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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 938

## Text

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.

* *

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1317%3A1. Public record. Not legal advice.