The proposed groundwater discharge sewer system has the potential to permanently alter the site’s hydrology. It could impact the river’s water quality and degrade fish habitat, alter the volume of groundwater going to the river’s base flow, and raise the temperature of groundwater flowing into the river. The Musconetcong is a Category One anti-degradation river, and a favorite fishing and recreation area.
On August 3, 2023, the New Jersey Superior Court Appellate Division issued a published opinion which granted the Musconetcong Watershed Association (MWA) leave to appeal a Flood Hazard Area Control Act applicability determination (FHA Determination) which was originally issued by the New Jersey Department of Environmental Protection (DEP) to Hampton Farm, LLC, on February 23, 2017. Eastern Environmental Law Center (EELC) represents the MWA in this appeal.
On March 28, 2017, the MWA requested the DEP to conduct an adjudicatory hearing so it could challenge the FHA Determination, shortly after the FHA Determination was issued. Four years later, on April 6, 2021, the DEP denied that request. MWA timely appealed from the April 6, 2021 decision. It also sought leave to appeal from the February 23, 2017 FHA Determination, contending it had become final when the DEP denied the MWA’s request for a hearing. On an interlocutory motion, a two-judge panel of the court denied leave. The court ultimately reconsidered, reversed that interlocutory ruling, and granted leave to appeal.The court held that the DEP’s FHA Determination became a final agency decision subject to appeal when the DEP denied the MWA’s request for an adjudicatory hearing to challenge the FHA Determination. At that time, and not before, all administrative remedies were exhausted.
The Court gave the DEP two options concerning its FHA Determination. It can either (1) elect to address MW Association’s challenges to its February 23, 2017 FHA Determination and a new briefing schedule will be issued; or (2) request a remand so it can expand and update the factual findings supporting its FHA Determination. The DEP has until September 1, 2023 to notify the Court which option it has chosen.
The precedential value of this decision is that any third party objector now has the chance to submit an administrative hearing request to the DEP before having to file an appeal with the NJ Superior Court Appellate Division. The DEP will have to decide whether to grant or deny a third party hearing request before the 45 day clock begins to tick for that third party to file an appeal with the court. This is a big sea change in administrative law in NJ. I foresee that practitioners of administrative environmental law will be following this procedure as a matter of routine going forward when third parties want to challenge a permit decision by the DEP. It is a great improvement over the foggy quagmire we had previously been in, where we didn’t know whether to file a hearing request, appeal, or both at the same time.