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Bi-County Development Corp. v. New Jersey Dep't of Environmental Protection

October 22, 2010

BI-COUNTY DEVELOPMENT CORPORATION, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.



On appeal from a final decision of the Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 28, 2010

Before Judges Carchman, Messano, and Waugh.

Bi-County Development Corporation (Bi-County) appeals the administrative action of the Department of Environmental Protection (DEP) declining to amend certain regulations previously adopted by DEP pursuant to the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to -30 (Wetlands Act). We affirm.

I.

Among its many provisions, the Wetlands Act regulates activities within 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; N.J.S.A. 13:9B-17. Known as "transition areas," these lands serve as "habitat area[s] for activities such as breeding, spawning, nesting and wintering for migrating, endangered, commercially and recreationally important wildlife." N.J.A.C. 7:7A-2.5(b)(2). They also provide a "buffer area to keep human activities at a distance from freshwater wetlands, thus reducing the impact of noise, traffic, and other direct and indirect human impacts on freshwater wetlands species." N.J.A.C. 7:7A- 2.5(b)(5). The amount of land designated as a transition area varies depending on the classification of the adjacent wetlands, which can be characterized as of "exceptional resource value," "intermediate resource value," or "ordinary resource value."

N.J.A.C. 7:7A-2.5(c)-(e).

In July 2009, Bi-County submitted a petition for rulemaking pursuant to N.J.S.A. 52:14B-4(f) and N.J.A.C. 1:30-4.1, requesting four amendments to three sections of the Wetlands Act regulations pertaining to how the agency determines the classification of wetlands. Through the proposed amendments, Bi-County sought to require DEP to consider potential future developments adjacent to wetlands, specifically whether such potential future development plans predicted whether the areas being classified would remain a suitable habitat for threatened or endangered species for the foreseeable future. Bi-County asserted that DEP's failure to take future development into account burdened developers with additional costs and infringed on the ability of municipalities to comply with their constitutionally mandated affordable housing obligations.

Bi-County first requested that DEP amend the definition of "[d]ocumented habitat for threatened or endangered species,"

N.J.A.C. 7:7A-1.4, by adding the following underlined text:

2. The Department makes the 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. The phrase "remains suitable for use" shall mean that the area is suitable for breeding, resting or feeding by the specific documented threatened or endangered species during the normal period a species would use the habitat and will remain suitable for such uses taking into consideration and assuming development of adjacent and surrounding lands consistent with applicable zoning.

Bi-County next requested that N.J.A.C. 7:7A-2.4,

"[c]lassification of freshwater wetlands by resource value," be amended to add further specifications to section (b), which governs the determination of whether a wetland would be deemed an "exceptional ...


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