Skip to main content



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

2003 WL 22997803 (N.J. Super. App. Div. 2003)

WETLANDS—The Department of Environmental Protection properly adopted the “landscape method” to classify wetlands that support the habitats of threatened or endangered species.

A trade organization challenged a Department of Environmental Protection (DEP) amendment to the administrative code adopting the “Landscape Project method to classify those wetlands which support the habitats of threatened or endangered species.” This method replaced “the past, species, sighting-specific ‘areas of documentation’ with the species population/habitat complex Landscape Maps.” The trade organization argued “that the governing statute limit[ed] 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 claim[ed], a method such as the Landscape Project method which broaden[ed] 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, exceed[ed] the statutory mandate.’”

New Jersey’s implementing statute designated the DEP as the agency responsible for implementing the statute and directing the DEP to promulgate rules and regulations under the statute. Prior court decisions have held that “proactive environmental measures are within DEP’s enabling authority” and will be upheld. The statute also required DEP to “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.” The statute defines “exceptional resource value” freshwater wetlands in terms that made the definition 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 statute does not define habitat; therefore, the concept of habitat is rather broad. Before amendment, the regulations developed by the DEP mapped areas that were “not based on the particular habitat needs of the sighted species, but only on the species’ given location at a particular point in time. ... This mapping method protected random, fragmented habitat patches, rather than the contiguous habitat area that many threatened and endangered species require for long-term survival.” In contrast, the new method identified “as suitable habitats, sighted areas and those contiguous areas which populations of threatened and endangered species can be expected to use.” Thus, it used “species sightings in conjunction with their known habitat characteristics, focusing upon actual land cover and land use to generate habitat mapping.” In the Court’s mind, the new method therefore “provide[d] more flexibility in the classification process by broadening the field of inquiry beyond ‘sighting-specific’ areas to contiguous wetlands containing the sighted species ‘habitat characteristics.’”

With all of that in mind, the Court pointed out that “Agency regulations are presumed valid and are accorded a presumption of reasonableness.” Further, a Court should not substitute its judgment for the expertise of an agency. Thus, “a regulation can only be set aside if it is proved to be arbitrary or capricious, plainly transgresses the statute it purports to effectuate, or alters the statute and frustrates the policy embodied in it.” The burden to show that a regulation is invalid falls on the party challenging its validity. Here, the Court believed that the statute in question did not “restrict classification of such wetlands to habitats in which an endangered or threatened species either has presently been sighted or has been sighted in the past.” Consequently, it upheld the DEP’s amendments to the regulations.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com