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ZRB, LLC v. New Jersey Department of Environmental Protection

403 N.J. Super. 531, 959 A.2d 866 (App. Div. 2008)

ENDANGERED SPECIES ACT; PERMITS —Under the New Jersey Endangered Species Act, the New Jersey Department of Environmental Protection is authorized to identify and protect both threatened and currently endangered species.

A developer sought review of the New Jersey Department of Environmental Protection (DEP) decision that had denied a permit to fill wetlands and then build a sixteen-lot single family subdivision. In the DEP’s denial, it had ruled the wetlands were of exceptional resource value because the barred owl, a threatened species, lived there. The developer claimed the DEP lacked statutory authority to designate and protect threatened species and that the Commissioner’s decision denying the application was arbitrating and capricious.

The Appellate Division rejected both arguments and affirmed the Commissioner’s decision. The Court first stated that deference must be given to an agency such as the DEP when it has been delegated discretion to determine the specialized and technical procedures for its tasks. As such, agency rules are accorded a presumption of validity and reasonableness, and the challenging party has the burden of proving that a rule is at odds with the statute. Here, the Court concluded that the DEP was authorized to identify and protect both threatened and currently endangered species under the New Jersey Endangered Species Act. In reaching this conclusion, the Court relied on the statute’s definition of endangered species. That definition included species that, within the foreseeable future, are likely to have its prospects of survival or recruitment jeopardized. The Court also examined the Freshwater Wetlands Protection Act, finding that it gave the DEP broad discretion to delineate wetlands as having exceptional resource value based on a determination that the wetlands area is either a present habitat for a threatened or endangered species or a documented habitat for such species.

The Court also reviewed the initial finding of the administrative law court, and was in agreement with it admitting evidence of historical sightings of barred owls on adjoining wetlands and that the DEP was entitled to rely on the sightings in rendering a decision denying the developer permit. It noted that the sightings were subject to verification – notably corroborated by the developer’s own expert. The testifying expert heard an owl calling from 200 feet south of the applicant’s fill site, which was within the specie’s range for foraging and resting. Additionally, the Court gleaned from the record that the large tract of wetlands property was primarily forested, and contained vegetation consistent with known barred owl habitats.


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