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In re Adopted Amendments to N.J.A.C. 7:7A-2.4

December 23, 2003

IN THE MATTER OF ADOPTED AMENDMENTS TO N.J.A.C. 7:7A-2.4


On appeal from the Department of Environmental Protection.

Before Judges Conley, Carchman and Wecker.

The opinion of the court was delivered by: Conley, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 10, 2003

In this Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, appeal, the New Jersey Builders Association (Builders) challenges as ultra vires the Department of Environmental Protection's (DEP) 2002 amendment to N.J.A.C. 7:7A-2.4 which adopts the Landscape Project method to classify those wetlands which support the habitats of threatened or endangered species. That method replaces"the past, species, sighting-specific'areas of documentation' with the species population/habitat complex Landscape Maps." Under this method, wetlands which contain habitat characteristics that endangered or threatened species use and require for breeding, resting and feeding are classified as wetlands of exceptional resource value. Builders argues that the governing statute limits identification of wetlands of exceptional value to habitats of present sighted endangered or threatened species or a documented presence of an endangered or threatened species. Therefore, it claims, a method such as the Landscape Project method which broadens the focus of the habitat classification process to encompass not only actual sightings but habitat characteristics needed and required for an endangered or threatened species' population, exceeds the statutory mandate. We do not view the enabling statute to be so restrictive and affirm DEP's amendment to N.J.A.C. 7:7A-2.4.

I.

Prior to enactment of the FWPA, freshwater wetlands in New Jersey were regulated through a permit program administered by the United States Environmental Protection Agency conducted by the United States Army Corps of Engineers pursuant to section 404 of the"Federal Water Pollution Control Act Amendments of 1972" as amended by the"Clean Water Act of 1977." 33 U.S.C.A. § 1344. The Federal Act authorizes states to assume administration of the federal wetlands permit program, provided that the state has its own program that is at least as stringent as the federal program. 33 U.S.C.A. § 1344(g),(h); 40 C.F.R. § 232 to -233 (2002); In the Matter of Freshwater Wetlands Prot. Act Rules, 238 N.J. Super. 516, 520 (App. Div. 1989).

As a result, in 1987 the Legislature enacted the FWPA, which"provides a comprehensive scheme for the regulation and protection of New Jersey's freshwater wetlands." MCG Assocs. v. Dep't of Envtl. Prot., 278 N.J. Super. 108, 111 (App. Div. 1994)."The Legislature recognized the importance of wetlands for purifying water, preventing floods, retarding soil erosion and providing a habitat for wildlife, but also recognized the need to protect the rights of property owners in balance with environmental interests." Ibid. To achieve these goals, the Legislature found it was"important that the State expeditiously assume the freshwater wetlands permit jurisdiction currently exercised by the [Corps] pursuant to the Federal Act and implementing regulations." N.J.S.A. 13:9B-2 (footnote omitted). DEP was designated as the agency responsible for implementing the Act and was directed by the Legislature to adopt rules and regulations in that regard. N.J.S.A. 13:9B-25. While enactment of the FWPA has been recognized as reflecting"a'delicate compromise' between environmentalists and developers," In the Matter of Appeal of Adoption of N.J.A.C. 7:7A-1.4, 240 N.J. Super. 224, 237 (App. Div. 1989) (Skillman, J., dissenting), rev'd on dissent, 118 N.J. 552 (1990) (internal citation omitted), where proactive environmental measures are within DEP's enabling authority, they will be upheld. See In the Matter of the Protest of Coastal Permit Program Rules, 354 N.J. Super. 293, 346-51 (App. Div. 2002); In re Adoption of N.J.A.C. 7:1E, 255 N.J. Super. 469 (App. Div. 1992); Society for Envtl. Econ. Div. v. New Jersey Dep't of Envtl. Prot., 208 N.J. Super. 1 (App. Div. 1985).

II.

The FWPA requires that"[DEP] shall develop a system for the classification of freshwater wetlands based upon criteria which distinguish among wetlands of exceptional resource value, intermediate resource value, and ordinary resource value."

N.J.S.A. 13:9B-7. It is the category of"exceptional resource value" freshwater wetlands that is at issue here. As defined by the FWPA such wetlands are:

Those which are present habitats for threatened or endangered species, or those which are 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. A habitat shall be considered a documented habitat if [DEP] makes a finding that the habitat remains suitable for use by the specific documented threatened and endangered species, based upon information available to it, including but not limited to, information submitted by an applicant for a freshwater wetlands permit.

[N.J.S.A. 13:9B-7(a)(2).]*fn1

Delineation of wetlands of"exceptional resource value," then, is dependent upon DEP's determination that the wetlands area is either a present habitat for a threatened or endangered species or a documented habitat for such species. The FWPA does not define habitat. The concept of habitat is rather broad. As normally defined habitat is"the environment in which an organism or biological population usu[ally] lives or grows." Webster's II New College Dictionary, 497-98 (1999). A documented habitat is one for which DEP"makes a finding that the habitat remains suitable for use by the specific documented threatened and endangered species, based upon ...


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