IN THE MATTER OF FRESHWATER WETLANDS PROTECTION ACT RULES, STATEWIDE GENERAL PERMIT, CRANBERRY EXPANSION, PROMULGATED BY NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION.
Supreme Court of New Jersey
Argued September 8, 2003—Decided July 20, 2004
852 A.2d 167 | 180 N.J. 415
For reversal and remandment—Chief Justice PORITZ and Justices VERNIERO, ZAZZALI, ALBIN, WALLACE, and KESTIN (temporarily assigned)—6.
Opposed—None.
852 A.2d 167
IN THE MATTER OF FRESHWATER WETLANDS PROTECTION ACT RULES, STATEWIDE GENERAL PERMIT, CRANBERRY EXPANSION, PROMULGATED BY NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION.
Argued September 8, 2003—Decided July 20, 2004.
Rachel J. Horowitz, Deputy Attorney General, argued the cause for respondent, New Jersey Department of Environmental Protection (Peter C. Harvey, Attorney General of New Jersey, attorney; Patrick DeAlmeida, Deputy Attorney General, of counsel).
This case raises questions in respect of the validity of General Permit 23 (GP23),
I.
This Court previously has had occasion to discuss the “unique ecological, economic, and cultural features of the New Jersey Pine Barrens, or Pinelands.” Gardner v. New Jersey Pinelands Comm‘n, 125 N.J. 193, 198, 593 A.2d 251 (1991). Gardner described the pinelands and discussed the purpose of the regulatory programs designed to protect them:
A “wilderness” of pine-oak forests and wild and scenic rivers, the Pinelands harbors a “wide variety of rare, threatened and endangered plant and animal
species,” and encompasses “many other significant and unique ecological, historical, recreational, and other resources.” The region overlies the vast, seventeen-trillion gallon Cohansey aquifer, “one of the largest virtually untapped sources of pure water in the world.” There has been very little development in the Pinelands; there are no major retail centers, and developed property comprises only one or two percent of the land in most areas. Agriculture in the Pinelands, especially the cultivation of cranberries and blueberries is particularly important both nationally and locally. In recent years, anxiety over the loss of farming and the fragile ecology of the Pinelands has produced increasingly stringent federal and state regulation . . . . [T]he New Jersey Pinelands Protection Act (Act), L. 1979, c. 111;
N.J.S.A. 13:18A-1 to 29, declares that its goals are, among others, to protect, preserve, continue, and expand agriculture and horticulture and to discourage piecemeal and scattered development within the Pinelands.[Id. at 199-200, 593 A.2d 251 (citations omitted).]
In this case, we focus on the unique role of cranberry agriculture in the history of the pinelands and the methods used to produce the fruit.
A.
Cranberry Agriculture in New Jersey
The high water table and sandy, acidic soils of the pinelands render the cultivation of most field crops difficult. Those same ingredients, however, are essential to the growth of the cranberry. Due to a confluence of favorable ecological and climatological variables, farmers have been harvesting cranberries in the pinelands for almost two centuries. See 30 N.J.R. 3721 (Oct. 19, 1998) (noting cranberries have been harvested in pinelands since early 1800s).
By the early 1900s, cranberry production was the region‘s principal industry. In the 1930s, approximately 13,000 acres of the pinelands were dedicated to cranberry agriculture. 28 N.J.R. 4145 (Sept. 16, 1996). More recently, market conditions and other factors have conspired to reduce the number of cranberry growing operations and the amount of acreage in production. Thus, in 1999, there were approximately forty-seven active operations in the pinelands, 31 N.J.R. 1571 (June 21, 1999), whereas the amount of acreage in production has fluctuated between 3100 and 4000
Although cultivation techniques have improved considerably over the years, one factor continues to dictate the location of cranberry growing operations: the fruit requires easy access to large amounts of clean water, at least 227 gallons per minute per acre of cranberry bog. 31 N.J.R. 1570 (June 21, 1999). Through an extensive network of reservoirs, dikes and canals, farmers use the water “to flood the bogs in winter and early spring to protect against frost, to flood the bogs during harvest, and to irrigate the bogs during the summer.” Ibid. Most cranberry operations are situated in wetland areas where water is readily available. Indeed, the fruit is classified by the United States Army Corps of Engineers (Corps) and United States Fish and Wildlife Service as a “wetland crop species” that “must be grown in wetlands or areas altered to create a wetlands environment.” U.S. Army Corps of Engr‘s, Regulatory Guidance Letter 92-2, 57 Fed. Reg. 32523, 32524 (July 22, 1992) (citing U.S. Fish & Wildlife Serv., 1988 National List of Plant Species that Occur in Wetlands (1989)).
Finding suitable wetland locations for cranberry operations is only the first step. Converting the wetlands for use as a cranberry bog requires removal of the indigenous vegetation and excavation of the soil to a depth of up to three feet. After the dikes and other water control structures are built, a layer of organic soil is
B.
Regulatory Environment
Building or expanding a cranberry growing operation in a wetland implicates a complex permitting scheme. Under the CWA, generally parties seeking to discharge dredged or fill material into wetlands may do so only if they have secured a “section 404” permit from the United States Army Corps of Engineers.4
An applicant seeking to engage in regulated activities5 in State open waters or wetlands must apply for and secure either a
The department shall issue additional general permits on a Statewide or regional basis for the following categories of activities, if the department determines, after conducting an environmental analysis and providing public notice and opportunity for a public hearing, that the activities will cause only minimal adverse environmental impacts when performed separately, will have only minimal cumulative adverse impacts on the environment, will cause only minor impacts on freshwater wetlands, will be in conformance with the purposes of this act, and will not violate any provision of the Federal Act:
....
(5) Activities, as determined by the department, which will have no significant adverse environmental impact on freshwater wetlands, provided that the issuance of the general permit for any such activities is consistent with the provisions of the Federal Act and has been approved by the United States Environmental Protection Agency.
[Ibid.]
A permittee‘s application must conform to the conditions applying to all general permits and to any conditions that are specific to the general permit sought.
The Administrator will assess the administration and enforcement of the State Program on a continuing basis for equivalence and consistency with the CWA, this agreement, and all applicable federal requirements and policies for the adequacy of enforcement. This assessment will be accomplished by: (1) timely EPA review of information submitted by [DEP] in accordance with this agreement; (2) permit overview; (3) compliance and enforcement overview; and (4) annual review of [DEP] program activities.
[(Emphasis added).]
Thus, draft general permits proposed by the State must be forwarded to the EPA Regional Administrator, who may approve or interpose objections that, if not resolved to the Regional Administrator‘s satisfaction, will prevent the adoption of the permit.
C.
General Permit 23
GP23 represents the end product of three years of negotiation between EPA and DEP. EPA objected to DEP‘s first two versions of the draft permit, 30 N.J.R. 3721(a) (Oct. 19, 1998); 28 N.J.R. 4145(a) (Sept. 16, 1996), with the result that neither was adopted because EPA‘s concerns remained unresolved. 31 N.J.R. 1563 (June 21, 1999). Following the failed 1998 submission, EPA “agreed to withdraw its objection to the general permit if the [DEP] made certain changes to the proposal.” Ibid. DEP acceded to EPA‘s recommendations and, after reproposing GP23 in
GP23 authorizes the limited expansion of existing cranberry growing operations (as defined at
The substantive provisions of GP23 are recounted in detail in the opinion below. Id. at 371-74, 798 A.2d 634. We will focus here on the significant changes to the permit made by DEP to address the EPA‘s objections. Compare 28 N.J.R. 4148-49 (Sept. 16, 1996), with 30 N.J.R. 3727-29 (Oct. 19, 1998), and
DEP also included in the final permit additional measures intended to direct the impacts attributable to the expansion of cranberry growing operations away from high value wetlands, particularly wetlands dominated by the Atlantic White Cedar (“AWC“). 28 N.J.R. 4145-46, 4148-49 (Sept. 16, 1996). First, DEP created “a hierarchy of various wetland types,” reflecting their relative ecological value. Id. at 4145, 4149; see
Although earlier drafts of GP23 capped at 300 acres the amount of wetlands that could be disturbed during the five-year life of GP23, those versions did not set any limit for high-value forested wetlands. See 31 N.J.R. 1565 (Oct. 4, 1999). Under GP23 as adopted, only eighty acres of forested wetlands may be disturbed during the life of the general permit,
Finally, GP23 as adopted provides the Commissioner with broad discretionary power to “modify, suspend or revoke [permit] authorizations.” Id. at (r). This power is akin to that of a Corps of Engineers Division or District Engineer under the federal 404 program and allows the Commissioner to consider project-specific concerns, such as expansion into ecologically sensitive areas. 31 N.J.R. 1563 (June 21, 1999); see
Because DEP addressed EPA‘s concerns in the 1999 reproposal, the Regional Administrator withdrew the Agency‘s objections to GP23:
EPA does not object to the issuance of GP 23, in accordance with the provisions of
40 CFR 233.50 , and we have determined that GP23 will have no more than minimal environmental effects on the aquatic environment. This action is taken in part because EPA has determined that NJDEP has modified GP 23 to include all the required modifications stated in our letter dated April 16, 1999.[(Emphasis added).]
II.
A.
FWPA and the Pinelands
DEP argued below that the mitigation requirements of the FWPA are not applicable to GP23 because the statute does not apply in the pinelands. Before us, DEP contends that
Activities in areas under the jurisdiction of the Pinelands Commission pursuant to [the Pinelands Protection Act,
N.J.S.A. 13:18A-1 to -29] shall not require a freshwater wetlands permit, or be subject to transition area requirements established in this act, except that the discharge of dredged or fill material shall require a permit issued under the provisions of the Federal Act, or under an individual or general permit program administered by the State under the provisions of the Federal Act and applicable State laws, provided that the Pinelands Commission may provide for more stringent regulation of activities in and around freshwater wetland areas within its jurisdiction.
[(Emphasis added).]
On its face,
We find that the DEP has the authority under the FWPA to issue both general and individual permits allowing the discharge of dredged or fill material into wetlands situated in the pinelands. We observe, further, that
B.
Mitigation under the FWPA
Appellants argue, however, that
As with any administrative regulation, we begin with the settled principle that GP23 must be “accorded a presumption of validity.” New Jersey State League of Municipalities v. Dep‘t of Cmty. Affairs, 158 N.J. 211, 222, 729 A.2d 21 (1999); In re Township of Warren, 132 N.J. 1, 26, 622 A.2d 1257 (1993).
In this case, DEP interprets
a. The department shall require as a condition of a freshwater wetlands permit that all appropriate measures have been carried out to mitigate adverse environmental impacts, restore vegetation, habitats, and land and water features, prevent sedimentation and erosion, minimize the area of freshwater wetlands disturbance and insure compliance with the Federal Act and implementing regulations.
b. The department may require the creation or restoration of an area of freshwater wetlands of equal ecological value to those which will be lost, . . . .
[(Emphasis added).]
Again, the statutory language is clear. Although Section 13(a) requires “all appropriate measures” by way of mitigation, restoration and minimization of “adverse environmental impacts” and “wetland disturbances,” Section 13(b) is permissive and states only that the DEP “may require creation or restoration” of wetlands of equal value and, then, only when wetlands have been “lost” through a permitted activity. Moreover, a review of the legislative history supports DEP‘s assertion that the creation or restoration of wetlands to compensate for adverse impacts attributable to a permitted activity is by no means mandatory, but merely a weapon in DEP‘s larger mitigation arsenal. See Senate Energy and Environment Committee, Statement to Senate Committee Substitute for Assembly Committee Substitute for Assembly Bills 2342 and 2499, at 4 (June 25, 1987) (noting “[t]his bill authorizes the department to require the creation or restoration of wetlands to compensate for any wetlands destroyed as a result of a project in a freshwater wetland permitted by the department“) (emphasis added).
Finally, we recognize that the FWPA covers more types of wetlands activities than does the CWA. See MCG Assocs. v. Dep‘t of Envtl. Prot., 278 N.J.Super. 108, 112, 650 A.2d 797 (App.Div.1994) (noting “DEP has the authority to regulate more activities” under FWPA than EPA and Corps have under CWA). That DEP has the power to control activities in New Jersey wetlands that are not covered under federal law does not, however, lead to a conclusion that more stringent mitigation requirements than those
III.
A.
GP23 and Nationwide Permit 34
Appellants also claim that GP23 is “impermissibly less stringent” than Nationwide Permit 34 (“NWP34“), the comparable federal permit for the expansion of cranberry growing operations. In re FWPA, supra, 351 N.J.Super. at 377-82, 798 A.2d 634. As explained earlier, supra at 428, 852 A.2d at 175, EPA has determined that New Jersey‘s “revised GP23 is consistent with and as stringent as the standards of the Federal wetlands program.” In approving the final draft of GP23, EPA specifically stated that the “no net loss” provision and the AWC restoration requirement meet federal mitigation standards. The Appellate Division thoroughly addressed appellants’ claim, affording EPA‘s interpretation appropriate deference. Ibid.; see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-46, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694, 702-04 (1984) (describing deferential standard of review accorded findings of federal administrative agency). The court below found that although the GP23 acreage restrictions are different from those found in NWP34, on balance, the state restrictions are as stringent, and, further, that the mitigation, protection for endangered species, and upland alternatives requirements of GP23 meet federal standards. We affirm the Appellate Division determinations on those issues substantially for the reasons expressed in Judge Petrella‘s well-reasoned opinion, In re FWPA, supra, 351 N.J.Super. at 377-82, 798 A.2d 634, adding only the following comments relating to one-to-one mitigation for all wetland disturbances.
One-to-One Mitigation Under NWP34
NWP3410 allows for the limited expansion of existing cranberry operations provided the expansion project meets certain criteria:
a. The cumulative total acreage of disturbance per cranberry production operation, including but not limited to, filling, flooding, ditching, or clearing, does not exceed 10 acres of waters of the U.S., including wetlands;
b. The permittee notifies the District Engineer in accordance with the “Notification” General Condition. The notification must include a delineation of affected special aquatic sites, including wetlands; and,
c. The activity does not result in a net loss of wetland acreage.
This NWP does not authorize any discharge of dredged or fill material related to other cranberry production activities such as warehouses, processing facilities, or parking areas. For purposes of this NWP, the cumulative total of 10 acres will be measured over the period that this NWP is valid.
[Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits, 61 Fed. Reg. 65874, 65919 (Dec. 13, 1996).]
Nationwide Permits are issued subject to twenty-six General Conditions, including General Condition 19, which details mitigation requirements for NWP34 authorizations. Notice of Final Issuance and Modification of Nationwide Permits, 65 Fed. Reg. 12818, 12893-97 (Mar. 9, 2000).
Appellants apparently concede that GP23 complies with the federal mitigation requirements in place at the time GP23 was adopted. They contend that subsequent changes to General Condition 19 render GP23 inconsistent with NWP34. Ibid. Under General Condition 19, “Mitigation” is described as follows:
19. Mitigation. The project must be designed and constructed to avoid and minimize adverse effects to waters of the United States to the maximum extent
practicable at the project site (i.e., on-site). Mitigation will be required when necessary to ensure that the adverse effects to the aquatic environment are minimal. The District Engineer will consider the factors discussed below when determining the acceptability of appropriate and practicable mitigation necessary to offset adverse effects on the aquatic environment.
(a) Compensatory mitigation at a minimum 1:1 ratio will be required for all wetland impacts requiring a PCN.
[Id. at 12896.]
By its terms, sub-section (a) states that projects for which preconstruction notification (“PCN“) must be obtained are required to have compensatory mitigation at a one-to-one ratio for all wetland impacts. PCN, in turn, applies to certain activities proposed in state-designated critical resource waters and wetlands adjacent to such waters. Id. at 12897. Appellants argue, therefore, that because pinelands waters are Outstanding Natural Resource Waters,
General Condition 19 mandates compensatory mitigation when “necessary to ensure that the adverse effects to the aquatic environment are minimal.” Notice of Final Issuance and Modification of Nationwide Permits, 65 Fed. Reg. at 12896 (emphasis added). The corollary of that mandate is that if the project only causes minimal adverse effects, compensatory mitigation is not necessary. Indeed, on responding to comments to the draft General Conditions, the Corps stated that projects subject to the PCN requirement did not, by virtue of that designation, automatically become subject to the one-for-one mitigation requirement of subsection (a) of General Condition 19. Proposal to Issue and Modify Nationwide Permits, 64 Fed. Reg. 39252, 39343-44 (July 21, 1999). Even for projects requiring a PCN, the Corps considers that “[i]f no compensatory mitigation is necessary to reduce the adverse effects of the aquatic environment to the minimal level, then the District Engineer does not need to require compensatory mitigation.” Id. at 39344.
IV.
A.
Surface Water Quality Standards
The state surface water quality standards,
“Effluent limitations” are promulgated by the EPA and restrict the quantities, rates, and concentrations of specified substances which are discharged from point sources. See [
33 U.S.C.A. §§ 1311 , 1314]. “[W]ater quality standards” are, in general, promulgated by the States and establish the desired condition of a waterway. See [33 U.S.C.A. § 1313 ]. These standards supplement effluent limitations “so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.”[Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 1054, 117 L.Ed.2d 239, 251-52 (1992) (quoting EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 n. 12, 96 S.Ct. 2022, 2025 n. 12, 48 L.Ed.2d 578, 583 n. 12 (1976)).]
In 1987, the CWA was amended to require the SWQS to include an “antidegradation policy,”
B.
GP23 and the Antidegradation Policy
Appellants’ remaining claim is that DEP adopted GP23 without consideration of the state‘s antidegradation policy thereby violating the SWQS. In their view, that failure renders GP23 invalid. They acknowledge that the SWQS contain a provision that states: “The [antidegradation] policy is not intended to interfere with water control in the operation of cranberry bogs or blueberry production,”
Appellants rely on the United States Supreme Court decision in Jefferson County, supra, to support their argument that
It is a substantial jump from a holding that water flows may be regulated by the states under their antidegradation policies to the claim that the exemption for water control in cranberry and blueberry production found in
Most important, “[c]ranberry bog water supply and other agricultural uses” are included among the designated uses of PL, or pinelands waters.
We find that the state antidegradation policy has not been violated by the adoption of GP23.
V.
The judgment of the Appellate Division is affirmed.
Justice ZAZZALI, concurring.
I join the Court‘s opinion in full, including Part IV.B., which addresses the New Jersey Department of Environmental Protection‘s (DEP) interpretation of
Appellants challenge DEP‘s construction of
Nonetheless, I am persuaded that appellants’ interpretation of
As the Court explains, appellants argue that the exemption for water control found in
Notwithstanding my preference for appellants’ reading of the regulation, I recognize that “[o]ur task is not to decide which among several competing interpretations best serves the regulato-
For affirmance—Chief Justice PORITZ and Justices VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE—6.
Opposed—None.
Notes
(1) The removal, excavation, disturbance or dredging of soil, sand, gravel, or aggregate material of any kind;
(2) The drainage or disturbance of the water level or water table;
(3) The dumping, discharging or filling with any materials;
(4) The driving of pilings;
(5) The placing of obstructions;
(6) The destruction of plant life which would alter the character of a freshwater wetland, including the cutting of trees[.]
For the purposes of [GP23], State open waters and wetland types are ranked in the order that they shall be considered for use for the expansion of a cranberry growing operation, as follows:
1. State open waters;
2. Abandoned blueberry fields;
3. Abandoned cranberry bogs;
4. Abandoned agricultural fields;
5. Freshwater wetlands dominated by emergent vegetation;
6. Freshwater wetlands dominated by scrub/scrub vegetation;
7. Forested freshwater wetlands that are not Atlantic white-cedar wetlands; and
8. Atlantic white-cedar wetlands.
[