NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3180-14T1 N.J. HIGHLANDS COALITION and SIERRA CLUB N.J.,
Petitioners-Appellants, APPROVED FOR PUBLICATION v. DECEMBER 13, 2018 NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION and APPELLATE DIVISION BI-COUNTY DEVELOPMENT CORP.,
Respondents-Respondents. ______________________________
Argued February 15, 2017 – Decided August 4, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from the New Jersey Department of Environmental Protection.
Susan J. Kraham argued the cause for appellants (Columbia Environmental Law Clinic, attorneys; Ms. Kraham and Edward Lloyd, on the briefs).
Timothy P. Malone, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Malone, on the brief).
David R. Oberlander argued the cause for respondent Bi-County Development Corp. (Bisgaier Hoff, LLC, attorneys; Mr. Oberlander, on the brief). The opinion of the court was delivered by
SIMONELLI, P.J.A.D.
Appellants N.J. Highlands Coalition and Sierra Club, N.J.
challenge a settlement agreement between respondents New Jersey
Department of Environmental Protection (DEP) and Bi-County
Development Corp. (Bi-County) relating to Bi-County's development
of a 204-unit inclusionary housing project in the Borough of
Oakland (Oakland). Appellants also appeal from DEP's approval of
two freshwater wetlands general permits and a transition area
waiver. We affirm.
I.
Bi-County owns approximately eighty-five acres of land in
Oakland (the property). Because the property is located in the
Highlands Region, see N.J.S.A. 13:20-7(a)(1), it is subject to the
restrictions of the Highlands Water Protection and Planning Act
(Highlands Act), N.J.S.A. 13:20-1 to -35. The property serves as
habitat for the threatened species Barred Owl, see N.J.A.C. 7:25-
4.17 (classifying Barred Owl as a threatened species), and the DEP
designated the wetlands on the property as being of exceptional
resource value.
In 1987, Bi-County filed a lawsuit against Oakland and the
Oakland Planning Board (Planning Board) under the Mt. Laurel
2 A-3180-14T1 doctrine1 seeking a builder's remedy authorizing construction of
700 residential units on the property, which would include
affordable housing. In January 1991, the parties executed a
settlement agreement, which required Oakland to re-zone the
property to permit construction of an inclusionary housing
development of up to 370 residential units, with some designated
for affordable to low or moderate-income households (the Mt. Laurel
settlement). The Mt. Laurel settlement also required Oakland to
cooperate and expeditiously resolve any issues regarding sewer
service, and acknowledged that Oakland had already submitted a
wastewater management plan to DEP to authorize sanitary sewer
service for the project through a connection to the municipal
sewer system operated by the adjacent Township of Wayne (Wayne).
As a result of the settlement, the parties filed a stipulation of
dismissal, dismissing the litigation.
In February 1991, the property was placed in an approved
sewer service area by virtue of DEP's inclusion of the Oakland
wastewater management plan as an amendment to the Northeast Water
Quality Management Plan (the 1991 WQMP amendment). The 1991 WQMP
1 See S. Burlington Cty. NAACP v. Twp. of Mt. Laurel, 67 N.J. 151, cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L.Ed.2d 28 (1975).
3 A-3180-14T1 amendment allowed for treatment of wastewater from the property
at the Mountain View Sewage Treatment Plant located in Wayne.
In 1998, Bi-County contracted to sell the property to Pinnacle
Communities, LTD (Pinnacle). In March 1999, Pinnacle applied to
the Planning Board for site plan approval for development of a
313-unit inclusionary housing project. The project proposed a
fifty-foot transition area surrounding the freshwater wetlands on
the property, as then required by a freshwater wetlands letter of
interpretation (LOI)2 the DEP issued in 1989 and reissued in 1997,
which classified the wetlands on the property as being of
intermediate resource value.
Pinnacle and Bi-County filed a lawsuit against Oakland and
Wayne for issues related to the property. In 2001, the trial
court ordered Wayne to accept wastewater from the property, and
ordered Oakland and Wayne to execute a municipal services agreement
to provide for such wastewater service.
In 2003, Pinnacle applied to DEP for a new LOI because the
two prior LOIs had expired. During DEP's review of the
application, it informed Pinnacle that the wetlands on the property
2 An LOI delineated the extent of regulated freshwater wetlands and transition areas on a site. See N.J.S.A. 13:9B-8. Transition areas are regulated areas adjacent to freshwater wetlands that serve as a buffer between wetlands and uplands. See N.J.S.A. 13:9B-16. The width of a transition area depends on the resource value classification of the adjacent wetland. See ibid.
4 A-3180-14T1 were habitat for the Barred Owl, and thus, the project required a
150-foot transition area surrounding the freshwater wetlands on
the property instead of the proposed fifty-foot transition area.
Pinnacle contested DEP's determination and submitted a report
from its consultant, who concluded Barred Owls were not present
on the property. In response, Wayne submitted a report from its
consultant, who concluded the site contained Barred Owls and had
a documented record of serving as Barred Owl habitat. The
consultant also concluded that the wetlands on the property should
be classified as exceptional resource value, which Pinnacle's
consultant disputed.
DEP determined that the property served as Barred Owl habitat
and re-classified the wetlands on the property as being of
exceptional resource value. Exceptional resource value wetlands
require a 150-foot transition area adjacent to the wetlands. See
N.J.A.C. 7:7A-2.5(d).3 Because of this 150-foot transition area
requirement, the development of 313 units was no longer possible.
However, DEP determined that if the project was redesigned to
3 The regulations governing the implementation of the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to -30, and the New Jersey Water Pollution Act, N.J.S.A. 58:10A-1 to -73, were recodified as N.J.A.C. 7:7A-1.1 to 22.20 and amended by R. 2017, d. 243, effective December 18, 2017. We shall refer herein, in text, to the regulations in effect on March 12, 2015, the date this appeal was filed.
5 A-3180-14T1 incorporate a larger transition area and preserve approximately
sixteen acres of uplands pursuant to a comprehensive conservation
plan (CCP), this would preserve the property's Barred Owl habitat
function and allow Pinnacle or Bi-County to obtain the required
approvals and waivers under the Freshwater Wetlands Protection Act
(FWPA), N.J.S.A. 13:9B-1 to -30, and the Flood Hazard Area Control
Act, N.J.S.A. 58:16A-50 to -103.
In 2004, DEP issued an LOI, which re-classified the wetlands
on the property as being of exceptional resource value, requiring
a 150-foot transition area (the 2004 LOI). Pinnacle submitted a
CCP to DEP that proposed reducing the project from 313 units to
209 units and preserving sixteen acres of forested uplands as a
corridor for the Barred Owl to travel between larger forested
areas to the north and south. Pinnacle also submitted redesign
plans to the Planning Board to reflect the increased transition
area required by the 2004 LOI and CCP, and reduction in the size
of the project from 313 units to 209 units.
The Legislature passed the Highlands Act in 2004. The
Legislature found the Highlands to be critically important to New
Jersey because they provide drinking water for approximately one-
half of the State's population. Thus, the Legislature declared
that preservation of the Highlands "cannot be left to the
uncoordinated land use decisions of [eighty-eight] municipalities,
6 A-3180-14T1 seven counties, and a myriad of private landowners[.]" N.J.S.A.
13:20-2. Instead of permitting decentralized protection, the
Legislature established the Highlands Water Protection and
Planning Council (Highlands Council) to oversee New Jersey's
portion of the national Highlands Region. N.J.S.A. 13:20-4. The
Highlands Council is responsible for developing a regional master
plan and overseeing development in the Highlands Region. N.J.S.A.
13:20-6 and -8.
The Highlands Act exempts certain development activities from
its restrictions, including:
a major Highlands development . . . that on or before March 29, 2004 has been the subject of a settlement agreement and stipulation of dismissal filed in the Superior Court . . . to satisfy the constitutional requirement to provide for the fulfillment of the fair share obligation of the municipality in which the development is located.
[N.J.S.A. 13:20-28(a)(17) (emphasis added).]
The exemption "expire[s] if construction beyond site preparation
does not commence within three years after receiving all final
approvals required pursuant to the 'Municipal Land Use Law,'
[(MLUL), N.J.S.A. 40:55D-1 to -22]." Ibid. (emphasis added).
Pinnacle sought a Highlands applicability determination from
DEP that the project was exempt from the Highlands Act under
N.J.S.A. 13:20-28(a)(17). Pinnacle also sought a WQMP consistency
7 A-3180-14T1 determination, and applied to the Planning Board for approval of
a 209-unit development plan.
In June 2005, DEP determined that Bi-County was entitled to
the exemption under N.J.S.A. 13:20-28(a)(17) based on the Mt.
Laurel settlement and stipulation of dismissal. However, DEP
found, incorrectly, that the proposal was inconsistent with the
Northeast WQMP. Both DEP and Pinnacle had overlooked the 1991
WQMP amendment, which already provided for treatment of wastewater
from the property, and mistakenly believed the property was located
outside of a sewer service area. As a result, Pinnacle applied
for a WQMP amendment to extend Wayne's Mountain View Wastewater
Treatment Facility's sewer service area to include the property.
DEP rejected the application and expressed concern about the
project's impacts on the Barred Owl, among other things. Pinnacle
contested DEP's determination, and the matter was transferred to
the Office of Administrative Law (OAL) for a hearing.
Meanwhile, in July 2007, the Planning Board granted
preliminary and final major site plan approval and all variances
and waivers for the construction of 209 units on the property,
with sixteen units set aside for affordable housing and twelve
units set aside for senior housing (the 2007 approval). The
Planning Board conditioned the 2007 approval on Pinnacle obtaining
all necessary approvals from DEP and the Bergen County Planning
8 A-3180-14T1 Board (County Planning Board), and satisfying more than fifty
additional conditions. The 2007 approval also required Pinnacle
to return to the Planning Board for amended site plan approval if
DEP required additional transition areas or placed any further
restrictions on the proposed development.
In July 2007, Pinnacle applied to DEP for freshwater wetlands
general permit 6, which authorizes certain activities in non-
tributary wetlands, see N.J.A.C. 7:7A-5.6, and freshwater wetlands
general permit 11, which authorizes activities necessary to
construct stormwater outfall and intake structures. See N.J.A.C.
7:7A-5.11. Pinnacle also applied for a transition area waiver.
DEP determined that in lieu of general permit 6, Pinnacle had to
obtain general permit 10B, which authorizes the building of minor
road crossings in wetlands and transition areas. See N.J.A.C.
7:7A-5.10B.
Pinnacle terminated the purchase contract and returned the
property to Bi-County. In February 2009, Bi-County applied to DEP
for an extension of the 2004 LOI. DEP granted an extension in
November 2009, but again determined the property contained
exceptional resource value wetlands that served as habitat for
threatened and endangered (T&E) species. Bi-County contested
DEP's determination, and the matter was transferred to the OAL and
consolidated with the other OAL matter.
9 A-3180-14T1 While the OAL matters were pending, the Highlands Council
reviewed Bi-County's project plan and compared it with the Regional
Master Plan (RMP). The Highlands Council recommended that DEP not
approve Bi-County's application to extend the 2004 LOI unless it
was modified to address three inconsistences: (1) the project
encroaches into the 300-foot buffers/riparian areas, and this was
inconsistent with the objectives of the final draft RMP; (2) the
project disturbs the Barred Owl and any disturbance to the mapped
habitat for Barred Owls will result in forest fragmentation;4 and
(3) the project's proposed water use was inconsistent with the RMP
both because it exceeds the 27,600 gallons per day in conditionally
available water for the three subwatersheds and did not provide
the 125% mitigation of the depletive water uses. See N.J.S.A.
13:20-10 (stating goals of the RMP).
DEP and Bi-County discussed settlement of the OAL matters.
During their discussions, Bi-County informed DEP of the 1991 WQMP
amendment. DEP determined that the 1991 WQMP amendment was still
in effect as it pertained to the property, and conceded it had
4 The Convention on Biological Diversity, a convention of the United Nations that includes the United States, defines "forest fragmentation" as "any process that results in the conversion of formerly continuous forest into patches of forest separated by non-forested lands." Convention on Biological Diversity, Forest Biodiversity Definitions, https://www.cbd.int/forest/definitions.shtml [http://archive.is/xgLLN] (last visited July 24, 2017).
10 A-3180-14T1 erred in 2005 when it found Bi-County's proposal was inconsistent
with the Northeast WQMP. DEP also determined that the Highlands
Act exemption under N.J.S.A. 13:20-28(a)(17) had not expired
because Bi-County had not yet obtained all final approvals required
under the MLUL. After resolving these issues, only one issue
remained: whether DEP should grant Bi-County's freshwater general
permit application and issue general freshwater wetland permits
10B and 11, and a transition area waiver.
In October 2012, Bi-County submitted to DEP a permitting
plan, which revised the project in the area subject to the
requirements of general freshwater wetlands permit 10B. The
revision would change the site plan by reducing the project from
209 units to 204 units.
On January 28, 2014, DEP and Bi-County executed a settlement
agreement that provided for issuance of the two general permits
and transition area waiver (the DEP settlement). Under the DEP
settlement, Bi-County agreed to withdraw the OAL matters, revise
its plans to satisfy all regulatory requirements for issuance of
the general permits, and obtain any other approvals required by
local, state, or federal law. Bi-County also agreed to revise its
freshwater wetlands permit application so that the application
satisfied FWPA regulations, reduce the number of units from 209
to 204, and revise its CCP to conform to the permitting plan.
11 A-3180-14T1 DEP agreed to amend its records to reflect the property's
inclusion in Wayne's sewer service area, and refrain from adopting
any WQMP amendments changing this designation so long as Bi-
County's development proposal remained exempt under the Highlands
Act. DEP determined that the presence of documented Barred Owl
habitat and exceptional resource value wetlands on the property
would be adequately protected and thereby not preclude approval
of the freshwater wetlands permit application. DEP also determined
that Bi-County was entitled to the Highlands Act exemption under
N.J.S.A. 13:20-28(a)(17) because the property was developed in
accordance with the Mt. Laurel settlement, and the Planning Board's
July 2007 approval was not a final approval within the meaning of
N.J.S.A. 40:55D-4 until Bi-County satisfied the conditions of the
approval, including issuance of the general permits. DEP found
that the 2007 approval was not a final approval because Bi-County
had to amend its site plan to reflect the terms and conditions of
the required DEP approvals.
In October 2014, Bi-County submitted a revised compliance
statement for its freshwater permit application. DEP reviewed the
application, paying particular attention to the potential impacts
on Barred Owl habitat. Christina Albizati, an Environmental
Specialist with a decade of experience in DEP's T&E Species Unit,
led this review and documented her findings. She found that the
12 A-3180-14T1 permits would only disturb less than a quarter acre of wetlands,
while the transition area waiver would reduce 1.718 acres of
transition area in order to facilitate the construction of several
single-family dwellings and a detention basin. She determined
that the loss of less than a quarter acre of wetland habitat did
not destroy, jeopardize, or adversely modify the documented Barred
Owl habitat when the habitat consisted of 400 acres.
Further, as compensation for the lost 1.718 acres, Bi-County
agreed to expand the wetland transition area in other locations
on-site by 1.363 acres and preserve 16.81 acres of additional
forested uplands that were suitable for Barred Owl habitat. These
forested uplands would not otherwise receive protection under the
FWPA.
DEP concluded that the project was consistent with FWPA
regulations. DEP determined that the preserved 16.81 acres of
upland forest areas would not only substantially offset the
relatively small loss of Barred Owl habitat in regulated areas,
but would also provide an added level of habitat protection by
serving as a buffer from forthcoming development.
The U.S. Fish and Wildlife Service (USFWS) reviewed the
settlement agreement and submitted comments to DEP. USFWS noted
that the property lies within the summer migratory range for the
13 A-3180-14T1 Indiana Bat5 and the Northern Long-Eared Bat,6 and may serve as
habitat for the Small-Whorled Pogonia.7
5 New Jersey lists the Indiana Bat as endangered. N.J.A.C. 7:25- 4.13. The Indiana Bat is a small bat with dark-brown or black fur. The bats became endangered in 1967 because "people disturb[ed] hibernating bats in caves during winter, resulting in the death of large numbers of bats." U.S. Fish & Wildlife Service, Indiana Bat (Myotis sodalis), https://www.fws.gov/midwest/endangered/mammals/inba/index.html [http://archive.is/imkIz] (last updated July 19, 2016). The "bats are vulnerable to disturbance because they hibernate in large numbers in only a few caves[.]" Ibid. "Other threats that have contributed to the Indiana [B]at's decline include commercialization of caves, loss of summer habitat, pesticides and other contaminants, and most recently, the disease white-nose syndrome." Ibid. 6 The Northern Long-Eared Bat "is a medium-sized [brown] bat" that "is distinguished by its long ears[.]" White-nose syndrome is also responsible for its threatened status. U.S. Fish & Wildlife Service, Northern Long-Eared Bat (Myotis septentrionalis) (Apr. 2015), https://www.fws.gov/Midwest/endangered/mammals/nleb/pdf/NLEBFact Sheet01April2015.pdf . It "was listed as threatened under the Endangered Species Act on April 2, 2015." U.S. Fish & Wildlife Service, Northern Long-Eared Bat (Myotis septentrionalis), https://www.fws.gov/midwest/endangered/mammals/nleb/index.html [http://archive.is/7EK0n] (last updated Sept. 2, 2016).
7 The Small Whorled Pogonia is "a threatened species" and "a member of the orchid family." The agency states that "[t]he primary threat to the small whorled pogonia is the past and continuing loss of populations when their habitat is developed for urban expansion." U.S. Fish & Wildlife Service, Small Whorled Pogonia (Isotria medeoloides) (Feb. 2016), https://www.fws.gov/midwest/endangered/plants/pdf/smallwhorledpo goniafctsht.pdf.
14 A-3180-14T1 On February 14, 2015, DEP issued general permits 10B and 11
and a transition area waiver, which incorporated the conditions
that USFWS requested. The general permits imposed bat and plant
pre-construction survey requirements; required the surveys to be
submitted to and approved by USFWS; and placed timing limits on
tree-clearing to protect migrating and foraging bat species.
II.
On appeal, appellants contend that DEP erred as a matter of
law in determining that the 2007 approval was not a final approval
within the meaning of N.J.S.A. 40:55D-4. Appellants posit that
the 2007 approval was a final approval because the Planning Board
took official action preliminarily approving a site plan; although
the official action was conditional, it conferred on Bi-County all
rights attendant to a final approval; and those rights vested on
the date of the final approval regardless of whether there were
conditions of approval.8 Accordingly, appellants conclude that
because the 2007 approval was a final approval and Bi-County failed
to begin construction, Bi-County was not entitled to the exemption.
8 Appellants rely on an unpublished opinion from this court to support this argument; however, unpublished opinions do not constitute precedent and are not binding on us. R. 1:36-3; Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001). Appellants also rely on a published trial court opinion; however, trial court opinions are not binding on us. S & R Assocs. v. Lynn Realty Corp., 338 N.J. Super. 350, 355 (App. Div. 2001).
15 A-3180-14T1 Our role in reviewing an administrative agency's decision is
limited. Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot.,
101 N.J. 95, 103 (1985). We will not reverse the agency's decision
unless: (1) it was arbitrary, capricious, or unreasonable; (2) it
violated express or implied legislative policies; (3) it offended
the State or Federal Constitution; or (4) the findings on which
it was based were not supported by substantial, credible evidence
in the record. Univ. Cottage Club of Princeton N.J. Corp. v. N.J.
Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007).
"In reviewing an administrative agency's decision, we will
grant considerable deference to the agency's expertise, where such
expertise is a relevant factor." In re Petition of S. Jersey Gas
Co., 447 N.J. Super. 459, 480 (App. Div. 2016). "We may not
second-guess those judgments of an administrative agency which
fall squarely within the agency's expertise." In re Stream
Encroachment Permit No. 0200-04-0002.1 FHA, 402 N.J. Super. 587,
597 (App. Div. 2008).
"Ordinarily, DEP is given great deference when it applies its
considerable expertise and experience to the difficult balance
between development and conservation." Ibid. (quoting Crema v.
N.J. Dep't of Envtl. Prot., 192 N.J. Super. 505, 510 (App. Div.
1984)). "However, '[w]hile we must defer to the agency's
expertise, we need not surrender to it.'" Pinelands Pres. All.
16 A-3180-14T1 v. State, Dep't of Envtl. Prot., 436 N.J. Super. 510, 524 (App.
Div.) (alteration in original) (quoting N.J. Chapter of Nat'l
Ass'n of Indus. & Office Parks v. N.J. Dep't of Envtl. Prot., 241
N.J. Super. 145, 165 (App. Div. 1990)), certif. denied, 220 N.J.
40 (2014). "The party who challenges DEP's decision to permit
development of a certain location has the 'burden of demonstrating,
not that the agencies' action was merely erroneous, but that it
was arbitrary.'" Stream Encroachment Permit, supra, 402 N.J.
Super. at 597 (quoting Crema, 192 N.J. Super. at 510).
Furthermore, although we "must give deference to the agency's
findings of facts, and some deference to its 'interpretation of
statutes and regulations within its implementing and enforcing
responsibility,' we are 'in no way bound by the agency's
interpretation of a statute or its determination of a strictly
legal issue.'" Utley v. Bd. of Review, Dep't of Labor, 194 N.J.
534, 551 (2008) (citation omitted) (quoting In re Appeal by
Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div.
1997); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93
(1973)). Applying the above standards, we discern no reason to
disturb DEP's decisions.
The MLUL defines "final approval" as:
the official action of the planning board taken on a preliminarily approved major subdivision or site plan, after all
17 A-3180-14T1 conditions, engineering plans and other requirements have been completed or fulfilled and the required improvements have been installed or guarantees properly posted for their completion, or approval conditioned upon the posting of such guarantees.
[N.J.S.A. 40:55D-4 (emphasis added).]
See Field v. Mayor & Council of Franklin, 190 N.J. Super. 326, 332
(App. Div. 1983).
Here, the Planning Board approved the proposed development,
but conditioned its approval on Bi-County satisfying fifty-seven
conditions, several of which remained unsatisfied when DEP issued
the general permits and transition area waiver. Among these
outstanding conditions were the County Planning Board's approval
of the site plan and issuance of all necessary DEP approvals, both
of which the MLUL requires. See N.J.S.A. 40:55D-22(b); N.J.S.A.
40:55D-50(b).
Moreover, the 2007 approval was for the development of 209
units. DEP required Bi-County to revise the project area subject
to the requirements of freshwater wetlands permit 10B. The
revision changed the site plan by reducing the proposed development
from 209 units to 204 units. The 2007 approval required Bi-County
to return for amended site plan approval if DEP imposed additional
conditions or other restrictions on the proposed development,
which the DEP did here. Thus, the 2007 approval was not a "final
18 A-3180-14T1 approval" because Bi-County had not received "all final approvals
required pursuant to the [MLUL]," N.J.S.A. 13:20-28(a)(17), and
final site plan approval for 204 units. Accordingly, DEP correctly
concluded that Bi-County was entitled to the exemption under
N.J.S.A. 13:20-28(a)(17).
III.
Appellants challenge DEP's determination that Bi-County's
permitting plan adopted in the DEP settlement complied with the
FWPA's general wetlands permit provisions. They argue that DEP
acted arbitrarily and capriciously by determining that Bi-County's
permitting plan adequately protected threatened Barred Owl
habitat. Appellants posit that granting the general permits will
cause forest fragmentation and thus endanger the Barred Owl in
violation of N.J.A.C. 7:7A-4.3(b)(3). They note that the permits
allow for the removal of a small area of wetlands, and risk
rendering the remainder of the forest patch unusable as Barred Owl
habitat because the owls shun human activity by avoiding
residential, industrial, or commercial areas. Appellants also
note the Highlands Council found the project jeopardizes Barred
Owl habitat.
Appellants also argue that DEP acted arbitrarily and
capriciously by failing to make findings as to whether Bi-County's
permitting plan will jeopardize the continued existence of the
19 A-3180-14T1 Barred Owl. They point to the fact that DEP previously determined
that the property served as habitat for the threatened Barred Owl,
but then conveniently failed to make any finding as to whether the
project jeopardized the Barred Owl's continued existence.
Further, appellants maintain that because Bi-County was
already required to preserve uplands forest in order to meet the
requirements of general permit 10B, DEP erred when it conditioned
acceptance of Bi-County's permitting plan on Bi-County mitigating
harms to Barred Owl habitat. Even if proper, appellants posit
that the preservation would not prevent forest fragmentation.9
The "Legislature passed the [FWPA] in 1987 as a means of
protecting and regulating New Jersey's sensitive freshwater
wetlands." N.J. Dep't of Envtl. Prot. v. Huber, 213 N.J. 338, 341
(2013) (citing N.J.S.A. 13:9B-1 to -30; In re Freshwater Wetlands
Prot. Act Rules, 180 N.J. 478, 482 (2004)). When it passed the
FWPA, the Legislature found, among other things, that "freshwater
wetlands [(1)] protect and preserve drinking water supplies by
[serving to purify surface water and groundwater resources;] [and
(2)] provide essential breeding, spawning, nesting, and wintering
habitats for a major portion of the State's fish and wildlife[.]"
9 Appellants erroneously assert that the presence of a threatened or endangered species triggers the stringent requirements of N.J.A.C. 7:7A-4.3(d); however, this regulation is inapplicable because it governs timing requirements on fisheries.
20 A-3180-14T1 Id. at 343 (quoting In re Freshwater Wetlands Prot. Act Rules, 238
N.J. Super. 516, 519 (App. Div. 1989)).
Because of the wetlands' great importance, the Legislature
announced "it shall be the policy of the State to preserve the
purity and integrity of freshwater wetlands from random,
unnecessary or undesirable alteration or disturbance[.]" N.J.S.A.
13:9B-2. At the same time, the Legislature cautioned that "the
rights of persons who own or possess real property affected by
this [A]ct must be fairly recognized and balanced with
environmental interests[.]" Ibid. (emphasis added).
Following the FWPA's enactment, DEP promulgated regulations
interpreting the statute. Most relevant to this case, DEP
promulgated N.J.A.C. 7:7A-4.3, which governs all general permit
authorizations. The regulation declares that "[t]he activities
[authorized by a general permit] shall not destroy, jeopardize,
or adversely modify a present or documented habitat for threatened
or endangered species; and shall not jeopardize the continued
existence of any local population of a threatened or endangered
species[.]" N.J.A.C. 7:7A-4.3(b)(3).
An applicant must also meet additional requirements depending
on the permit sought. General permits 10B and 11 specifically
require that "[m]itigation . . . be performed for all permanent
loss and/or disturbance of 0.1 acres or greater of freshwater
21 A-3180-14T1 wetlands or State open waters." N.J.A.C. 7:7A-5.10B(e); N.J.A.C.
7:7A-5.11(i). N.J.A.C. 7:7A-15.5 establishes the degree of
mitigation required for disturbances of less than 1.5 acres.
These regulations required Bi-County to preserve at least
five acres of uplands because the project disturbed less than 1.5
acres of exceptional resource value freshwater wetlands and upland
preservation was practicable and feasible. N.J.A.C. 7:7A-15.9;
N.J.A.C. 7:7A-15.5. Bi-County complied with the regulations by
allocating five acres of the 16.81 acres of preserved forested
uplands as mitigation.
In the DEP settlement, DEP determined that the revised project
would satisfy regulatory requirements for issuance of the required
general permits and that due to Bi-County's CCP, the presence of
documented Barred Owl habitat and exceptional resource value
wetlands on the property would not preclude approval of the general
permit application. The CCP reengineered the entire project to
increase wetlands transition areas, conserve sixteen acres of
uplands, and reduce the project's size by approximately one-third.
The CCP also proposed a monitoring program for the Barred Owl and
species of special concern to determine the patterns of use of the
subject property.
DEP's T&E Unit also thoroughly reviewed Bi-County's general
permit application to determine the project's potential impact on
22 A-3180-14T1 Barred Owl habitat. The T&E Unit recognized that the general
permits would authorize a disturbance of .1984 acres of wetland
and the waiver would result in a net loss of .335 acres of habitat,
but found that
this relative[ly] small loss of habitat is more than offset by the supplemental preservation of 16.81 acres of suitable upland forest habitat proximate to the wetlands . . . . [T]he preservation of the forested steep slope areas on [the] site[,] through [the] creation of conservation areas, not only preserves habitat for [B]arred [O]wl[s], but also provides an additional level of habitat protection by serving as a screen from the forthcoming development.
Based on its findings, the T&E Unit concluded:
[T]he proposed plan is consistent with the standards of subchapters 5 and 6 of the [FWPA] Rules. . . . [T]he amount of wetland and transition area habitat being lost to development is minor in comparison to the amount of wetland and transition areas that remain and that will be preserved. In combination with the additional upland conservation areas onsite, the forested wetlands on [the] site will still retain the same structure and function they did prior to development and will still be able to provide [B]arred [O]wl[s] with necessary habitat components without threatening the existence of the population in the area.
Further, when DEP responded to the public's comments, it
expressly incorporated by reference the T&E Unit's report, and
addressed the public's concerns for the Barred Owl and forest
fragmentation. DEP stated:
23 A-3180-14T1 After a thorough review of all relevant documentation, the T&E Unit finds the proposed plan is consistent with the standards of [N.J.A.C. 7:7A-4.3(b)], as the proposed plan would not appreciably result in increases in sediment, nutrient or pollutant loading and/or degrade water quality in the wetland that would result in an alteration of the wetlands' ability to provide suitable habitat for the [B]arred [O]wl. In regard to impacts to the wetland habitat of the [B]arred [O]wl, the plan will result in a net loss of 0.355 acre[s] of habitat within the transition area of the largest wetlands onsite. However, the T&E Unit has determined that this relatively small loss of habitat is more than offset by the supplemental preservation of 16.81 acres of suitable upland forest habitat, which is proximate to wetlands and within the same Barred [O]wl habitat. . . . The T&E Unit has determined that the preservation of forested steep slope areas on site through [the] creation of conservation areas not only preserves habitat for [B]arred [O]wl, but also provides an additional level of habitat protection by serving as a screen from the forthcoming development. While the proposed development project will segment the forested habitat on-site, the amount and quality of remaining forest, both upland and wetland, will continue to provide suitable habitat for the [B]arred [O]wl. As a result, the [B]arred [O]wl can still use the remaining wetlands and the preserved forested areas for resting and foraging, and the remaining on-site habitat will also serve as a corridor to habitat south and north of the parcel.
[(Emphasis added).]
The record confirms that DEP carefully considered the
project's impacts on the Barred Owl and reasonably approved the
general permits. Unlike DEP, appellants may believe that the land
24 A-3180-14T1 lost to Bi-County's development is too great. Appellants' mere
disagreement, however, does not make DEP's determination
arbitrary, capricious, or unreasonable. The Legislature tasked
DEP with balancing environmental and real property interests.
N.J.S.A. 13:9B-2. The DEP settlement and general permits represent
DEP's reasonable attempt to strike this balance. The record amply
supports DEP's decision to approve the general permits; the DEP's
decision comports with the requirements of the FWPA and
corresponding regulations; and the decision was not arbitrary,
capricious, or unreasonable.
IV.
Appellants contend that DEP unreasonably ignored evidence
that the property serves as habitat for the federally-endangered
Indiana Bat and Northern Long-Eared Bat, and federally-threatened
Small-Whorled Pogonia. Appellants argue that DEP failed to
consider that USFWS identified the exceptional resource value
wetlands on the property as habitat for these species, and the DEP
settlement never mentioned them. Appellants also argue that
USFWS's comments raised concerns that the project occurs within
the summer migratory range of the endangered Northern Long-Eared
Bat, and lies within a maternity colony buffer. Finally,
appellants note that USFWS requested surveys for the Northern
Long-Eared Bat and Small-Whorled Pogonia.
25 A-3180-14T1 Bi-County's CCP, which the DEP settlement expressly
incorporated by reference, acknowledged there were other T&E
species on the property. The CCP states that the "Barred Owl
should be the main focus of the monitoring program[,] but not the
exclusive purpose" because "[s]pecies of special concern
identified or potential . . . should also be a focus of a baseline
monitoring program."
Second, although the DEP settlement does not expressly
reference the Indiana Bat, DEP considered the project's impact on
T&E species other than the Barred Owl, including the Indiana Bat,
Northern Long-Eared Bat, and Small-Whorled Pogonia. In its
response to public comments, DEP acknowledged that these three
species might live on the property and informed the public how
they would be protected:
The site has been identified as potential habitat for Indiana [B]at, [N]orthern [L]ong- [E]ared [B]at, and [S]mall-[W]horled [P]ogonia by the [USFWS], and the USFWS is requesting that the site be surveyed for these species. [DEP] has informed Bi-County of the USFWS requirement to survey for these species. Bi-County will be required to complete these surveys and adhere to any subsequent USFWS recommendations as a condition of any Freshwater Wetlands permits for the [P]roject and prior to any site disturbance or construction.
26 A-3180-14T1 Lastly, in the general permits, DEP expressly prohibited Bi-
County from removing trees before finishing the surveys; required
Bi-County to seek approval from USFWS before clearing any trees;
and barred Bi-County from clearing trees during the Indiana Bat's
foraging and pre-hibernation period. The record contains ample
evidence that DEP considered T&E species in issuing the general
permits and imposed reasonable permit conditions to protect them.
V.
Appellants contend that DEP acted arbitrarily and
capriciously in granting a transition area waiver. They argue
that the project will result in a net loss of 0.355 acres of
transition area around the exceptional resources value wetlands
on the property, which is inconsistent with N.J.A.C. 7:7A-
6.1(a)(1)-(6). They argue that the record contains no evidence
to substantiate DEP's determination because Bi-County failed to
offer scientific documentation showing the proposed activity will
have no substantial impact on the adjacent wetlands, as required
by N.J.A.C. 7:7A-6.1(d).
Appellants also argue that rather than provide the
documentation necessary to secure a transition area waiver, the
DEP settlement proposed to compensate for the loss of requisite
150-foot transition area by preserving 11.61 acres of forested
uplands on the property. They posit that DEP erred in issuing the
27 A-3180-14T1 transition area waiver because such an exchange does not obviate
the requirements of N.J.A.C. 7:7A-6.1(d), and does not satisfy the
legislative purpose of protecting freshwater wetlands species.
A transition area is "an area of land adjacent to a freshwater
wetland which minimizes adverse impacts on the wetland or serves
as an integral component of the wetlands ecosystem." N.J.S.A.
13:9B-3. DEP regulations require that "[t]he standard width of a
transition area adjacent to a freshwater wetland of exceptional
resource value shall be 150 feet . . . [and] shall only be modified
through the issuance of a transition area waiver." N.J.A.C. 7:7A-
2.5(d).
N.J.S.A. 13:9B-18(a) empowers DEP to issue a transition area
waiver when: "(1) the proposed activity would have no substantial
impact on the adjacent freshwater wetland or (2) the waiver is
necessary to avoid a substantial hardship to the applicant caused
by circumstances peculiar to the property." Corresponding DEP
regulations provide that an applicant may satisfy the first prong
and "obtain a transition area waiver through scientifically
documenting that a proposed activity will have no substantial
impact on the adjacent wetlands." N.J.A.C. 7:7A-6.1(d). The
documentation "may include, but is not limited to, nutrient or
sediment transport models, buffer models, or wildlife habitat
suitability studies." Ibid. (emphasis added). However, the
28 A-3180-14T1 documentation must address sediment, nutrient, and pollutant
transport and removal; impacts on sensitive species; and surface
water quality impacts. Ibid.
DEP granted a transition area waiver to Bi-County under
N.J.A.C. 7:7A-6.1(d). Bi-County's compliance statement, which it
revised in October 2014, demonstrates that DEP acted properly
under N.J.S.A. 13:9B-18 and N.J.A.C. 7:7A-6.1(d) in granting the
transition area waiver. In its compliance statement, Bi-County
cited N.J.A.C. 7:7A-6.1(d) in its entirety and described the
project's impact on sediments, nutrients, and pollutants,
sensitive species, and water quality in the transition area. Bi-
County addressed the sediment and pollutant issue by recognizing
that "wetlands protect water quality by trapping sediments and
retaining excess nutrients and other pollutants." Bi-County then
stated that its plan preserves those wetlands by using "non-
structural measures . . . such as grass swales and interrupted
impervious surfaces, as well as structural features . . . including
five maintained detention basins" to "reduce stormwater
pollutants."
Bi-County also addressed the project's impact on T&E species,
and listed the dominant species presently occurring in both the
reduction and expansion areas. Bi-County also explained that its
plan reduced impacts on sensitive species by preserving, in
29 A-3180-14T1 addition to the compensation areas, four additional forested
upland conservation areas that total 16.81 acres. Further, Bi-
County acknowledged that while Barred Owls may not use the site
for habitat purposes due to the relatively small size of the
wetlands area, the site may function as a corridor for them.
Regarding water quality, Bi-County stated that Wayne will
handle its wastewater, while Bi-County will protect riparian
corridors and freshwater wetlands with an average 100-foot upland
buffer around wetlands and stream corridors in which there are no
major encroachments, and conserve four open spaces totaling over
16.81 acres of forested habitat. Bi-County also represented that
it will preserve a portion of the isolated wetland to reduce
surface water quality impacts.
Second, Bi-County explained it needed a transition area
waiver to effectuate the proposed residential development because
the transition area must be reduced to allow for the construction
of single-family dwellings and an above-ground detention basin.
Specifically, to build the dwellings and basin, Bi-County had to
construct roadways, stormwater management facilities, and
residential lots.
DEP's responses to the public's comments also demonstrate
that DEP acted properly under N.J.S.A. 13:9B-18 and N.J.A.C. 7:7A-
30 A-3180-14T1 6.1(d) in granting the transition area waiver. DEP explained its
decision as follows:
Bi-County . . . applied for a [t]ransition [a]rea [w]aiver reduction . . . to reduce the 150 [foot] transition area adjacent to the exceptional resource value wetlands by 1.718 acres (74,874 sq. ft.). The proposed transition area waiver reduction . . . would enable the construction of several single-family dwellings and a detention basin. To compensate for the transition area reduction, the wetland transition area will be expanded by 1.363 acres. In addition, 16.81 acres of additional forested uplands that provide suitable [B]arred [O]wl habitat on the subject parcel will also be preserved.
. . . .
[DEP] holds the authority to protect freshwater wetlands and transition areas. . . . However, the rules allow wetlands and transition areas to be permanently impacted in certain circumstances. Contrary to the commenter's claim, none of the proposed houses are located within freshwater wetlands, although some of the houses are located within the adjoining freshwater wetlands transition areas. [Bi-County] has applied for a [t]ransition [a]rea [w]aiver [r]eduction pursuant to [N.J.A.C.] 7:7A-6.1(d). As part of [Bi-County's] compliance with [N.J.A.C.] 7:7A-6.1(d), [Bi-County] proposes to permanently conserve 16.81 acres of forested areas on-site to offset the proposed encroachments into transition areas.
[DEP] has reviewed the project for compliance with the standards at [N.J.A.C.] 7:7A-6.1(d). The project does meet these standards and as such, [DEP] will issue a [t]ransition [a]rea [w]aiver in accordance with the [FWPA] rules.
31 A-3180-14T1 Bi-County satisfied the requirements of N.J.A.C. 7:7A-6.1(d),
and DEP complied with all regulatory requirements in issuing a
transition area waiver. The record supports DEP's decision to
issue a transition area waiver, and the decision is not arbitrary,
Affirmed.
32 A-3180-14T1