satisfied that DEP adequately explained its rationale for changing its regulatory scheme and did not violate the APA.
Appellants contend that the new FHACA rules present an insurmountable obstacle to their compliance with FERC and BPU regulations regarding the management of vegetation near power lines. DEP contends that there is no conflict between the various regulatory schemes and that, "[w]here compliance may actually present real difficulty for the utility companies, rather than a mere inconvenience, hardship waivers are available." Indeed, at oral argument, the Deputy Attorney General assured us that DEP will abide by the requirements of other governmental entities and will, as it has done in the past, grant hardship exceptions or waivers to assure no irreconcilable conflict.
DEP acknowledges that the BPU possesses primary jurisdiction over all public utilities. See N.J.S.A. 48:2-13(a). However, DEP possesses plenary power over riparian land use and water quality. See In re Stormwater Mgmt. Rules, supra, 384 N.J. Super. at 460.
On their face, the rules do not conflict with other applicable laws or regulations. Should a conflict arise in some particular circumstance, and if DEP does not grant relief, an as-applied challenge would be appropriate. We now set forth our rationale for these conclusions.
Appellants argue that the vegetation management regulations in the new FHACA rules conflict with federal and state mandates to remove vegetation capable of causing a power outage. These regulations, 16 U.S.C.A. § 824o(d), (e), and N.J.S.A. 48:2-13, and the rules promulgated thereunder, require that utilities develop maintenance plans to control vegetation that grows in close proximity to energized power lines so as to jointly protect the public from dangers and ensure a reliable power grid. Appellants claim that it is impossible to simultaneously conform with their vegetation management plans and the new guidelines of the FHACA. We do not agree. We also note and find it significant that the BPU did not object to or comment upon the new FHACA rules.
The preemption doctrine requires that, if federal law and state law are inconsistent, "the state law must yield." Feldman v. Lederle Labs., 125 N.J. 117, 133 (1991). "Federal regulations have the same preemptive effect as federal statutes." Id. at 134. There are several different types of preemption. First, properly enacted express congressional language may preempt state law. Ibid. Second, "[i]n the absence of a clear expression, the 'intent to preempt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation.'" Ibid. (quoting Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S. Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985)). Third, preemption may be assumed when the area of law in which Congress legislated involves a pervasive federal interest. Ibid. None of these types of preemption are at issue here.
The fourth type of preemption is so-called "conflict" preemption, which occurs when it is impossible to comply with both a federal and state statute or regulation. Id. at 135. This requires an actual, not speculative, barrier to dual compliance. Ibid. If such a conflict exists, and it is truly impossible to comply with both laws or regulations, then the federal law or regulation must control. Ibid.
Here, appellants argue that the vegetation management portions of the new rules are preempted because they frustrate appellants' vegetation management plans. The vegetation management plans that appellants have developed are approved by a federally-sanctioned corporation, but do not carry the force of preemptive federal law.
As we have discussed, the NERC standards require appellants, as transmission owners, to develop their own TVMP to manage the vegetation around their lines. NERC sets forth the process for developing the TVMP, and prescribes the manner in which appellants must report violations and outages. Appellants, like other transmission owners, must develop their own plan for compliance; it is not set forth specifically by NERC.
Appellants note that the development of their TVMP is required according to NERC standards, and that these standards are "enforceable as a matter of federal law against all owners and operators of bulk power transmission facilities." Accepting appellants' contention as accurate, it still does not support their argument for preemption of the new FHACA standards.
Rather, it merely presents appellants with the need to develop a new TVMP that complies with both the NERC reliability standards and the FHACA regulations.
Nothing in the new FHACA regulations prevents appellants from complying with the NERC requirements. The conflict that appellants describe is between their current practices and the new, more restrictive, practices required of them under the FHACA rules. Further, DEP has built into the regulations a hardship exception to protect against any unreasonable difficulties that may arise at some hypothetical point in the future. Any impossibility of compliance is, at this point, merely speculative and does not implicate preemption of the state regulation. Feldman, supra, 125 N.J. at 135.
Appellants also contend that the FHACA rules conflict with the BPU's energy transmission regulations. They argue that the BPU requires activities specifically prohibited by the FHACA rules and that the conflicts will not realistically be resolved through hardship exceptions.
Appellants begin by noting that the BPU is afforded "sweeping regulatory authority over all aspects of electric utility installation, operation and maintenance, including . . . stewardship of the environment." (citing N.J.S.A. 48:2-23). As we have stated, DEP concedes this point. However, while the BPU may surely regulate utilities, it does not have the authority to promulgate land-use or environmental regulations. In re Centex Homes, LLC, 411 N.J. Super. 244, 262 (App. Div. 2009). On the contrary, DEP possesses plenary power in this sphere. In re Stormwater Mgmt. Rules, supra, 384 N.J. Super. at 460.
Under BPU regulations, utility companies are required to meet minimum clearance widths between lines and vegetation, prevent trees greater than fifteen feet tall from growing in the border area, and prevent any vegetation greater than three feet tall from growing in the line zone. N.J.A.C. 14:5-9.6. The BPU also prescribes a timeline for when inspection and management of vegetation must occur. N.J.A.C. 14:5-9.4. In contrast, the FHACA permits require that trees not be cut or cleared, require that temporarily cleared vegetation be re-planted, and limit the area of temporary vegetation disturbance. See, e.g., N.J.A.C. 7:13-7.2(c). Appellants contend that this tension requires the invalidation of the new FHACA rules.
However, appellants' argument does not recognize that under the rules they receive permits-by-rule to continue regular maintenance on any already-existing utility lines in the riparian zones. N.J.A.C. 7:13-7.2(b)1. For new LDI, appellants will be required to route lines through riparian zones so as to avoid the impact on vegetation proscribed by the rules. If such a route is impossible, DEP has included a mechanism for individual permits and hardship exceptions. N.J.A.C. 7:13-9.1, -9.8. This is available when compliance is truly impossible, not merely inconvenient or difficult. Accordingly, appellants have failed to describe an actual conflict between the FHACA rules and those promulgated by the BPU.
Appellants also contend that the hardship exceptions provided for in the FHACA rules are insufficient. They contend there is no "guarantee that DEP will approve such requests." They note that DEP has described the requirements for obtaining a hardship exception as "extremely stringent." See N.J.A.C. 7:13-9.8. They also claim that DEP "lacks the technical and regulatory expertise with electric power transmission and distribution systems to make the types of decisions that will be required for the hardship exceptions."
Appellants argue that the BPU, and not the DEP, is better equipped to evaluate a utility line hardship exception. However, they fail to note that the regulatory scheme at issue is one designed to prevent flooding by regulating actions within flood hazard and riparian zones. They would prefer that the BPU, and not the DEP oversee environmental regulations. However, using appellants' logic, the BPU does not have the expertise to adequately prevent flooding. Nor does it have the authority to create environmental regulations. See Centex Homes, supra, 411 N.J. Super. at 262. Further, nothing precludes the DEP from consulting with the BPU concerning any individual utility's hardship application.
Appellants' arguments are purely speculative and do not present an actual conflict between the two sets of rules. Cf. Feldman, supra, 125 N.J. at 135 (requiring a non-speculative conflict for a federal preemption claim). The FHACA vegetation management rules do not facially present an impermissible conflict with the BPU standards for maintaining vegetation clearances near utility lines.
Prior to the currently contested rules, the FHACA rule allowed a 20% net fill*fn7 standard. Therefore, in a given flood hazard area, under the prior rules, up to 20% of the space in a given flood hazard area could be filled. However, the contested N.J.A.C. 7:13-10.4 lowered the flood hazard area fill standard to zero.
Appellants claim that "DEP failed to provide any evidentiary justification for its action." Specifically, they note that there was no documentary evidence, "such as technical reports, engineering analyses, hydraulic investigations, or modeling data to show that the zero net fill standard is technically (e.g., hydrologically, and hydraulically) warranted and will decrease flooding compared to the 20% standard."
A similar challenge was brought to the 1984 adoption of the 20% net fill standard. See Soc'y for Envtl. Econ. Dev. v. N.J. Dep't of Envtl. Prot., (SEED), 208 N.J. Super. 1 (App. Div. 1985). As relevant here, the SEED appellant argued, as appellants argue in this case, that the 20% net fill standard was improper because the "DEP failed to provide the public with any technical justification for the 20% net fill rule during either the pre-proposal or proposal process, thus depriving the public of an opportunity to challenge the predicates on which the rule was based." Id. at 4. We found that the record included a "sufficient pre-adoption explanation" for the rule to be understood and commented upon by opponents. Id. at 4--5. We noted that
DEP, in reaching the 20% maximum, relied on a variety of pertinent studies, including an internal report entitled "Rationale for 20% Net Fill Restriction," . . . and an internal memorandum dealing with "fill" questions, referring to a 1980 National Science Foundation publication entitled, "A Report on Flood Hazard Mitigation." Moreover, the notice of adoption of the comprehensive regulations published in the New Jersey Register on May 21, 1984, included an extensive explanation for the rule and a reference to the technical publications which supported it, including studies of the National Science Foundation and the United States Water Council. We further note that technical information both in support of and in opposition to the 20% rule was extensively discussed by hearing witnesses. [Id. at 5.]
Appellants contend that the support for DEP's decision to adopt the zero net fill standard "pales in comparison" to the evidence described in the SEED case. They claim that the only evidence DEP relied upon in its proposal for the reduced fill standard was a table of insurance claims prepared by FEMA. The Department included this table of flood insurance claims for the purpose of demonstrating "that flood damages in the State have been increasing over recent years despite the limitations provided in the repealed rules since 1995."
However, as we have discussed, DEP also relied upon the Task Force Report, which contained the following finding, recommendation, and implementation method:
Finding 4: The current flood control rules do not adequately preserve flood storage along streams and rivers. Whenever development occurs within a flood hazard area, buildings and other materials occupy a certain volume above ground that would otherwise be occupied by floodwaters during a flood. The cumulative displacement of flood storage in this way causes the depth and velocity of flooding to increase, since floodwaters must seek other areas to occupy.
The current rules allow up to 20% of the existing flood storage on site to be displaced by development (20% net-fill).
Within the Central Passaic Basin, all flood storage displacement must be mitigated by the creation of an equal volume of flood storage elsewhere in the basin (0% net-fill). However, this compensatory flood storage is often created miles from the proposed development and sometimes situated along a different stream entirely.
Recommendation 4: The rules should be amended to prevent any net-displacement of flood storage statewide (0% net-fill) except in cases of clearly proved public need or hardship. If a proposed development does displace flood storage on a site, an equal volume of flood storage should be created in close proximity to the construction. Preserving flood storage in this way ensures that development will not exacerbate flooding.
Implementation 4: NJDEP-Land Use Regulations Program.
The zero percent net-fill standard was not something new in New Jersey. That standard had already been implemented in the Central Passaic Basin since 1995 because of frequent flooding in that area, see N.J.A.C. 7:13-2.15 (1995),*fn8 and in the Highlands Preservation Region. See N.J.S.A. 58:16A-60.1. The membershipof the Task Force was marked by substantial expertise in the flood management area and included a wide array of represented groups. The Task Force recommendations are entitled to significant weight, and we, as a reviewing court, find no mistaken exercise of discretion in DEP's reliance on that report, in addition to other materials and factors it considered.
That continued and worsening flooding was occurring notwithstanding the twenty percent net-fill standard, was a legitimate consideration in support of the conclusion that more stringent requirements were needed. Elimination of fill in the affected areas would obviously provide more available volume for flood waters. In our view, the evidence relied upon by DEP here is comparable to that considered in the SEED case, and the revised rule, extending to other portions of the State the zero net-fill standard that already existed in some portions of the State, was a logical and justifiable extension of the basic principle in SEED, "that development in the flood hazard area will, as a matter of fundamental hydraulic, engineering and environmental principles, increase the potential for stream flooding and will raise the water surface elevation of floods." SEED, supra, 208 N.J. Super. at 5.
Appellants also rely upon a January 9, 2003 memorandum sent from Vince Mazzei, a Principal Environmental Engineer and the FHACA Rule Manager, to the DEP's then-Commissioner Bradley Campbell. Appellants quote the following passage:
It cannot . . . be assumed that the 20% net-fill rule has failed since the Department does not possess any data indicating that this rule is not restrictive enough to prevent flooding. Without supporting data, any alteration to [the 20% net fill] policy is likely to be controversial. . . .
However, one can argue that allowing no flood storage displacement whatsoever offers the best flood protection possible, since it is intuitive that preserving the current flood storage volume in a watershed would prevent increased flooding for a given storm event. Using this logic, it would perhaps be better to expand the 0% net-fill rule to include all waters in the State . . . . [Alterations, omissions, and emphasis made by appellants.]
Appellants contend that this passage constitutes an admission "that DEP had no scientific or factual support for [the zero net fill regulation]." In contrast, DEP notes that, despite the 20% net fill regulation, flooding in New Jersey has continued to worsen, and that the prior regulations did not adequately preserve floodwater storage. Further, as DEP explains, prior to the adoption of the statewide standard, "the no net fill standard has been gradually expanded throughout the State, in the face of both continued development and increased flooding."
We do not view Mazzei's statement as an agency admission of no scientific or factual support for the zero percentage net-fill standard. As we have stated, flooding has worsened around the State in recent years, notwithstanding the existence of the twenty percent net-fill requirement in some portions of the State. Indeed, the severe flooding incidents in 2004 and 2005 that we have previously described postdated Mazzei's memorandum, as did the Task Force report.
Based upon its study, the Task Force found that "the current flood control rules do not adequately preserve flood storage along streams and rivers." The negative impacts of this problem included flood waters "seek[ing] other areas to occupy," which "causes the depth and velocity of flooding to increase." Compensatory flood storage for the water displaced by flood hazard area fill is often "created miles from the [fill] and sometimes . . . along a different stream entirely." Therefore, the actions of one property owner in creating fill can adversely impact another. The Task Force therefore recommended that "the State should carefully review the existing [FHACA] rules and adopt new ones that are consistent with the 'No Adverse Impact' recommendations of the [New Jersey Association of Flood Managers]." Accordingly, the Task Force advocated the adoption of the zero net-fill standard.
In light of the presumption of validity of administrative regulations, the liberal construction to be applied to the enabling statute in order to effectuate its legislative purpose where questions of public health, safety and welfare are involved, and the record before us, we are satisfied that appellants have failed to carry their burden of establishing that the zero percent net-fill requirement is ultra vires or lacking in a rational basis. We accordingly have no occasion under our limited standard of review to set it aside.