In the Matter of Permit

• Court: New Jersey Superior Court Appellate Division
• Decided: November 21, 2023
• Docket: A-1897-21/A-2270-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1897-21 A-2270-21

IN THE MATTER OF PERMIT NUMBER 0807-21-0002.1 LUP210001 ISSUED BY THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION TO DELAWARE RIVER PARTNERS, LLC. ___________________________

IN THE MATTER OF PERMIT NUMBER 0807-21-0002.1 LUP210002 ISSUED BY THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION TO DELAWARE RIVER PARTNERS, LLC. ___________________________

Submitted October 24, 2023 – Decided November 21, 2023

Before Judges Gooden Brown and Natali.

On appeal from the New Jersey Department of Environmental Protection.

Kacy C. Manahan, attorney for appellants Delaware Riverkeeper Network and Maya van Rossum, the Delaware Riverkeeper (Kacy C. Manahan, of counsel and on the briefs).

Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Department of Environmental Protection (Melissa H. Raksa, Assistant Attorney General, of counsel; Kathrine M. Hunt and Kristina Miles, Deputy Attorneys General, on the briefs).

Manko, Gold, Katcher & Fox, LLP, attorneys for respondent Delaware River Partners LLC (Kathleen B. Campbell and Michael Dillon, on the briefs).

PER CURIAM

In these consolidated appeals, the Delaware Riverkeeper Network and

Maya van Rossum challenge the Department of Environmental Protection's

(DEP) issuance of a Flood Hazard Area Permit, a Waterfront Development

Permit, a Coastal Wetlands Permit, a Freshwater Wetlands Permit, and a Water

Quality Certificate (the Permits) to Delaware River Partners, LLC (DRP). Those

Permits, issued on December 30, 2021 and February 25, 2022, authorize DRP to

construct a new railway loop (the Loop) to aid in the delivery of liquid energy

products, primarily liquefied natural gas (LNG), to the Gibbstown Logistics

Center (GLC), a facility it built on the Delaware River.

Appellants contend DEP acted arbitrarily, capriciously, and unreasonably

in issuing the Permits for the Loop. For the reasons that follow, we disagree

with all these arguments and affirm.

A-1897-21 2 I.

In light of the numerous issues raised by these appeals, and the necessary

consideration of the complex state and federal environmental statutes and

regulations at issue, we detail the facts with a greater degree of granularity than

ordinary.

In 2016, DRP purchased a portion of property situated on the Delaware

River which had previously been used by E.I. du Pont de Nemours and Company

(DuPont) as an industrial site known as the DuPont Repauno Works. The site is

located near residential areas in Gibbstown, and during its ownership by

DuPont, hosted such operations as explosives manufacturing, industrial

diamond manufacturing, and storage and shipment of ammonia.

From 1951 to 1986, Atlantic City Electric also operated a power plant on

the property and used a pier for the transfer of coal. Railway lines to support

operations on the site were constructed in the late 1800s and extended around

1940; they were abandoned "sometime after 1971," and part of the former

railway was repurposed as an unpaved roadway. Chemours Co., LLC, a

successor to DuPont, is currently engaged in remediation of the historic

contamination of the upland areas of the site, under DEP's supervision.

A-1897-21 3 After purchasing approximately 371 acres of the 1600-acre area, DRP

proposed building the GLC, a "multi-use deep-water port and logistics center"

intended to replace structures constructed by DuPont in the early 1900s. DRP

intended for the GLC to receive and load cargo from and to ships, such as

automobiles, other "roll-on/roll-off" cargo, and bulk liquid products including

"liquid gases and energy liquid products." On April 10, 2017, DEP issued

individual Waterfront Development, Flood Hazard, Coastal Wetland, and

Freshwater Wetlands permits to DRP for the GLC's construction. DEP

determined that the construction of the GLC satisfied all applicable siting

conditions and environmental standards under the Energy Facility Use rule,

N.J.A.C. 7:7-15.4, and the Stormwater Management rules, N.J.A.C. 7:8-1.1 to -

6.3.

The 2017 permits authorized DRP to dredge 460,000 cubic yards of

sediment within a 29-acre area of the Delaware River in order to accommodate

a 750-foot-long berth for large vessels and provide access to the structure from

the river's navigational channel. The permits also allowed the permanent

disturbance of 4.603 acres of freshwater wetlands; DEP included conditions in

the permits intended to protect animal habitats and endangered species in the

area including sturgeon, bald eagles, and ospreys, and to mitigate wetlands

A-1897-21 4 losses. DRP was also required to comply with a stormwater maintenance plan

it had developed for the site. The construction authorized by the 2017 permits

is known as the "Dock 1 and Marine Terminal" project (Dock 1/GLC). Neither

appellants nor any other party challenged the issuance of these permits.

In 2018, DRP applied for a modification to the Dock 1/GLC permits to

allow for changes to the proposed footprint and location of the marine terminal,

which would now include "a bulk liquid storage and handling facility for the

transfer of [LNG] and other materials." In November of that year, DEP

authorized the modification, conditioned upon DRP's compliance with all Toxic

Catastrophe Prevention Act Program rules under N.J.A.C. 7:31-1.1 to -11.5.

The modified permits were also unchallenged. DRP completed construction of

Dock 1 in December 2018, and of a rail transloading rack for liquified petroleum

gas in October 2020.

On March 14, 2019, DRP applied to DEP for a new individual Waterfront

Development permit, to construct a second dock that would accommodate

vessels to export liquid energy products including LNG (Dock 2). Following a

public comment period during which appellants sent opposing comments, DEP

issued the permit on September 5, 2019. The Dock 2 permit authorized the

dredging of 665,000 cubic yards of sediment to provide access by vessels to the

A-1897-21 5 new dock. It contained conditions intended to protect water quality, endangered

fish and birds, fisheries, and aquatic vegetation during construction of the dock.

Appellants appealed the issuance of the Dock 2 permit, and we affirmed

DEP's actions, finding that the agency did not act arbitrarily, capriciously, or

unreasonably. In re Challenge of Del. Riverkeeper Network, No. A-709-19

(June 23, 2021) (slip op. at 3). In doing so, we specifically rejected appellants'

argument that Dock 2 should have been reviewed by DEP as a separate "energy

facility" under N.J.A.C. 7:7-15.4, finding that the new dock was "merely an

additional set of two berths" and would not "store," "vaporize," or "receive"

LNG "for transmission by pipeline" as that regulation defines such a facility.

Id. at 8, 21-22.

We also found that DEP had fully considered the potential impacts to

endangered species when issuing both the Dock 2 and original GLC permits. Id.

at 25-26. The court further rejected appellants' argument that DEP should have

required DRP to obtain a new Industrial Stormwater permit for Dock 2. Id. at

34-37. We found that DRP had shown compliance with the Stormwater

Management rules as part of the GLC permitting process by designing a

stormwater management system for the facility, and that Dock 2 was not in itself

a "major development" requiring any further consideration of those rules under

A-1897-21 6 N.J.A.C. 7:8-1.2. Id. at 36-37. On September 11, 2020, while that appeal was

pending, DRP filed a petition with the Federal Energy Regulatory Commission

(FERC) for a declaratory order stating that DRP's proposed LNG transloading

operations at the GLC would not be subject to the agency's jurisdiction under

the Natural Gas Act (NGA), 15 U.S.C. §§ 717a-717z. 85 Fed. Reg. 59302 (Sept.

21, 2020).

On May 21, 2021, DRP applied for the Permits, authorizing it to construct

the Loop, an oval-shaped 11,600 linear foot double-track rail line that will

"allow two trains (one loaded and one empty) to be temporarily staged" at the

GLC. As noted, the Loop is intended to facilitate the transloading of bulk liquid

cargo, including LNG, liquefied petroleum gas, and other products, from trains

onto ships on the Delaware River. It will connect to an existing adjacent Conrail

freight train line, and to the existing transloading rack built as part of the Dock

1/GLC construction. Currently, the Conrail line "does not have adequate length"

to hold the trains while they are unloaded, while still allowing the passage of

other rail traffic or vehicular traffic from adjacent roads. The Loop, which

would allow the cargo trains to be unloaded closer to the facility and which

would not impede other trains and cars in the area, would thus improve the

GLC's efficiency and reduce its impact on the surrounding community.

A-1897-21 7 The Loop will be constructed on an approximately eleven-acre portion of

the land belonging to DRP, contiguous to the GLC's marine terminal. Because

this land is designated as a waterfront development area and a delineated flood

hazard area, and the Loop's creation will impact portions of coastal and

freshwater wetlands and transition areas, it is subject to regulation by DEP under

the Coastal Wetlands Act (CWA), N.J.S.A. 13:9A-1 to -10, the Waterfront

Development Act, N.J.S.A. 12:5-1 to -11, the Freshwater Wetlands Protection

Act (FWPA), N.J.S.A. 13:9B-1 to -30, and the Flood Hazard Area Control Act

(FHACA), N.J.S.A. 58:16A-50 to -103. DRP is therefore obligated to comply

with all relevant DEP regulations promulgated pursuant to those statutes.

The Loop will be built largely upon existing unpaved roadways that run

parallel to the Delaware River in the north, a water treatment system ditch called

the Sand Ditch Settling Basin to the west, and another existing roadway to the

east and south. Approximately 4,600 linear feet of the road along the Sand Ditch

was formerly part of the railroad track used by DuPont until the 1970s.

In its permit application, DRP included environmental impact, wetland

delineation, and threatened and endangered species habitat assessment reports

prepared by Ramboll US Consulting, Inc. In its reports, Ramboll explained

DRP's intent to mitigate the Loop's permanent disturbance of wetlands by

A-1897-21 8 purchasing wetland bank credits, and to restore areas of temporary disturbance

by removing all construction structures and "reseeding with native vegetation

and planting [] native shrubs and trees to promote rapid reestablishment of

vegetation."

The reports also indicated that the area of the Loop has not been

"designated as critical habitat for any federally-listed threatened or endangered

species," but that there are habitats for endangered bald eagles, ospreys, and

sturgeon within one-fourth of a mile of the project site. Ramboll stated that the

presence of fish in the nearby ditch system is "unlikely due to physical

limitations, poor habitat structure, limited food source, and predator influences ."

Additionally, it noted a tide gate blocks fish from accessing the ditch system

from the Delaware River, so sturgeon—which are fairly large as adults—are not

expected to be present near the Loop. Ramboll also stated "[f]ishery resources

will not be adversely affected" and "no adverse impacts to water quality which

would negatively affect fisher[y] resources are expected."

As to birds, Ramboll explained the affected wetlands would "likely be

assigned a resource value of Exceptional" under N.J.A.C. 7:7A-3.2(b) due to

"the recorded occurrence of bald eagle[s]" in the vicinity. It noted, however,

that no construction would occur within 1,000 feet of a known, active bald eagle

A-1897-21 9 nest, and trains on the Loop would move at very slow speeds so as not to

generate more noise than that already caused by other rail activity and aircraft

in the area. It also noted that the known bald eagle nests within the investigated

distance of the project site belong to a specific pair of birds and are on an island

in the Delaware River. Ramboll opined it was therefore unlikely another

breeding pair will settle within the Loop's actual footprint due to the s pecies'

territorial nature.

Ramboll also stated that ospreys, which prey on fish, prefer nest locations

closer to water than the Loop's site. It explained DRP installed artificial nesting

platforms for ospreys as part of its mitigation plan for the GLC as a whole, but

that ospreys had not been observed using them in recent years. Ramboll

suggested that this may be due to the nearby pair of eagles, "which are

territorially dominant" and which had been observed perching on the nesting

platforms. It said DRP would relocate two osprey nest platforms currently

placed within the footprint of the Loop.

In addition, Ramboll's reports included a letter and data request results

from the New Jersey Natural Heritage Program (NHP), which is operated by the

Office of Natural Lands Management within DEP. Those results indicated a

possibility of some additional threatened or endangered species being present in

A-1897-21 10 the area of the Loop, based on "the known or expected range of each species ."

As relevant to the issues before us, these included the red knot, bog turtle, and

sensitive joint-vetch. The NHP materials stated that the animals and plants on

the list "are not guaranteed to be found on or near the project area" and that to

"fully determine any potential effects to species, additional site-specific and

project-specific information is often required."

Ramboll's reports explained that red knots, a species of migratory bird,

are "not likely" to utilize the area of the Loop because they typically seek out

"tidal mudflats and beaches" and not the "highly urbanized area of the Delaware

River." Bog turtles, according to Ramboll, had "not been identified within one

mile of" the project site. Sensitive joint-vetch, a flowering plant in the legume

family, was "not observed during wetland delineation activities" and was also

"not likely to be present" in the project area because it "occurs within intertidal

marshes that are flooded twice daily in areas with high plant diversity"; the land

to be disturbed by the Loop's construction has "not been tidally influenced for

several decades" due to the tide gate and its main vegetation is a "dense,

impenetrable" monoculture of phragmites, a common and invasive type of reed.

Overall, Ramboll indicated that the project area is "characterized by invasive-

dominated herbaceous communities," with only "limited tree and shrub species."

A-1897-21 11 The Ramboll report also stated that because the Loop will be a "major

development" as defined in N.J.A.C. 7:8-1.2, it must comply with the

Stormwater Management rules. It noted a Stormwater Management plan had

been "developed and implemented" for the GLC previously, which was designed

to meet the groundwater recharge and stormwater runoff quality standards as

applicable.

DEP determined that DRP's application for the Permits was

administratively complete on June 15, 2021, but it requested additional

information concerning stormwater measures, impacts to vegetation in riparian

areas, the amount of impervious surface that would be created, and possible

impacts on endangered species, specifically bald eagles and ospreys. In

response, DRP submitted supplemental reports by Ramboll on September 3 and

23, 2021.

Ramboll's additional analysis of the Loop's potential stormwater impacts

indicated that the increase in stormwater runoff that would be created by the

new railway was "statistically insignificant" compared to pre-existing site

conditions. The report explained that the type of surface the railway would add

is "[b]y necessity" composed of "permeable materials" that will "permit surface

water to percolate to subsurface soils and contribute to groundwater flow ."

A-1897-21 12 Ramboll also explained in more detail that train activity along the Loop

would be conducted at speeds not exceeding five miles per hour, which would

minimize noise and other disruption to eagles and ospreys that might be in the

area. It reiterated that ospreys had not been seen near the GLC recently, and

that the bald eagle pair known to nest on the nearby island had been observed

perching on the artificial osprey nest platforms DRP previously installed, which

would deter ospreys from using them.

DEP published notice of the permit application and sought public

comments from July 7 to August 7, 2021. No comments were submitted during

this time period, but appellants sent two comments on October 12 and December

6, 2021.

The issues appellants raised in their comments are nearly identical to those

before us, with the October 12 comment urging DEP not to issue permits to DRP

until the federal government had ruled on its jurisdiction over the GLC, and the

December 6 comment alleging that DRP had improperly segmented its

applications for permits and had not included sufficient information about

stormwater management or impacts to wetlands and wildlife.

Despite their belated filings, DEP and DRP nevertheless responded to

appellants' comments. For its part, DRP made a third supplemental submission

A-1897-21 13 on December 10, 2021, in which it showed the proposed locations of two

additional osprey nest platforms and identified vegetated and unvegetated

riparian zone disturbances on its site plans. It explained that these disturbances

had been minimized to the greatest extent possible given that railroad tracks

must be a standard width to accommodate trains and must utilize curves of

sufficient radii to ensure safe travel. It further stated that the total area of

vegetation to be removed did not exceed regulatory limits.

In its own answer, DEP noted most of appellants' arguments were related

more to the prior permits issued for the Dock 1/GLC and Dock 2 projects rather

than to the Loop and incorporated its previous response to appellants' assertions

during the Dock 2 public comment period. DEP also drafted environmental

reports for the Permits, addressing whether the Loop complied with relevant

regulatory standards and found the Loop met the requirements for stormwater

management.

DEP also discussed impacts to wetlands, riparian areas, and threatened

and endangered species, explaining that these issues would be dealt with through

permit conditions and/or mitigation plans. Further, DEP noted that in its

application to construct the Loop, DRP addressed the energy facility and port

aspects of the overall GLC project.

A-1897-21 14 Specifically, DEP stated that the stormwater management system for the

GLC had been approved in 2017 and that "management for the rail loop was also

reviewed for compliance with the Stormwater Management rules." It further

found that "[t]he overland flow of stormwater will not be impeded by the

railroad loop." DEP concluded that "provided that DRP complies with the

conditions specified in the permit," the Loop's construction would satisfy the

rules.

As to the disturbance of riparian areas and wetlands, DEP found that DRP

had demonstrated that the size of the impact is "the minimum necessary to meet

the safety requirements for the construction of the railroad tracks." It stated that

the wetland transition area that would be affected "consists of unvegetated,

gravel or compacted soil road surfaces," and that therefore the Loop's

construction "will not significantly change the characteristics of the tran sition

area." DEP further found that because the Loop would be located on an existing

access road, there would be "minimal impacts to freshwater wetlands and . . .

coastal wetlands that are adjacent to the Delaware River." DEP's reports also

set forth the conditions it would impose on the Permits, as will be discussed

below.

A-1897-21 15 In addition, DEP responded to appellants' claim it could not issue the

Permits until FERC ruled on its jurisdiction and the Federal Pipeline and

Hazardous Material Safety Administration (PHMSA) decided whether to

continue allowing transport of LNG by rail. The DEP found that the NGA did

not prevent it from exercising its authority under the Coastal Zone Management

(CZM) Rules, N.J.A.C. 7:7-1.1 to -29.10, to grant or deny DRP's application

while these federal issues were pending. It noted that if DRP wished to conduct

a business of moving LNG by rail, it "must comply with all applicable federal

requirements."

DEP also found DRP had not improperly "segmented" the GLC's

development to circumvent review of the facility's overall environmental

impacts, noting the Loop was required to meet individual freshwater wetlands

permitting standards and stating that it had reviewed the cumulative impact of

the GLC. It further stated that its review of impacts to endangered species took

the entire GLC into consideration.

On December 30, 2021, DEP issued the combined Flood Hazard Area

Permit, Waterfront Development Permit, Coastal Wetlands Permit, and Water

Quality Certificate. These permits authorize the disturbance of 0.14 acres of

riparian zone and 0.019 acres of coastal wetlands. To mitigate this disturbance,

A-1897-21 16 the Permits require DRP to purchase credits from a local wetlands mitigation

bank prior to commencing construction of the Loop. The Permits also place

seasonal restrictions on construction to avoid interference with endangered

osprey and bald eagle nesting activities and require that DRP relocate existing

structures to support osprey nests in the area of the Loop.

On February 25, 2022, DEP issued the Freshwater Wetlands Permit,

authorizing the disturbance of 0.0169 acres of freshwater wetlands and 4.132

acres of transition area surrounding those wetlands. The permit states that the

wetlands affected are of "Intermediate resource value" and require "the standard

transition area" of a "[fifty] feet buffer." It also includes a "transition area

waiver" allowing "encroachment only in that portion of the transition area which

has been determined by [DEP] to be necessary to accomplish" the Loop's

construction and operation.

To alleviate the disturbance to the wetlands and transition area, DRP must

purchase further mitigation bank credits. DRP must also install and maintain

silt fence barriers around soils disturbed by the Loop's construction that are

"sufficient to prevent the sedimentation of the wetlands, transition areas, and

Delaware River" and protect these lands "from encroachment by construction

A-1897-21 17 vehicles." This permit places the same seasonal restrictions on construction as

the others.

The Permits contain a standard condition stating that DRP "shall obtain

all applicable Federal, State, and local approvals prior to commencement" of the

Loop's construction. DRP will also need to obtain approval of a Soil Erosion

and Sediment Control Plan from the Gloucester County Soil Conservation

District, and a New Jersey Pollution Discharge Elimination System (NJPDES)

general stormwater permit. Appellants appealed both the December 30 and

February 25 Permits, which we consolidated.

II.

As noted, before us, appellants argue the DEP acted arbitrarily,

capriciously, and unreasonably in issuing the Permits. They specifically

maintain: (1) DEP should have waited to issue them until after FERC issued a

declaratory order regarding its possible jurisdiction over the GLC; (2) GLC's

construction has been improperly "segmented" for purposes of seeking permits

from DEP; (3) DRP failed to provide sufficient information about the potential

stormwater impacts of the Loop; (4) DRP did not provide site-specific

information demonstrating that the Loop will not harm coastal habitats; and (5)

the Loop will cause unacceptable adverse impacts to threatened and endangered

A-1897-21 18 species. After first addressing the appropriate standard of review, we detail the

substantive law which necessarily informs our analysis. Next, we address, and

reject, in sections II (A)-(E), each of these arguments, with reference in those

sections to additional legal authority supporting our decision.

On appeal, the judicial capacity to review agency actions is "limited."

Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Env't Prot., 101 N.J. 95, 103 (1985).

An agency's "final quasi-judicial decision" should be affirmed unless there is a

"'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks

fair support in the record." Circus Liquors, Inc. v. Governing Body of

Middletown Twp., 199 N.J. 1, 9 (2009) (quoting In re Herrmann, 192 N.J. 19,

27-28 (2007)). We are restricted to three inquiries:

(1) whether the agency action violates the enabling act's express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings upon which the agency based [its] application of legislative policies; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors.

[Pub. Serv. Elec. & Gas, 101 N.J. at 103.]

"The interest of justice . . . authorizes a reviewing court to abandon its

traditional deference . . . when an agency's decision is manifestly mistaken."

Outland v. Bd. of Trs. of the Tchrs' Pension & Annuity Fund, 326 N.J. Super.

A-1897-21 19 395, 400 (App. Div. 1999). Further, a court is "not bound by an agency's

interpretation of a statute, if it is contrary to [the] legislative intent and plain

meaning of the statute." Ibid.

Nevertheless, "[e]ven if a court may have reached a different result had it

been the initial decision maker, it may not simply 'substitute its own judgment

for the agency's.'" Circus Liquors, 199 N.J. at 10 (quoting In re Carter, 191 N.J.

474, 483 (2007)). The courts' "strong inclination" is to "defer to agency action

that is consistent with the legislative grant of power." Lower Main St. Assocs.

v. N.J. Hous. & Mortg. Fin. Agency, 114 N.J. 226, 236 (1989). This

presumption that an agency's decision is reasonable "is even stronger when the

agency has delegated discretion to determine the technical and special

procedures to accomplish its task." In re Application of Holy Name Hosp. for a

Certificate of Need, 301 N.J. Super. 282, 295 (App. Div. 1997). The

Legislature's delegation of power to an agency is "construed liberally when the

agency is concerned with the protection of the health and welfare of the public."

Barone v. Dep't of Hum. Servs., 210 N.J. Super. 276, 285 (App. Div. 1986).

The courts also typically defer to an administrative agency's "technical

expertise, its superior knowledge of its subject matter area, and its fact -finding

role," Messick v. Bd. of Rev., 420 N.J. Super. 321, 325 (App. Div. 2011),

A-1897-21 20 particularly concerning "technical matters which lie within its special

competence." In re Application of Boardwalk Regency Corp. for a Casino

License, 180 N.J. Super. 324, 333 (App. Div. 1981). The courts have

specifically acknowledged the broad discretion granted to DEP "to det ermine

the specialized and technical procedures for its tasks" "in regard to wetlands."

In re Authorization for Freshwater Wetlands Gen. Permits, 372 N.J. Super. 578,

593 (App. Div. 2004). Moreover, while DEP's interpretation of scientific data

is "not binding," it is "'entitled to substantial weight.'" Pinelands Pres. All. v.

State, Dep't of Env't Prot., 436 N.J. Super. 510, 533 (App. Div. 2014) (quoting

N.J. Chapter of Nat'l Ass'n of Indus. & Off. Parks v. N.J. Dept. of Env't Prot.,

241 N.J. Super. 145, 165 (App. Div. 1990)). "This is particularly true when the

matter involves complex scientific methodologies." Ibid.

In 1973, the Legislature enacted the Coastal Area Facility Review Act

(CAFRA), N.J.S.A. 13:19-1 to -21, "to protect the unique and fragile coastal

zones of the State." In re Egg Harbor Assocs. (Bayshore Centre), 94 N.J. 358,

364 (1983). CAFRA mandates that any proposed development within a "coastal

area" that meets certain construction and development thresholds must obtain a

permit or permits from DEP before commencing construction, unless it is

otherwise expressly exempted. In re Protest of Coastal Permit Program Rules,

A-1897-21 21 354 N.J. Super. 293, 310 (App. Div. 2002) (citing N.J.S.A. 13:19-5, -5.2, and -

5.3). The Legislature also delegated DEP the power to promulgate regulations

"to effectuate the purposes of" CAFRA. N.J.S.A. 13:19-17(a).

CWA was enacted in 1970 to "preserve the ecological balance" of coastal

wetlands areas and prevent their deterioration by "regulating the dredging,

filling, removing or otherwise altering or polluting thereof." N.J.S.A. 13:9A -1.

This statute covers "any bank, marsh, swamp, meadow, flat or other low land

subject to tidal action" along the various rivers, bays, and other waterways in

the state. N.J.S.A. 13:9A-2. Any party proposing to drain, dredge, excavate or

remove soil, dump rubbish or discharge liquid wastes, or erect any structures

upon wetlands must first obtain a permit from DEP. N.J.S.A. 13:9A-4.

DEP executes its authority under CAFRA and CWA through the CZM

Rules. Coastal Permit Program Rules, 354 N.J. Super. at 312. These regulations

contain "the procedures for reviewing coastal permit applications and enforcing

violations," and "the substantive standards for determining development

acceptability and the environmental impact of projects for which coastal permits

are submitted." Ibid. The CZM Rules "are founded on . . . broad coastal goals,"

including protecting "healthy coastal ecosystems" and "safe, healthy and well -

planned coastal communities and regions"; promoting "effective management of

A-1897-21 22 ocean and estuarine resources"; "sustain[ing] and revitaliz[ing] water-dependent

uses" such as ports and other waterfront sites, and coordinating coastal decision -

making, planning, research, education, and outreach. N.J.A.C. 7:7-1.1(c). They

cover the issuance of CAFRA Permits, Coastal Wetlands and Waterfront

Development Permits, and of Water Quality Certificates for projects subject to

the Federal Clean Water Act, 33 U.S.C. § 1341. N.J.A.C. 7:7-1.1(a).

While CWA covers only wetlands near waterways, FWPA, enacted in

1987, covers all areas that are "inundated or saturated by surface water or

groundwater at a frequency and duration sufficient to support . . . a prevalence

of vegetation typically adapted for life in saturated soil conditions." N.J.S.A.

13:9B-3. In FWPA, the Legislature found that it is "in the public interest to

establish a program for the systematic review of activities in and around

freshwater wetland areas" in the state, "to preserve the purity and integrity" of

such lands "from random, unnecessary or undesirable alteration or disturbance."

N.J.S.A. 13:9B-2. To that end, FWPA requires a permit for "regulated activity"

in a freshwater wetland area, including "[t]he removal, excavation, disturbance

or dredging of soil, sand, gravel, or aggregate material of any kind," dumping,

discharging or filling a wetland area with any materials, and "[t]he destruction

of plant life which would alter the character of a freshwater wetland, includi ng

A-1897-21 23 the cutting of trees." N.J.S.A. 13:9B-3; N.J.S.A. 13:9B-9. FWPA sets forth

requirements for applicants and the process for DEP to review applications.

N.J.S.A. 13:9B-5; N.J.S.A. 13:9B-9 to -11; N.J.S.A. 13:9B-23. DEP carries out

its statutory mandate through the FWPA rules, N.J.A.C. 7:7A-1.1 to -22.20.

FHACA was enacted in 1962 to empower DEP to take action related to

flooding and flood preparation within the state. N.J.S.A. 58:16A-50. Under this

statute, DEP enjoys "broad authority" to "map flood hazard areas, adopt land

regulations, control stream encroachments, coordinate the development,

dissemination, and use of relevant information and integrate the control

activities of municipal, county, state and federal governments." Am. Cyanamid

Co. v. State, Dept. of Env't Prot., 231 N.J. Super. 292, 297 (App. Div. 1989).

More specifically, N.J.S.A. 58:16A-52(a) provides that DEP must "adopt rules

and regulations which delineate as flood hazard areas such areas as, in the

judgment of the department, the improper development and use of which would

constitute a threat to the safety, health, and general welfare from flooding."

FHACA authorizes DEP to regulate the development and use of such delineated

areas "to minimize the threat to the public safety, health and general welfare"

from flooding. N.J.S.A. 58:16A-55(a). DEP has promulgated the FHACA rules,

N.J.A.C. 7:13-1.1 to -24.11, to carry out its statutory mandate.

A-1897-21 24 DEP has also promulgated the Stormwater Management Rules to

"establish[] general requirements for stormwater management plans and

stormwater control ordinances" and "design and performance standards for

stormwater management measures required by rules pursuant to" FHACA,

CAFRA, FWPA, and other environment-related statutes. N.J.A.C. 7:8-1.1.

Addressing appellants' arguments requires the interpretation of several

provisions of these statutes and rules. Courts interpret statutes and regulations

in the same way. In re Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J.

533, 542 (2016). The "'paramount goal' is to determine the drafter's intent,"

which is generally found in the enactment's "actual language." Ibid. (quoting

U.S. Bank, N.A. v. Hough, 210 N.J. 187, 199 (2012)). Generally, words should

be given "their ordinary and commonsense meaning." In re Election L. Enf't

Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 263 (2010).

A court should view a law's words in the context of the entire regulatory

scheme of which it is a part. Ibid. It must make every effort "to avoid rendering

any part . . . superfluous." State in Int. of K.O., 217 N.J. 83, 91 (2014). The

court must "presume that every word . . . has meaning and is not mere

surplusage," and "must give those words effect and not render them a nulli ty."

In re Att'y Gen.'s "Directive on Exit Polling: Media & Non-Partisan Pub. Int.

A-1897-21 25 Grps.", 200 N.J. 283, 297-98 (2009). Further, a court must not "rearrange the

wording of the regulation, if it is otherwise unambiguous, or engage in

conjecture that will subvert its plain meaning." U.S. Bank, 210 N.J. at 199. It

"cannot insert qualifications into a statute or regulation that are not evident"

from that language. Id. at 202.

While a court is not bound by the agency's reading of a statute or its

decision on a strictly legal issue, U.S. Bank, 210 N.J. at 200, the courts do defer

to an agency's interpretation of a regulation "within the sphere of its authority"

unless the interpretation is "plainly unreasonable." Election L. Enf't Comm'n,

201 N.J. at 262. This is because "a state agency brings experience and

specialized knowledge to its task of administering and regulating a legislative

enactment within its field of expertise." Ibid. It is assumed that "the agency

that drafted and promulgated the rule should know the meaning of that rule." In

re Freshwater Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341-42 (App.

Div. 2005) (quoting Essex Cnty. Bd. of Tax'n v. Twp. of Caldwell, 21 N.J. Tax

188, 197 (App. Div. 2003)).

A. Absence of FERC Declaratory Judgment

Appellants argue DEP wrongfully approved the Permits before FERC

issued a declaratory judgment concerning its jurisdiction over the GLC. They

A-1897-21 26 concede that DEP "correctly noted" that its own authority under the CAFRA and

the CZM rules "would not be preempted" if FERC does decide it has jurisdiction.

Nevertheless, they assert that the Permits for the Loop, which will "support the

LNG transloading operations at the GLC," should not have been granted before

the "outstanding jurisdictional issue" is resolved.

Appellants also argue that the Permits should not have been issued

because in November 2021, PHMSA published notice of a proposed suspension

of regulations authorizing transportation of LNG by rail. They contend tha t

DEP's approval of the Permits for the Loop was "premature" because the federal

government may decide in the future to ban one of the activities for which DRP

plans to use the new railway. We are unpersuaded by these arguments.

Under the NGA, "no person shall export any natural gas from the United

States to a foreign country or import any natural gas from a foreign country

without first having secured an order of [FERC] authorizing it to do so." 15

U.S.C. § 717b(a). Anyone wishing to engage in such activity must file an

application with FERC, which must provide the applicant with a hearing and

determine whether the proposed exportation or importation is "consistent with

the public interest." Ibid. FERC has "exclusive authority to approve or deny an

application for the siting, construction, expansion, or operation of an LNG

A-1897-21 27 terminal." 15 U.S.C. § 717b(e)(1). The term "LNG terminal" includes natural

gas facilities found onshore or in State waters "that are used to receive, unload,

load, store, transport, gasify, liquefy, or process natural gas" that is imported,

exported, or transported interstate by waterborne vessel. 15 U.S.C. § 717a(11).

15 U.S.C. § 717b(d) provides that except as specifically stated, nothing in

the NGA affects the rights of states under the Coastal Zone Management Act of

1972, 16 U.S.C. §§ 1451-1468, the Clean Air Act, 42 U.S.C. §§ 7401-7438, or

the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1389, which

includes the Clean Water Act, 33 U.S.C. §§ 1341. 1

CAFRA states that the rules DEP is authorized to adopt under that statute

must be "closely coordinated with the provisions of" the Federal Coastal Zone

Management Act. N.J.S.A. 13:19-17(b). The CZM rules themselves contain

"enforceable policies of the New Jersey Coastal Management Program as

approved under" the federal Act and are used to review "Federal consistency

determinations" under the same. N.J.A.C. 7:7-1.1(a) and (c). The CZM rules

are also used in the review of Water Quality Certificates subject to t he Clean

Water Act. N.J.A.C. 7:7-1.1(a). As a result, the Waterfront Development

Permit, Coastal Wetlands Permit, and Water Quality Certificate here, which

1 See In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 415, 419 (2004). A-1897-21 28 were granted pursuant to the CZM rules, were issued as part of DEP's retained

authority under the Coastal Zone Management Act and Clean Water Act.

The Federal Clean Water Act generally requires parties wishing to

discharge dredged or fill material into wetlands to seek a permit from the United

States Army Corps of Engineers, but also "specifically allows states to assume

permitting authority for waters within their jurisdictions so long as the state

program is at least as stringent as the federal [one]." Freshwater Wetlands Prot.

Act Rules, 180 N.J. at 422. Through FWPA, DEP has assumed this authority.

Ibid.; N.J.S.A. 13:9B-27. Thus, the NGA does not affect the New Jersey

agency's right to issue a Freshwater Wetlands Permit. Del. Riverkeeper Network

v. Sec'y Pa. Dep't of Env't Prot., 833 F.3d 360, 368-69 (3rd Cir. 2016). The

Third Circuit has found that because FWPA requires compliance with FHACA

under N.J.A.C. 7:7A-10.2(b)(10), a Flood Hazard Area Permit also falls under

DEP's retained authority under the Clean Water Act. Id. at 373.

Because DEP granted all the permits at issue in this case pursuant to the

State's rights under one or more of the statutes enumerated in 15 U.S.C. §

717b(d), FERC's otherwise exclusive authority to act concerning LNG facilities

does not apply. Further, nothing in the various permitting statutes and

regulations makes issuance of state-level permits for a railway loop contingent

A-1897-21 29 upon an applicant first gaining FERC's siting approval for the LNG terminal the

Loop serves. Stated differently, while ultimately DRP is required to obtain

siting approval for the GLC from FERC under 15 U.S.C. § 717b, DEP was not

required to await FERC's determination before granting the state-level Permits.

Indeed, the Permits state that DRP must obtain all relevant federal approvals

before beginning construction of the Loop.

We note in general, if DEP fails to act on a construction permit application

within ninety days, that application "shall be deemed to have been approved"

under N.J.S.A. 13:1D-32. The FHACA rules echo this hard deadline for action.

N.J.A.C. 7:13-21.3(c). CAFRA sets forth an even tighter timeline for permits

sought under that statute, after which an application will be "deemed to have

been approved"; DEP must decide within sixty days of a hearing or the close of

a comment period concerning an application, or within ninety days following

receipt of any requested additional information. N.J.S.A. 13:19-9; N.J.A.C. 7:7-

26.6(f). By contrast, under FWPA, DEP must issue or deny a permit within

ninety days, but the application is not deemed approved if it does not do so.

N.J.A.C. 7:7A-19.7.

Because of these deadlines, DEP was obligated to act to grant or deny

DRP's permit applications even though, as it turned out, FERC did not make its

A-1897-21 30 own ruling before the time limits expired. Had DEP failed to do so, all of the

permits, with the exception of the Freshwater Wetlands Permit, would have been

"deemed approved" as requested, without allowing the agency the opportunity

to impose any but the standard conditions upon them. In such an event, DEP

could not have, for example, limited DRP's construction activities to protect bald

eagles and ospreys, creating a situation less beneficial to the environment than

what had actually occurred. As a result, we are satisfied that waiting for FERC

would have been both unnecessary under the relevant regulatory scheme and

imprudent under the circumstances.

We also reject appellants' argument DEP should not have acted until

PHMSA decides whether to continue allowing rail transport of LNG. Nothing

in any of the governing provisions indicates that DEP must delay its permitting

decisions pending federal action that might affect a particular applicant's project.

There is no way to know when PHMSA will reach its decision, or what that

decision will be. In the meantime, DEP was obligated to comply with the

timelines for reviewing the various construction permits, regardless of any

speculation about possible future action by the federal government.

B. Segmentation of the GLC's Development

A-1897-21 31 Appellants also contend DRP has improperly "segmented" the

development of the GLC by submitting "three individual sets of applications"

for various permits to date, in violation of N.J.A.C. 7:7A-10.1(c). They assert

that DRP knew that the GLC's operations would involve using trains to transport

LNG from its planning stages, and that therefore it should have applied for

permits to create a new railway at the same time as it requested permits to build

the rest of the facility's structures. Appellants contend that DRP "must not be

allowed to proceed through the regulatory process in such a piecemeal fashion,"

arguing that DEP acted arbitrarily, capriciously, and unreasonably by

"incrementally reviewing and approving DRP's applications for different

portions of the same project." We are unpersuaded by these arguments.

Under CAFRA and the CZM rules, N.J.S.A. 13:19-5 and N.J.A.C. 7:7-

8.1, and FWPA, N.J.A.C. 7:7A-10.2, a person or entity must seek an

"individual" permit before undertaking certain types of construction in coastal

and wetlands areas. These permits are "project-related and are required for

activities that will have substantial . . . impacts." Freshwater Wetlands Prot. Act

Rules, 180 N.J. at 422-23. The statutes also allow the issuance of "general"

permits, which are "designed to streamline the permitting process for certain

activities that have only a minimal impact, individually and cumulatively, on the

A-1897-21 32 environment." Id. at 423. As relevant here, a Freshwater Wetlands General

Permit may be granted where activity "would not result in the loss or substantial

modification of more than one acre of freshwater wetland." N.J.S.A. 13:9B-

23(b); N.J.A.C. 7:7A-5.3 and -5.4. Otherwise, an individual permit is needed.

The FWPA rules provide that the one-acre limit on disturbance in a

general permit applies to "the entire site upon which activities authorized under"

that permit occur. N.J.A.C. 7:7A-5.3(f). An applicant may not "segment a

project or its impacts" by seeking a general permit for one portion of the project

and an individual permit for another part or by separately applying for multiple

general permits "for different portions of the same project." Ibid. The rules

similarly state that all limitations on regulated activity placed upon individual

permits apply to "the entire site." N.J.A.C. 7:7A-10.1(c).

Applicants may not segment projects by "separately applying for

individual permits for different portions of the same project." Ibid. For

example, an applicant whose overall construction project might disrupt a large

area of wetlands cannot avoid the environmental impact requirements for

individual FWPA permits set forth in N.J.A.C. 7:7A-10.2(b) by dividing the

project into multiple smaller areas whose disturbances might appear negligible

if viewed separately.

A-1897-21 33 Here, DRP's application indicated that it was seeking individual permits

under each of the relevant statutes and regulations. This was necessary because

"[u]nder previous FWPA permits issued for the site, the cumulative total wetland

impacts are greater than one acre." The Loop in itself will disturb only 0.0169

acres of freshwater wetlands. Because DRP's application referenced the

"cumulative" impacts to wetlands, including those under "previous" permits

which together exceed the one-acre general permit limit, we are satisfied DRP

did not intend to obscure the overall effect on the environment of the greater

GLC project by segmenting its construction.

Our conclusion is fully supported by the record, including the

environmental impact statements by Ramboll, which analyzed not only the

discrete project site for the Loop but a wider swathe of the area surrounding the

GLC. For example, the reports discussed a pair of bald eagles nesting on an

island in the Delaware River. DEP's response to appellants' comments s tated

that it reviewed DRP's application "under the individual permit requirements

including an alternatives analysis to minimize impacts to freshwater wetlands

for the entire project and including mitigation for all impacts associated with the

project and overall site." Thus, DRP's GLC-related applications over the years

have not resulted in "piecemeal" review by DEP as appellants claim.

A-1897-21 34 Instead, it appears that DRP initially proposed building the GLC and then

subsequently determined that a railway loop would improve the facility's

efficiency, similarly to how it decided a second dock would be beneficial.

Nothing in the various statutes and regulations prohibits an entity wishing to

undertake construction in a protected area from broadening its plans. Th e

provisions simply prevent an applicant from escaping review of the total impact

of those expanded activities. We are therefore satisfied DEP did not act

arbitrarily, capriciously, or unreasonably by approving the Permits, as there has

been no improper segmentation of the GLC's construction.

C. Stormwater Impacts

Appellants next contend DEP wrongfully issued the Permits because DRP

did not provide site-specific information about the Loop's potential stormwater

impacts. They argue that the Loop is a "major development" under N.J.A.C.

7:8-1.2, and thus needed to comply with the Stormwater Management rules.

Appellants argue that it does not, contending that the Loop was "plainly

unaccounted for in DRP's initial Stormwater Management Plan" for the GLC

and that DRP provided only a "cursory" statement of compliance. Appellants

also contend that DRP did not address "the potential leaking of fuel or

refrigerant from the train equipment itself, as well as the risk of spills and cargo

A-1897-21 35 leaks" and whether polluted stormwater "would be recharged at the project site."

Again, we disagree.

The CZM rules provide that "[i]f a project or activity meets the definition

of 'major development' at N.J.A.C. 7:8-1.2, then [it] shall comply with the

Stormwater Management rules at N.J.A.C. 7:8." N.J.A.C. 7:7-16.6(a).

Compliance is "appropriate" because "development and land use activities

contribute greatly to the types and amount of pollutants that are found in

stormwater runoff," and the rules "provide minimum Statewide runoff

techniques, as well as special protection measures for environmentally sensitive

water and land areas." N.J.A.C. 7:6-16.6(b).

Under N.J.A.C. 7:8-1.2, a "major development" is "any development that

provides for ultimately disturbing one or more acres of land or increasing

impervious surface by one-quarter acre or more." "Disturbance" means "the

placement of impervious surface or exposure and/or movement of soil or

bedrock or clearing, cutting, or removing of vegetation." Ibid. "Impervious

surface" means "a surface that has been covered with a layer of material so that

it is highly resistant to infiltration by water." Ibid. Because the Loop's

construction will involve the disturbance of more than one acre of freshwater

wetlands and transition areas, it meets this definition.

A-1897-21 36 The Stormwater Management rules establish "standards for limiting 'the

adverse impact of stormwater runoff,'" as well as "[s]tandards for controlling

erosion, encouraging and controlling infiltration and groundwater recharge, and

controlling runoff quantities" and quality. In re Authorization for Freshwater

Wetlands Statewide Gen. Permit 6, Special Activity Transition Area Waiver,

433 N.J. Super. 385, 409 (App. Div. 2013) (quoting N.J.A.C. 7:8-5.1(a)).

Stormwater management plans developed by parties seeking DEP construction

permits "shall be designed to," among other goals, minimize increases in

stormwater runoff, reduce soil erosion, maintain groundwater recharge, 2 and

minimize pollutants in stormwater runoff. N.J.A.C. 7:8-2.2. Plans must also

"avoid adverse impacts of concentrated flow on habitat for threatened and

endangered species." N.J.A.C. 7:8-5.2(c).

N.J.A.C. 7:8-5.2(f) sets forth detailed "best management practices" for

achieving the recharge and runoff quality and quantity standards set forth in

N.J.A.C. 7:8-5.4, -5.5, and -5.6. N.J.A.C. 7:8-5.5 and -5.6, in turn, provide

tables showing how runoff quality and quantity should be analyzed and

2 "Recharge" means "the amount of water from precipitation that infiltrates into the ground and is not evapotranspired." N.J.A.C. 7:8-1.2. In other words, a stormwater management plan must seek to ensure that groundwater is replenished so that, for example, freshwater wetlands do not become too dry. A-1897-21 37 calculated to determine whether standards are met. For example, N.J.A.C. 7:8-

5.6(b) states that an applicant must "[d]emonstrate through hydrologic and

hydraulic analysis" that the proposed construction will not increase "the peak

runoff rates of stormwater leaving the site for the two-, [ten]-, and [one

hundred]-year storm events," and must design stormwater management

measures so that post-construction peak runoff rates for these storm events are

"[fifty], [seventy-five], and [eighty] percent, respectively, of the pre-

construction peak runoff rates." Under N.J.A.C. 7:8-5.5(b), stormwater

management plans must also be "designed to reduce the post-construction load

of total suspended solids (TSS) in stormwater runoff." However, this

requirement does not apply to stormwater runoff otherwise regulated "under a

numeric effluent limitation for TSS imposed under the [NJPDES] rules 3 . . . or

in a discharge specifically exempt under a NJPDES permit." N.J.A.C. 7:8 -

5.5(c).

Here, as part of the Dock 1/GLC permitting process, DRP was required to

show compliance with the Stormwater Management rules by designing a

stormwater management system for the facility. DEP concluded that DRP's plan

satisfied the relevant standards when issuing those initial permits. For the Loop,

3 N.J.A.C. 7:14A-1.1 to -25.10. A-1897-21 38 the Ramboll report DRP submitted with its application stated that the general

stormwater management plan for the GLC would be sufficient to also meet the

groundwater recharge and stormwater runoff quality standards set forth in the

Stormwater Management rules.

The supplemental Ramboll report DRP provided in response to DEP's

inquiry provided more information and the results of the consultant's hydraulic

and hydrologic analyses; it stated that the new railway would only increase

stormwater runoff by a "statistically insignificant" amount compared to pre -

construction conditions. The report further explained that groundwater recharge

would not be impeded, because the Loop would be constructed of permeable

materials that would allow water to enter the soil below. Ramboll's report gave

the methodology used to reach these conclusions, which addressed both the

entire GLC site and the area of the Loop. DEP reviewed these materials and

found that "[t]he overland flow of stormwater will not be impeded by the

railroad loop."

Based on the record, we are satisfied DEP did not act arbitrarily,

capriciously, or unreasonably in determining that the DRP's application for the

Loop complied with the Stormwater Management rules, as its conclusion was

A-1897-21 39 based on substantial evidence. 4 Pub. Serv. Elec. & Gas, 101 N.J. at 103.

Although DRP's prior stormwater management plan did not necessarily take the

construction of a railway into consideration, the record indicates that the Loop

will not impact runoff or recharge to a degree where a new or expanded plan is

necessary. Particularly because DEP is entitled to deference concerning its

interpretation of scientific data, Pinelands Preservation Alliance, 436 N.J.

Super. at 533, we discern no error in its failure to require DRP to submit a new

or updated stormwater management plan in connection with the Loop. 5

D. Site-Specific Information on Coastal Habitat Impacts

Appellants next contend DEP should not have issued the Permits because

DRP failed to provide site-specific information demonstrating compliance with

the CZM, FHACA, and FWPA rules. Specifically, they assert that the Loop

4 Appellants have also asserted that DRP failed to comply with the CZM rules and FWPA to the extent that these incorporate the Stormwater Management rules. Because we have concluded that DRP's application properly addresse d stormwater management requirements, we reject this argument. 5 Further, appellants' arguments concerning potential pollutant spills from rail cars or cargo appear inapposite. N.J.A.C. 7:8-5.5(c) indicates that requirements to reduce TSS in stormwater runoff do not apply where the issue is pollutants regulated under NJPDES. The Permits from which appellants appeal state that DRP must also obtain an NJPDES general stormwater permit before constructing the Loop. We presume the potential impacts from fuel or refrigerant leaking from trains, as appellants describe, will be considered and addressed in relation to that permit application. A-1897-21 40 constitutes an "energy facility" under the CZM rules, because the trains running

thereon will "plainly be temporarily storing and distributing fossil fuels ." As a

result, they argue, under N.J.A.C. 7:7-15.4(b)(1) the Loop "may not be sited in

special areas or marine fish and fisheries areas" unless DRP provides site-

specific information that it will not result in adverse impacts to those areas.

Appellants further argue that DRP did not provide sufficient information

about whether the storage and distribution of LNG that will be facilitated by the

Loop is "compatible with or adequately buffered from surrounding uses" under

N.J.A.C. 7:7-15.4(p)(2). They again reference the fact that PHMSA has

proposed suspension of its regulations allowing transport of LNG by rail as

evidence that the Permits should not have been approved, asserting that this

possible federal action means that this activity is too dangerous.

Appellants contend that DRP's statement that fishery resources would not

be adversely affected by the Loop was insufficient because it did not address

potential impacts to fish other than threatened and endangered species. They

also assert that creation of the Loop will disturb a ditch system, causing

"perilous" impacts on "wildlife, including marine fish." Appellants also argue

that DRP's application lacked site-specific information about "erosion and

sedimentation controls" and possible effects on water quality in the area

A-1897-21 41 pursuant to the FHACA rules. In particular, appellants express concern that

sturgeon may be impacted by "excess siltation" resulting from construction of

the Loop. We are unpersuaded by these contentions.

Initially, we conclude the Loop is not an "energy facility" under the CZM

rules and is thus not subject to the regulations governing such facilities.

N.J.A.C. 7:7-15.4(a) states that the term "energy facility" includes "facilities,

plants or operations for the production, conversion, exploration, development,

distribution, extraction, processing, or storage of energy or fossil fuels," as well

as "onshore support bases and marine terminals." N.J.A.C. 7:7-15.4(b) and (c)

set forth general standards regarding the siting of new energy facilities, and

subsections (d) through (s) state specific standards and siting rules for various

types of facilities.

The Loop does not in itself fit into any of the sixteen categories set forth

in N.J.A.C. 7:7-15.4. The regulation does not reference new railways built to

service facilities that have already been granted permits under the requirements

of the relevant subsection(s), nor does it mention trains carrying liquid energy

products. The Loop includes no storage tanks or other apparatus for holding

energy products other than the trains, which are not a fixed part of the project's

construction. None of the other activities discussed in N.J.A.C. 7:7-15.4(d)

A-1897-21 42 through (s) will take place upon it. Further, DEP already evaluated the GLC

using the appropriate standards for its type of energy facility. Appellants'

argument that the Loop is an energy facility is similar to its prior assertions

regarding Dock 2, which we rejected. In re Challenge of Del. Riverkeeper

Network, slip op. at 21-22.

Because the Loop is not an energy facility, DRP did not need to provide

"site-specific information" demonstrating that it would not adversely impact

"marine fish and fisheries areas" under N.J.A.C. 7:7-15.4(b)(1) or to

demonstrate that the railway is "compatible with or adequately buffered from

surrounding uses" under N.J.A.C. 7:7-15.4(p)(2) as appellants argue. We also

observe appellants appear to direct their complaints on this point more toward

the LNG-related activities to be conducted at the GLC generally than to the

construction or operation of the Loop itself. The time to raise these concerns

was when the Dock 1/GLC permits were granted in 2017.

We also consider appellants' argument concerning a lack of specific

information about "erosion and sedimentation controls" to be irrelevant.

Standards for such controls are set forth in the Soil Erosion and Sediment

Control Act, N.J.S.A. 4:24-39 to -55, and are administered by the State Soil

Conservation Committee and local Soil Conservation Districts through

A-1897-21 43 regulations at N.J.A.C. 2:90-1.1 to -4.18. Approval of an application for

development of any "project," as defined in N.J.S.A. 4:24-41(g), is "conditioned

upon certification by the local district of a plan for soil erosion and sediment

control." N.J.S.A. 4:24-43, -44. The Permits at issue here state that DRP must

obtain approval of such a plan from the Gloucester County Soil Conservation

District. We presume information regarding these topics will be presented by

DRP in its application for that approval, which is not currently before us.

Finally, DRP provided significant information concerning potential

impacts to marine life and fisheries. On this issue, the CZM rules provide that

"[a]ny activity that would adversely impact the natural functioning of marine

fish, including the reproductive, spawning and migratory patterns or species

abundance or diversity of marine fish, is discouraged." N.J.A.C. 7:7-16.2(b).

Activity "that would adversely impact any New Jersey based marine fisheries or

access thereto" is also discouraged. Ibid. The FHACA rules similarly state that

DEP may only issue a permit if it determines that this "is not likely to cause

significant and adverse effects" on "fishery resources." N.J.A.C. 7:13-12.1(b).

Here, DRP provided in its application, through the Ramboll reports, that

although the area of the Delaware River near the GLC is a known habitat for

endangered sturgeon, there are unlikely to be any fish whatsoever in the onshore,

A-1897-21 44 upland area to be used for the Loop. As the Ramboll report explained, the

"physical limitations" of the area, such as a tide gate, block fish from entering

the Sand Ditch Settling Basin on the affected plot of land. It further stated that

the ditch would be a "poor habitat" for any fish somehow managing to get into

it, due to "limited food source[s]" and "predator influences."

Further, such fish would almost certainly not include the Atlantic sturgeon

that are of particular concern here, since the species grows to be on average six

to eight feet long and thus could not infiltrate beyond the tide gate. 6 As to the

effects of siltation upon fish in the Delaware River, the Permits require DRP to

install silt fence barriers while assembling the Loop, to ensure that excess

material will not enter the surrounding wetlands or the river. The Loop will also

be constructed upon an existing roadway/former railway to minimize soil

disturbances, and it is unlikely that fish will be harmed by the construction or

operation of the Loop.

In sum, we are satisfied DEP did not act arbitrarily, capriciously, or

unreasonably by not applying the requirements for energy facilities when

reviewing the Loop. In any event, we conclude DRP provided sufficient site-

6 See Atlantic Sturgeon, https://en.wikipedia.org/wiki/Atlantic_sturgeon (last visited November 8, 2023). A-1897-21 45 specific information about the Loop's potential impacts on fish and fishery

resources.

E. Harm to Endangered Species

Appellants next contend DEP acted arbitrarily, capriciously, and

unreasonably by issuing the Permits because the Loop will have "unacceptable

adverse impacts" on threatened and endangered species. Specifically, they

assert that DRP's application did not include sufficient information about

impacts to endangered bald eagles, ospreys, and sturgeon, to threatened red

knots, bog turtles, and sensitive joint-vetch, and to "species of special concern"

like the Fowler's toad, eastern box turtle, and Atlantic Coast leopard frog, which

they assert may be present in the area of the Loop. Appellants argue

construction of the Loop will require removing vegetation in which animal

species live and forage. They also argue that DRP should not be allowed to

purchase wetland mitigation bank credits in lieu of conducting onsite mitigation.

Appellants further assert that DRP's construction plans do not include

large enough "transition areas" between the project area and wetlands that they

contend are of "exceptional resource value" under FWPA and its rules. They

argue that the Loop does not qualify for a waiver of the standard transition area

A-1897-21 46 widths set forth in that regulation. We conclude these arguments are without

merit.

General Environmental Concerns

An application for a permit under CAFRA must include "an environmental

impact statement which shall provide the information needed to evaluate the

effects of a proposed development upon the environment of the coastal area."

N.J.S.A. 13:19-6. DEP may only issue a permit if it finds that the proposed

development, among other things, will "cause minimal feasible interference with

the natural functioning of plant, animal, fish, and human life processes at the

site and within the surrounding region." N.J.S.A. 13:19-10. It may deny an

application if a project does not meet relevant standards, or may impose any

conditions it finds "reasonably necessary to promote the public health, safety

and welfare, to protect public and private property, wildlife and marine fisheries,

and to preserve, protect and enhance the natural environment." Ibid. CWA also

requires that before issuing a Coastal Wetlands permit, DEP must "consider the

effect of the proposed work with reference to the public health and welfare,

marine fisheries, shell fisheries, [and] wildlife . . . ." N.J.S.A. 13:9A-4(d).

The CZM rules more specifically limit development in "endangered or

threatened wildlife or plant species habitat," defined as terrestrial and aquatic

A-1897-21 47 areas "known to be inhabited on a seasonal or permanent basis by or to be critical

at any stage in the life cycle of any wildlife or plant identified as 'endangered'

or 'threatened' species on official Federal or State lists." N.J.A.C. 7:7-9.36(a).

Such development is prohibited "unless it can be demonstrated, through an

endangered or threatened wildlife or plant species impact assessment . . . that

endangered or threatened wildlife or plant species habitat would not directly or

through secondary impacts on the relevant site or in the surrounding area be

adversely affected." N.J.A.C. 7:7-9.36(b).

An applicant for a FWPA permit must also include a statement describing

"any potential adverse environmental effects of the regulated activity and any

measures necessary to mitigate those effects." N.J.S.A. 13:9B-9(a)(4). A

Freshwater Wetlands Permit may only be issued if DEP finds that the proposed

activity "[w]ill result in minimum feasible alteration or impairment of the

aquatic ecosystem" and "[w]ill not jeopardize the continued existence of

[threatened or endangered] species." N.J.S.A. 13:9B-9(b). FWPA defines

"threatened or endangered species" as those species identified in the Endangered

and Nongame Species Conservation Act, N.J.S.A. 23:2A-1 to -15, or which

appear on the federal endangered species list. N.J.S.A. 13:9B-7(d).

A-1897-21 48 A Flood Hazard Area Permit may also be issued only if the proposed

activity "will not destroy, jeopardize, or adversely modify a present or

documented habitat for threatened or endangered species." N.J.A.C. 7:13-

11.6(d). For activity that is "likely" to disturb "an area known to contain a

threatened or endangered species," or a "habitat that could support a threatened

or endangered species," an applicant must submit "a survey and/or a habitat

assessment." N.J.A.C. 7:13-11.6(e). Through permit conditions, DEP must

"restrict" activity during times when a covered species is "especially sensitive

to disturbance," such as during nesting or migration. N.J.A.C. 7:13-11.6(g).

The FHACA rules further require that the "[c]learing, cutting, and/or

removal of riparian zone vegetation" be "minimized" by applicants conducting

regulated activities in a flood hazard area. N.J.A.C. 7:13-11.2(b)(2). Methods

for minimization include "[l]imiting construction to actively disturbed areas

and/or areas wherein the benefits and functions of a riparian zone are

considerably deteriorated and impair as a result of previous development." Ibid.

Examples of such areas are "[e]roded embankments," "[a]reas of dirt and gravel

that are primarily devoid of vegetation," and "[a]bandoned pavement that has

partially revegetated." Ibid.

A-1897-21 49 Against these legal principles, we are satisfied DRP included sufficient

information in the report upon which DEP properly relied about potential

impacts to threatened and endangered species. Indeed, DRP supported its

environmental impact statement with the initial and supplemental Ramboll

reports, which discussed the three endangered species known to use habitat

within one-fourth of a mile of the Loop's project site—sturgeon, bald eagles,

and ospreys—in detail. Ramboll stated that sturgeon live in the Delaware River

and were unlikely to be present in the upland Loop area as discussed in the

previous point. It explained that the bald eagle nests in the area all belong to

one pair of birds and are located on an island some distance from the Loop, a nd

that the trains to be used would not disturb these eagles because they would not

generate more noise than is already present due to other railway and airplane

travel through the area.

Further, Ramboll stated, and DEP agreed, that bald eagles are highly

territorial and that the presence of the breeding pair in the vicinity is a deterrent

to any further eagles or ospreys using the land around the Loop for nesting.

Ramboll also noted that despite this, DRP had installed nesting platforms for

ospreys during the GLC's construction and would relocate those installed near

the Loop's intended site away from where trains might disturb any birds that

A-1897-21 50 might use them in the future. As required by FHACA, the Permits placed

seasonal restrictions on construction to avoid disrupting eagle and osprey

nesting times.

As to the additional species to which appellants raise concerns, the NHP

letter DRP included in its application indicated that the Loop was located within

"the known or expected range of" red knots, bog turtles, and sensitive joint-

vetch, but did not state definitively that these animals and plants were actually

present on the land to be affected. And, addressing this point, Ramboll's reports

provided detailed explanations why these species were unlikely to be found near

the Loop, and stated that they had not been observed during wetland delineation

activities in preparation for the application. In particular, because the pro ject

site is tidally locked and its vegetation is dominated by dense, invasive reeds, it

cannot support the growth of joint-vetch and would not provide good habitat for

red knots, which prefer tidal mudflats and beaches, or bog turtles, which require

wetter conditions. The area is also not "known to be inhabited on a seasonal or

permanent basis by" Fowler's toads, eastern box turtles, or Atlantic Coast

leopard frogs. N.J.A.C. 7:7-9.36(a).

In sum, we again are fully satisfied DEP adequately considered the

information provided and reached a conclusion concerning endangered and

A-1897-21 51 threatened species that was amply and appropriately supported by the record.

DRP demonstrated that the Loop will not jeopardize the existence of any

protected species and will not disturb any activity by those species in the area

to a prohibited degree under CAFRA, CWA, and the CZM, FWPA, and FHACA

We note the issues raised are similar to those before the court in Delaware

Riverkeeper Network, 833 F.3d 360. In that case, DEP decided to issue a

Freshwater Wetlands Permit without conditions to protect two endangered bird

species that might have been in the area. Id. at 381. The DEP based its decision

on expert reports indicating there had only been "limited sightings of the

species," that the affected wetlands area was relatively small, and that the birds'

habitats had already been fragmented by "open areas and neighboring homes."

Ibid. The Third Circuit affirmed, finding that DEP fully considered potential

adverse impacts on endangered species. Ibid. DEP here went further to protect

wildlife by imposing conditions on the Permits.

With respect to mitigation, FWPA and its rules provide that DEP must

require as a condition to a Freshwater Wetlands Permit "that all appropriate

measures have been carried out to mitigate adverse environmental impacts,

restore vegetation, habitats, and land and water features, prevent sedimentation

A-1897-21 52 and erosion, [and] minimize the area of freshwater wetland disturban ce . . . ."

N.J.S.A. 13:9B-13(a); N.J.A.C. 7:7A-11.2(b). To that end, an applicant must

submit a mitigation proposal which must be approved prior to the

commencement of any activities covered by a FWPA permit. N.J.A.C. 7:7A-

11.2(b). Review of this proposal is "independent of" the decision whether the

permit should be granted and may be completed before or after that decision is

made. Ibid.

To achieve mitigation requirements, DEP may require an applicant to

create, enhance, or restore "an area of freshwater wetlands of equal ecological

value to those which will be lost," whether onsite or offsite. N.J.S.A. 13:9B -

13(b). If it determines that onsite mitigation is not feasible, it may consider

offsite action "or the making of a contribution to [a] Wetlands Mitigation Bank."

N.J.S.A. 13:9B-13(c); N.J.A.C. 7:7A-11.2(o)(4); N.J.A.C. 7:7A-11.11(b)(1).

Such a bank is "an operation in which wetlands, uplands, and/or other

aquatic resources are restored, created, enhanced, or preserved by a mitigation

bank operator for the purpose of providing compensatory mitigation for

disturbances to freshwater wetlands and/or State open waters." N.J.A.C. 7:7A-

1.3. The applicant's contribution must be "equivalent to the lesser of the cost

of: (1) purchasing, and enhancing or restoring, existing degraded freshwater

A-1897-21 53 wetlands" that will result in "preservation of freshwater wetlands of equal

ecological value to those . . . lost, or (2) purchasing property and the cost of

creation of [new] freshwater wetlands of equal ecological value to those . . .

lost." N.J.S.A. 13:9B-13(c).

Here, onsite creation of new areas of wetlands is likely not possible

because of the particular characteristics of the project area. Indeed, the plot of

land involved is largely populated by invasive phragmites, and the Loop will be

constructed upon pre-existing railway embankments and a compacted dirt

roadway that is mostly devoid of vegetation; the construction is thus limited to

"actively disturbed areas" in compliance with FHACA. N.J.A.C. 7:13-

11.2(b)(2). DRP also stated that it plans to replace any vegetation it does remove

by reseeding the ground with native plants and inserting new native shrubs and

trees. Thus, DRP's mitigation plan includes not only the purchase of credits, but

onsite remediation activities as well. Thus, contrary to appellants' arguments,

under these provisions, DRP's proposal to purchase mitigation bank credits to

alleviate the Loop's environmental impact was permissible and appropriate.

Transition Areas

Under FWPA, a "transition area" is defined as "an area of land adjacent

to a freshwater wetland which minimizes adverse impacts on the wetland or

A-1897-21 54 serves as an integral component of the wetlands ecosystem." N.J.S.A. 13:9B-

3.7 FWPA categorizes freshwater wetlands into three types by their "resource

value": 1) "exceptional" wetlands which discharge into certain types of waters

or which are "present" or "documented habitats for threatened or endangered

species which remain suitable for breeding, resting, or feeding by these species

during the normal period these species would use the habitat"; 2) "ordinary"

wetlands which do not exhibit these characteristics "and which are certain

isolated wetlands, man-made drainage ditches, swales, or detention facilities";

and 3) "intermediate" wetlands which are all those not included in the other two

categories. N.J.S.A. 13:9B-7(a) to (c).

The FWPA and FHACA rules define "documented habitat for threatened

or endangered species" as areas for which "[t]here is recorded evidence of past

use by a threatened or endangered species of flora or fauna for breeding, resting,

or feeding." N.J.A.C. 7:7A-1.3; N.J.A.C. 7:13-1.2. Such evidence "may

include, but is not limited to, sightings of the species, or of its sign (for example,

skin, scat, shell, track, nest, herbarium records, etc.), as well as identification of

its call." Ibid.

7 N.J.A.C. 7:7A-1.3 includes a picture diagram of an example transition area. It is depicted as a band of land of a required width, all around the border of a freshwater wetland. A-1897-21 55 Thus, DEP need not restrict exceptional classification to "habitats in

which an endangered or threatened species either has presently been sighted or

has been sighted in the past." In re Adopted Amends. to N.J.A.C. 7:7A-2.4, 365

N.J. Super. 255, 266 (App. Div. 2003). However, if such evidence of past use

is present, DEP must also make a "finding that the area remains suitable for use

by the specific documented threatened or endangered species during the normal

period(s) the species would use the habitat." N.J.A.C. 7:7A-1.3; N.J.A.C. 7:13-

1.2. FWPA "affords DEP broad discretion to document such habitats." Adopted

Amends., 365 N.J. Super. at 266. See, e.g., ZRB, LLC v. N.J. Dep't of Env't

Prot., Land Use Regul., 403 N.J. Super. 531, 558-63 (App. Div. 2008) (deferring

to DEP's designation of wetlands as exceptional quality based on nearby offsite

observations of threatened barred owls including sightings and hearing calls,

and current conditions of the project area being suitable for owl nesting and

foraging).

A permit applicant may request that a documented habitat for endangered

or threatened species not result in an exceptional classification if that applicant

"can demonstrate the loss of one or more requirements of the specific

documented threatened or endangered species, including, but not limited to

A-1897-21 56 wetlands or overall habitat size, water quality, or vegetation density or

diversity." N.J.S.A. 13:9B-7(a)(2).

Certain activities, including removing, excavating, or disturbing soil,

erecting structures, dumping or filling with any materials, and destroying plant

life "which would alter the existing pattern of vegetation" are prohibited in a

transition area. N.J.S.A. 13:9B-17. Any person or entity wishing to engage in

such activity within 150 feet of an exceptional quality wetland or within fifty

feet of an intermediate quality wetland must obtain a waiver from DEP. 8

N.J.S.A. 13:9B-17(b); N.J.S.A. 13:9B-16. A waiver application must include a

statement "detailing any potential adverse environmental effects of the acti vity

on the freshwater wetlands and any measures that may be necessary to mitigate

those effects." N.J.S.A. 13:9B-17(b)(3).

If a waiver is granted, the size of the transition area may be reduced to not

less than seventy-five feet around an exceptional quality wetland and not less

than twenty-five feet around an intermediate quality wetland. N.J.S.A. 13:9B-

18(a); N.J.S.A. 13:9B-16(b). A waiver may only be granted for an exceptional

quality wetland if the reduction of the transition area's size "would have no

8 "A transition area is not required adjacent to a freshwater wetland of ordinary resource value or adjacent to a State open water." N.J.A.C. 7:7A-3.3(c). A-1897-21 57 substantial adverse impact on the adjacent freshwater wetlands" or if denial of

the waiver "would result in extraordinary hardship to the applicant because of

circumstances peculiar to the subject property." N.J.S.A. 13:9B-18(c).

Here, DEP classified the 0.0169 acres of freshwater wetlands within the

project area for the Loop as being of intermediate resource value. The Permits

impose a buffer of fifty feet around these wetlands, noting that this is "the

standard transition area" under N.J.S.A. 13:9B-17(b).

Based on our review of the record, we are satisfied the classification of

the wetlands as intermediate instead of exceptional is amply supported.

Although, as previously discussed, there have been documented observations of

endangered species within one-fourth of a mile of the project area, there is no

evidence that these species or their "signs" have been seen in the actual wetlands

to be disturbed by the Loop.

In fact, Ramboll's reports contained information indicating that these

wetlands would not "remain[] suitable for use by the specific documented

threatened or endangered species" as required for an exceptional classification.

N.J.A.C. 7:7A-1.3; N.J.A.C. 7:13-1.2. Instead, they stated that sturgeon cannot

reach the project area and bald eagles and ospreys are not likely to nest or forage

there because of the territorial breeding pair of eagles on a nearby island.

A-1897-21 58 Ramboll also indicated that the vegetation in the area is largely common,

invasive phragmites, and that the disturbance in the designated transition area

will be confined to the existing roadway, which already constitutes an active

disturbance in itself.

We therefore conclude DEP properly exercised its "broad discretion" to

classify the affected wetlands as intermediate, Adopted Amends., 365 N.J.

Super. at 266, and thus correctly imposed a fifty-foot transition area requirement

upon DRP. N.J.S.A. 13:9B-17(b). Further, appellants' argument DRP was not

entitled to a transition area waiver is simply irrelevant, as no such waiver was

sought or needed.

In sum, DEP did not act arbitrarily, capriciously, or unreasonably when

issuing the Permits, as DRP's application adequately addressed potential impacts

to threatened and endangered species, and the Permits themselves impose

appropriate conditions and mitigation requirements to offset and minimize any

disturbance to habitats.

To the extent we have not addressed any arguments raised by appellants,

it is because we have concluded these arguments lack sufficient merit to warrant

discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-1897-21 59