SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 3180
- 14T1 N.J. HIGHLANDS COALITION and SIERRA CLUB N.J., Petitioners
- Appellants,

v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION and BI - COUNTY DEVELOPMENT CORP., Respondents
- Respondents.

_______________________ _ ______ Argued February 15, 2017
– Decided Before Judges Fuentes, Simonelli and Carroll. On appeal from the New Jersey Department of Environmental Protection. Susan J. Kraham argued the cause for appellants (Columbia Environmental L aw Clinic, attorneys; Ms. Kraham and Edward Lloyd , on the briefs). Timothy P. Malone, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Christopher S. Porrino, Attorney General, attorney; Mr. Malon e, on the brief). David R. Oberlander argued the cause for respondent B i
- County Development Corp. (Bisgaier Hoff, LLC, attorneys; Mr. Oberlander, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited . R .1:36
- 3.

August 4, 20172 A - 3180
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PER CURIAM Appellants N.J. Highlands Coalition and Sierra Club, N.J. challenge a settlement agreement between respondents New J ersey Depa rtment of Environmental Protection (DEP) and Bi
- County Development Corp. (Bi
- County) rel a ting to Bi
- County's development of a 204
- unit inclusionar y housing project in the Borough of Oakland (Oakland). Appellant s also appeal from DEP's approval of two freshwater wetlands general permits and a transition area waiver. We affirm.
I. Bi
- County owns approximately eighty
- five acres of land in Oakland (the property) . Because t he property is located in the Highlands Region , see N.J.S.A. 13:20
- 7(a)(1), it is subject to the restrictions of the Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20
- 1 to
- 35. The property serves as habitat for the threatened species Barred Owl, s e e N.J.A.C. 7:25
- 4.17 (classifying Barred Owl as a threatened species) , and the DEP designated the wetlands on the property as being of exceptional resource value. In 1987, Bi
- County filed a lawsuit against Oakland and the Oakland Planning Board (Planning Board) under the Mt . Laurel3 A - 3180
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doctrine 1 seeking a builder's remedy authorizing construction of 700 residential units o n the property, which would include affordable housing. In January 1991, t he parties executed a settlement agreement , which required Oakland to re
- zone the property to permit construction of an inclusionary housing development of up to 370 residential units , with some designated for affordable to low or moderate
- income households (the Mt . Laurel settlement ) . The Mt. Laurel se ttlement also required Oakland to cooperate and expeditiously resolve any issues regarding sewer service, and acknowledged that Oakland had already submitted a wastewater management plan to DEP to authorize sanitary sewer service for the p roject through a connection to the municipal

sewer system operated by the adjacent Township of Wayne (Wayne). As a result of the settlement, the parties filed a stipulation of dismissal , dismiss ing the litigation. In February 1991, t he property was placed in an approved sewer service area by virtue of DEP's inclusion of the Oakland wastewater management p lan as an amendment to the Northeast Wate r Quality Management Plan (the 1991 WQMP amendment) . The 1991 WQMP amendment allowed for tr eatment of wastewater from the p roperty at the Mountain View Sewage Treatment Pla nt located in Wayne .

1 See S. Burlington Cty. NAACP v. Mt. Laurel , 67 N.J. 151, cert. denied , 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975).4 A - 3180
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In 1998, B i
- County contracted to sell the property to Pinnacle Communities, LTD (Pinnacle ) . In March 1999, Pinnacle applied to the Planning Board for site plan approval for development of a 313
- unit inclusionary housing project . The proje ct proposed a fifty
- foot transition area surrounding the freshwater wetlands on the property, as then required by a freshwater wetlands letter of interpretation (LOI) 2 the DEP issued in 1989 and reissu ed in 1997, which classified the wetlands on the property as being of inte rmediate resource value. Pinnacle and Bi
- County filed a lawsuit against Oakland and Wayne for issues related to the p roperty. In 2001, t he trial
court ordered Wayne to accept wastewater from the p rop erty , and ordered Oakland and Wayne to execute a municipal services agreement to provide for such wastewater service. In 2003, Pinnacle applied to DEP for a new LOI because th e two prior LOIs had expired . During DEP's review of the application , it informed Pinnacle that the wetlands on the property

were habitat for the Barred Owl , and thus, the project required a

2 An LOI delineated the extent of regulated freshwater wetlands and transition areas on a site. See N.J.S.A. 13:9B
- 8. Transition areas are regulated areas adjacent to freshwater wetlands that ser ve as a buffer between wetlands and uplands. See N.J.S.A. 13:9B
- 16. The width of a transition area depends on the resource value classification of the adjacent wetland. See i bid.5 A - 3180
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150
- foot transition area surrounding the freshwater wetlands on the property instead of the proposed fifty
- foot transi tion area. Pinnacle contested DEP's determination and submitted a report from its consultant, who concluded Barred Owls were no t present
on t he p roperty. In response, Wayne submitted a report from its consultant, who concluded the site contained Barred Owls and h ad a documented record of serving as Barred Owl habitat. The consultant also concluded that the wetlands on the p roperty should be classified as exceptional resource value, which Pinnacle's consultant disputed.
DEP determined that the p ropert y served as Barred Owl habitat and re - classified the w etlands on the property as being of exceptional resource value. Exceptional resource value wetlands require a 150
- foot transition area adjacent to the wetlan ds. S ee N.J.A.C. 7:7A - 2.5(d) . Because of t his 150
- foo t transition area requirement, the development of 31 3 units was no longer possible. However, DEP determined that if the project was redesigned to incorporate a larger transition area and preserve approximately sixteen acres of uplands pursuant to a comprehensive conservation plan (CCP) , th is would preserve the property's Barred Owl habitat function and allow Pinnacle or Bi
- County to obtain the required approvals and waivers under the Freshwater Wetland s Protection Act6 A - 3180
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(FWPA ), N.J.S.A. 13:9B
- 1 to
- 30, and the Flood Hazard Area Control
Act , N.J.S.A. 58:16A
- 50 to
- 103.
In 2004, DEP issued a n LOI, which re
- classified the wetlands on the property as being of exceptional resourc e value, requiring

a 150
- foot transition area (the 2004 LOI). Pinnacle subm itted a
CCP to DEP that proposed reducing the project from 313 units to 209 units and preserving sixteen acres of forested uplands as a corridor for the Barred Owl to travel between larger forested areas to the n orth and south. Pinnacle also submitted redesign plans to the Planning Board to reflect the increased transition

area required by the 2004 LOI and CCP, and reduction in the size of the projec t from 313 units to 209 units.
T he Legislature passed the Highlands Act in 200 4 . The Legislature found the H ighlands to be critically important to New Jersey because they provide drinking water for approximatel y one half of the State's population . Thus, t he Legislature declared that preservation of the Highlands "cannot be left to the uncoordinated land use decisions of [eighty
- eight] municipalities, seven counties, and a myriad of private landowners [ . ] " N.J.S.A. 13:20
- 2. Instead of permitting decentralized protection, the Legislature established the Highlands Water Protection an d Planning Council ( Highlands Council ) to oversee New Jersey's portion of the national Highlands Region. N.J.S.A. 13:20
- 4. The7 A - 3180
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Highlands Council i s responsible for developing a regional m a ster
p lan and overseeing development in the Highlands Region. N.J .S.A. 13:20
- 6 and
- 8 . The Highlands Act exempts certain development activities from its restrictions, including:

a major Highlands development . . . that on or before March 29, 2004 has been the subject of a settlement agreement and stipulation of dismi ssal filed in the Superior Court . . . to satisfy the constitutional requirement to provide for the fulfillment of the fair share obligation of the municipality in which the development is located . [ N.J.S.A. 13:20
- 28(a)(17) (emphasis added).]
T he exemption "expire [s] if construction beyond site preparation does not commence within three years after receiving all final approvals required pursuant to the ' Municipal Land Use Law ,' [(MLUL), N.J.S.A. 40:55D
- 1 to
- 22 ] ." Ibid. (emphasis added). Pinnacle sought a H ighlands applicability d etermination from
DEP that the project was exempt from the Highlands Act under
N.J.S.A. 13 :20
- 28(a)(17). Pinnacle also sought a WQMP consistency determination, and applied to the Pl anning Board for approval of

a 209
- unit development plan . In June 2005, DEP determined that Bi
- County was entitled to the exemption under N.J.S.A. 13:20
- 28(a)(17) based on the Mt. Laurel settlement and stipulation of dismissal . H owever, DEP8 A - 3180
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found , incorrectly, that the proposal was inco nsistent with the Northeast WQMP. Both DEP and Pinnacle had overlooked the 1991 WQMP amendment , which already provided for tr eatment of wastewater from the p roperty , and mistakenly believed the p roperty was located outside of a s ewer service area. As a result, Pinnac le applied for a WQMP amendment to extend Wayne 's Moun tain View Wastewater
Treatment F acili ty's sewer service area to include the p roperty.
DEP rejected the application and expressed concern about the
p roject's impact s on the Barred Owl, among other things. Pinnacle contested DEP's determination , and the matter was transferred to the Office of Administrative Law (OAL) for a hearing . Meanwhile, i n July 2007, the Planning Board granted preliminary and final major site plan approval and all variances and waivers for the construction of 209 units on the p roperty, with sixteen units set aside for affordable housing and twelve units set aside for senior housing (the 2007 approval) . The Planning Board conditioned the 2007 a pproval on Pinnacle obtaining all necessary approvals from DEP and the Bergen County Planning Board (County Planning Board) , and satisfying mor e than fifty additional conditions. The 2007 approval also required Pinnacle
to return to the Planning Board for amended site plan approval if DEP required additional transition areas or placed any further

r estrictions on the proposed development .9 A - 3180
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In July 2007, Pinnacle applied to DEP for freshwater wetlands
g eneral p ermit 6 , which authorize s certain activities in non
tributary wetlands , s ee N.J.A.C. 7:7A - 5.6 , and freshwater wetlands general permit 11, which authorizes activ ities necessary to construct stormwater outfall and intake structures . See N.J. A.C. 7:7A - 5.11. Pinnacle also applied fo r a t ransition area waiver.
DEP determined that in lieu of general permit 6, Pinnacle had to obtain general permit 10B , which authorizes the building of minor road crossings in w etlands and transition areas. See N.J.A.C. 7:7A - 5.10B . Pinnacle terminated t he purchase contract and returned the
p roperty to Bi
- County. In February 2009, Bi
- County applied to DEP f or an extension of the 2004 LOI. DEP granted an extension i n Novembe r 2009 , but aga in determined the p roperty contained exceptional resource value wetlands that serve d as habitat for threatened and endangered (T&E) species. Bi
- County con tested DEP's deter mination , and the matter was transferred to the OAL and consolidated with the other OAL matter. While the OAL matters were pending, the Highlands Council reviewed Bi
- County's project plan and compared it with the Regional Master Plan (RMP ) . The Highlands Council recommended that DEP not
approve Bi
- County's application to extend the 2004 LOI unless it

was modified to address three inconsistences : (1 ) the p roject10 A - 3180
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encroach es into the 300
- foot buffers/riparian areas , and this wa s inconsist ent with the objectives of the final draft RMP; (2) the
p roject disturbs the Barred Owl and any disturbance to the mapped habitat for Barred Owl s will result in forest fragmentation; 3 and (3) the project's pro posed water use wa s inconsistent with the RMP both because it exceeds the 27,600 gpd in conditionally available water for the three subwatersheds and did not provide the 125% mitigation of the de pletive water uses. See N.J.S.A. 13:20
- 10 (stating goals of the RMP ). DEP and Bi
- County discussed settlement of the OAL matters . During the ir discussions, Bi
- County informed DEP of the 1991 WQMP amendment . DEP determined that the 1991 WQMP amendment was still in effect as it pertained to the property , and conceded it had erred in 2005 when it found Bi
- County's proposal was in consistent with the Northeast WQMP . DEP also determined that the Highlands Act exemption under N.J.S.A. 13:20
- 28(a)(17) had not ex pired because Bi
- County had not yet obtained all final approvals required under the MLUL. After resolving these issues, only one issue

3 The Convention on Biological Diversity, a convention of the United Nations that includes the United States, defines "forest fragm entation" as " any process that results in the conversion of formerly continuous forest into patches of forest separated by non - forested lands. " Convention on Biological Diversity, Fo rest Biodiversity Definitions http://archive.is/xgLLN (last visited July 24, 2017).11 A - 3180
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remained: whether DEP should grant Bi
- County's freshwater general permit application and issue general freshwater wetlan d p ermit s 10B and 11 , and a transition area waiver . In October 2012, Bi
- County submitted to DEP a permitting plan, which revised the project in the area subject to the requirements of general freshwater wetlands permit 10B. The revision would change the site plan by reducing the project from 209 units to 204 units . On January 28, 2014, DEP and Bi
- County executed a settlement agreement that provided for issuance of the two general permits and transition area waiver (the DEP settlement) . Under the DEP

s ettlement , Bi
- County agreed to withdraw the OAL matters, revise its plans to satisfy all regulatory requiremen ts for issuance of the general permits, and obtain any other approvals required b y local, state, or federal law. Bi
- County also agreed to revise its freshwater wetlands permit application so that the application satisfied FWPA regulations , reduce the number of units from 209 to 204 , and revise its CCP to conform to the permitting plan.
DEP agreed to amend its records to reflect the p roperty's inc lusion in Wayne's sewer service area , and refrain from adopting any WQMP amendments changing this designation so long as Bi
Count y's development proposal remained exempt under the Highlands
Act. DEP determined that the presence of documented Barred Owl12 A - 3180
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ha bitat and exceptional resource value wetlands on the property would be adequately protected and thereby no t preclude approval of the freshwater wetlands permit application. DEP also determined that Bi
- County was entitled to the Highlands Act exemption und er N.J.S.A. 13:20
- 28(a)(17) because the property was developed in accordance with the Mt. Laurel settlement , and the Planning Board's July 2007 approval was not a final approval within the meaning of
N.J.S.A. 40:55D
- 4 until Bi
- County satisfied the conditions of the approval, including issuance of the general permits . DEP found that the 2007 approval was not a final approval because Bi
- County had to amend its site plan to reflect the terms and conditions of th e require d DEP approvals. In October 201 4, Bi
- County submitted a revised compliance statement for its freshwater permit application. DEP reviewed the application , paying particular attention to the potential impact s
on Ba rred Owl habitat. Christina Albizati, an Environmental Specialist with a decade of experience in DEP's T&E Species Unit, led this review and documented he r findings. She fo und that the permits would only disturb less than a quarter acre of wetlands, while the transition area waiver would reduce 1.718 acres of transition area in order to facilitate the construction of several single
- family dwellings and a detention basin. She determined that the loss of less than a quarter acre of wetland habitat did13 A - 3180
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not destroy, jeopardize, or adversely modify the documented Barred Owl habitat when the habit at consisted of 400 acres. Further, as compensation for the lost 1.718 acres, Bi
- County agreed to expand the wetland transition area in other locations

on - site by 1.363 acres and preserve 16.81 acres of add itional forested uplands that were suitable for Barred Owl habitat. These forested uplands would not otherwise receive protection under the
FWPA.
DEP concluded that the project was consistent with FWPA regulations. DEP determined that the preserved 16.81 acres of upland forest areas would not only substantially offset the relatively small loss of Barred Owl habitat in regulated areas, but would also provide an added level of habitat protection by serving as a buffer f rom forthcoming development.
T he U .S. Fish and Wildlife Service (USFWS ) reviewed the settlement agreemen t and submitted comments to DEP. USFWS noted that the p roperty lies within the summer migratory range for the Indiana Bat, 4 fell within the summer migratory range of the

4 New Jersey lists the Indiana Bat as endangered. N.J.A.C. 7: 25
- 4.13. T he Indiana Bat is a small bat with dark
- brown or black fur. The bats became "endangered" in 1967 because " people disturb [ed] hi bernating bats in caves during winter, resulting in the death of large numbers of bats ." U.S. Fish & Wildlife Service, Indiana Bat ( Myotis sodalis ) (July 2004), http://archive.is/imkIz . The "bats are vulnerable to disturbance because they hibernate in14 A - 3180
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Northern Lo ng - Eared Bat, 5 and may serve as habitat for the Small
Whorled Pogonia. 6
On Fe bruary 14, 2015, DEP issued general permits 10B and 11 and a transition area waiver, which incorporated the conditions that USFWS requested. The general permits imposed bat an d plant
pre - c onstruction survey requirements; required the surveys to be

s ubmitted to and approved by USFWS; and placed timing limits on
tree - clearing to protect migrat ing and foraging bat species.

large numbers in only a few caves[.]" Ibid. " Other threats that have contributed to the Indiana [B] at's decline include commercialization of caves, loss of summer habitat, pesticides and other contaminants, and most recently, the disease white
- nose syndrome. " U.S. Fish & Wildlife Service, Indiana Bat ( Myotis sodalis ) (July 2004), http://archive.is/imkIz .

5 T he Northern Long
- Eared Bat "is a medium
- sized [brown] bat" that "is distinguished by its long ears[.]" White
- nose syndrome is also responsible for its threatened status. U.S. Fish & Wildlife Service, Northern Long
- Eared Bat ( Myotis septenrionalis) (Apr. 2015), https://www.fws.gov/Midwest/endangered/mammals/nleb/pdf/NLEBFact Sheet01April2015.pdf . It " was listed as threatened under the Endangered Species Act on April 2, 2015 ." U.S. Fish & Wildlife Service, Northern Long
- Eared Bat ( Myotis septenrionalis ) (S ept. 2, 2016), http://archive.is/7EK0n .

6 T he Small Whorled Pogonia i s "a threatened species" and "a member of the orchid family." The agency states that "[t] he primary threat to the small whorled pogonia is the past and continuing loss of populations w hen their habitat is developed for urban expansion. " U.S. Fish & Wildlife Service, Small Whorled Pogonia ( Isotria medeoloides) (Feb. 2016), https://www.fws.gov/midwest/endangered/plants/pdf/smallwhorledpo goniafctsht.pdf .15 A - 3180
- 14T1 II. On appeal, appellants contend that DEP erred as a mat ter of law in determining that the 2007 approval was not a final approval within the meaning of N.J.S.A. 40:55D
- 4. Appellants posit that the 2007 approval was a final approval because the Planning Board took official action preliminarily approving a site plan; although the official action was conditional, it conferred on Bi
- County all rights attendant to a final approval; and those rights vested on the date of the final approval regardless of whether there were conditions of approval. 7 Accordingly, a ppellants conclude that because the 2007 approval was a final approval and Bi
- County failed to begin construction, Bi
- County was not entitled to the exemption . Our role in reviewing an administrative agency's decision is limited. Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot. , 101 N.J. 95, 103 (1985). We will not reverse the agency's decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which

7 Appellants rely on an unpublish ed opinion from this court to support this argument; however, unpublished opinions do not constitute precedent and are not binding on us. R. 1:36
- 3; Trinity Cemetery Ass'n v. Twp. o f Wall , 170 N.J. 39, 48 (2001). Appellants also rely on a published trial court opinion; however , trial court opinions are not binding on us. S & R Assocs. v . Lynn Realty Corp. , 338 N.J. Super. 350, 355 (App. Div. 2001) .16 A - 3180
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it was based were not supported by substantial, credible evidence in the record . Univ. Cottage Club of Princeton N . J . Corp. v. N . J . Dep't of Envtl. Prot. , 191 N.J. 38, 48
- 49 (2007) . "In reviewing an administrati ve agency's decision, we will grant considerable deference to the agency's expertise, where such expertise is a relevant factor." In re Petition of S. Jersey Gas
Co. , 447 N.J. Super. 459, 480 (App. Div. 2016). We " may not second
- guess those judgments of an administrative agency which fall squarely within the agency's expertise. " In re Stream Encroachment Permit No. 0200
- 04
- 0002.1 FHA , 402 N.J. Super. 587, 597 (App. Div. 2008). "Ordinarily, DEP is given great deference when it applies its considerable e xpertise and experience to the difficult balance between development and conservation." Ibid. (citations omitted). "However, '[w]hile we must defer to the agency's expertise, we need not surrender to it.'" Pinelands Pres. All. v. State, Dep't of Envtl. P rot. , 436 N.J. Super. 510, 524 (App. Div.) (citation omitted), certif. denied , 220 N.J. 40 (2014) . "The party who challenges DEP's decision to permit development of a certain location has the burden of demonstrating, not that the agencies' action was merely erroneous, but that it was arbitrary." Stream Encroachment Permit , supra , 402 N.J. Super. at 597 (citations omitted).17 A - 3180
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Furthermore, although we "must give deference to the agency's findings of facts, and some deference to its 'interpretation of statutes and regulations within its implementing and enforcing responsibility,' we are 'in no way boun d by the agency's interpretation of a statute or its determination of a strictly legal issue.'" Utley v. Bd. of Review, Dep't of Labor , 194 N.J. 534, 551 (2008) (citations omitted). Applying the above standards, we discern no reason to disturb DEP's deci sions. The MLUL defines "final approval" as: the official action of the planning board taken on a preliminarily approved major subdivision or site plan, after all conditions, engineering plans and other requirements have been completed or fulfilled and th e required improvements have been installed or guarantees properly posted for their completion, or approval conditioned upon the posting of such guarantees. [ N.J.S.A. 40:55D
- 4 (emphasis added).]
See Field v. Franklin , 190 N.J. Super. 326, 332 (A pp. Div. 1983). Here, t he Planning Board approved the proposed development, but conditioned its approval on Bi
- County satisfying fifty
- seven conditions , several of which remained unsatisfied when DEP issued the general permits and transition area waiver . Among the se outstan ding conditions were the County Planning Board 's approval of the site plan and issuance of all necessary DEP approvals, both18 A - 3180
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of which the MLUL requires. See N.J.S.A. 40:55D
- 22(b); N.J.S.A. 40:55D
- 50(b) . Moreover, the 2007 approval was for the development of 209 units. DEP required Bi
- County to revise the project area subject to the requirements of freshwater wetlands permit 10B. The revision changed the site plan by reducing the proposed development fro m 209 units to 204 units. T he 2007 approval required Bi
- County
to return for amended site plan approval if DEP imposed additional conditions or other restrictions on the proposed development , which the DEP did here . Thus, the 2007 approval was not a "fin al approval" because Bi
- County had not received " all final approvals required pursuant to the [MLUL], " N.J.S.A. 13:20
- 28(a)(17) , and final site plan approval for 204 units . Accordingly, DEP correctly concluded that Bi
- County was entitled to the exemption under
N.J.S.A. 13:20
- 28(a)(17).
III. Appellants challenge DEP's determination that Bi
- County's permitting plan adopted in the DEP settlement complied with the FWPA's general wetlands permit provisions . They argue that DEP acted arbitrarily and capriciously by determining that Bi
- County's permitting plan adequately protected threatened Barred Owl habitat . Appellants posit that granting the general permits will cause forest fragmentation and thus endanger the Barred Owl in19 A - 3180
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violation of N.J.A.C. 7:7A - 4.3(b)(3) . They note that the permits allow for the removal of a small area of wetlands, and risk rendering the remainder of the forest patch unusable as Barred Owl habitat because the owls shun human activity by avoiding residential, industrial, or commercial areas. Appellants also note the Highlands Council found the project jeopardizes Barred Owl habitat. Appellants also argue that DEP acted arbitrarily and capriciously by failing to make findings as to wheth er Bi
- County's permitting plan will jeopardize the continued existence of the Barred Owl. They point to the fact that DEP previously determined that the property served as ha bitat for the threatened Barred Owl, but then conveniently fa iled to make any finding as to whether the project jeopa rdized the Barred Owl's continued existence. Furthe r, appellants maintain that because Bi
- County was already required to preserve uplands forest in order to meet the requirements of general permit 10B, DE P erred when it conditioned acceptance of Bi
- Count y's permitting plan on Bi
- County mitigating harms to Barred Owl habitat . Even if proper, appellants posit that the preservation would not preven t forest fragmentation. 8

8 Appellants erroneously assert that the presenc e of a threatened or endangered species triggers the stringent requirements of N.J.A.C. 7:7A - 4.3(d); however, this regulation is inapplicable because it governs timing requirements on fisheries.20 A - 3180
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The "Legislature passed the [FWPA] in 1987 as a means of protecting and regulating N ew Jersey's sensitive freshwater wetlands." N.J. Dep't. of Envtl. Prot. v. Huber , 213 N.J. 338, 341 ( 2013) (citing N.J.S.A. 13:9B
- 1 to
- 30; In re Freshwater Wetlands Prot. Act Rules , 180 N.J. 478, 482 (2004)) . When it passed the FWPA , the Legislature found, among other things, that

" freshwater wetlands [(1)] protect and preserve drinking water supplies by [ serving to purify surface water and groundwater
resources; ] [and (2)] provide essential breeding, spawning, nesting, and wintering habitats for a major portion of the State ' s fish and wildlif e[.]" Id. at 3 41
- 42 (citations omitted). Because of the wetlands' great importance, the Legislature announced " it shall be the policy of the State to preserve the purity and integrity of fresh water wetlands from random, unnecessary or undesirable alteration or disturbance [.]" N.J.S.A. 13:9B
- 2. At the same time, the Legislature cautioned that " the rights of persons who own or possess real property affected by this [A] ct must be fairly recogniz ed and balanced with environmental interests [ .]" Ibid. (emphasis added). Following the FW P A's enactment, DEP promulgated regulations interpreting the statute. Most relevant to this case, DEP promulgated N.J.A.C. 7:7A - 4.3, which governs all g eneral p ermit authorizations. The regulation declares that "[t]he activities21 A - 3180
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[authorized by a general permit] shall not destroy, jeopardize, or adversely modify a present or documented habitat for threatened or endangered species; and shall not jeopardize the continue d existence of any local population of a threatened or endangered species[.]" N.J.A.C. 7:7A - 4.3(b)(3). An applicant must also meet additional requirements depending on the permit sought. G eneral p ermits 10B and 11 specifically require that "[m]itigatio n . . . be performed for all permanent loss and/or disturbance of 0.1 acres or greater of freshwater wetlands or State open waters." N.J.A.C. 7:7A - 5.10B(e); N.J.A.C. 7:7A - 5.11(i). N.J.A.C. 7:7A - 15.5 establishes the degree of mitigation required for disturbances of less than 1.5 acres. These regulations required Bi
- County to preserve at least five acres of uplands because the project disturbed less than 1.5 acres of exceptional resource value freshw ater we tlands and upland preservation wa s practicable and feasible. N.J.A.C. 7:7A - 15.9 ; N.J.A.C. 7:7A - 15.5 . Bi
- County complied with the regulations by allocating five acres of the 16.81 acres of p reserved forested uplands as mitigation. In the DEP sett lement, DEP determined that the revised project would satisfy regulatory requirements for issuance of the required general permits and that due to Bi
- County's CCP , the presence of documented Barred Owl habitat and exceptional resource value22 A - 3180
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wetlands on the p roperty would not preclude approval of the general permit application. The CCP reengineered the entire p roject to increase wet lands transition areas , conserve sixteen acres of uplands, and reduce the p roject's size by approxim ately one
- third. The CCP a lso proposed a monitoring program for the Barred Owl and species of special concern to determine the patterns of use of the subject property. DEP's T&E Unit also thoroughly reviewed Bi
- County's general permit application to determine the p roject's potent ial impact on
Barr ed Owl habitat. The T&E Unit recognized that the general permits would authorize a disturbance of .1984 acres of wetland and the waiver would result in a net loss of .335 acres of habitat, but found that

t his relative[ly] small loss of habitat is more than offset by the supplemental preservation of 16.81 acres of suitable upland forest habitat proximate to the wetlands

. . . . [T]he preservation of the forested steep slope areas on [the] site[,] through [the] creation of conservati on areas, not only preserves habitat for [B]arred [O]wl[s], but also provides an additional level of habitat protection by serving as a screen from the forthcoming development. Based on its findings, the T&E Unit concluded:

[T]he proposed plan is consiste nt with the standards of subchapter s 5 and 6 of the [FWPA] Rules. . . . [T]he amount of wetland and transition area habitat being lost to development is minor in comparison to the23 A - 3180
- 14T1 amount of wetland and transition areas that rema in and that will be preserve d. In combination with the additional upland conservation areas onsite, the forested wetlands on [the] site will still retain the same structure and function they did prior to development and will still be able to provide [B]arred [O]wl[s] with necessary h abitat components without threatening the existence of the population in the area.
F urther, when DEP responded to the public's comments, it expressly incorporated by reference the T&E Unit's report , and addressed the public's concerns for the Barred Owl a nd fo rest fragmentation. DEP stated:

After a thorough review of all relevant documentation, the T&E Unit finds the proposed plan is consistent with the standards of [ N.J.A.C. 7:7A - 4.3(b)], as the proposed plan would not appreciably result in increases in sediment, nutrient or pollutant loading and/or degrade water quality in the wetland that would result in an alteration of the wetlands' ability to provide suitable habitat for the [B]arred [O]wl. In regard to impacts to the wetland habitat of the [B]arre d [O]wl, the plan will result in a net loss of 0.355 acre[s] of habitat within the transition area of the largest wetlands onsite. However, the T&E Unit has determined that this relatively small loss of habitat is more than offset by the supplemental pres ervation of 16.81 acres of suitable upland forest habitat, which is proximate to wetlands and withi n the same Barred [O]wl habitat . . . . The T&E Unit has determined that the preservation of forested steep slope areas on site through [the] creation of cons ervation areas not only preserves habitat for [B]arred [O]wl, but also provides an additional level of habitat protection by serving as a screen from the24 A - 3180
- 14T1 forthcoming development. While the proposed development project will segment the forested habitat on
- site, the amount and quality of remaining forest, both upland and wetland, will continue to provide suitable habitat for the [B]arred [O]wl. As a result, the [B]arred [O]wl can still use the remaining wetlands and the preserved forested areas for resting and foraging, and the remaining on
- site habitat w ill also serve as a corridor to habitat south and north of the parcel. [(Emphasis added) . ] The record confirms that DEP carefully considered the
p roject's impact s on the Barred Owl and reasonably approved the general permits . Unlike DEP, appellants may believe that the land lost to Bi
- County's development is too great. Appellants' mere disagreement, however, does not make DEP's determination arbitrary , capricious , or unreasonable . The Legislature tasked DEP with balancing environmental and real property interests.
N.J.S.A. 13:9B
- 2. The DEP settlement and general permits represent DEP's reasonable attempt to strike this balance. The record amply supports DEP's decision to approve the general permits ; the DEP 's decision comports with the requirements of the FWPA and corresponding regulations ; and the decision was not arbitrary, capricious, or unreasonable.
IV. Appellants contend that DEP unreasonably ignored evid ence that the property serv es as habitat for the federally
- endang er ed25 A - 3180
- 14T1

Indiana Bat and Long - Eared Bat, and federally
- threatened Small
Whorled Pogonia. Appellants argue that DEP failed to consider that USFW S identified the exceptional resource value wetland s on the prope rty as habitat for the se species, and the DEP settlement never mentioned the m. A ppellants also argue that USFW S 's comments raised concerns that the project occurs within the summer migratory range of the endangered Northern Long
- E ared Bat , a nd lies within a maternity colony buffer . Finally, appellants note that USFW S requested surveys for the Northern Long
- Eared B at and Small
Whorled Pogonio. Bi
- County's CCP, which the DEP settlement expressly incorporated by reference, acknowledged there were other T&E species on the p roperty. The CCP states that the "Barred Owl should be the main focus of the monitoring program[,] but not the exclusive purpose" because "[s]pecies of special concern identified or potential . . . should also be a fo cus of a baseline monitoring program." Second, although the DEP settlement does not expressly reference the Indiana Bat , DEP considered the p roject's impact on
T&E species other than the Barred Owl, including the Indiana Bat, Long - Eared Bat, and Small
- Who rled Pogonia. In its r esponse to public comments, DEP acknowledged that these three species might26 A - 3180
- 14T1

live on the p roperty and informed the public how they would be protected: The site has been identified as potential

habitat for Indiana [B]at, [N]orthern [L] ong - [E]ared [B]at, and [S]mall
- [W]horled [P]ogonia by the [USFWS], and the USFWS is requesting that the site be surveyed for these species. [DEP] has informed Bi
- County of the USFWS requirement to survey for these species. Bi
- County will be required to c omplete these surveys and adhere to any subsequent USFWS recommendations as a condition of any Freshwater Wetlands permits for the [P] roject and prior to any site disturbance or construction. [(Emphasis added).] Lastly, in the general permits, DEP expres sly prohibited Bi
County from removing trees before finishing the surveys ; required Bi
- County to seek approval from USFWS before clearing any trees ; and barred Bi
- County from clearing trees during the Indiana Bat's foraging and pr e - hibernation period. The record contains ample evidence that DEP considered T&E species in issuing the general permits and imposed reasonable permit conditions to protect them.
V. Appellants contend that DEP acted arb itrarily and capriciously in granting a transition area waive r . They argue that the project will result in a net loss of 0.355 acres of transition area around the exceptional resources value wetlands on the property, which is inconsistent with N.J.A.C. 7:7A -27 A - 3180
- 14T1

6.1(a)(1 ) - (6 ). They argue that the record contains no evidence to substantiate DEP's determination because Bi
- County failed to offer scientific documentation showing the proposed activity will have no substantial impact on the adjacent wetlands , as required by N.J.A.C. 7:7A - 6.1(d). Appellants also argue that r ather than provide the docum entation necessary to secure a transition area w aiver, the DEP settlement pro posed to compensate for the loss of requisite 150
- foot transition are a by preserving 11.61 acres of forested uplands on the property. They posit that DEP erred in issuing the transition area waiver because such an exchange does not obviate the requirements of N.J.A.C. 7:7A - 6.1(d) , an d does not satisfy the legislative purpose of protecti ng freshwater wetlands species. A transition area is " 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. DEP regulations require that "[t] he standard width of a transition area adjacent to a freshwater wetland of exceptional resource value shall be 150 feet . . . [and] shall only be modified through the issuance of a transition area waiver." N.J.A.C. 7:7A 2.5(d).
N.J.S.A. 13:9B
- 18 (a) empowers DEP to issue a transition area waiver when: " ( 1) the proposed activity would have no substantial28 A - 3180
- 14T1

impact on the adjacent freshwater wetland or (2) the waiver is necessary to avoid a substantial hardship to the applicant caused by circumstances peculiar to the property ." Corresponding DEP regulations provide that an applicant may satisfy the first prong and " obtain a transition area waiver through scientifically documenting that a proposed activity will have no substantial impact on the adjacent wetlands ." N.J.A.C. 7:7A - 6.1(d). The documentation " may include, but is not limited to, nutrient or sediment transport models, buffer models, or wildlife habitat suitability studies." Ibid. (emphasis added) . However, the documentation must address s ediment, nutrient, and pollutan t transport and removal; i mpa cts o n sensitive species; and surface water quality impacts. Ibid. DEP granted a transition area waiver to Bi
- County under
N.J.A.C. 7:7A - 6.1(d). Bi
- County's compliance s tatement, which it revised in October 2014 , demonstrate s that DEP acted properly und er N.J.S.A. 13:9B
- 18 and N.J.A.C. 7:7A - 6.1(d) in granting the transition area waiver . In its compliance s tatement , Bi
- County cited N.J.A.C. 7:7A - 6.1(d) in its entirety and described the project's impact on sedim ents, nutrients, and pollutants, sensitive s pecies, and water quality i n the transition area. Bi
County addressed the sediment and pollutant issue by recognizing that "wetlands protect water quality by trapping sediments and29 A - 3180
- 14T1

retaining excess nutrients and other pollutants." Bi
- County then stated t hat its plan preserves those wetlands by using "non
structural measures . . . such as grass swales and interrupted impervious surfaces, as we ll as structural features . . . including five maintained detention basins" to "reduce stormwater pollutants." Bi
- County also addressed the project's impact on T&E species , and listed the dominant species presently occurring in both th e reducti on and expansion areas. Bi
- County also explained that its plan reduced impacts on sensitive species by preserving, in addi tion t o the compensation areas , four additional for ested upland conservation areas that total 16.81 acres. Furthe r, Bi
County acknowledged that while Barred Owl s may not use the site for habitat purposes due to the relatively small size of the wetlands ar ea, the site may function as a corridor for them. Regarding water quality, Bi
- County stated that W ayne will handle its wastewater, while Bi
- County will protect riparian corridors and freshwater wetlands with an average 100
- foot upland buffer around wetla nds and stream corridors in which there are no major encroachments, and conserve four open spaces totaling over 16.81 acre s of forested habitat. Bi
- County also represented that it will preserve a portio n of the isolated wetland to reduc e surface water qua lity impacts.30 A - 3180
- 14T1

Second, Bi
- County explained it needed a transition area waiver to effectuate the p roposed residential development becau se the transition area must be reduced to allow for the construction of single
- family dwellings and a n above
- ground deten tion basin. Specifically, to build the dwellings and basin, Bi
- County had to
construct roadways, s tormwater management facilities, and residential lots. DEP's responses to the public's comments also demonstrate that DEP acted properly under N.J.S.A. 13: 9B
- 18 and N.J.A.C. 7:7A 6.1(d) in granting the transition area waiver. DEP explained its decision as follows:

Bi
- County . . . applied for a [t]ransition [a]rea [w] aiver reduction . . . to reduce the 150 [foot] transition area adjacent to the exceptional r esource value wetlands by 1.718 acres (74,874 sq. ft.). The proposed transition area waiver reduction . . . would enable the construction of several single
- family dwellings a nd a detention basin . To compensate for the transition area reduction, the wetland transition area will be expanded by 1.363 acres. In addition, 16.81 acres of additional forested uplands that provide suitable [B]arred [O]wl habitat on the subject parcel will also be preserved.

. . . . [DEP] holds the authority to protect fres hwater w etlands and transition areas . . . . However, the rules allow wetlands and transition areas to be permanently impacted in certain circumstances. Contrary to the commenter's claim, none of the proposed houses31 A - 3180
- 14T1 are located within freshwater wetlands, although some of the houses are located within the adjoining freshwater wetlands transition areas. [Bi
- County] has applied for a [t]ransition [a]rea [w]aiver [r] eduction pursuant to [ N.J.A.C. ] 7:7A - 6.1(d). As part of [Bi
- County's] compliance with [ N.J.A.C. ] 7:7A - 6.1(d), [Bi
- County] proposes to permanently conserve 16.81 acres of forested areas on - site to offset the proposed encroachments into transition areas. [DEP] has reviewed the p roject for compliance with the standards at [ N.J.A.C. ] 7:7A - 6.1(d). The p roject does meet t hese standards and as such, [DEP] will issue a [t]ransition [a]rea [w] aiver in accordance with the [FWPA] rules. Bi
- County satisfied the requirements of N.J.A.C. 7 :7A - 6.1(d), and DEP complied w ith all regulatory requirement s in issuing a transition area waiver. The record supports DEP's decision to issu e a transition area waiver, and the decision is not arbitrary, capricious, or unreasonable. Affirmed.