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J.J. White, Inc v. New Jersey Department of Environmental Protection

September 29, 2011

J.J. WHITE, INC., PETITIONER-APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT-RESPONDENT.



On appeal from the Commissioner of the Department of Environmental Protection, Agency Docket No. 0329-06-0001.1 FWW060001.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 8, 2011 -

Before Judges Fisher, Sapp-Peterson and Fasciale.

Appellant, J.J. White, Inc., appeals from the final administrative agency decision of the Commissioner, New Jersey Department of Environmental Protection (DEP), affirming the denial of its application for exemption from the permitting requirements of the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30. The exemption would have enabled appellant to continue its restoration and modernization of three historic cranberry bogs on Cranbury Run Branch, currently located inside the Brendan T. Byrne State Forest in Pemberton Township (hereinafter referred to as "Cranberry Run Bogs"). We affirm.

The Cranberry Run Bogs comprise over fifty acres and are part of Whitesbog Village, a large farming operation appellant started in the mid-1850s. Whitesbog Village is listed on the New Jersey and the National Historic Registers and is run by the Whitesbog Preservation Trust (Trust). Through Green Acres*fn1

funding, the State acquired the Cranberry Run Bogs and approximately 200 acres.

Cranberries are a perennial crop and do not have to be planted every year to be productive, but do require periodic maintenance. By 1993, the Cranberry Run Bogs had lost their productivity, were "pock-marked with holes" from tundra swans, and were one to two feet out of level in comparison to other bogs that appellant had recently renovated. Consequently, appellant "decided . . . to quit trying to harvest them until [it] could modernize them and make them more productive." However, before appellant could make any physical changes to the Cranberry Run Bogs, it needed to get approvals from DEP's Division of Parks and Forestry, the Trust, the State Historic Preservation Office, and Ocean Spray Cranberries, which controlled the number of acres that its members, like appellant, could farm, harvest, and sell.

Appellant's last "regular, commercial harvest off of these bogs" was in 1993. Thereafter, appellant ceased "all horticultural activities, except for the winter flooding." It also maintained the water control structures, i.e., the floodgates and dams, and applied herbicide treatments.

Joseph Darlington, appellant's owner and president, explained that the "bogs were still producing cranberries, although on their own, not with our active help, other than the winter flooding and so forth[.]" After 1993, appellant allowed the Pinelands Institute for Nature and Environmental Studies (PINES), an educational organization, to use all three bogs. PINES organized field trips for groups of school children, allowing them to go into the Cranberry Run Bogs and hand-pick cranberries.

By 2004, the market for cranberries had improved, and appellant commenced renovation and modernization activities on the property, which initially involved burning cranberry vines and building some intermediate berms. As part of its modernization of the bogs, appellant intended to build new dams, subdivide the existing three bogs into nine smaller bogs, install a new irrigation system of underground pipes and overhead sprinklers, new drain tiles and four-inch diameter corrugated plastic pipes with slits every thirty feet and a foot underground, which would replace the Cranberry Run Bogs' historic, hand-dug, interior surface ditches. In 2006, DEP inspected the Cranberry Run Bogs and determined that appellant's renovation and modernization of the bogs were exempt from the FWPA's permitting requirements.

However, shortly thereafter, DEP ordered appellant to cease all activities pending further notice. By this time, appellant had already burned the vegetation in the bogs, started building the dams to subdivide them, cleaned out the peripheral drainage ditches, removed some of the organic soil, and received piles of new sandy soil.

DEP conducted a site visit with federal authorities and others on September 20, 2006. Following the site visit, on October 18, 2006, appellant submitted a letter to DEP requesting an exemption pursuant to "Section 404(f)(1) of the Federal Clean Water Act" [(FCWA)] and "Section 4(a) of New Jersey's [FWPA]" for the "'normal farming' activities" it was conducting "in connection with ongoing restoration" of the three Cranberry Run Bogs. Although appellant's letter indicated that it had separately attached a description of its activities, the document titled "Typical Modern Cranberry Bog Renovation Sequence" did not specifically relate to renovation and modernization at Cranberry Run Bogs. Rather, it described a typical modernization project for cranberry bogs, which the document described as an eight-year process. The author of the document was unidentified.

Appellant's exemption request also included letters from Peter V. Oudemans, Ph.D., an associate professor at Rutgers University's Philip E. Marucci Center for Blueberry and Cranberry Research and Extension; Maria M. Collazo, a resource conservationist with the United States Department of Agriculture's Natural Resources Conservation Service; and Jeffrey LaFleur, Executive Director of the Cape Cod Cranberry Growers' Association. All agreed that the Cranberry Run Bogs had been maintained over the years as cranberry bogs. Of the three, only LaFleur actually visited Cranberry Run Bogs, and his visit occurred in 2006, after some of the modernization and renovation had commenced. Oudemans' and Collazo's opinions were based upon their review of aerial photos.

DEP's Division of Land Use Regulation, in a letter dated February 1, 2007, denied appellant's "request for a farmland exemption." DEP based its denial on finding that the "bogs do not meet the definition of established, ongoing farming operation"; "the activities that were conducted fail to meet the exemption criteria at [N.J.A.C.] 7:7A-2.8(c)1[]v[] relative to minor drainage"; and appellant's activities "are regulated pursuant to Section 404 of the [FCWA]" permitting requirements and therefore required "a [f]ederal permit." The February 1 letter also referenced the June 7, 2006 Notice of Violation (NOV) issued by the Bureau of Coastal and Land Use Compliance and Enforcement to appellant "'for the discharge of fill material for installing ditching or other water control facilities for the cultivation of cranberries.'" The NOV ordered appellant to stop all work and obtain necessary permits, or "restore the site to its predisturbed conditions."

Appellant appealed the denial, and the matter was transferred to the Office of Administrative Law as a contested case requiring a full hearing. N.J.S.A. 52:14B-1 to -30. At the hearing, appellant produced LaFleur as its expert on the applicability of the CWA and Massachusetts regulations to cranberry farming. He opined that the Cranberry Run Bogs would "qualify as active land in agricultural use under our state regulations . . . and meet the requirements set forth by Region 1EPA*fn2 in . . . [the] Interim Final Guidance for Regulating Inactive Cranberry Bogs under Section 404 of the Federal Clean Water Act." LeFleur further opined that the "project should be exempt" from the permitting requirements under the CWA and Massachusetts regulations. LaFleur acknowledged that he visited the Cranberry Run Bogs on one occasion in 2006 and at that point, appellant had removed all of the vegetation.

Oudemans testified that based upon his review of the aerial photos, that the integrity and functioning of the bogs remained, notwithstanding the absence of commercial harvesting since 1993.

He acknowledged that 2002 photos of one bog depicted woody vegetation, although he could not tell how high it had grown.

Christian Bethmann, the Superintendent of the Brendon T. Byrne State Forest, testified that the Cranberry Run Bogs produced a "fairly good crop of cranberries" between 1999 and 2003. He indicated that the children who visited picked and carried off many cranberries.

Two witnesses from DEP also testified: Janice Arnett, a wetlands field inspector assigned to DEP's enforcement sections, and David Fanz, Assistant Director of DEP's Division of Land Use Regulation. Arnett lived near the Cranberry Run Bogs and often visited for recreational purposes in addition to visiting the site for official purposes. In 2001, she observed three well-defined bogs with a dividing road and dikes, a principal stream down center, and hand-dug ditches. In 2002 and 2003, she saw vegetation and trees that blocked access to one bog. By the spring of 2006, she observed that material had been removed from the ditches and the bogs, shrubs pulled and piled up, the installation of new water controls, and installation of a new stream channel.

In April 2006, she inspected the three bogs with another DEP inspector, and they saw non-cranberry vegetation in the bogs, water ponding, discharge of fill material from extensive grading and excavation, general disturbance to the original grade, and bulldozed sand and vegetation. She estimated that the ditches had been deepened, which constituted a change in the hydrologic regime that was not covered by the farming exemption. In fact, based on her experience, she opined that the "[d]itching and the deepening of the ditches," the discharges of dredged and fill material, and extensive grading were regulated activities and were not considered to be minor drainage exempt from an FWPA permit.

Arnett further opined that even if appellant's renovation and modernization activities were found to be part of an ongoing farming operation, those activities would require a permit, as they ...


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