Appendices — Fernandes v. Rockaway Township Town Council

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-5433 & 95-5646

NELSON FERNANDES,

Appellant

v.

ROCKAWAY TOWNSHIP, TOWN COUNCIL, AND

TOWNSHIP ENGINEER; R.V.R.S.A (ROCKAWAY VALLEY

REGIONAL SEWERAGE AUTHORITY);

E.P.A. (ENVIRONMENTAL PROTECTION AGENCY);

DORSEY & BELL; JOHN H. DORSEY; JOSEPH BELL

Respondents.

(D.C. Civ. No. 94-cv-00338)

SUR PETITION FOR REHEARING

Present: SLOVITER,

BECKER, STAPLETON, MANSMANN, GREENBERG,

SCIRICA, COWEN, NYGAARD, ALITO, ROTH,

LEWIS, McKEE and SAROKIN, Circuit Judges.

The petition for rehearing filed by appellant in the

above-entitled case having been submitted to the judges who

participated in the decision of this Court and to all the other

available circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having asked for

rehearing, and a majority of the circuit judges of the circuit in

regular service not having voted for rehearing, the petition for

rehearing by the panel and the Court in banc, is denied.

BY THE COURT,

Circuit Judge

Dated: May 13, 1996

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-5433 & 95-5646

NELSON FERNANDES,

Appellant

v.

ROCKAWAY TOWNSHIP, TOWN COUNCIL, AND

TOWNSHIP ENGINEER; R.V.R.S.A (ROCKAWAY VALLEY

REGIONAL SEWERAGE AUTHORITY);

E.P.A. (ENVIRONMENTAL PROTECTION AGENCY);

DORSEY & BELL; JOHN H. DORSEY; JOSEPH BELL

Appeal from the United States District Court

for the District of New Jersey

D.C. Civil Action No. 94-cv-00338

(Honorable William H. Walls)

Submitted Pursuant to Third Circuit LAR 34. 1(a)

March 15, 1996

Before: STAPLETON, SCIRICA and COWEN, Circuit Judges

JUDGMENT ORDER

After consideration of all contentions raised by appellant, it is

ADJUDGED AND ORDERED that the district court's order

entered May 15, 1995, letter-order entered June 20, 1995, and

letter-order entered August 28, 1995, be and are hereby

AFFIRMED.

Costs taxed against appellant.

BY THE COURT,

Circuit Judge

if

Attest:

DP. Douglas Sisk, Clerk, March 26, 1996

2 a os. a ee ee _—

APPENDIX C

Filed: August 24, 1995

Re: Nelson Fernandes v. Rockaway Town Council and

Township Engineer, et al. Civil Action No. 94-338 (WHW)

Dear Counsel:

This matter is before the Court on Defendant Environmental

Protection Agency's motion for clarification.

INTRODUCTION

On August 6, 1985, Rockaway Township held a public sale

of real property by auction. Rockaway Township sold all

property "as is" without any representations “as to the condition,

area, or boundaries." Lot 8 was one of the land parcels on which

the public bid. A portion of lot 8 was covered by

environmentally sensitive freshwater wetlands.

On September 21, 1985, Plaintiff Fernandes won ownership

of lot 8 by bidding $10,000.00. Fernandes had a title search

done at the time of purchase. On November 15, 1985, Fernandes

took title to lot 8 by deed recorded with the Morris County Clerk.

Planning to build a single family dwelling, Fernandes hoped to

connect the home to an adjacent municipal sanitary sewer line.

However, his application for the connection was rejected because

of a grant condition imposed by the federal government.

In 1983, the federal government gave Rockaway Township

a grant so that the Township could build a sanitary sewer system.

According to Grant Agreement No. C340389-04-02, lots within

an environmentally sensitive area ("ESA") cannot be

connected to federally funded sewers. The purpose of the

condition is to protect the surrounding wetlands. Fernandes’

request for a waiver from EPA's ban to connect to the sewerage

system was denied.

In January 1994, Fernandes filed a Complaint naming the

following defendants: the Environmental Protection Agency

("EPA"), the EPA Regional Administrator ("Regional

Administrator"), Rockaway Township, Rockaway Town Council,

Rockaway Township Engineer, Rockaway Valley Regional

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Sewerage Authority ("RVRSA"), Dorsey & Bell Law Office,

John Dorsey and Joseph Bell. All of the above-named defendants

moved to dismiss plaintiff's Complaint. Fernandes cross-moved

for a partial summary judgment. The EPA and the EPA Regional

Administrator then moved for a partial summary judgment.

In its May 11, 1995 Order, this Court (1). dismissed with

prejudice all of plaintiff's claims against defendants Rockaway

Township Town Council and Township Engineer, Dorsey and

Bell, John Dorsey and Joseph Bell, and Rockaway Valley

Regional Sewerage Authority and its Executive Director, (2)

dismissed without prejudice all of plaintiff's claims against United

States Environmental Protection Agency and_ Regional

Administrator of Region II and (3) denied plaintiff's motion for

partial summary judgment. EPA's motion for partial summary

judgement was not decided. EPA presently moves for

clarification as to the status of its motion for partial summary

judgment. The motion for clarification is granted and this Court

will now proceed with its determination of the partial summary

judgment motion.

DISCUSSION

The EPA requests a finding that its denial of Fernandes |

grant waiver was not arbitrary and capricious. A reviewing court

must set aside agency action deemed " to be arbitrary, capricious,

and abuse of discretion, or otherwise not in accordance with

law." 5 U.S.C. sec. 706(2) (A). The court must "consider

whether the decision was based on a consideration of the relevant

factors and whether there has been a clear error of judgment.”

Stoeco Dey. . Lid. V. Department of Army Corps of Eng'rs, 701

F.Supp 1075, 1080 (D.N.J. 1988), appeal dismissed, 879 F.2d

860 (1989) (quoting Citizens to Preserve Overton Park V. Volpe,

401 U.S. 402, 415-16 (1971)). However, the court is "not

empowered to substitute its judgment for that of the agency." Td.

The standard of. review is "highly deferential"; agency findings

are “entitled to a presumption of regularity." Id.

Before granting a waiver application, the EPA must be

assured that the proposed activities do not violate the Clean Water

Act ("CWA"), 33 U.S.C. §§ 1251-1387. Congress enacted the

CWA in order to "restore and maintain the chemical, physical,

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and biological integrity of the Nation's waters." 33 U.S.C. sec.

1251 (a). Thereafter, the discharge of dredged or fill materials

from a point source into wetlands without a section 404 permit

issued by the U.S. Army Corps of Engineers became prohibited.

See 33 U.S.C. §§ 1311 (a), 1344.

Before granting a waiver application, the following factors

are to be considered: (1) area extent of vacant parcel(s) which

contain ESAs (i.e., floodplains and/or wetlands); (2) extent and

ecological quality of ESAs affected; and (3) amount of existing

development surrounding the parcel(s). See Exhibits to

Declaration of Robert W. Hargrove, Exh. D. To obtain the

necessary information, an inspection of the property was

conducted in March 1989 at the request of the EPA. Id. at Exhs.

N, 0. The inspection revealed extensive wetlands, several small

streams running from the property into White Meadow Lake, and

significant development of surrounding lots. Id. Based on the

above data, the EPA denied Fernandes' waiver application. The

EPA has offered to reevaluate Fernandes’ application provided

that a more recent site inspection is performed and information

demonstrating that any sewer system connections will not

jeopardize the wetlands is provided.. Id. at Exhs. Q, R.

Based on the above, this court finds that the EPA

considered the relevant factors and made no "clear error" when

reaching its decision. The site inspection conducted in 1989 did

not reveal a significant decrease in wetlands warranting

reclassification. The property continues to be predominantly

wetlands and therefore continues to be protected under the Clean

Water Act. The EPA's decision to protect the wetlands is

rationally based on the available information. No contravening

evidence is offered by the plaintiff.

Accordingly,

IT IS on this 24 th. day of August 1995 ;

ORDERED that the EPA's motion for clarification is

granted; and it is further

ORDERED that EPA's motion for partial summary

judgment is granted.

WILLIAM H. WALLS, U-:S.D.J.

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APPENDIX D

Dear Counsel: Filed: June 19, 1995

This matter is before the Court on plaintiff's motion for

reargument.

INTRODUCTION

On August 6, 1985, Rockaway Township held a public sale of

real property by auction. The terms of the public auction were

that the property was sold "as is" and that "no representations of

any kind are made by the Township of Rockaway as to the

condition, area, or boundaries of the property herein relevant. "

Lot 8 was one of the land parcels on which the public bid. A

portion of lot 8 was covered by environmentally- sensitive

freshwater wetlands. On September 21, 1985; plaintiff won

ownership of lot 8 by bidding $10,000.00. plaintiff had a title

search done at the time of purchase. On November 15, 1985,

plaintiff took title to lot 8 by deed recorded with the Morris

County Clerk. Plaintiff later purchased lot 9 which is adjacent to

lot 8. He planned to subdivide the two lots and build a single

family dwelling. plaintiff hoped to connect the single family

home to the municipal sanitary sewer line that ran adjacent to his

lots. However, his application was rejected because of a grant

condition imposed by the federal government. In 1983, the

federal government gave Rockaway Township a grant so that the

Township could build a sanitary sewer system. According to

Grant Agreement No. C340389-04-02, lots within an

environmentally sensitive area could not be connected to

federally funded sewers. The purpose of the condition is to

protect the surrounding wetlands. plaintiff's lots are two of

approximately 140 lost in the Township which were impacted by

the EPA grant condition. plaintiff attempted to obtain a waiver

from EPA's ban, but defendant Rockaway Valley Regional

sewage Authority received a letter on May 5. 1989 from the

EPA's Acting Regional Administrator denying the request.

All of the defendants moved to dismiss plaintiff's various

claims against them. plaintiff cross-motioned for partial summary

judgment. EPA, in addition to its motion to dismiss, moved for

partial summary judgment against the plaintiff.

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In its May 11, 1995 Order, this Court (1) dismissed with

prejudice all of plaintiff's claims against defendants Rockaway

Township Town Council and Township Engineer, Dorsey and

Bell, John Dorsey and Joseph Bell, and Rockaway Valley

Regional Sewerage Authority and its Executive Director, (2)

dismissed without prejudice all of plaintiff's claims against United

States Environmental Protection Agency and _ Regional

Administrator of Region II and (3) denied plaintiff's motion for

partial summary judgement. EPA's motion for partial summary

judgement was not decided.

DISCUSSION

Under Rule 12(I) of the United States District Court Rules, the

party moving for reargument must state "concisely the matters or

controlling decisions which [said party believes the Judge or

Magistrate has overlooked." Id. If the motion is granted, "the

matter shall be reargued orally.” Id.

The primary determination in a motion for reargument is

whether "dispositive factual matters or controlling decisions of

law" were overlooked by the Court. Pelham v. United States, 661

F.Supp. 1063, 1065 (D.N.J. 1987) . A motion for a reargument

is not an opportunity for a party to present new arguments.

Florham Park Chevron, Inc. v. Chevron U.S.A. Inc., 680 F.

Supp. 159, 162 (D.N.J. 1988). Where the Court has not

overlooked facts and cases properly presented at the time of the

motion, the Third Circuit has consistently denied relief. See

Egloff v. New Jersey Air National Guard, 684 F.Supp. 1275

(D.N.J. 1988) . A party's disagreement with the Court's decision

"should be dealt with in the normal appellate process, not on a

motion for reargument." Florham Park Chevron, 680 F. Supp. at

163

Simply stated, plaintiff sets forth no matter or controlling

decision which was overlooked by this Court. Therefore,

plaintiff's motion for reconsideration is denied.

CONCLUSION

For the reasons set forth in this Letter Opinion, it is on this

19 th. day of June 1995

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ORDERED that Plaintiff's motion for reargument be and

hereby is denied.

WILLIAM H. WALLS, U.S.D.J.

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APPENDIX E

BOYAR,,HIGGINS & SUOZZO, P.A. (JH 8207)

A Professional Corporation

10 Park Place, Suitte. 415

Morristown, New Jersey 07960

(201) 538-8008

Attorneys for Defendants, Rockaway Township

Town Council and Township Engineer

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NELSON FERNANDES, Civil Action # 94-338(WHW)

Plaintiff,

ROCKAWAY TOWNSHIP TOWN

COUNCIL AND TOWNSHIP

ENGINEER, et al

Defendants .

x

ORDER DISMISSING AMENDED COMPLAINT

AS TO ALL DEFENDANTS

THIS MATTER having been opened to the Court on March

27, 1995, honorable William H. Walls, U.S.D.J. presiding, upon

defendants’ motions brought pursuant to Fed.R.Civ.P.12(b)(1),

Fed..R.Civ.P.12(b) (6) and Fed.R.Civ.P.56 to dismiss the

Amended Complaint, by defendants, Rockaway Township Town

Council and Township Engineer by Boyar, Higgins & Suozzo,

P.A. (James J.Higgins, Esq. appearing); by defendants, United

States Environmental Protection Agency and_ Regional

Administrator of Region II, by the United States Department of

Justice (Mark A. Rigau, Esq. appearing); by defendants, Dorsey

& Bell, John Dorsey and Joseph Bell by Dorsey & Fisher

(Douglas R. Cabana, Esq. appearing); and by defendants,

Rockaway Valley Regional Sewerage Authority and Executive

38

Director, by McManimon & Scotland (Joseph Maraziti, Esq.

appearing); and on cross-motion of plaintiff, Nelson Fernandes

for partial summary judgment (Nelson Fernandes, pro se

appearing), and the Court having considered the papers filed by

the moving parties and those submitted in opposition, having

heard oral argument on March 27, 1995 and for good cause

shown, all as set forth on the record, 1995:

IT IS on this 11 th. day of May, 1995:

ORDERED, that the motion of all defendants be and the

same are hereby granted; and it further

ORDERED, that the Amended Complaint be and the same

is hereby dismissed with prejudice as to defendants, Rockaway

Township Town Council and Township Engineer; Dorsey & Bell,

John Dorsey and Joseph Bell; and Rockaway Valley Regional

Sewerage Authority and its Executive Director, with no costs;

and it is further

ORDERED, that the Amended Complaint be and the same is

hereby dismissed without prejudice, as to defendant, United

States Environmental Protection Agency and _ Regional

Administrator of Region II; and it is further

ORDERED, that plaintiff's motion for partial summary

judgment be and the same is hereby denied; and it is further

ORDERED, that counsel for defendants, Rockaway

Township Town Council and Township Engineer, shall serve a

copy of this Order upon plaintiff pro se and all counsel appearing

within 10 days of it having been entered.

WILLIAM H. WALLS, U.S.D.J.

APPENDIX F

Rockaway Township

John Wojtaszek, Mayor 65 Mount Hope Road

Rockaway, New Jersey 07866-1698

(201) 627-7200

September 10th. 1986

Mr. Nelson Fernandes

26 Watts Avenue

Denville, New Jersey 07834

Re: Block #20504 Lot 9 -- 17 CAYUGA AVE., ROCKAWAY

Dear Mr. Fernandes:

This letter is to confirm 1110 that on July y 21 st., 1986 this

office received a check from you in the amount of $ 13,095.73

covering outstanding taxes against the above captioned property.

A breakdown of same is listed below for your perusal:

TAXES 1974/AUG. QT. 1986 $8,620.78

INTEREST 4,474.95 13,095.73

Also, on said date, this office received a check from you in the

amount of $ 1,762.26 covering outstanding Sewer Assessment

charges together with accrued interest.

Please be further advised, as requested, this office has given

Certification of Taxes paid to Mrs. P. Tabbot.

Tax Sale Certificate will be sent to you shortly.

Sincerely

FRANCES R. ANTONICH

TAX COLLECTOR

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APPENDIX G

§ 54-100 LAND USE AND DEVELOPMENT § 54-100

L. Wetlands. The connection of any structure, to the Rockaway

Valley Regional Sewer Authority sewer system, on lands

classified as wetlands is prohibited unless a waiver is granted by

said Authority. For the purpose of administering this provision

wetlands are delineated on a set of municipal tax maps available

for inspection at the office of the Township Engineer. Any lands

designated as wetlands may be counted as part of a tract acreage

for the purpose of computing the maximum density permitted in

the zone in which it is located

I HEREBY CERTIFY the above to be a true copy

of an Excerpt from the Land Use Ordinance Book which was

adopted by the Township Council of the Township of Rockaway

at a duly convened Meeting held on December 27, 1984

Almira Salveson, CMC

Township Clerk

4]

APPENDIX H

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NELSON FERNANDES, Hon. H. Lee Sarokin

Plaintiff, Civil Action No. 94-338

Vv.

ROCKAWAY TOWNSHIP

TOWN COUNCIL,

et al,

Defendants.

EPA'S STATEMENT OF FACTS NOT IN DISPUTE

Pursuant to local rule 12 G, EPA submits the following

statement of facts that are not in dispute:

1. EPA provided sewer grant funding to RVRSA under

Title II of the Clean Water Act, 33 U.S.C. §§ 1281-1299.

2. Special Condition Number 4 to the Grant Agreement

between EPA and RVRSA prohibits new construction located

in environmentally sensitive areas (including wetlands) from

connecting to the federally funded sewer system, unless this

restriction is waived by the Regional Administrator for EPA

Region II.

3. Lot 20504, Block 8 Rockaway Township, is located

within an environmentally sensitive wetland area.

4. RVRSA submitted a waiver request for Lot 20504, Block

8 Rockaway Township, received by NJDEP on July 25, 1988.

5. RVRSA's waiver application contained a letter from the

U.S. Army Corps of Engineers, dated September 17, 1987, that

States in part:

In the absence of specific information detailing

whether the fill activity is located in an isolated

42

wetland or above the headwaters of the unnamed

stream located south of the property, we cannot at

this time make a project specific determination

concerning the applicability of a nationwide general

permit for the fill material discharge proposed.

6. EPA denied the waiver request for Lot 20504, Block 8

Rockaway Township by letter, dated May 5, 1989, after

“evaluat[ing] all of the information accompanying the request . .

7. EPA's administrative record of decision is attached as an

exhibit to the Declaration of Robert W. Hargrove.

FAITH S. HOCHBERG

United States Attorney

MICHAEL A. CHAGARES

Assistant U.S. Attorney

970 Broad Street, Room 502

Newark, New Jersey 07102

(201) 645-2700

LOIS J. SCHIFFER

Acting Assistant Attorney

General Environment and

Nat ral Resources Division

MARK A. RIGAU

Trial attorney

U.S. Department of Justice

Environment & Nat. Res. Div.

Environmental Defense Section

Room 7218 - Main Building

10th & Pennsylvania Ave., NW

Washington, D.C. 20530

(202) 514-3376

Attorneys for Defendants, United States Environmental Protection

Agency and Regional Administrator of Region II

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APPENDIX I

42 U.S.C. § 2000d-2: Any department or agency action taken

pursuant to section 2000d-1 of this subtitle shall be subject to

such judicial review as may otherwise be provided by law for

similar action taken by such department or agency on other

grounds. In the case of action, not otherwise subject to judicial

review, terminating or refusing to grant or to continue financial

assistance upon a finding of failure to comply with any

requirement imposed pursuant to section 2000d-1 of this title, any

person aggrieved (including any State or political subdivision

thereof and any agency of either) may obtain judicial review of

such action in accordance with chapter 7 of Title 5, and such

action shall not be deemed committed to unreviewable agency

discretion within the meaning of that chapter.

N.J.S.A. 40:48-2: "Any municipality may make, amend, repeal

and enforce such other ordinances, regulations, rules and by-laws

not contrary to the laws of this state or of the United States, as

it may deem necessary and proper for the good government,

order and protection of persons and property, and for the

preservation of the public health, safety and welfare of the

municipality and its inhabitants , and as may be necessary to

carry into effect the powers and duties conferred and imposed by

this subtitle, or by any law." (emphasis added)

44

40 CFR Ch. I, Subpart F, §35.925-13 (E) "The system would

not provide capacity for new habitations or other establishments

to be located on environmentally sensitive land such as wetlands,

floodplains or prime agricultural lands. Appropriate and effective

grant conditions (e.g., restricting sewer hook-up) should be used

where necessary to protect these resources from new

development. ."

RR EES. 5 AER Re al “y

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APPENDIX J

This Appendix lists the exhibits that were presented to the

court to show the existence of facts to support a fraud upon the

court. Since, a fraud upon the court is an issue of fact for the

jury, petitioner will not waste this Court's time with each exhibit.

However, he will present these exhibits in the joint appendix if

the Court so desires.

The following cross references to the Appellate Court

Appendix.

1. Appendix CH, p. 99 - Page from Mr. Bell's brief to Judge

Harper.

2. Appendix CI, p.100 - Page from Mr. Bell's brief to Judge

Russell.

3. Appendix CJ, p.101 - Page from transcript of hearing

before Judge Russell.

4. Appendix CM, p.105 - Certified copy of ordinance passed

by town Council before their admitted fraud that shows the

Council was fully aware of the grant condition that led to its fraud

upon the public. See App.G, p.38.

5. Appendix CE, p.93 - List of lots to be sold in 1990 that

shows one of the lots was affected by wetlands.

6. Appendix CF, p.94-96 - List of the same lots to be sold

attached to the resolution for sale in 1990. This version was

altered to conceal the wetlands in an effort to defraud the public.

7. Appendix CO, p.108 - Copy of township minutes when the

engineer admits to a Council policy to deny endorsements.

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APPENDIX K

U.S.E.P.A.

DATE: APR 23, 1979

SUBJECT: Limited access interceptor sewers as they relate

to the Construction Grant Program in New Jersey

FROM: Robert W. Hargrove, Soil Conservationist

NJ/PR Section, 2-WA-El

TO: Daniel Sullivan, Chief

EIS Preparation Branch

THRU: Stephen Y. Arella, P.E., Chief

NJ/PR Section, 2-WA-EI

Limiting access to intercepting sewers is a complicated issue

because of the broad latitude for varying legal Interpretations. If

suitable controls could be implemented, it could be of great help

to prevent induced growth in environmentally sensitive areas.

This paper will deal with an overview of the situation. Court

cases and New Jersey's State regulations and statutes will be

explored. EPA options as they pertain to this subject will be

explained. These options will be further illustrated by case studies

In several EPA regions.

5 ne ee

The question of whether or not sewage disposal is a public

service is an important consideration in determining the legality

of limiting access. One important aspect is the source of funds.

If, as in the past, the funds arise from local taxes, it is likely

to be considered a public utility and limiting access would be

difficult. However, since passage of the Clean Water Act,

most of the design and construction of wastewater treatment

facilities are financed by Federal grants. The remainder

comes from state grants and bond issues which are recovered

through user charges. Theoretically, facilities built using such

financial backing could limit sewer hook-ups.

The issue of sewage disposal as a public service was also

addressed in the courts. In Cloyes vs. Delaware Township it was

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noted "Sewage disposal is not one of the public services anciently

furnished by local governments, nor Is it uniformly so furnished

today." This was further substantiated in Pleasure Bay

Apartments vs. City of Long Branch, “Neither statutory nor case

law impose; a mandatory duty on a municipality to furnish

municipal service for disposai of yarbage or other wastes:"

These cases deal primarily with a municipality not being required

to provide such service if none was provided in the first place.

New Jersey State Law

New Jersey's Sewerage Authority law enables counties or

municipalities, either alone or in combinations, to establish a

sewerage authority. Sewerage authorities are empowered to

construct, operate and maintain facilities to collect, treat and

dispose of sewage. The law specifies that these authorities have

the power, "to enter into any and all contract, execute any and all

instruments, and do and perform any and all acts or things

necessary, convenient or desirable for the purpose of the

sewerage authority or to carry out any power expressly given in

this act."

The question of allowing hook-ups rests with both the

authority and the municipalities. The authority is free to

reasonably fix the terms and conditions of service. The key

word in this statement seems to be reasonably. A case from

Arizona is a good example of this. In Travaini vs. Maricopa

County the county concluded that the county “having installed

and maintained a sewer line past the property in question, the

city is thereafter required to allow any abutting property owner to

use said sewer subject only to reasonable limitations." The

“reasonable limitations" in this case being the capacity of the

line.

The Arizona case deals with a collection system in a populated

area, not an interceptor away from the population, and quite

possibly in a sensitive environmental area.

It should be noted that in the case of Southern-Burlington County

NAACP vs. Township of Mt. Laurel the courts have concluded

that limited access interceptors can not be used as a means of

exclusionary zoning.

New Jersey law states that sewerage authorities can be

formed. The only stipulation concerning hook-ups is the

48

abatement of pollution and related health hazards. Another

consideration stemming from EPA's cost effectiveness

guidelines is that hook-ups may be necessary for a system to

be economically feasible.

State law does give to the authority the ability to enter into

contracts. These contracts are primarily with municipalities

for sewage collection and disposal. It seems to imply that they

can also enter into contracts with EPA through grant

agreements. These contracts stand on the same footing as

contracts between natural persons or municipalities.

— Septic S Resulati

The Septic System Regulations in New Jersey also affect the

issue. The state will not authorize the building of a septic

system on a property If a sewer line is within 100 feet of it.

With the exception of the general guidelines for sewer

hook-ups, the sewerage authority determines sewer use.

EPA Authority

Protection of environmentally sensitive. areas is mandated by

Federal policy. Certain actions can be taken to promote this

policy with respect to the Construction Grants Program. The first

and easiest mechanism is. to limit the capacity of the system to

exlude development in environmentally sensitive areas. This is

an attempt to limit the number of hook-ups to the system to areas

where growth will not impact critical areas.

There will be some small projects that can not be limited with

respect to carrying capacity because of minimum sizing of unit

processes for treatment. Projects such as these might require

grant conditions. The conditions will have to be met in order to

insure receipt of a. 201 grant.

The subject of grant conditions was addressed in PRM 75-26

which dealt with mitigating secondary impacts in the Construction

Grants Process. The Regional Administrator can withold of Step

and 3 grants until effects, or agrees to conditions in the grant

document requiring actions to minimize the effects.

Some actions to mitigate these secondary effects include, but are

not limited to: phasing and orderly extension of sewer service,

project changes improved land use planning, and sewer use

creenoumi

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restrictions. It goes on to say that conditions on a grant must be

reasonable and the applicant must demonstrate "good faith" and

be moving toward mitigative action before the grant is awarded.

Actions that can be taken if the applicant refuses to abide by the

grant agreement are: withold payments, refuse to process

subsequent grant applications from the municipality, refuse to

approve grants for future phases of the projects, enter an

injunction against the grant recipient, suspend project work or

terminate the grant and recover unexpended EPA funds.

The new regulations (9/27/78) on Municipal Wastewater

Treatment Works also contain provisions for conditions on

grants. Section 35.935-16 on page 44073 states that "the

Regional Administrator shall not pay more than 80% of the

Federal-share of any Step 3 project unless he has approved the

grantee's sewer use ordinance." This means 15% or more of the

total project costs could be held if this is condition wasn't met.

However, since this process now entails just a rev w of the

ordinance for compliance with the regulations this may be of

minimal value to us at this time.

Case Study Evaluation

Case studies from EPA regions show the various techniques that

can be used to mitigate adverse impacts in the Construction

Grants Program.

In 1975 a project from Region I on Block Island, Rhode Island

could have encroached on environmentally sensitive areas. That

region first scaled down the project. Then a grant condition was

imposed to accept no new hook-ups from wetlands in accordance

with the State law.

That same Year a project from Region III in Falling Creek, VA

which involved the eutrophication of reservoirs and induced

secondary effects on Swift Creek Reservoir. Plant size was

reduced and the Step II grant was conditioned on the development

of a Swift Creek Watershed Management Plan.

In 1975 a Region VIII project in Renner, SD was leading to new

development on a floodplain. A grant condition, based on the

county floodplain ordinance, that said no new hook-ups from the

100 year floodplain. The Region also recommended that capacity

be limited to existing population plus a moderate increase.

50

In 1974 a Region IX project in Fairfield, CA included pressure to

increase industrial and low density residential land on or near

Suisun Marsh and pressure to develope agricultural land with

impacts on air quality and wildlife. The Step 3 grant was

conditioned to not provide service to new development

immediately adjacent to the marsh based on pending State

protection legislation. .

In 1976 a Region X project in North Fremont, SD was leading to

pressures to increase development in environmentally sensitive

areas. These areas included fishing and wildlife management

areas. The project was altered to have four small sub area

facilities instead of one large Regional plant with long

interceptors. The Step 2 and 3 grants were conditional on County

compliance with State law requiring development of growth

controls and a comprehensive land use plan.

Summary

Case studies show that EPA can and does use grant conditions

and project changes to limit development due to funded projects.

It should be said that if it is possible to base the grant

condition on a state or local law then do it. This will take a

lot of heat for such an action away from falling directly on

EPA. Those laws could include floodplain ordinances (Block Is.,

RI) or complying with State requirements for land controls (North

Fremont,’ SD). Such conditions could be based on Federal

law but this tends to foster the public opinion that the Federal

government is just trying to control ‘local zoning. State or

local laws that apply to such situations shou!d be added in to

direct the public rage away from EPA, when possible.

Limited access interceptors is a question that has never formally

been answered in the courts. to do so might require upwards of

3-4 years to make it through all appeals. The ‘question is not

entirely addressed in New Jersey State law either. The policy of

protecting sensitive environmental areas can be fostered by

changing the plan or imposing grant conditions. EPA has done

this in the past and an analysis of these cases show how such

problems can be handled in the future.

51

R led R . LP li O .

1) Grant Conditions with 3rd party enforcement after grant

expiration.

2) 208 plan inclusion of model local sewer use ordinance and

adoption by local municipalities.

3) Approval of Sewer Use Ordinances by EPA.

4) Constraining service. agreements between MUA's and member

municipalities.

52

APPENDIX L

U.S.E.P.A.

DATE: May 2 5 1979

SUBJECT: Grant and Permit Conditions to Restrict Sewer

Hookups in Environmentally Critical Areas

FROM: Daniel Sullivan, Chief

EIS Preparation Branch

TO: Conrad Simon, Director

Water Division

Scope of the Problem

EPA's funding of wastewater treatment works through the

Construction Grants Program has been criticized for not

adequately discouraging growth in environmentally sensitive

lands (i.e. floodplains, wetlands, and significant wildlife habitats).

In the past, the Agency's policy has been to eliminate any

Capacity in proposed systems that would serve these sensitive

lands. However, in several cases this mitigating measure has

proven to be inadequate to curb unsound growth.

ISSUE

Should EPA-Region II begin to affix special conditions to Step 2

and 3 construction grants, 208 areawide plans, and 402 permits to

prohibit development in environmentally critical areas?

Salient Factors

The September 27, 1978 Construction Grants Program Rules and

Regulations specifically encourages the use of grant conditions

restricting sewer hookups to protect environmentally sensitive

land from new development. However, because of some of the

legal complexities associated with such grant conditions, Region

II has never exercised this control. We now have several ideal

examples where such conditions are both appropriate and easily

justified.

Unfortunately, merely limiting the size of wastewater treatment

facilities does not adequately protect sensitive areas. An excellent

example of how a reduction in facilities capacity has a very

limited influence on where housing and sewer hookups can occur

is the proposed Cape May Region project. The EPA had reduced

53

the size of the proposed facilities to specifically exclude wetlands,

flood hazard areas, and significant wildlife habitat areas from

development. Yet, an application for a 250 unit residential

development (in the flood hazard area, - see attached Map 1) is

currently before the New Jersey Department of Environmental

Protection. Discussions with DEP personnel reveal that the

developer intends to rely on the proposed regional sewer system

to satisfy the wastewater treatment need of the proposed housing

project.

Maden 4

. USEPA-Region II (RA, WDD, RC)

. U.S. Fish and Wildlife Service

. New Jersey Department of Environmental Protection

. Local Municipalities

. 208 Agencies

. Natural Resources Defense Council

. American Littoral Society

. National Wildlife Federation

Political Considerati

Grant conditions of this type have been used in other regions but

have relied heavily upon State Law for their enforcement (see

Attachment 1). New Jersey State Law does not adequately protect

environmentally sensitive areas primarily because federal

regulations encompass more types of sensitive areas. However,

there are strong statements in the New Jersey Water Pollution

Control Act (NJWPCA) Regulations which mandate conformance

of future 201 grants with applicable 201, 208 and 3103 plans.

EPA has a clear mandate in law, regulation, executive orders and

EPA Policy (see Attachment 2) to protect the following critical

areas:

COND U SR WN —

1. Significant Habitats of Wildlife, including Rare and

Endangered Species Habitats Endangered Species Act and Fish

and Wildlife Coordination Act

~2. Floodplains - Executive Order 11988

3. Wetlands - Executive Order 11990

We also have some rather strict policies on protection of prime

agricultural - lands (EPA Policy Statement - September 26, 1978)

54

and less strict policies on other sensitive areas, such as steep

slope areas and unique vegetational communities

There are a number of influential national interest groups that

have been actively prodding EPA to apply such conditions.

Among these are:

1. Natural Resources Defense Council

2. American Littoral Society

3. National Wildlife Federation

In addition, the U.S. Fish and Wildlife Service has also expressed

their opinion that grant conditions of this type should be used

unique ecological nature of the Cape May Region to protect the

unique ecological nature of the Cape May Region.

Background

EPA-Region II has been reticent in applying such conditions in

the past for several reasons. Most New Jersey facility planning

grants are given to Municipal Utility Authorities (MUAs)-

established through State Law. Some questions have been raised

as to whether or not an MUA can accept a condition which

affects land use controls and, if they can, whether the condition Is

enforceable against its member municipalities. The NJSA

40:14A-23 (see Attach. 3) appears to permit the MUA to accept

such conditions. Another frequent objection to the use of the

grant conditions has been that the duration of the enforcement of

a grant condition expires at the end of the grant period.

However, since many of our grants are phased the applicability

may well be extended for a considerably longer period than the

initial grant.

Admittedly, limiting access to interceptors or collection systems

via grant conditions themselves will not guarantee better land use

planning. However, it is an essential element of a multi-pronged

approach to resolving this problem.

The NPDES Proposed Revision of Existing Regulation published

in the August 21, 1978 Federal Register requires discharge

permits to be consistent with the reflective of the Clean Water

Act and any appropriate Federal Executive Orders. It also states

Tet Shas cider adhe ahaha aia

55

that permits should include more stringent requirements where

necessary to insure consistency with areawide waste treatment

management (208) plans (AWTMP). Many existing permits are

expiring in the near future and, prior to reissuance, considerable

effort is anticipated to assure consistency with both 201 facilities

plans and 208-funded AWTMP's.

Recommendations

Based on the May 24 briefing on the Cape May regional project,

the following represents my understanding of the direction set by

Eckardt C. Beck. The activities proposed can and should be

initiated concurrently and are not necessarily contingent upon the

success of the other parts for their effectiveness.

First, where the review of 201 facility plans (including ESAs)

identifies environmentally sensitive ares requiring protection,

grant conditions should be affixed specifically constraining sewer

hookups. We anticipate that detailed maps of the facility 1

typlanning area will be used to identify sensitive areas and

existing discharges (i.e. homes and subdivisions) There are two

New Jersey 2Ols in-house that are excellent examples of the need

for such conditions: Jakes's Branch Interceptor and Stafford

Township Collection System.

The proposed Cape May Region Wastewater Treatment

Facilities Plan requires a slightly different approach. A

negative declaration was issued on January 25, 1979. The use

of a special condition restricting sewer hookups represents a

substantial change from the statements made in the negative

declaration. Once the facility plan is revised to show which

specific lots will be served by the proposed facility, we will

issue an addendum to the negative declaration specifically

detailing our intent to use grant conditions. The addendum

will allow for a 30 calendar day comment period.

Second, the 208-funded areawide waste treatment management

plans (AWTMP) for these areas should be required to reflect the

need to protect these sensitive areas. In order to accomplish this

in the Cape May Region, the 208 agency should adopt the revised

201 plan as part of the AWTMP. No Step 3 grant will be

awarded to the CMCMUA until this portion of the AWTMP is

56

approved by EPA. We intend to send a letter to the Cape May

208 agency informing them of this requirement.

Third, the Permits Branch, in coordination with Regional

Council, should develop permit conditions to reflect sewer

hookup restriction which are detailed in the special grant

condition for the Step 2 201 grants. Permits Branch should also

develop a strategy for identifying future permit violations, e.g., if

a connection occurs from an area defined to be environmentally

sensitive.

Pros and Cons

Pros: Use of grant conditions and subsequent enforcement will

clearly demonstrate EPA's intent to protect: environmentally

sensitive areas. Even if we had to rely on third party

enforcement of the conditions, it would provide a firm legal

basis for future adjudication.

It is responsive to valid concerns presented by NRDC, ALS,

NWF, and USFWS. Failure to respond to their inquires is

likely to result in litigation con at least on in-house project

(Cape May Region).

Once established, the use of grant conditions will streamline the

201 grants process. Projects are frequently delayed because of

concerns that sensitive areas have not been adequately protected

(e.g. Cape May Region).

Projects which may prove more cost effective on a regional rather

than subregional basis may no longer be channeled away from

single plant schemes solely to protect environmentally sensitive

areas.

Cons: Grant conditions of this type have never been used in

Region II before and there is a potential for litigation concerning

the legality of federal intervention in local land use planning.

These conditions may not be enforceable by EPA beyond the life

of the current grant. However, in many cases, we anticipate

future grants to the affected MUAs. Furthermore, a grant

57

condition may be enforceable after the grant expires because it is

a contract between EPA and the authority.

State acceptance of these conditions is complicated by the fact

that they define sensitive areas differently than EPA defines them.

Application of this process to other 201s, 208s and permits in the

region is a manpower intensive effort.

Strategy and Timetable,

1, Affix grant conditions to the two pending New Jersey 201

grants mentioned earlier, immediately.

2. Require the CMCMUA to revise the Cape May Region

facility plan.

3. Issue an addendum to the Cape May Region Negative

Declaration.

4. Require the 208 agency to work with the CMCMUA to

assure adoption of the revised 201 plan prior to October 1, 1979.

5. Negotiate with the State to require them to amend its

regulations to redefine environmentally sensitive areas to

agree with the federal definitions through the State/EPA

Agreement process.

6. Negotiate with the State to require them to amend its

and deny sewer

extension permits which would serve sensitive areas through

the 205(g) Delegation Agreement.

7. Require all 208 grantees to give high priority to the

identification of environmentally sensitive areas where large-scale

development is projected.

Additional Attacl

1. Basis in Regulation, Executive Order and EPA Policy

Supporting the Use of Grant Conditions to Protect

Environmentally Critical Areas.

2. April 23, 1979 memo from R. Hargrove to D. Sullivan

discussing potential use of grant conditions to limit access to

interceptors.

3. Article excerpted from New Jersey Effluents (April 1979)

entitled "Limited Access Interceptors?"

cc: Peter Devine Dave Luoma

William Muszynsk Richard Salkie

Helen Fenske Mike Ronchonsky

Pat Harvey Kevin Bricke

Charles Durfor Steve Arella

59

APPENDIX M

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Nelson Fernandes,

Hon. H. Lee Sarokin

Plaintiff,

Civil Action No. 94-338

V.

Rockaway Township Town Council

et al.

Defendants

I, Robert Hargrove, hereby declare and certify as follows:

DECLARATION OF ROBERT W. HARGROVE

1. My name is Robert Harqrove. I have personal knowledge

of the facts contained in this declaration.

2. Presently, I serve as Chief of the Environmental Impacts

Branch of the Office of Policy and Management of the Region II

office of the United States Environmental protection Agency

(EPA). As part of my duties with the EPA, I am responsible for

maintaining the records pertaining to the federal sewer grant

program for Region II.

3. In my capacity as records custodian, I had occasion to

review the official records pewtaining to a waiver request from

NJDEP, dated Febuary 9, 1989, for block 20504, lot 8 in

Rockaway Township, owned by Mr. Nelson Fernandes. An

indexed copy of the records of the waiver request request are

attached hereto as exhibits A - X.

60

4. In the course of my work with the EPA, I have been

extensively involved in EPA's National Environmental Policy Act

(NEPA) program. As a part of this program, EPA is responsible

for the analysis of potential impacts, including cumulative

impacts, of major federal actions implemented by EPA. One such

action was the awarding of a federal grant to the Rockaway

Valley Regional Sewerage Authority (RVRSA) in 1983 for the

construction of wastewater treatment facilities. A major or

concern in awarding this grant was the need to mitigate indirect

impacts such as induced development of environmentally sensitive

areas (ESA), particularly wetlands (Exhibits A, B, and C).

Protection of these areas is mandated by federal statutes,

regulations, and policies. In order to meet federal policy

mandates, a special condition was placed on the grant

reguiring the grantee to agree that for a period of 50 years no

sewer hook-ups to the federally funded facilities would be

allowed without a waiver of the condition from the Regional

Administrator (Exhibit E). As Chief of the Environmental

Impacts Branch, it is my _ responsibility to develop

recommendations for consideration by the Regional Administrator

on the disposition of these waiver requests. These

recommendations are based on an evaluation of the merits of each

case with regard to specific criteria (see Exhibit D). Of Primary

jmportance in EPA's decision are the recommendation of the

New Jersey Department of Environmental Protection (NJDEP)

and the ecological value of the ESA in question.

5. EPA received a waiver request package from the NJDEP

dated February 9, 1989 for Block 20504, Lot 8,in Rockaway

61

Township, property owned by Mr. Nelson Fernandes. The

RVRSA had initiated the waiver request by submitting a letter

(Exhibit J) that contained the following items: Letter from

Homeowner, Rockaway Township Resolution, Sewer Allocation,

ACOE Jurisdictional Determination, and a Wetland Delineation

Report. The NJDEP of the waiver request (Exhibit L) .

6. A second site inspection was performed at the Fernandes

property on March 15, 1989 by NJDEP at the request of EPA,

and the NJDEP" s recommendation ion to deny the waiver request

was reconfirmed (Exhibits N and 0) .

7. EPA reviewed all the information contained in the initial

package and the results of the second site visit, and on May 5,

1989, denied the RVRSA waiver request for the Fernandes

property based on the extent and ecological value of the wetlands

(Exhibit P).

8. On May 30, 1989, EPA met with Mr. Fernandes and the

NJDEP to discuss. the waiver denial (Exhibit Q). At the meeting,

EPA agreed to perform its own site visit for the purpose of

potentially re-evaluating our decision to deny the waiver.

9. On May 31, 1989, Mr. Fernandes informed EPA that,

upon the recommendation of his lawyer, he could not allow EPA

to inspect his property unless we agreed to sign a statement that

we would not use any infsrmation gathered at the site visit against

him if a claim was filed Mr. Fernandes was informed that EPA

could not aqree to this blanket condition, and that, therefore, the

waiver would stand (Exhibits R and S) .

62

10. EPA is willing to re-evaluate Mr. Fernandes request jf

provided with sufficient information to determine the imjpact of

the proposed fill activities.

I declare under penalty of perjury that the foregoing is ttrye and

correct.

Executed on August 3, 1994

Robert W. Hargrove 8/3/94