Petition for Writ of Certiorari — Kasharian v. New Jersey Department of Environmental Protection

Supreme Court US.

09-661 OCT 2 9 2009

Su The

Supreme Court of the Anited States

Petitioner,

THE HIGHLAND ACT OF NEW JERSEY

and N.J.D.E.P.,

Respondents.

On Petition For A Writ Of Certiorari

To The Superior Court Of New Jersey

PETITION FOR A WRIT OF CERTIORARI

JOHN C. KASHARIAN

KASH’S FARM

181 Petersberg Road

Hackettstown, NJ 07840

(908) 852-0570

1.

2.

3.

i

QUESTIONS PRESENTED

QUESTION FOR REVIEW:

Under a 1980 United States Supreme

Court Ruling holding public officials liable

for money damage for violating a person’s

constitutional rights, should New Jersey

State Assembly officials and governor as

public officials be held liable for money

damages when it is shown that the Highland

Act does violate Constitutional Rights?

QUESTION FOR REVIEW:

Should the Army Corps of Engineers and

U.S.E.P.A. as public officials also be liable for

money damages, same as question no. 1?

QUESTION FOR REVIEW:

Should U.S. Army Corps of Engineers

and U.S.E.P.A. and state of N.J. (using rules

from U.S.C.W.A.) be held liable for money

damage: the U.S.E.P.A. for making rules and

regulation in the federal registry which vio-

lates (knowingly or not 1980 U.S. Supreme

Court ruling) the peoples’ Constitutional

Rights of equal protection in New Jersey

Highland Act and area; when the state of

N.J. takes these rules and regulations know-

ingly or not violates the equal protection

rights of the people in N.J. Highland area

created by the state of N.J.?

il

QUESTIONS PRESENTED — Continued

QUESTION FOR REVIEW:

Should the Highland Act of N.J. and

Highland Area be abolished because it vio-

lates the equal protection right of the people

in the State of N.J.? People in the Highland

lost their right by unequal rules and

regulation to protect water. The people in the

rest of the state lost their right because their

water is just as important and not protected

equally. Abolish Highland and make water

laws equally?

QUESTION FOR REVIEW:

Should both the Highland Act of N.J.

and Pineland Act be abolished as both acts

were based on rule and regulation taken

from the U.S.C.W.A. and the federal registry

of the U.S.C.W.A. which has rules and regu-

lations that clearly violated peoples’ equal

protection rights (will be addressed in

Oral Argument also) that were made by

U.S.E.P.A. and used by state of N.J. in

creating N.J. Highland Act?

QUESTION FOR REVIEW:

What is the role of the United States

Natural Resource Conservation Service cre-

ated in 1966 to protect the water and

environment in the United States? Example

— In New Jersey they’re the Army Corps of

Engineers, the United States Environmental

Protection Agency and now the Highland

ili

QUESTIONS PRESENTED - Continued

Commission, and New Jersey Department of

Environmental Protection Agency. I would

like this court to explain what is the role of

the U.S.N.R.C. Service (the best in the

world) in N.J.? They will not come on my

farm since the Highland was created.

QUESTION FOR REVIEW:

Very vital question: If the U.S. Army

Corps of Engineers Took back the 404 role

and assume the _ responsibility of the

U.S.C.W.A. in N.J. would they take over the

Highland area in N.J.? with its lakes, rivers,

ponds, streams, springs, etc.? (Especially

when congress Aug. 2009 may take out the

words in the U.S.C.W.A. and federal registry

(navigable waterway) allowing U.S. Army

Corps Engineers role anywhere in the state?

Would Highland Act be abolished?

QUESTION FOR REVIEW:

Should a state program (the Highland

Area) be allowed to override a program

created in 1966 (U.S. Nat. Res. C.S.) by

congress to protect the water and land forc-

ing out the U.S.N.R.C.S. with its knowledge;

created and funded by congress for a state

program where funding and knowledge and

know how are questionable and unknown?

Should the Highland Act of N.J. override the

United States Natural Resource Conserva-

tion Service and its programs created by U.S.

iv

QUESTIONS PRESENTED — Continued

Congress in 1966 to protect the water and

environment of the United States equally?

QUESTION FOR REVIEW:

Is the agreement between N.J.D.E.P.

and U.S.E.P.A. legal and binding under the

U.S.C.W.A. (which has all the rules and

regulations taken from the federal register

Vol. 53 No. 108 — Rule and Regulation) agree-

ment signed June 15, 1993 especially if

U.S. Congress takes out words “navigable

waterway”? In that the agreement deals with

every aspect of the U.S.C.W.A. (state pro-

gram) and not only navigable waterways?

The Army Corp. of Engineer controls navi-

gable waterway and N.J.D.E.P assumes role

of rest of the state. Is agreement binding and

legal?

QUESTION FOR REVIEW:

Under Equal Protection Rights under

like circumstances (water) does the State of

New Jersey have the right in one area

(Highland of N.J. million people) to make

more stringent water laws while the rest of

the state and nation are free from unequal

protection laws? The N.J. Appellate Court, in

its ruling stated that the State of New

Jersey, can make more stringent laws (but

failed to state that these laws could be

unequal) which would violate equal protec-

tion laws of the U.S. Constitution?

Vv

QUESTIONS PRESENTED -— Continued

11. QUESTION FOR REVIEW:

In the memorandum of agreement be-

tween N.J.D.E.P. and U.S.E.P.A. under C

page 9 under F: transfer or withdraw! of

state program — etc. (Shows U.S.E.P.A. has

control of state programs). Question is: Did

the U.S.E.P.A, approve the Highland Act of

New Jersey according to the agreement be-

tween N.J.D.E.P. and U.S.E.P.A.?

QUESTION FOR REVIEW:

If the court finds that the U.S.E.PA.

approved the Highland Act, should the

U.S.E.P.A. have stepped in according to the

agreement (page 9 under F No. 1 with-

drawing state program) and stop the

Highland Act?

QUESTION FOR REVIEW:

In the Federal Registry page 34 Vol. 53-

No. 180 New Jersey 233 C — other laws: it

states although not incorporated by refer-

ence, also are part of the approved state

administered programs No. 7 on list. THE

MEMORANDUM of agreement between

U.S.E.P.A. and N.J.D.E.P. Does this prove

that Highland Act is illegal and binding?

QUESTION FOR REVIEW:

Should U.S.E.PA. be held liable for

monetary damage. Under 1980 U.S. Su-

preme Court ruling (con-right) for failing to

vi

QUESTIONS PRESENTED — Continued

stop the Highland Act, a state program, that

must be approved by the U.S.E.P.A? When it

is shown that the Highland Act violated the

constitutional rights of people in the N.J.

Highlands and also the people in the rest of

the state? Under equal protection rights, is

U.S.E.P.A. liable?

QUESTION FOR REVIEW:

Should a state be allowed under a state

approved program; while in an agreement

under the U.S.C.W.A. (a federal program) be

allowed to segregate nearly one million

people, taking away their constitutional

rights of life, liberty and pursuit of happiness

by imposing a legal obligation on the public

by making more stringent water law, regu-

lation and permit programs by an illegal

burden, place on these segregated Highland

race of people? The question is, should a race

of people in the Highland Area be segregated

in an area by a state?

QUESTION FOR REVIEW:

This is a vital question: I was in the

military service (1952-56) during the Korean

War. I played baseball with a colored base-

ball team in Maryland. We stopped at a diner

to eat where my friend had to stay outside.

In Memphis, Tenn., I got on a public bus and

sat in the back with colored people in the

only seat available and was nearly arrested.

Because of this segregation, my rights and

vii

QUESTIONS PRESENTED - Continued

those people on the bus and baseball team

were deeply violated. In the Highland Area

in this segregated area like the people on the

bus and the baseball team, all these races of

people have had their constitutional rights

violated by imposing in one area (like on the

bus), an unequal burden on the race of

people in the Highland Area who are being

segregated against because of water, like the

colored baseball team who couldn’t get water

to drink at the diner. The Highland Act and

Area has taken away the rights of the race of

people in the segregated Highland Area from

pursuing their constitutional rights of life,

liberty and pursuit of happiness. Took away

their rights to sell their lands, to leave their

lands to their children, to cut a tree down, to

put a pipe in a spring to feed water into their

homes, to build a house on 5 acres, not 75

acres, to build 100 homes on 250 acres, not

only 3 homes on 250 acres. My question is

this Your Honors: Does any state, in this

case, N.J., have the right to continue the

segregation in one area (Highland) which

has been outlawed in the United States?

QUESTION FOR REVIEW:

Should the Highland and Pineland Acts

of N.J. be abolished with its erroneous

permit programs and severe legal obligation

on the public in these areas because it

violates their Fourteenth Amendment of the

United States Constitution in their lives,

Vili

QUESTIONS PRESENTED -— Continued

their liberty their property and in their

pursuit of happiness.

QUESTION FOR REVIEW:

The Lady in Fla. that had her feeding

tube removed and passed away because her

husband’s constitutional rights prevailed

over state and federal laws.

Should this same right be granted to the

people of the Highland and Pineland Area of

N.J. allowing their constitutional right to

prevail (Life — Liberty, Property and Pursuit

of Happiness.? It’s the same situation:

Constitutional Rights of the United States.

ix

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF APPENDICES

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED ....

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT OF

CERTIORARI

CONCLUSION

LIST OF APPENDICES

ORDER ENTERED APRIL 24, 2009 BY

JUDGE SKILLMAN AND GRAVES -

APPELLATE COURT N.J. DOCKET NO. A-

3034-0671

ORDER ENTERED JULY 20, 2009 BY CHIEF

JUSTICE HONORABLE STUART RABNER

NEW JERSEY SUPREME COURT

MEMORANDUM OF AGREEMENT

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISION

Fourteenth Amendment to the United States

Constitution

STATUTES

28 USC Section 1257

Clean Water Act

Highland Act

Pineland Act

1

OPINIONS BELOW

The New Jersey Supreme Court opinion is

unpublished. App. 4. The Superior Court of New

Jersey's opinion is unpublished. App. 1.

JURISDICTION

28 USC Section 1257

US Supreme Court has jurisdiction of this case.

For my request for a petition for a writ of certiorari.

N.J. had hearings on the Highland Act. Public

Hearings finished in June 2007. I filed a brief to

Appellate Court. Case heard and argued March 24,

2009. On April 24, 2009 case was denied. Docket No-

A-3034-0671. Appeal was filed to N.J. Supreme Court

to show Appellate Court was wrong. On July 16 case

was not heard and denied by Chief Justice Rabner

N.J. Supreme Court. Now the Petitioner is filing for a

writ to the US Supreme Court.

+

CONSTITUTIONAL PROVISION INVOLVED

Fourteenth Amendment to

the United States Constitution

No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

2

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

SJ

STATEMENT OF THE CASE

This case came about when hearings were held to

create the N.J. Highland Act of 2004. To protect water

supply, we feel the real reason was to stop building.

I filed a brief with 25 other people June 2007. All

other cases were denied; all my nine motions were

denied in Appellate Court of N.J. Case was heard to

abolish Highland Act March 25, 2009 — was denied

April 25, 2009. Case was denied by N.J. Supreme

Court July 16, 2009, and now in process of filing in

US Supreme Court. I sent letter to USEPA and Army

Corps of Engineers for answers. No reply in Summer

2009. Now in process of requesting hearing before

US Congress over seeing the US Clean Water Act.

The Pineland Act was brought into this case by

the N.J. Appellate Courts ruling, and is now part of

my pleading. I request oral argument.

e

Ww

REASONS FOR GRANTING THE WRIT

Preface

This is a national issue of great importance in-

volving the state of New Jersey, its Governor, Assem-

bly, NJDEP and newly created Highland area (areas

are planned for in Pennsylvania, Connecticut and

3

New York). Also involved are the US Clean Water Act,

the Army Corps of Engineers and the United States

Environmental Protection Agency and the United

States Natural Resource Conservation Service

(created in 1966 to protect the lands and waters of

the United States and US Congress). The issues I

bring to this court are the precious rights of The

People vs. Federal and States overzealous action dis-

regarding the peoples’ right. The state courts are

wrong andthe attorneys for the respondent are

making statement in their briefs which will break

this case in oral argument holding them liable.

The two issues I will argue are:

_. 1) That both the Highland and Pineland Acts of

New Jersey both violate the equal protection rights of

all persons in N.J. with the worst violations of equal

protection rights on the people in the Highlands of

their life, liberty and pursuit of happiness.

2) That an agreement was signed in 1994

between the U.S.E.P.A. and N.J.D.E.P. under the US

Clean Water Act. It described about not creating

permit programs or imposing a legal obligation on the

public and about state approved program under the

U.S.C.W.A., the appellate court and respondent at-

torney stated U.S.C.W.A. involves only dredging of

navigable waterways in N.J. and they stated agree-

ment does not cover Highland Act. In the Federal

Registry of the U.S.C.W.A., it states on page 34, the

agreement “is” in the U.S.C.W.A. and more. The ap-

pellate court and respondent attorneys are wrong the

agreement is binding and was broken by the State of

4

New Jersey when the Highland Act was installed.

The Highland Act must be abolished and the people

should collect damages under the 1980 US Supreme

Court ruling holding public officials liable for money

damages for violating the peoples’ constitutional

rights; including the respondent attorneys in their

briefs pleading. I will explain in oral argument that

the agreement covers the Highland Act and that the

U.S.E.P.A. must approve it as a state approved

program, and that the U.S.E.P.A. failed to stop this

act when it was shown to violate peoples’ rights.

These state and federal agencies were lacked. They

have jobs and it’s more work for them. The N..

courts were lacked in not stopping this act, as

agreement was broken.

Insofar as the “Equal Protection” of the laws:

Here’s the Answer: A right the denial of which by

the states is prohibited by the 14th Amendment

to the federal constitution: “A guaranty that no

persons shall be denied the same protection of

the laws which is enjoyed by the other persons

or other classes in like circumstances; in their

lives, their liberty and their property and in

pursuit of happiness.”

This is the answer, your Honors, to equal

protection rights under like circumstances which is

water and environment; it must be protected equally.

Are the people in the Highland rights equally

protected as are the people in the rest of the state and

nation. Remember, we are talking about peoples’

rights not state’s rights. REMEMBER NO STATES

9)

CAN MAKE ANY LAWS WHICH VIOLATES A

PERSON OR A CLASS OF PERSONS’ CON-

STITUTIONAL RIGHTS.

Second question: Does the Highland Act with

all its permits programs and legal obligations (not

in rest of state) violate the people equal protection

right? These thoughts will make the decision. The

court should understand that the respondent’s briefs

are their interpretation of the agreements. In under-

standing my side, I am referring to the Constitution

and Amendments and it must be understood by the

court that in the Federal Registry, are regulations

that are unconstitutional and if used by the state of

N.J., does not make it constitutional, like allowing

N.J.D.E.P. to trespass on private property without a

warrant. Rules put into the Federal Registry by

U.S.E.P.A. used by states and put in briefs by respon-

dents’ attorneys does not make the statement right.

Like making more stringent water law, is ok if more

stringent than federal law! The problem is neither

the U.S.C.W.A. or the US Federal Registry or the

Highland Act, states that these regulations and laws

can violate the equal protection right of people. The

(the state-federal government (U.S.E.D-.A.) just make

the regulation knowing that no one will go through

the process like I am doing to show the United States

Supreme Court that equal protection rights, mean

equal protection, Period. The Highland Act is illegal

(broken agreement) and violates equal protection

rights under like circumstances. Water and land; I

could write pages. The only way to understand my

6

two issues fully is by oral argument before the full US

Supreme Court.

We all understand the U.S.E.P.A. must make

rules and regulations to protect the water and

environment of the United States as enacted by the

US Congress, so states will have a guide, but when

these rules and regulations step on constitutional

rights (equal protection) and when U.S.E.P.A. makes

rules and regulations in a way that interpretation can

go anyway, it’s time for either the United States

Supreme Court to intervene or for the US Congress to

start serious hearings of the U.S.C.W.A. and the rules

and regulations of the Federal Registry, which have

just about stopped the United States Natural

Resource Conservation Service from doing almost all

of the work in the U.S.C.W.A. US Congress created

the U.S.N.R.C.S. in 1966 to protect the water and

environment of the United States. They are being

pushed out by states’ worthless programs such as the

Highland Act. It’s up to this United States Supreme

Court to take this case or the United States Congress

to review the U.S.C.W.A. and reform it.

The Petitioner states that water and land are

valuable and must be protected equally throughout

the State of New Jersey: Water is everywhere and

endless. There is only so much land to use wisely. But

the peoples’ rights in the Highland Area of New

Jersey (created by the State of New Jersey 2004) are

precious and water and land are valuable. But the

peoples’ rights are priceless.

7

The Highland Act of New Jersey took the peoples’

(in this restricted area) rights away under equal

protection under the constitution. They took away the

peoples’ right to use their land and homes; enjoyed by

everyone else in the state of New Jersey (except the

Pineland Area). Under the United States Constitution

of Equal Protection Rights, everyone in the State

should have water and land protected equally as was

done under the Civil Rights Movement when the

famous words “I Have A Dream” which were taken

away by the unconstitutional rules, regulations and

permits of the Highland Act of 2004.

Enclosed are sections taken from the Memo-

randum of Agreement between the N.J.D.E.P. and the

US Environmental Protection Agency.

These sections will prove that the agreement was

broken by all parties when the Highland Act was

created in New Jersey in 2004, not to create any

permit program or impose any legal obligation on the

public. The Highland Act did this. The U.S.E.P.A.

failed to act to stop this as per agreement.

The Appellate Court of New Jersey was wrong as

the agreement is in the United States Clean Water

Act as stated on the Federal Register Vol. 53 No.

108/Monday June 6, 1988 Rules and Regulations, and

will now be in this pleading.

* *

8

Section taken from the agreement June 15, 1993

signed by the U.S.E.P.A. and N.J.D.E.P.

Page 1

A. Purpose for this agreement:

Does not create any substantive stan-

dard relating to any aspect of the permit

program or impose any legal obligations

on the public

This agreement is entered into by State

of N.J. through The Commissioner of

N.J.D.E.P. & U.S.E.P.A. (Mean Highland

Act is included)

Page 2 — Number 4 prior to the as-

sumption of the 404 program (USCWA)

by N.J.D.E.P the North Atlantic Division

of The US Army Corps of Engineers etc.

(shows the D.E.P. will assume Army role

in N.J.)

Page 9 — Under F: transfer or with-

drawal of the state Program

1. The U.S.E.P.A. may withdraw ap-

proval from the N.J.D.E.P. upon a

finding that the state program no longer

complies with the requirements of the

Clean Water Act and implementing reg-

ulations and that N.J.D.E.P. has failed

to take corrective action. (In this section

it shows U.S.D.E.P. has control of state

program in New Jersey and it shows

that The U.S.D.E.P. and Army Corp. of

Engineers Failed to act in not stopping

9

the Highland Act of New Jersey as it

breaks the agreement.

Page 1 Item A— This agreement does not

create Any _ substantive’ standards;

relating to any aspect of the Permit

Program or impose any legal obligations

on the Public. (When Highland Act was

created under the New Jersey State

Program it created all kinds of standard

Permit Programs and imposed all kinds

of legal Obligations on the public and in

the Highland creating Violations of the

US Constitution of the peoples’ equal

Protection right under like circum-

stances (that’s water) it’s all over the

state and should be protected equally;

not the burden put on millions of

persons violating their Freedom of life,

liberty and pursuit of happiness. In

regards to any lower New Jersey court,

under the US Clean Water Act and N.J.

role in assuming the role. In the N.J.

404 Program the agreement between the

N.J.D.E.P. and U.S.E.P.A. signed in 1993

(“ts legal”) on page 34 of the Federal

Register Vol 53 No 108 under New

Jersey 233.71 Part B No 2 it states New

Jersey Regulatory Requirement Ap-

plicable to the Fresh Water Wetland

Program 1994.

Other Laws: The Flowing Statutes and

Regulations. Although not incorporated

by reference, also are part of the ap-

proved state administered programs

10

No. 7 “1-THE MEMORANDUM OF

AGREEMENT BETWEEN U.S.E.P.A.”

Region II and N.J.D.E.P. signed June 15,

1993 — (This proves agreement was bro-

ken between N.J.D.E.P., State of New

Jersey through Comm. of N.J.D.E.P.)

and US Army Corp. Engineers and

U.S.D.E.P. both fail to stop Highland

Act. After permit standards were created

and after all Kinds of legal obligation

were imposed on the Millions of people

living in the Highland Area of New

Jersey violating their constitutional

right of Equal protection under like cir-

cumstances (water). The Highland Act

has just about ruined the role of the

United States Natural Resource Con-

servation Service in New Jersey created

in 1966 by Congress to protect the

National water and environment, but

was pushed out by The Highland Act

robbing New Jersey and its people of the

full use of the United States Natural

Resource Conservation service; who

have the know-how of protecting the

water and land.

OF AGREEMENT BETWEEN

U.S.E.P.A. AND N.J.D.E.P. Etc.

Signed June. 15, 1993. Question: Is

this agreement legal and binding in the

U.S.C.W.A. Act? Is this agreement legal and

binding in state approved programs such as

the Highland Act of N.J. enacted 2004?

11

Your Honors: The United States Congress has

allowed the U.S.E.P.A. and the Army Corps of Engi-

neers a free hand in making the rules and regulations

in the US Clean Water Act. N.J.D.E.P. takes these

rules and installs them into the Highland and Pine-

land Acts of New Jersey even if they violate equal

protection rights. Congress has failed to act. It’s now

up to the US Supreme Court to act and order a re-

view of the U.S.C. Clean Water Act Federal Registry

for Civil Rights violation.

In place of the N.J. Highland and Pineland Act.

After they are abolished could be an extension of the

Farm Preservation Act of N.J. this allows farms to

stay as farms’ forever. States of N.J. Buy Rights with

money and farm agrees to stay as a farm. The same

should be done with developers. Buy V3 of their

Development Rights — pay developer money (like

preserved farm) and this 1/3 land is turned over to

town (not state) which must keep as open space (for

ponds, lakes, resevoirs, playgrounds or parks. Instead

of taking away millions of people constitutional rights

of Life Liberty, Property and Pursuit of Happiness. As

is being done in Pineland and Highland areas of N.J.

@

CONCLUSION

The Court should grant the petition for a writ of

certiorari to allow the Petitioner (a disabled Korean

War Vet) by Oral Argument to show the Court that

N.J. Appellate Court was wrong on both issues and

12

reasons why the N.J. Supreme Court would not hear

the case. And free millions of people from the abusive

hardships of the unconstitution Highland and Pine-

land Acts of N.J.

Respectfully submitted,

JOHN KASHARIAN

KASH’S FARM

181 Petersberg Road

Hackettstown, NJ 07840

(908) 852-0570

App. 1

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

IN RE HIGHLANDS SUPERIOR COURT

WATER PROTECTION OF NEW JERSEY

AND PLANNING ACT

RULES:NJAC.7:28, “=? MAAIE DIVISION

DOCKET NO. A-3034-06T1

Argued March 24, 2009 — Decided April 24,

2009

Before Judges Skillman and Graves.

On appeal from the Department of Environ-

mental Protection and the Highlands Water

Protection and Planning Council.

John C. Kasharian, appellant, argued the

cause pro se.

Barbara L. Conklin, Deputy Attorney

General, argued the cause for respondent,

Department of Environmental Protection

(Anne Milgram, Attorney General, attorney;

Melissa Raksa, Deputy Attorney General, of

counsel; Ms. Conklin, on the brief).

PER CURIAM

Appellant John C. Kasharian challenges the

validity of the Highlands Water Protection and

Planning Act, N.J.S.A. 13:20-1 to -35, and certain

regulations adopted to implement its provisions. Ap-

pellant’s arguments rely in part on agreements under

the Federal Clean Water Act, 33 U.S.C.A. §§ 1344

to 1387, entered into between the Department of

App. 2

Environmental Protection (DEP), and the United

States Environmental Protection Agency, the United

States Fish and Wildlife Service and Army Corps of

Engineers. Appellant argues that only the DEP is

authorized under these agreements to regulate the

State’s waters and that the DEP must regulate

waters throughout the State in the same manner.

Appellant’s arguments are without merit and

only require brief discussion. R. 2:11-3(eX1\E).

Federal regulation under section 404(g) (33 U.S.C.A.

§ 1344(g)) of the Clean Water Act only applies to

navigable waters and freshwater wetlands adjacent

to those waters. See MCG Assocs. v. Dep’t of Envtl.

Prot., 278 N.J. Super. 108, 112 (App. Div. 1994). For a

state to assume responsibility for this federal

regulation, its regulatory program is only required to

be “as stringent as the federal program and...

comply with all the requirements of the federal

regulations.” In re Freshwater Wetlands Prot. Act

Rules, N.J.A.C. 7:7A-1.1 et seq., 238 N.J. Super. 516,

520 (App. Div. 1989). Therefore, a state may regulate

wetlands that are not subject to regulation under the

Clean Water Act and a state’s regulation of wetlands

with respect to which it has been delegated

regulatory responsibility under the Clean Water Act

may be more stringent than required by federal law.

Insofar as appellant challenges the Highlands

Act as allegedly denying equal protection of the law

because it subjects land uses in the Highlands region

to more stringent regulation than land uses in other

parts of the State, our Supreme Court has rejected a

App. 3

similar challenge to the Pinelands Protection Act,

N.J.S.A. 13:18A-1 to -58, and the land use manage-

ment plan adopted thereunder. See Gardner v. N.d.

Pinelands Comm’n, 125 N.J. 193, 219-20 (1991); see

also Toms River Affiliates v. Dep’t of Envt'l Prot., 140

N.J. Super. 135, 147-48 (App. Div.), certif. denied, 71

N.J. 345 (1976); OFP, L.L.C. v. State, 395 N.J. Super.

571, 595-97 (App. Div. 2007), aff'd o.b., 197 N.J. 418

(2008).

Affirmed.

App. 4

SUPREME COURT OF NEW JERSEY

C-1160 September Term 2008

64,208

IN RE HIGHLANDS

WATER PROTECTION

AND PLANNING ACT

RULES: N.J.A.C. 7:38.

(JOHN C. KASHARIAN —

Petitioner)

ON PETITION FOR

CERTIFICATION

(Filed Jul. 20, 2009)

To the Appellate Division, Superior Court:

A petition for certification of the judgment in

A-3034-06 having been submitted to this Court, and

the Court having considered the same;

It is ORDERED that the petition for certification

is denied with costs.

WITNESS, the Honorable Stuart Rabner, Chief

Justice, at Trenton, this 16th day of July, 2009.

/s/ Mike Neary

CLERK OF THE

SUPREME COURT

App. 5

MEMORANDUM OF AGREEMENT BETWEEN

THE NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION & ENERGY

AND THE UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

GENERAL

A. Purpose

This Memorandum of Agreement (hereinafter

“Agreement”) between the New Jersey Department of

Environmental Protection & Energy (NJDEPE) and

the United States Environmental Protection Agency

(Region IT) (EPA), is entered into to enable the State

of New Jersey to carry out the policies, regulations

and procedures necessary to administer the permit

program established pursuant to Section 404 of the

Clean Water Act (CWA), 33 U.S.C. 1344, hereinafter

referred to as “the 404 program,” thereby fulfilling

the requirements of the Freshwater Wetlands Protec-

tion Act, P.L. 1987, c. 156. This agreement does not

create anv substantive standards relating to any as-

pect of the permit program or impose any legal

obligations on the public.

B. Parties and Effective Date

(1) This agreement is entered into by the State

of New Jersey through the Commissioner of the

NJDEPE (“Commissioner”) and the United States

Environmental Protection Agency through the Re-

gional Administrator of Region ITI (“Administrator”).

App. 6

(2) This agreement shall be executed by the

Commissioner and the Administrator and shall be-

come effective at the time the NJDEPE’s authori-

zation to administrator the 404 program takes effect,

which shall be the date set out in the Federal

Register of EPA’s decision to approve the State’s

application to administer the 404 program.

(3) Nothing in this agreement shall be con-

strued to restrict in any way EPA’s authority to fulfill

its oversight and enforcement responsibilities under

the CWA, nor shall it restrict NJDEPE’s enforcement

responsibilities under New Jersey law.

(4) This agreement will remain in effect until

such time as NJDEPE’s program authorization is

modified or withdrawn by EPA or is voluntarily trans-

ferred by NJDEPE to the Army Corps of Engineers

(ACOE) according to the criteria and procedures

established in 40 C.F.R. 233.53.

C. Modification

This agreement may be modified pursuant to 40

C.F.R. 233.16 upon the initiative of either party.

Amendments to this

* * *

transmit comments, questions, and/or requests for

additional evaluation and/or information to the Com-

missioner.

App. 7

(4) Within 30 days of receipt of the Adminis-

trator’s comments, the State will finalize the annual

report, incorporating and/or responding to the Ad-

ministrator’s comments, and transmit the final report

to the Administrator.

(5) Upon acceptance of the annual report, the

Administrator shall publish notice of availability of

the final annual report.

D. Annual Review and Performance

Evaluation

(1) EPA shall conduct annual performance

evaluations of the State Program from NJDEPE’s

annual reports and other requested information. The

performance evaluation shall determine the State

Program’s consistency with the program as approved,

and with applicable regulations, guidance and poli-

cies. The annual review will be conducted within 60

days of receipt by the Administrator of the final State

annual report, and will include a _ review of

expenditures of federal funds.

(2) EPA shall submit a report of the evaluation

findings to the NJDEPE outlining any perceived

deficiencies in program performance and making

recommendations for improving NJDEPE operations.

If NJDEPE is requested by EPA to respond to the

EPA program evaluation report, NJDEPE will have

60 days from the date of receipt of the report to

respond in writing. NJDEPE’s response shall address

each EPA recommendation specifically.

App. 8

(3) Hither party to this agreement may call a

meeting to discuss NJDEPE’s annual report, the

annual review process, and/or the performance

evaluation.

E. Procedures for Revision of the State

Program

(1) Either EPA or NJDEPE may initiate pro-

gram revision. Program revision may be necessary

when the controlling federal or state statutory or

regulatory authority is modified or supplemented or

for other reasons. The NJDEPE shall keep EPA fully

informed of any proposed modifications to its basic

statutory or regulatory authority, its forms, proce-

dures, or priorities.

(2) Revision of the State Program shall be

accomplished in accordance with the requirements of

40 C.F.R. 233.16 and of applicable State law.

F. Transfer or Withdrawl of State Program

(1) The EPA may withdraw program approval

from NJDEPE upon a finding that the State program

no longer complies with the requirements of the CWA

and implementing regulations, and that NJDEPE has

failed to take corrective action.

* *