In a second go around in the Appellate Division for the same case, the Court vacated a Freshwater Wetlands General Permit #1 issued by the New Jersey Department of Environmental Protection (“NJDEP”) to the New Jersey Department of Transportation (“NJDOT”), which allowed for the rehabilitation and reconstruction of a Confined Disposal Facility (“CDF”) to be used for storing dredged materials from multiple waterways. In the Matter of Reauthorization of The Freshwater Wetlands General Permit #1 and Permit Modifications, A-2758-21 (App. Div. June 7, 2024). The Court found that NJDEP’s decision to issue the GP1 was legally erroneous and arbitrary under the plain meaning of the Freshwater Wetlands Protection Act (“FWPA”) Rules, N.J.A.C. 7:7A-1.1 et seq.

The CDF in this case was originally authorized by NJDEP in 1983 in connection with the storage of dredged spoils from Westecunk Creek. In 2018, NJDEP issued a General Permit #1 authorization under the FWPA Rules (“GP1”) to NJDOT permitting the rehabilitation and reconstruction of the CDF, along with additional permits authorizing the dredging of three waterways, Westecunk Creek, Parkers Run, and Cedar Run.

Residents living across from the CDF and environmental groups challenged the GP1 and argued that NJDOT should have been required to obtain an individual permit, which would impose more demanding standards and requirements than a general permit. In 2021, the Appellate Division remanded the matter to NJDEP for reconsideration. In 2022, NJDEP reauthorized the GP1, and appellants again challenged the decision. In vacating the GP1 authorization, the Court looked to the language of the FWPA Rules and the specific requirements for a GP1.

A GP1 allows for, amongst other things, the repair or replacement of a previously authorized serviceable structure that lawfully existed before July 1, 1988 in freshwater wetlands. Eligibility for a GP1 requires the following: “(1) [t]he previously authorized structure . . . has not been and will not be put to any use other than as specified in any permit authorizing its original construction”; and “(2) [t]he activities do not expand, widen, or deepen the previously authorized feature, and do not deviate from any plans of the original activity,” except for certain “minor deviations.” N.J.A.C. 7:7A-7.1(a).

The Court found that the GP1 in this case did not meet the requirements for a GP1. First, the original 1983 permits only authorized the CDF to store dredged spoils from Westecunk Creek, however, the GP1 allowed the CDF to store materials from three waterways. Therefore, the GP1 violated the requirement of N.J.A.C. 7:7A-7.1(a)(1), which prohibits “any use other than” what was originally authorized. Second, the Court concluded that the GP1 improperly “expanded” the CDF in violation of N.J.A.C. 7:7A-7.1(a)(2). In addition to authorizing the storage of materials from three waterways, the volume of projected dredge spoils to be stored was nearly five times that of what was deposited in 1983. The Court also found that these “deviations” were not “minor.” The Court’s decision to vacate was made without prejudice to an application for an individual permit.