Summary of a Recent
Judicial Development in
Environmental Law

Expansion of Cranberry Bogs Permitted under the Regulatory Guise
of the Freshwater Wetlands Protection Act

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In In re Freshwater Wetlands Protection Act Rules, 852 A.2d 167 (N.J. 2004), the Supreme Court of New Jersey affirmed the decision of the superior court, which had upheld regulations promulgated by the New Jersey Department of Environmental Protection (DEP) and approved by the United States Environmental Protection Agency (EPA). A coalition of environmental organizations (coalition) brought the instant action to challenge regulations, which authorized expansion of cranberry growing operations in the Pinelands National Reserve. The court held that the mitigation requirements of General Permit 23 were consistent with the statutory language of the Freshwater Wetlands Protection Act.

Background

The Pinelands National Reserve (Pinelands) is a vast and largely undeveloped wilderness of "pine-oak forests and wild and scenic rivers." Id. at 170. It overlays the Cohansey aquifer, a seventeen-trillion gallon source of pure water. Id. Agriculture thrived in the Pinelands, especially cranberry and blueberry production. Id. Cranberry production requires access to large amounts of clean water, and must often be located in wetland areas. Id. at 171. To create the environment necessary for cranberry production, a wetland area must be cleared of all indigenous vegetation and its soil must be excavated to a depth of up to three feet. Id. Then, a layer of organic soil is lined along the bottom of the bog and covered with three feet of sand. Id.

Concern for the "loss of farming" and Pineland ecology resulted in greater government regulation, including passage of the New Jersey Pinelands Protection Act, which aimed "to protect, preserve, continue, and expand agriculture and horticulture and to discourage piecemeal and scattered development within the Pinelands." Id. at 170. Additionally, the DEP and the EPA worked for three years to develop General Permit (GP) 23, which was adopted on September 13, 1999. Id. at 173. GP 23 authorized the limited expansion of existing cranberry bogs located in the Pinelands; however, "cranberry farmers [were] required to expand in the lowest value wetland available," and farmers "expanding into higher value wetlands [were required to] contribute Pineland Development Credits at a fixed ratio based on the value of the wetland lost or disturbed." Id.

Arguments

The Coalition questioned the validity of GP 23, claiming that it violated the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30. Id. at 169. Specifically, it argued that the FWPA mandated "compulsory mitigation for all 'adverse environmental impacts' attributable to activities requiring a general permit or an individual permit," and that "neither one-to-one mitigation for all AWC impacts, nor the GP23 'no net loss' provision, provide[d] sufficient mitigation under the statute." Id. at 176.

The DEP argued that the FWPA only "limit[ed] the scope of regulated activities in the Pinelands Area to discharges of dredged or fill material into freshwater wetlands, and [did] not allow DEP to require freshwater wetland transition areas." Id. Additionally, the DEP maintained that it could adopt General Permits without requiring mitigation, "except as necessary to ensure that a General Permit will not cause more than minimal impacts on a cumulative or individual basis." Id.

Analysis and Holdings

The FWPA states in pertinent part:

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.
N.J.S.A. 13:9B-6b.

Although the FWPA allowed the DEP to issue both general and individual dredge and fill permits, the court observed that the FWPA barred "DEP enforcement of FWPA transition area requirements in the Pinelands and left to the Pinelands Commission that regulatory responsibility." Id.

To begin its analysis of GP 23, the court granted it a "presumption of validity" and stated that Coalition carried a heavy burden to show that the regulatory requirements of GP 23 were arbitrary, capricious, or unreasonable. Id. Focusing its attention on the crux of dispute, the court stated, "the issue is joined over the mitigation requirements, if any, for disturbances to, as opposed to loss of wetlands caused by activities permitted under [GP 23]." Id. On this issue, the court held that the pertinent language of the FWPA was permissive and stated that the "DEP 'may require creation or restoration' of wetlands of equal value . . . only when wetlands have been 'lost' through a permitted activity." Id. at 177. In finding that the mitigation provisions of GP 23 were consistent with the FWPA, the court stated that although the "DEP ha[d] the power to control activities in New Jersey wetlands that are not covered under federal law," such did "not, however, lead to a conclusion that more stringent mitigation requirements than those found in [GP 23] [were] mandated when the express language of the statute state[d] otherwise." Id. at 178. The EPA's approval of GP 23 and the legislative history of the FWPA supported the court's conclusion. See id. at 177-78. Therefore, the instant court affirmed the appellate court's decision.

The case was decided on July 20, 2004.