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ZRB, LLC v. New Jersey Department of Environmental Protection

November 17, 2008

ZRB, LLC, PETITIONER-APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, LAND USE REGULATION, RESPONDENT-RESPONDENT.



On appeal from a final decision of the New Jersey Department of Environmental Protection, 0506-02-0057.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 29, 2008

Before Judges Winkelstein, Gilroy and Chambers.

The threshold issue presented in this appeal is whether the New Jersey Department of Environmental Protection (DEP) has the authority under the Freshwater Wetlands Protection Act (the Wetlands Act), N.J.S.A. 13:19B-1 to -30, and the New Jersey Endangered and Nongame Species Conservation Act (the New Jersey Endangered Species Act), N.J.S.A. 23:2A-1 to -13, to designate and protect threatened as well as endangered species.

Appellant ZRB, LLC, the owner of a tract of land in Middle Township, Cape May County, appeals from a final decision of the Commissioner of the DEP denying its application for a Statewide General Permit No. 6 (the No. 6 permit) to fill wetlands and build a sixteen-lot single-family subdivision on its property. The Commissioner denied the permit on the ground that the wetlands were of exceptional resource value because they were habitat for the barred owl, a species the State has designated as threatened. N.J.A.C. 7:25-4.17.

On appeal, appellant makes two primary arguments: (1) that the DEP lacks the statutory authority to designate and protect threatened species; and (2) that the Commissioner's decision denying appellant's application was arbitrary and capricious.*fn1

We reject appellant's arguments and conclude that the DEP has the authority to designate and protect threatened as well as endangered species and it correctly exercised that authority in denying appellant's application for a permit. Accordingly, we affirm the Commissioner's decision.

I.

A. The Site

Appellant's lot is approximately 32.5 acres with frontage on Goshen-Swainton Road. A single-family residence, with a driveway and garage, is located in the center of the site, and an irrigation pond is on the northeast portion.

The property is comprised of isolated freshwater wetlands, wooded uplands, and open mowed herbaceous fields. The vegetation is primarily comprised of wooded areas with a forest canopy and clearing associated with the six isolated wetland areas on the site, designated as areas A, B, C, D, E/F, and G, each measuring about 150 to 200 feet across. Those wetlands are a component of an extensive wetlands area, bounded by Lizard Tail Swamp and approximately 333 acres owned by the Nature Conservancy to the south, and by the Timber Beaver Swamp Wildlife Management Area to the north.

On the northern boundary of the site, a small lot has been developed for use as a veterinary office, with a parking lot that can accommodate twenty-five to thirty cars. Opposite the site, on the northern border, seven or eight single-family homes are located with frontages on Goshen-Swainton Road. One of those residences serves as an automobile repair shop. Most of the land immediately north of the site is contiguous, undeveloped forested land, although approximately a quarter of a mile from the site, to the northeast, a single-family subdivision of eleven homes has been constructed.

Adjacent to the site, on the southeastern edge, about 180 feet from the site, is a 256-foot-high communications tower, which is supported and surrounded by a system of guide wires that span 170 feet from its base. A steady, low-intensity red light is located on top of the tower. To the east of the tower, immediately adjoining the site boundary, are railroad tracks on a New Jersey Transit right-of-way used by the Cape May Seashore Line. All-terrain vehicle (ATV) tracks run along the railroad right-of-way.

To the west of the property is a seasonal campground, open from the spring through the fall, offering approximately 400 sites for tent, trailer, and mobile home camping. Some mobile homes remain on the site year-round. The campground also contains recreational facilities, a camp store, a maintenance shop, and an office.

In May 2002, responding to an inquiry from appellant regarding occurrences of rare species on the site, the DEP replied that from 1984 to 1999, its Natural Heritage Database had recorded three sightings of the barred owl, a designated threatened species, in the vicinity of the site: one in 1984, in the Timber Beaver Swamp Wildlife Management Area, north of the site; another in 1995, on Goshen Road, approximately 7000 feet south of the site; and a third in 1999, also on Goshen Road, approximately 5000 feet south of the site.

B. The Permit Application

On December 12, 2002, appellant submitted an application pursuant to N.J.S.A. 13:9B-23(b) for a No. 6 permit and a transition area waiver to fill approximately three-quarters of an acre of isolated wetlands to construct a sixteen-lot single-family residential subdivision. The No. 6 permit authorizes a property owner to fill a limited area of freshwater wetlands, provided that the wetlands are not of exceptional resource value. N.J.S.A. 13:9B-23(b). Appellant's plan was based on the premise that the wetlands would be classified as freshwater wetlands of intermediate resource value, requiring a smaller transition area buffer.

On April 28, 2004, the DEP issued a Letter of Interpretation (LOI) accepting appellant's delineation of the six wetlands on the site, but classified wetlands A, B, D, E/F, and G, as wetlands of exceptional resource value, and wetlands C as freshwater wetlands of intermediate resource value. The DEP noted that wetlands B, D, and E/F appeared to also meet the requirements for certification as vernal habitats.*fn2 On that same date, the DEP issued a letter denying appellant's application on the grounds that the wetlands were of exceptional resource value and constituted vernal habitat. The DEP classified the property as wetlands of exceptional resource value based on the presence of the barred owl; as well as on the presence of the eastern tiger salamander and the southern gray treefrog, both designated endangered species.

Appellant appealed, and the contested case was referred to the Office of Administrative Law, where a hearing was held before an Administrative Law Judge (ALJ) over four days from June to December 2006. The parties stipulated that, given the Supreme Court's decision in In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 494 (2004), holding that the DEP rules prohibiting activities under a No. 6 permit in a vernal habitat exceeded the DEP's statutory authority, the vernal habitats could no longer be considered a basis for the DEP's denial of appellant's application. The parties also stipulated that the property was not a suitable habitat for the eastern tiger salamander and the southern gray treefrog, and thus the evidence during the hearing focused solely on the barred owl.

C. Expert Testimony

Joseph Lomax, appellant's expert in threatened and endangered species, testified that the wetlands were not suitable habitat for the barred owl. His environmental firm had conducted an extensive field survey, over a four-year period, using protocols established by the DEP regarding the barred owl, which is a shy, nocturnal species that is most active and territorial from April to June when the owls nest and raise their young. The protocols provided that the "[e]ntire State is considered within this species range," with "[m]ajor populations" located in the "large swamp complexes in Cape May and Cumberland Counties." With regard to suitable habitat, "[b]arred owls are known to occur in both upland and wetland habitats with home ranges typically composed of a mosaic of upland and wetland areas. Suitable habitats are generally described as large tracts of either hardwoods, softwoods, or mixed stands."

Barred owl habitats in southern New Jersey are "primarily associated" with three habitat types: Atlantic white cedar swamp; pitch pine lowland habitat; and hardwood swamp. The cedar swamp and pitch pine habitats feature "typical understory vegetation," including highbush blueberry. The overstory tree species in the hardwood swamps include sweet gum, black gum, and red maple. The protocols also provide that "[h]uman disturbance and structures impact the suitability of forested habitat for the barred owl," although owls had been found in a suburbanized area in Atlantic County, and near a single-family dwelling in Warren County.

Using those protocols, Lomax and his son, appellant's expert in wetlands and wetlands habitat, surveyed the property approximately forty-six times, primarily during the months of April, May, and June, and found no physical evidence of barred owls on the site. During the day, they looked for evidence that barred owls utilized the site, but they found no owls, nests, or owl pellets. At night, in accordance with the protocol requirements, they played a series of tape-recorded barred owl vocalizations at various locations on the site in an attempt to elicit vocal responses from the owls. The protocols provide that "[w]hile barred owls may respond to tape calls during any month of the year, greater success has been documented during March-July." On July 29, 2003, the Lomaxes heard a pair of barred owls in the wetlands to the south of the site. Lomax said that they unsuccessfully tried to lure the owls onto the site by continuing to play the recorded vocalizations. On July 31, 2003, they heard a single barred owl to the south of the site, but at no time did the owl come within 200 feet of the site.

In 2004, Lomax was unable to elicit any responses to the taped barred owl calls. He nevertheless confirmed that the species was active at that time by surveying two control sites: the Timber Beaver Swamp Wildlife Management Area to the north and the Lizard Tail Swamp to the south. In 2005 and 2006, the Lomaxes elicited a response from a barred owl located south of the site, but they could not lure the owl onto the site. Lomax concluded that he was unable to lure the owls onto the property because, although the areas to the north and south of the site constituted suitable habitat for barred owls, the owls were not breeding or foraging on appellant's property.

Lomax opined that appellant's property lacks the physical characteristics normally associated with barred owl habitat, and the level of surrounding human activity has created a degree of disturbance that precludes any use of the property by the species. He explained that human activity and increased noise disturbance in the area around the site - commercial activity, road, trains, and ATV's - had deterred the species from utilizing the site as a habitat. The camp site, located to the west of the property, was most active during the spring and summer when the owls breed and raise their young.

Lomax explained that the barred owl prefers to breed in large wetland areas, containing trees that are generally twenty inches in diameter or larger, conditions found on the large wetland areas located north and south of the site. In comparison, the trees on appellant's property were not very large, and the wetland areas were relatively small and fragmented, rendering the property unsuitable as a breeding habitat. He maintained that the DEP's landscape mapping of documented barred owl habitat was inaccurate in that it included developed areas not suitable for barred owl habitat, and failed to consider geographic features that may limit the owl's home range. He further testified that a barred owl will broadly defend its breeding territory, and thus he would have been able to lure the owls onto appellant's property if the owls used the property for foraging or "roosting habitat." Because appellant's site was fragmented, the barred owls would avoid the site in favor of the more desirable, extensive undeveloped areas located in close proximity to appellant's site.

Lomax admitted, however, that barred owls can use up to 2400 acres of land, and they are known to travel two miles within their home range. He further acknowledged that he had not heard any trains on the adjoining tracks during the sixty-five to seventy cumulative hours he spent investigating the site, nor did he know how frequently the tracks were used. He did, however, frequently hear ATV's operating on the right-ofway.

John Heilferety, the DEP's expert in vernal pool and freshwater wetlands resource value classifications, conducted a vernal habitat analysis using data compiled during site inspections by DEP staff as documented on "Vernal Pool Data Sheets" and on aerial photographs. The DEP offered his testimony to show that the site contained vegetation and animal species consistent with barred owl habitats. For example, for wetland area D, a DEP employee reported on the vernal habitat sheet that he found the following plant species: red maples, oaks, sweet gum, pitch pine, highbush blueberry, American holly, and green briar. He also observed several animal species, including an adult eastern spadefoot toad, northern spring peepers, and fowlers toads. Another DEP employee reported finding southern leopard frogs, a box turtle, and hundreds of tadpoles. In all, approximately ten or twelve different species of amphibians and reptiles were found in the wetlands on the site. Based on this information, Heilferety concluded that the site has a "diverse community of amphibians," some of which are "very site tenacious" and thus would return to the vernal wetlands for breeding.

Laurence Torok, a DEP employee, and an expert in resource classification of freshwater wetlands and identification of threatened and endangered species, had drafted the DEP's protocols for wetlands resource value classification. See LARRY TOROK, NJDEP, PROTOCOLS FOR THE ESTABLISHMENT OF EXCEPTIONAL RESOURCE VALUE, WETLANDS PROTECTION ACT, (N.J.S.A. 13:9B-1 ET SEQ.) BASED ON DOCUMENTATION OF STATE, OR FEDERAL ENDANGERED OR THREATENED SPECIES 2004) http://www.state.nj.us/dep/landuse/protocols.pdf.*fn3 He explained that under N.J.S.A. 13:9B-7(a), the wetlands on the property are considered as having exceptional resource value because they provide a documented habitat for ...


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