Private pond may cost millions in fines

Private pond may cost millions in fines
January 1, 2000

In 1985, Robert Mondgock decided it was time to find a new home for his wife and two kids. After investigating the various options available to them, the family chose to build a house on a piece of property in Mansfield Township, New Jersey.

The land had some drainage problems caused by the Township’s faulty drainage techniques. An easement on the land drained rain water to the front of the lot, from which the water would flow back across the property. Mondgock attended Township meetings to discuss this problem before he bought the house. He purchased the property after the Burlington County Soil Conservation District (BCSCD) informed him that he could construct a pond in the back yard to control the water runoff.

The BCSCD representative was quite excited about the pond, because Mondgock could use it to create a beautiful garden. The construction of ponds was a widely accepted practice in the area for controlling runoff. The Township approved the project and the BCSCD gave Mondgock written approval for the pond, along with a manual with specific directions on how to construct a pond to control excessive water runoff.

In 1986, Mondgock sold his existing home to raise the money to build the new one; he, his wife, and the children moved into a small apartment. He hired an excavator and began to dig.

Shortly thereafter, the New Jersey Department of Environmental Protection (DEP) informed him that he needed a permit to dig because his property was located in a flood plain. He dutifully applied for one. While waiting for DEP’s approval, Mondgock contacted the Army Corps of Engineers because he "figured they should know exactly what I had to do."

The Corps was excited about the pond plans but did express some concern about some piles of dirt not having the proper sloping for erosion control. Mondgock took the necessary steps to address the Corps’s concerns.

Despite the fact that the Corps and county government officials approved the pond, DEP denied Mondgock’s request for a permit on the basis that he violated regulations "promulgated pursuant to the Flood Hazard Control Act." They ordered Mondgock to fill in the dug pond and restore the property to its natural, wet condition. Mondgock requested an administrative hearing to address the alleged violations.

At this 1989 hearing, a DEP engineer testified that the agency often approves of man-made ponds in flood hazard areas. Furthermore, DEP did not introduce any testimony that Mondgock’s pond posed an environmental threat to the area. Nevertheless, the Administrative Law Judge ruled that Mondgock was violating the Flood Hazard Control Act and ordered him to fill in the pond.

Mondgock appealed to the Office of Administrative Law Court, which found the Administrative Order to be "unduly punitive and out of proportion" to his actual culpability. The Appellate Division stated, "We cannot overlook the testimony of DEP personnel who indicated that construction of a pond within a flood plain is at times approved." They stated that he should be allowed to reapply for a pond permit.

To date, Mondgock is still applying. Each time, his application is sent back with an ominous warning that the approval process "will not be inexpensive." He has been threatened with fines totaling $2,500 a day and $1,500 for each offense--the total is now in the millions of dollars. DEP is presently demanding a “donation” of over $12,000.

Mondgock has spent more than $83,000 and 14 years of his life fighting the state. "If I did have an extra $12,000 to donate, it would certainly go for a needier cause, such as cancer research for children."