In re Authorization for Freshwater Wetlands Statewide General Permit 6
80 A.3d 1132
N.J. Super. Ct. App. Div.2013Background
- CareOne sought permits to expand an assisted-living facility in Hamilton Twp.; prior 1999 permit authorized a detention basin and partial wetland fill. 2007–2008 applications sought additional wetland fills and stormwater management changes, including filling the existing basin and creating a new L-shaped basin.
- Objectors (Residents for Enforcement of Existing Land Use Code, Susan Tierney, Pond Run Watershed Assn.) raised detailed engineering objections to CareOne’s stormwater design, claiming inadequate recharge, incorrect soil data, potential downstream flooding, and noncompliance with nonstructural stormwater rules.
- Dept. of Environmental Protection (DEP) issued a LOI, a GP6 general wetlands permit, a Water Quality Certification, and a Special Activity Transition Area Waiver in Nov. 2008; DEP’s face approvals did not reference its stormwater review.
- Appellants requested an adjudicatory hearing and appealed DEP approvals. The Appellate Division remanded to DEP for additional factfinding regarding stormwater; DEP later issued revised approvals/ modification letters (Feb. 1, 2011) and further confirmation (Apr. 20, 2011).
- Procedurally, the court: affirmed denial of an adjudicatory hearing request (A-3837-09); dismissed as interlocutory an appeal of the 2011 modification (A-3400-10); but reversed the DEP’s 2008 approval in A-2231-08 because DEP relied impermissibly on the Nonstructural Strategies Points System (NSPS) without formal rulemaking; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether objectors were entitled to an adjudicatory hearing under the APA/FWPA | Appellants argued project poses particularized property harm (flooding) warranting a hearing | DEP: no statutory right; appellants lacked a particularized constitutional interest | Held: DEP properly denied hearing; appellants failed to show a particularized property right or statutory entitlement (affirmed) |
| Whether DEP’s reliance on the NSPS constituted improper rulemaking | Appellants: NSPS functions as a binding rule (sets pass/fail point thresholds) and should have been adopted via APA rulemaking | DEP/CareOne: NSPS is a non-binding guidance/screening tool; does not add substantive standards | Held: NSPS meets Metromedia factors and is an administrative rule; DEP’s reliance without formal rulemaking was impermissible — approvals reversed and remanded |
| Mootness / interlocutory appeal of DEP’s 2011 modifications | Appellants: 2011 modifications continue to affect rights; should be reviewable | DEP/CareOne: 2008 permit superseded by 2011 actions, so earlier appeal is moot | Held: 2011 action was not a final administrative action (no formal adoption); appeal of 2011 modification dismissed as interlocutory and 2008 appeal continued (Docket A-3400-10 dismissed; A-2231-08 proceeds) |
| Whether DEP adequately reviewed stormwater management (procedural sufficiency) | Appellants: DEP’s review relied on NSPS and applicant certifications, failed to assess contested engineering issues | DEP: conducted iterative review, required revisions, and imposed conditions | Held: Because DEP unlawfully relied on NSPS, the approvals premised on that process cannot stand; remand required for lawful application of standards |
Key Cases Cited
- Dragon v. N.J. Dep’t of Envtl. Prot., 405 N.J. Super. 478 (App. Div.) (discouraging use of agency settlement power to avoid regulatory compliance)
- In re NJPDES Permit No. NJ002524-1, 185 N.J. 474 (2006) (third parties have no automatic right to adjudicatory hearing under permit statutes)
- In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452 (2006) (limit on third-party hearing rights; particularized interest required)
- Spalt v. N.J. Dep’t of Envtl. Prot., 237 N.J. Super. 206 (App. Div.) (fear of generalized property harm insufficient for hearing)
- In re Riverview Dev., LLC, 411 N.J. Super. 409 (App. Div.) (third parties may seek judicial review of permits but do not get automatic administrative hearings)
- Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313 (1984) (Metromedia factors for when agency action is rulemaking)
- Airwork Serv. Div. v. Dir., Div. of Taxation, 97 N.J. 290 (1984) (agency rule validity requires APA procedures)
- Gen. Assemb. of N.J. v. Byrne, 90 N.J. 376 (1982) (purpose of formal rulemaking to provide predictable rules)
- Woodland Private Study Grp. v. N.J. Dep’t of Envtl. Prot., 109 N.J. 62 (1987) (Metromedia factors applied beyond rule/adjudication distinction)
- Doe v. Poritz, 142 N.J. 1 (1995) (weighting Metromedia factors depends on context)
- In re Provision of Basic Generation Serv., 205 N.J. 339 (2011) (focus on importance of factors rather than count when evaluating need for rulemaking)