## Facts

- Cranberries, a wetland-crop species, have been grown in New Jersey’s Pinelands National Reserve (the Pinelands) since the 1800s, and cranberry cultivation was a designated use of Pinelands waters under New Jersey law.
- The federal Clean Water Act (CWA) requires states to maintain and preserve existing water-quality standards through an antidegradation policy.
- New Jersey’s Surface Water Quality Standards (SWQS) included an exemption for blueberry- and cranberry-growing operations from certain water-control standards.
- The CWA also allows a state to run a permitting program for discharges of dredged or fill material into wetlands if the state program is at least as strict as the federal program.
- New Jersey enacted the Freshwater Wetlands Protection Act (FWPA) as its state wetland-permitting program and authorized issuance of general permits for categories of activities expected to have minimal individual or cumulative adverse environmental effects, including certain expansions of existing cranberry operations.
- The New Jersey Department of Environmental Protection (DEP) approved General Permit 23 (GP23), which authorized expansion of existing cranberry-growing operations in the Pinelands.
- A coalition of environmental groups challenged GP23, arguing (1) the FWPA required wetland creation or restoration on a one-to-one basis for all wetland disturbances authorized under a general permit, and (2) GP23 violated the SWQS and the antidegradation policy because it was adopted without proper consideration of water-quality impacts and because the SWQS exemption for cranberry operations applied only to water quantity, not water quality.
- The Appellate Division upheld GP23, and the environmental groups appealed to the New Jersey Supreme Court.

## Issues

1. Whether the FWPA requires one-to-one wetland creation or restoration for every wetland disturbance authorized under a general permit, such that DEP lacked authority to approve GP23 without that requirement.
2. Whether GP23 violated New Jersey’s SWQS and the CWA antidegradation policy because DEP allegedly failed to evaluate water-quality impacts and because the SWQS exemption for cranberry operations allegedly did not extend to water quality.

## Decision

- The New Jersey Supreme Court affirmed the Appellate Division’s judgment upholding GP23.
- The Court rejected the argument that the FWPA imposes a categorical one-to-one wetland creation or restoration requirement for all general-permit authorizations.
- The Court concluded that the environmental groups had not shown that GP23 conflicted with the SWQS or that DEP was required to treat the cranberry-operations exemption as limited to water quantity in the manner the challengers asserted.

## Legal Principles

- An agency action taken under an environmental permitting statute is presumed valid; the challenger bears the burden to show the permit is inconsistent with the governing statute or implementing standards.
- Under the FWPA, DEP may issue general permits for defined categories of activities that, as regulated by permit conditions, are expected to have minimal individual and cumulative adverse effects.
- Courts interpret the FWPA’s mitigation and restoration provisions in light of the statute’s structure; where the Legislature has not imposed a uniform mitigation ratio for general permits, DEP retains discretion to set appropriate conditions within the statute’s bounds.
- CWA antidegradation requirements operate through a state’s adopted water-quality standards; when a use (such as cranberry cultivation) is designated in those standards, compliance is evaluated against the standards as written, including applicable exemptions.
- Judicial review respects DEP’s technical determinations and policy choices made within the limits of the FWPA and duly adopted SWQS, but a court will invalidate agency action that conflicts with statutory or regulatory text.

## Conclusion

In re Freshwater Wetlands Protection Act Rules upheld DEP’s GP23 allowing limited expansion of existing Pinelands cranberry operations, concluding that the FWPA did not impose a blanket one-to-one wetland restoration mandate for general permits and that the challengers did not establish a violation of the SWQS or antidegradation requirements on the theories asserted.


In re Freshwater Wetlands Protection Act Rules, 852 A.2d 167 (2004)