NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, COASTAL AND LAND USE COMPLIANCE AND ENFORCEMENT, Petitioner-Respondent,
ROBERT ENCH and SANDERINA R. KASPER, TRADING AS BENCH REALTY and ROBERT ENCH, INDIVIDUALLY, and WESTRUM UPPER DEERFIELD, L.L.C., Respondents-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 20, 2013
On appeal from the New Jersey Department of Environmental Protection, Agency Ref. No. PEA050003-0613-04-0007.1.
Neil Yoskin argued the cause for appellants (Sokol, Behot & Fiorenzo, attorneys; Mr. Yoskin, on the briefs).
Kathrine M. Hunt, Deputy Attorney General, argued the cause for respondent N.J. DEP (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Hunt, on the brief).
Chance & McCann, attorneys for respondent Sanderina R. Kasper, individually (Beth White, on the brief).
Before Judges Parrillo, Fasciale and Maven.
Appellant Bench Realty, a New Jersey general partnership in which Sanderina Kasper and Robert Ench are partners,  appeals a final decision of the Commissioner of the Department of Environmental Protection (DEP) approving DEP's assessment of penalties against Bench Realty, pursuant to an Administrative Order and Notice of Civil Administrative Penalty Assessment (AONOCAPA), for violations of the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30.
At issue are activities conducted on a 219-acre tract of undeveloped land in Upper Deerfield Township, Cumberland County (Property), which was owned by Bench Realty from 1986 to March 2006, when Bench sold it to Westrum Upper Deerfield, LLC (Westrum). The Property is part of an 8, 000-acre tract purchased by Bench Realty when it was formed in 1986.
The Property is essentially rectangular in shape. Its eastern side is bordered by railroad tracks and an electric power line right-of-way. In the lower southeastern portion, a stream, known as Cornwell Run, cuts southwest from the adjoining property, under the railroad through a culvert, and proceeds on the property to the southwest. This area of wetlands and transition areas running more or less parallel to the watercourse is known as the Cornwell Run Corridor. In addition, in the southern portion of the property, roughly westerly of the midpoint and to the northwest of the lower portions of Cornwell Run, is an area that now contains a very large pile of downed trees and stumps and soil, known as the "fill pile." A large part of the Property has been continuously farmed since the 1930s, with the exception of the Cornwell Run Corridor, which has mature vegetation and pronounced slopes.
The activities that are the subject of the AONOCAPA occurred within two distinct areas of the Property: the Cornwell Run Corridor and the fill pile area, which DEP claims also contains wetlands and transition areas. The AONOCAPA alleged violations of N.J.A.C. 7:7A-2.2(a) and 2.6(a), for: (1) clearing trees and woody vegetation in about one acre of freshwater wetlands and transition areas; (2) discharging and depositing sediment and other fill over about three acres of wetlands and transition areas through the creation of runoff caused by the clearing of a twenty-five acre upland section of the Property in the vicinity of Cornwell Run, in the so-called "elbow" area; and (3) creating the fill pile through the piling of cleared trees, stumps and soil in an area containing wetlands to the west of the elbow, the so-called "finger."
Indisputably, the removal of trees in the Cornwell Run Corridor itself, in both the transition and freshwater wetlands, violated the FWPA, whereas the removal of upland trees from the elbow area did not in and of itself violate the Act. Yet, as alleged by DEP, the removal of the upland trees resulted in the transport of a large amount of eroded sediment downhill into the wetlands and transition areas associated with Cornwell Run, causing damage to and changing the character of portions of this protected area, in violation of the FWPA. Finally, DEP alleged that the trees and associated soil cleared and removed from the finger were simply dumped into about three-quarters of an acre of wetland and transition area, in violation of the FWPA.
The AONOCAPA initially issued on October 4, 2006, and as amended and superseded on December 13, 2007 and December 1, 2008, ordered Bench Realty to immediately install and maintain temporary protection measures, to permanently prevent sediment from entering freshwater wetlands and transition areas, and to restore the affected areas in accordance with plans to be submitted to and approved by DEP. The AONOCAPA also sought penalties of $489, 000 from Bench Realty and Ench, and $150, 000 from Westrum.
At Bench Realty's request, the matter was transferred to the Office of Administrative Law (OAL) for adjudication. The six-day administrative hearing crystallized the matters in dispute and, equally important, those not disputed.Specifically, the parties do not dispute that the resource value of the wetlands in the Cornwell Run Corridor is "intermediate" (neither exceptional nor ordinary), requiring a fifty-foot transition area surrounding all of the wetlands. Nor do they dispute that trees were cleared from the twenty-five acre elbow area north of the Cornwell Run Corridor between 2002 and 2004, at the direction of Ench. There is also no dispute that certain trees were cleared within the 0.9 acre freshwater wetlands and transition area, although Bench Realty denies that the scope of this violation is as extensive as DEP claims, and contends its violation was unintended, inadvertent and easily remedied.
Concerning the clearing of the upland tract, a significant disagreement concerned the volume of sediment entering the transition area, its origination, and the size of the wetlands affected. On this score, DEP calculated the area of disturbance to be 2.9 acres, and alleged that as a result of the removal of the trees from the elbow, significant erosion and sedimentation has occurred, leading to the deposit of sediment at an average depth of two feet in the cleared wetland and transition area of the Corridor. In total, DEP estimated the sediment deposit at 9, 400 cubic yards.
Bench Realty disagrees with this estimate and denies that whatever sedimentation has occurred in the Corridor is the result of its removal of trees from the upland. Rather, according to Bench Realty, that sediment has historically entered the area over time from both the farming operations upland during the time that the trees were still in place and also from the upper reaches of Cornwell Run on property to the east, with the sediment entering the Property via the culvert discovered to exist under the railroad. Thus, Bench Realty contends that to the extent any sedimentation exists in the Corridor, it is nowhere near as extensive as DEP claims, and is not attributable primarily to its tree-clearing activities.
Regarding the fill pile, there is also no dispute that at the behest of Bench Realty, trees were cut in the finger area sometime between 2002 and 2004 and the tree stumps were piled up and covered with soil. The dispute is, at least in part, over whether the fill pile sits on a wetland, and also to the extent that it does, over the characterization of Bench Realty's actions in placing this material in a wetland as intentional. On this score, DEP's analysis concludes that only part of the fill pile is sitting on wetland or transition areas, and that an "approximate number" representing the affected, filled area is 0.45 acres of wetlands and 0.3 of transition area. Bench Realty, on the other hand, claims that the wetland does not extend up to the area at the base of the pile and the fill pile thus does not sit on a wetland at all.
These factual disputes were the focus of the six-day administrative hearing, which produced the following pertinent evidence.
In June 1988, a Wetlands Inventory and Delineation Report was prepared for the property by a consultant for Bench Realty and submitted to the U.S. Army Corps of Engineers (ACOE) in support of a request for a jurisdictional wetlands determination and nationwide permit that would allow the construction of a residential development. Bench Realty's report identified 6.8 acres of freshwater wetlands within the Cornwell Run Corridor. ACOE declined to issue a determination, deferring to DEP's jurisdiction. The proposed development never moved forward and there is no evidence Bench Realty ever sought to verify the boundaries of the wetlands on the property with DEP.
In 2002, Bench Realty leased the Property to Hopewell Nursery, a company owned and operated by Ench. Prior to that time, the land had been leased by farmers growing corn and soybeans. Hopewell Nursery leased the Property from 2002 until March 2008 for the purpose of cultivating nursery stock. In the winter of 2002-2003, Ench contracted with a company, Stella Contracting, to clear trees and stumps from forested portions of the Property, and the stumps were placed in the fill pile area.
In March 2004, following the clearing activities and creation of the fill pile, Bench Realty entered into an agreement to sell the property "as is" to U.S. Estates, who, in turn, as noted, assigned its right to purchase the property to Westrum in August 2004. An August 2004 environmental impact statement for a proposed development project on the Property noted that the "water quality of Cornwell Run has been affected by runoff associated with the nursery activities conducted on the majority of the site. This runoff has been enhanced by the clearing of trees and vegetation adjacent to the wetland area."
Also in August 2004, U.S. Estates applied to DEP for a letter of interpretation (LOI) to delineate wetlands on the Property. Ench signed the application on behalf of Bench Realty, the property owner. The LOI application included a wetlands delineation report prepared by Damiano Long, an engineering and environmental consulting firm retained by U.S. Estates. The Damiano Long report noted that "all of the trees have been removed in and around the wetlands [along Cornwell Run] sometime between 2002 and 2004" and that "[w]ater quality appeared generally poor in this area, with obvious field indicators of sedimentation and agricultural runoff."
In November 2004, DEP employee April Grabowski inspected the Property to verify the information in the Damiano Long report. As a result of her inspection, on February 25, 2005, DEP issued the requested LOI to U.S. Estates, confirming the jurisdictional boundary of freshwater wetlands along the length of the Corridor as delineated in the Damiano Long report. The LOI also placed the wetland boundary at the southern toe of the fill pile, in accordance with U.S. Estates' LOI application, but did not identify any part of the fill pile as a wetland. The LOI also identified the resource value of the wetlands in the Corridor as "intermediate, " requiring a fifty-foot surrounding transition area.
Based on her observations of the unpermitted clearing and disturbances of wetlands and transition areas, Grabowski referred the matter to DEP's enforcement arm, the Bureau of Coastal and Land Use Enforcement. As a result, DEP employee Robert Pacione inspected and photographed the site on March 3, 2005. He reported that extensive tree cutting had occurred in wetlands and transition areas involving the removal and deposition of stumps within transition areas. Pacione also observed a sediment plume being discharged into the wetlands that was, based on data including aerial photography, most likely a result of the erosion of sediments from the clearing of more than forty acres of upland forested areas adjacent to the wetlands with the absence of any erosion controls. In July 2005, Pacione performed a return site inspection and reported that no restoration measures had been performed and that sediment continued to be released unchecked into the wetlands from upland areas.
Pacione performed a follow-up inspection in May 2006, finding that while remedial measures had been taken by Bench Realty in the upland areas to control soil erosion, including the placement of hay bales and silt fence, no reforestation or sediment removal had been implemented. Pacione took six soil borings in the cleared Cornwall Run Corridor to estimate the depth of the sediment that had eroded into the wetlands. Based on those borings, his prior observations, aerial photography predating and postdating the clearing, and the February 2005 LOI delineating wetland boundaries on the Property, Pacione estimated that the transported sediment averaged two feet deep and covered approximately three acres of regulated areas, equaling approximately 9, 600 cubic yards.
An inspection performed by Pacione and DEP employee Janice Arnett on July 7, 2008, in the presence of representatives of Westrum, confirmed that sediment control measures were not completely effective, causing sediment to continue to flow into the wetlands and transition areas from the cleared uplands. Photographs taken by Arnett show the sediment plume from the upland fields coming down the hill and moving into the transition area, having escaped any hay bales and fencing.
Arnett also took three soil borings between the wetland boundary shown on the LOI and area north of the fill pile area, which she concluded demonstrated that the wetlands extended beyond the boundary delineated in the LOI to the area under the fill pile. Her borings taken north of the fill pile confirmed the area was uplands, leading her to conclude that the wetlands extended up and ended somewhere under the fill pile, as there was no indication of a discontinuity between the point of her sample and the toe of the fill pile.
Arnett also reviewed extensive pre-existing data, including national wetlands inventory mapping, landscape project mapping, and soil surveys as a means of determining conditions in the fill pile area. Based on her observations of these sources, she found that the soils in the fill pile area were of a type (muck/hydric) found in wetlands, and that the area formerly contained a stream and the same type of vegetation that exists along Cornwell Run. The topography maps also showed that before the disturbance was created, the elevation in the fill pile area and the Cornwell Run was almost identical.
Bench Realty's expert, James Schmid, Ph. D., disputed, among other things, not only the amount of wetlands in the Corridor area, but the volume of sediment deposited therein and its origination. As to the former, Schmid concluded that the size of the wetlands identified in the 2005 LOI was overstated because DEP placed "too few flags to go around the total slope" of the flood plain and because he could not find any hydric soils in the northern section of the disturbed wetlands along the Corridor. Yet Schmid did not proffer any alternative wetlands delineation. And although he performed his own soil borings in the Corridor to determine the wetland boundaries, the results of which conflicted with those of Pacione in 2006, Schmid never informed DEP of his results before the administrative hearing and never submitted data to support his conclusions. Instead, he took issue with the soil borings taken by Pacione, testifying that
[w]hen I go out into the field, I was looking for sediment. I didn't find it. And I don't find it, for that matter, in Mr. Pacione's notes. He says that he did some borings out here and saw a change in color of the soil at a depth of two to four feet. He doesn't tell us what the soils [were] that he was boring through. He doesn't tell us what the soil was underneath where he bore down to; so he just says he sees a change of color.
Well, to me, that says if those were bright brown soils that he was simply boring in uplands. He said I didn't look for any wetland boundary. He just assumed that he was in a wetland ...