WALTER DZIOBEK v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1107-04T21107-04T2

WALTER DZIOBEK,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent-Respondent.

_______________________________________________________________

 

Argued October 3, 2005 - Decided

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from a Final Decision of the Department of Environmental Protection, ESA-9880-02.

Allen Hantman argued the cause for appellant (Morris & Hantman, attorneys; Mr. Hantman, on the brief).

Penny S. Ludman, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Michael J. Hass, Assistant Attorney General, of counsel; Ms. Ludman, on the brief).

PER CURIAM

Appellant, Walter Dziobek, appeals from a final decision of Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection (DEP), denying appellant's application for a General Permit 6 (GP6). Appellant applied for a GP6 to allow filling a .16 acre portion of his property in Wayne consisting of freshwater wetlands. The proposed filled area would be used for the storage of landscaping and construction equipment. Appellant contends the Commissioner's decision should be reversed because it was not based on competent evidence. We reject appellant's contention and affirm.

The critical issue in this case is whether the proposed fill area meets the definition of "isolated wetlands." Pursuant to N.J.S.A. 13:9B-23, general statewide permits may be issued authorizing certain regulated activities within wetlands without the need for individuals to satisfy the more rigorous process required for an individual permit. A GP6 is such a statewide permit and authorizes the placement of fill in freshwater wetlands identified as "isolated," namely, those which are not part of a surface water tributary system discharging into a lake, river or stream. N.J.A.C. 7:7A-1.4; N.J.A.C. 7:7A-5.6(a).

A drainage ditch exists adjacent to appellant's property. It is undisputed that the water flowing through the ditch eventually passes through a series of watercourses and empties into the Passaic River. Therefore, if appellant's wetlands drain into the ditch they are not isolated but are part of a surface water tributary system and cannot be filled under GP6.

On January 7, 2002, the DEP denied appellant's GP6 application because its "site inspection indicate[ed] that the wetlands on site are part of a surface water tributary system. This is evidenced by the on-site wetlands being contiguous to, and connected with, a ditch on the adjacent [property]." Appellant exercised its right to request a hearing and the matter was referred to the Office of Administrative Law as a contested case. On November 14, 2003, a hearing was held before Administrative Law Judge (ALJ) Margaret M. Monaco.

The ALJ heard the testimony of expert witnesses on both sides. Raymond Tripodi, a professional engineer and professional planner with experience and expertise in wetlands delineation and the permitting process, testified on behalf of appellant. Daniel Bello, a Principal Environmental Specialist for approximately twelve years with the DEP, who was qualified as an expert in wetlands identification and delineation, testified for the DEP.

After describing the studies, tests, and inspections he performed on the site, Tripodi concluded that the affected wetlands area was a "perched" area that did not drain into the nearby ditch. He contended that rain water would accumulate in the area and not drain anywhere. Instead, it would either percolate into the ground or evaporate into the air. He conceded that the area had been disturbed from its natural state, that some foreign soils had been introduced, and that the disturbance and filling could affect the gradient of the property and the flow of surface water. He acknowledged that appellant had been issued a notice of violation by the DEP.

Bello did not enter upon the site but inspected it from the adjoining property through a chain link fence. He had a clear view of the property. He disagreed with Tripodi's description of the area as perched or cupped. He described it as fairly level and concluded, based upon his inspection of many such sites and his personal observation, that at least a portion of the site on the northwest corner flowed into the ditch. He found further support for his opinion in some of the plans submitted to DEP by appellant which showed the existence of a swale running from appellant's property towards the ditch. He also noted the disturbance of the property from its natural state.

The ALJ found Bello's testimony more persuasive than Tripodi's. She noted that appellant bore the burden of proving by a preponderance of the credible evidence that the wetlands are isolated. She analyzed the testimony of the competing experts this way:

Turning to the evidence, the DEP presented eyewitness testimony from the DEP representative who conducted the site inspection. Bello's extensive experience in the area of freshwater wetlands, including GP6 applications, is unassailable. The undersigned further found Bello's testimony detailing his observation during the on-site inspection to be credible and persuasive. That Bello did not access the site does not undermine the strength of his testimony where, as here, the witness provided unequivocal and credible testimony that he had a "clear view" of the site and the ditch from his vantage point.

The DEP's evidence reveals that Bello's inspection disclosed that at least the northwest corner of the site designated as wetlands in petitioner's application sloped and flowed into the adjacent ditch. Based upon his experience and inspection, Bello expressed the opinion that the wetlands were connected to the ditch. The witness further described evidence in petitioner's application supporting his conclusion that the general flow in the area is in a direction toward the off-site ditch. The DEP representative disagreed with Tripodi's description of depressions on the site and characterized the property as "fairly level" with the northwest property corner sloping into the ditch.

Succinctly stated, the opinions of the DEP's witness, whose experience in matters of this nature is beyond reproach, cannot be disregarded. As the agency charged with the implementation and enforcement of the Act, the DEP's interpretation of the Act's provisions is entitled to deference. See Bd. of Educ. of the Twp. of Neptune v. Neptune Twp. Educ. Assoc., 144 N.J. 16, 31 (1996). Beyond this, in this proceeding the petitioner, not the DEP, bears the burden of proving that the wetlands in issue meet the necessary criteria for a GP6.

Although the undersigned has no reason to doubt Tripodi's credibility, the strength of his opinions did not, in the undersigned's view, outweigh or discredit Bello's testimony. At the hearing, Tripodi pointed to no survey, tests, photographs or other data which supported his conclusion regarding the alleged perched area and from which an inference can be drawn that, even if such area existed, water at no time reaches the adjacent ditch. Elevations taken by him or others to verify the slope and drainage characteristics of the site were not introduced to substantiate Tripodi's testimony. And, Tripodi did not explain, nor is it evident to the undersigned, whether any of the maps or information submitted with petitioner's application supported his opinions regarding these matters. [footnote omitted] The witness further conceded that the DEP had issued a [notice of violation] to the petitioner, the property was in a disturbed state at the time of his investigation and fill placed on a property can alter the gradient and affect the flow. The record is further bereft of evidence concerning the impact that the disturbances may have had on the hydrological flow of the site. For his part, Tripodi was unable to state whether, in the past, water from the wetlands drained into the ditch.

Although Bello did not observe water flowing from the site to the ditch during his investigations, this does not, without more, lead to the conclusion that the wetlands are isolated. In Middletown Township Bd. of Educ. v. Dep't of Environmental Protection, 94 N.J.A.R.2d (EPE) 147, the ALJ concluded that a site was not an isolated wetland even though there was no proof, one way or the other, that surface water, which drained from the site into a catch basin connected to an underground stormwater drainage system that eventually emptied into a tributary of the Navesink River, actually reached the tributary. The ALJ reasoned that "the definition of 'isolated wetlands' says nothing about flow or levels of flow." Id. at 148. Rather, "[i]t presumes that wetlands connected to a surface water feature by piping contribute to the hydrological balance of the system." Ibid. See N.J.S.A. 13:9B-2. Thus, where the physical connection is undisputed, it is up to the petitioner to assert on the basis of data or developed expert opinion that the piping does not create a flow between the site and the tributary. Ibid.

Based upon this analysis, the ALJ concluded:

Here, that the wetlands area designated in petitioner's application is physically contiguous to the ditch is beyond dispute. The DEP's evidence further supports that at least a portion of the area slopes and flows into the ditch. It further discloses the highly disturbed nature of the property, which may have altered the gradient and affected the flow of the site. Judged in its entirety, petitioner's evidence falls short of demonstrating that no water from the wetlands flows into the adjacent ditch even if perching on the site exists as alleged.

She therefore held:

Based upon the foregoing, I CONCLUDE that petitioner has failed to satisfy his burden of proving, by a preponderance of the credible evidence, that the subject site consists of isolated wetlands which are not part of a surface water tributary system for which a GP6 should issue. At best, the proofs regarding whether the wetlands are connected to the ditch are in equipoise and, thus, insufficient to satisfy petitioner's burden. Accordingly, I CONCLUDE that the DEP's denial of petitioner's application for a GP6 was appropriate.

On September 17, 2004, Commissioner Campbell adopted the ALJ's Initial Decision, concluding it was reasonable and properly based upon the record. This appeal followed.

The scope of our review of agency decisions is narrowly circumscribed. Agency decisions carry with them the presumption of reasonableness. Van Dalen v. Washington Twp., 120 N.J. 234, 244-45 (1990). We will not vacate an agency's determination simply because of doubts as to its wisdom or because we might have come to a different conclusion if we were to make the original determination. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001) (quoting In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985))). We will not upset the final determination of an agency unless it is shown that it was arbitrary, capricious or unreasonable, that it violated legislative policies expressed or implied in the act governing the agency, or that the findings on which the decision is based are not fairly supported by the evidence. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963) (citations omitted).

We have carefully reviewed the record and we are satisfied that the Commissioner's decision is supported by competent and credible evidence in the record. We reject appellant's contention that because Bello's testimony was based primarily upon his visual inspection from the adjoining property and was not supported by engineering surveys, elevations, and the like, his testimony did not constitute "competent" evidence. Such issues relate to the weight to be attributed to the evidence, not its admissibility. The credibility determination was best made by the ALJ, as adopted by the Commissioner. A reviewing court is limited to determining whether such factual findings could reasonably have been reached on sufficient credible evidence present in the record as a whole, and the court will give due regard to the ability of the factfinder to judge credibility, and where an agency's expertise is a factor, to that expertise. In re Taylor, 158 N.J. 644, 656 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We have no occasion to interfere with the credibility findings made here, which are dispositive of the ultimate issue in the case.

Affirmed.

 

The denial was also based upon a second reason, that appellant's entire site was within the floodplain of the Passaic River as designated on the Federal Emergency Management Agency (FEMA) map, and was therefore designated a priority wetlands by the United States Environmental Protection Agency. However, in its appellate brief, the DEP has informed us that it has abandoned this basis for denial. It stated:

Based upon the DEP witness's inability to identify the location of the subject wetlands on the FEMA map and the limitations imposed by the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corp of Engineers, 531 U.S. 159 (2001), the DEP did not pursue this additional ground under which a GP 6 cannot be issued.

(continued)

(continued)

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A-1107-04T2

October 17, 2005