On appeal from a Final Agency Decision of the New Jersey Department of Environmental Protection, Agency Docket Nos. 0322-03 -0003.1.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Sapp-Peterson and Messano.
In this appeal, petitioner Angela DiPaolo challenges the New Jersey Department of Environmental Protection's (DEP) decision, pursuant to the Freshwater Wetlands Protection Act (Act), N.J.S.A. 13:9B-1 to -30, and the Act's implementing regulations, N.J.A.C. 7:7A-1.1 to -17.1, reclassifying her property, which includes freshwater wetlands, as having "exceptional resource value," and its refusal to grant a transition area averaging plan waiver (TAW) and statewide general permits to construct a minor road crossing and an underground utility line. We affirm the final decision of the Commissioner of DEP substantially for the reasons given in his written opinion of May 23, 2005. We conclude that Commissioner Campbell's decision was consistent with his legal authority and supported by substantial credible evidence in the record.
The salient facts are not disputed and were stipulated by the parties as part of the administrative record in the hearing before an Administrative Law Judge (ALJ). In 1998, the DiPaolos purchased a 23.95-acre parcel of land in Moorestown (property). The property includes forest wetlands that are part of a larger contiguous block of wetlands. The DiPaolos planned to subdivide the property into four lots. On one lot the DiPaolos intended to build a home for their personal use, on another lot they planned to construct a home for family members, and they intended to sell the remaining two lots. In 1999 they requested a letter of interpretation (LOI) from DEP to verify the jurisdictional boundary of the freshwater wetlands located on their property. DEP's Land Use Regulation Program (LURP) issued an LOI on February 17, 1999 designating the freshwater lands bounding their property as areas having "intermediate resource value," which meant that the area was neither of "exceptional resource value" ("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[,]" N.J.S.A. 13:9B-7(a)(2); N.J.A.C. 7:7A-2.4(b)) nor of "ordinary resource value" (freshwater wetlands that "do not exhibit the characteristics" of those of "exceptional resource value" wetlands, and that "are certain isolated wetlands, man-made drainage ditches, swales, or detention facilities[,]" N.J.S.A. 13:9B-7(b)). In February 2002, the Moorestown Township Planning Board granted the DiPaolos preliminary and final subdivision approval for a four-lot subdivision.
In February 2003, the DiPaolos submitted their application to DEP for the requisite wetland approvals needed to continue with their subdivision plans. While this application was pending they also sought the renewal and extension of the 1999 LOI, which was about to expire. DEP reissued an LOI in June 2003 but, in doing so, reclassified the wetlands as having "exceptional resource value" due to the presence of a bald eagle nest within one kilometer of the DiPaolos property, a circumstance about which DEP became aware after it had issued the 1999 LOI. According to records from its Endangered and Non-Game Species Program, the nest was discovered sometime in 2000.
The reclassification affected the DiPaolos' proposed subdivision plan because it increased the transition area adjacent to the wetlands, changing it from fifty feet to 150 feet. DEP also denied the DiPaolo's application for a TAW and construction permits. The DiPaolos informally requested that DEP honor its previous designation of their property as having "intermediate resource value" because, in reliance upon the 1999 LOI, they had expended substantial funds to obtain subdivision approval and to subdivide their lots, including the demolition of an existing house. DEP denied this informal request.
On September 5, 2003, DEP denied the DiPaolos' application for the general permits and a TAW, stating:
1. The Project as proposed places all development within the 150-foot transition area and within the 75-foot maximum reduced transition area. As a result, the amount of disturbance to the transition area and the resulting reduced transition area will not serve the purpose and function of a transition area pursuant to N.J.A.C. 7:7A- 6.2(b) and as set forth in N.J.A.C. 7:7A-2.5(a) & (b), including the following: temporary refuge for freshwater wetlands fauna during high water episodes; habitat area for breeding, spawning, nesting and wintering for migratory, endangered, commercially and recreationally important wildlife; remediation and filtration area for removal of nutrients and pollutants prior to wetlands; an area which accommodates variations in wetlands boundary; a corridor for wildlife movement; and a buffer from human activities. Consequently, the proposed project does not comply with N.J.A.C. 7:7A-6.2(b)[(2)], (b)[(4)] and (d). . . . .
2. The project as proposed does not comply with N.J.A.C. 7:7A-4.3(3); wherein "proposed activities 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 o[r] endangered species."
On October 15, 2003, petitioner requested an administrative hearing to contest the denials. DEP granted both of petitioner's administrative hearing requests and transmitted the matters to the Office of Administrative Law (OAL) as a contested case, pursuant to N.J.S.A. 52:14B-1 to -12. The ALJ consolidated the matters for a hearing. The issues before the ALJ were whether the reclassification of the DiPaolo property as having "exceptional resource value" was appropriate in light of unique circumstances surrounding the property and whether the denial of a TAW and the refusal to issue statewide general permits were appropriate.
David Moskowitz (Moskowitz), an environmental consultant and raptors expert, testified on behalf of the DiPaolos. He agreed that the classification of the property as having "exceptional resource value" was appropriate but characterized the Rancocas Eagles' nest as somewhat of an anomaly due to the fact that it is located in a very suburban area. According to Moskowitz, "[f]or most of the population, bald eagles tend to be sensitive to disturbance, and larger undisturbed areas are clearly preferred as the method of protection." He explained that recent data suggests that bald eagles are becoming, or may already be, tolerant of human disturbance. Based on the existing development in the area, Moskowitz opined that the Rancocas Eagles were "tolerant or very tolerant" of human behavior. In further support of his opinion, he noted that there has never been a documented sighting of a bald eagle on the DiPaolo property and also referenced DEP bald eagle observation notes, prepared by "volunteers that monitor each of the bald eagle nests." Those notes described activity around the nest and the eagles' reactions, or lack thereof, to such events as truck alarms and helicopters.
Moskowitz, however, agreed that the classification of the wetlands on the DiPaolo property as having "exceptional resource value" was appropriate because "[t]he wetlands are along Swedes Run, which bypasses near the nest and then flows through the DiPaolo property." He nonetheless opined that the construction of the three new homes proposed by petitioner, while a disturbance within the habitat, would not have a negative impact upon the Rancocas Eagles' nest, provided the construction was done outside the breeding and nesting seasons. He based this opinion on the fact that the nest is already ...