In re Freshwater Wetlands Protection Act Rules

Cranberries, a wetland-crop species, were grown in the New Jersey’s Pinelands National Reserve (the Pinelands) since the 1800s and were a designated use of Pinelands water under New Jersey law. The Clean Water Act (CWA) required New Jersey to maintain and preserve existing water-quality standards in the state’s statutory surface-water-quality standards (SWQS) (the antidegradation policy). However, New Jersey’s SWQS exempted blueberry- and cranberry-growing operations from water-control standards. The CWA also authorized states to establish permitting programs for dredged or filled material discharged into wetlands if the state requirements were as strict as CWA requirements. The Freshwater Wetlands Protection Act (FWPA), New Jersey’s statutory adaptation of CWA standards, authorized the expansion of existing cranberry operations under a general permit for activities with minimal individual or cumulative environmental impacts. Pursuant to the FWPA, the New Jersey Department of Environmental Protection (DEP) (defendant) approved General Permit 23 (GP23), authorizing the expansion of existing cranberry-growing operations in the Pinelands. A coalition of environmental groups (the environmental groups) (plaintiff) challenged GP23, arguing that the FWPA required wetland creation or restoration on a one-to-one basis for all wetland disturbances under a general permit. Additionally, the environmental groups alleged that GP23 had violated New Jersey’s SWQS because the permit had been adopted without consideration of the antidegradation policy and the SWQS’s cranberry-operations water-control exemption applied to only water quantity, not water quality. The appellate court upheld GP23, and the environmental groups appealed.