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 Law 

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. Malone, on the brief).

David R. Oberlander argued the cause for 

respondent Bi-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NOT FOR PUBLICATION WITHOUT THE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." 

Although 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, 2017
2 A-3180-14T1

PER CURIAM 

Appellants N.J. Highlands Coalition and Sierra Club, N.J. 

challenge a settlement agreement between respondents New Jersey 

Department of Environmental Protection (DEP) and Bi-County 

Development Corp. (Bi-County) relating to Bi-County's development 

of a 204-unit inclusionary housing project in the Borough of 

Oakland (Oakland). Appellants 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 the 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, see 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. Laurel
3 A-3180-14T1

doctrine1 seeking a builder's remedy authorizing construction of 

700 residential units on the property, which would include

affordable housing. In January 1991, the 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 settlement 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 project 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, dismissing the litigation. 

In February 1991, the property was placed in an approved

sewer service area by virtue of DEP's inclusion of the Oakland 

wastewater management plan as an amendment to the Northeast Water 

Quality Management Plan (the 1991 WQMP amendment). The 1991 WQMP 

amendment allowed for treatment of wastewater from the property 

at the Mountain View Sewage Treatment Plant 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-3180-14T1

In 1998, Bi-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 project 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 reissued in 1997, 

which classified the wetlands on the property as being of 

intermediate resource value. 

Pinnacle and Bi-County filed a lawsuit against Oakland and 

Wayne for issues related to the property. In 2001, the trial 

court ordered Wayne to accept wastewater from the property, 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 the 

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 

serve 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 ibid. 
5 A-3180-14T1

150-foot transition area surrounding the freshwater wetlands on 

the property instead of the proposed fifty-foot transition area. 

Pinnacle contested DEP's determination and submitted a report 

from its consultant, who concluded Barred Owls were not present 

on the property. In response, Wayne submitted a report from its 

consultant, who concluded the site contained Barred Owls and had 

a documented record of serving as Barred Owl habitat. The 

consultant also concluded that the wetlands on the property should 

be classified as exceptional resource value, which Pinnacle's 

consultant disputed. 

DEP determined that the property served as Barred Owl habitat 

and re-classified the wetlands on the property as being of 

exceptional resource value. Exceptional resource value wetlands 

require a 150-foot transition area adjacent to the wetlands. See

N.J.A.C. 7:7A-2.5(d). Because of this 150-foot transition area

requirement, the development of 313 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), this 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 Wetlands Protection Act 
6 A-3180-14T1

(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 an LOI, which re-classified the wetlands 

on the property as being of exceptional resource value, requiring 

a 150-foot transition area (the 2004 LOI). Pinnacle submitted 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 north 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 project from 313 units to 209 units. 

The Legislature passed the Highlands Act in 2004. The 

Legislature found the Highlands to be critically important to New 

Jersey because they provide drinking water for approximately onehalf of the State's population. Thus, the 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 and 

Planning Council (Highlands Council) to oversee New Jersey's 

portion of the national Highlands Region. N.J.S.A. 13:20-4. The 
7 A-3180-14T1

Highlands Council is responsible for developing a regional master 

plan 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 

dismissal 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).]

The 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 Highlands applicability determination 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 Planning 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. However, DEP 
8 A-3180-14T1

found, incorrectly, that the proposal was inconsistent with the 

Northeast WQMP. Both DEP and Pinnacle had overlooked the 1991 

WQMP amendment, which already provided for treatment of wastewater 

from the property, and mistakenly believed the property was located 

outside of a sewer service area. As a result, Pinnacle applied 

for a WQMP amendment to extend Wayne's Mountain View Wastewater 

Treatment Facility's sewer service area to include the property. 

DEP rejected the application and expressed concern about the 

project's impacts 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, in 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 property, 

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 approval on Pinnacle obtaining

all necessary approvals from DEP and the Bergen County Planning 

Board (County Planning Board), and satisfying more 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 

restrictions on the proposed development. 
9 A-3180-14T1

In July 2007, Pinnacle applied to DEP for freshwater wetlands 

general permit 6, which authorizes certain activities in nontributary wetlands, see N.J.A.C. 7:7A-5.6, and freshwater wetlands 

general permit 11, which authorizes activities necessary to 

construct stormwater outfall and intake structures. See N.J.A.C.

7:7A-5.11. Pinnacle also applied for a transition 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 wetlands and transition areas. See N.J.A.C.

7:7A-5.10B.

Pinnacle terminated the purchase contract and returned the 

property to Bi-County. In February 2009, Bi-County applied to DEP 

for an extension of the 2004 LOI. DEP granted an extension in 

November 2009, but again determined the property contained 

exceptional resource value wetlands that served as habitat for 

threatened and endangered (T&E) species. Bi-County contested 

DEP's determination, 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 project 
10 A-3180-14T1

encroaches into the 300-foot buffers/riparian areas, and this was 

inconsistent with the objectives of the final draft RMP; (2) the 

project disturbs the Barred Owl and any disturbance to the mapped 

habitat for Barred Owls will result in forest fragmentation;3 and 

(3) the project's proposed water use was 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 depletive 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 their 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 inconsistent 

with the Northeast WQMP. DEP also determined that the Highlands 

Act exemption under N.J.S.A. 13:20-28(a)(17) had not expired

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 

fragmentation" 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, Forest 

Biodiversity Definitions http://archive.is/xgLLN (last visited 

July 24, 2017).
11 A-3180-14T1

remained: whether DEP should grant Bi-County's freshwater general 

permit application and issue general freshwater wetland permits

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

settlement, Bi-County agreed to withdraw the OAL matters, revise

its plans to satisfy all regulatory requirements for issuance of 

the general permits, and obtain any other approvals required by 

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 property's 

inclusion in Wayne's sewer service area, and refrain from adopting 

any WQMP amendments changing this designation so long as BiCounty's development proposal remained exempt under the Highlands 

Act. DEP determined that the presence of documented Barred Owl 
12 A-3180-14T1

habitat and exceptional resource value wetlands on the property 

would be adequately protected and thereby not preclude approval 

of the freshwater wetlands permit application. DEP also determined 

that Bi-County was entitled to the Highlands Act exemption under 

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 

the required DEP approvals. 

In October 2014, Bi-County submitted a revised compliance 

statement for its freshwater permit application. DEP reviewed the 

application, paying particular attention to the potential impacts

on Barred Owl habitat. Christina Albizati, an Environmental 

Specialist with a decade of experience in DEP's T&E Species Unit, 

led this review and documented her findings. She found 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 did 
13 A-3180-14T1

not destroy, jeopardize, or adversely modify the documented Barred 

Owl habitat when the habitat 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 additional 

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 from forthcoming development. 

The U.S. Fish and Wildlife Service (USFWS) reviewed the 

settlement agreement and submitted comments to DEP. USFWS noted

that the property 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. The Indiana Bat is a small bat with dark-brown or black 

fur. The bats became "endangered" in 1967 because "people 

disturb[ed] hibernating 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 in 
14 A-3180-14T1

Northern Long-Eared Bat,5 and may serve as habitat for the SmallWhorled Pogonia.6 

On February 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 and plant 

pre-construction survey requirements; required the surveys to be 

submitted to and approved by USFWS; and placed timing limits on 

tree-clearing to protect migrating 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 The 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) (Sept. 

2, 2016), http://archive.is/7EK0n.

6 The Small Whorled Pogonia is "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 when 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 matter 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, appellants 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 unpublished 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. of 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-3180-14T1

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 administrative 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 expertise 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. Prot., 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-3180-14T1

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 bound 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 decisions.

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 the 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 (App. Div. 1983).

Here, the 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 these 

outstanding conditions were the County Planning Board's approval 

of the site plan and issuance of all necessary DEP approvals, both 
18 A-3180-14T1

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 

from 209 units to 204 units. The 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 "final 

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 in 
19 A-3180-14T1

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 whether 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 habitat for the threatened Barred Owl,

but then conveniently failed to make any finding as to whether the 

project jeopardized the Barred Owl's continued existence. 

Further, appellants maintain that because Bi-County was 

already required to preserve uplands forest in order to meet the 

requirements of general permit 10B, DEP erred when it conditioned 

acceptance of Bi-County's permitting plan on Bi-County mitigating 

harms to Barred Owl habitat. Even if proper, appellants posit

that the preservation would not prevent forest fragmentation.8 

 

8 Appellants erroneously assert that the presence 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-3180-14T1

The "Legislature passed the [FWPA] in 1987 as a means of 

protecting and regulating New 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 wildlife[.]" Id. at 341-42 (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 freshwater 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 recognized and balanced with 

environmental interests[.]" Ibid. (emphasis added).

Following the FWPA'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 general permit

authorizations. The regulation declares that "[t]he activities 
21 A-3180-14T1

[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 continued 

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. General permits 10B and 11 specifically 

require that "[m]itigation . . . 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 freshwater wetlands and upland 

preservation was 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 preserved forested 

uplands as mitigation. 

In the DEP settlement, 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 value 
22 A-3180-14T1

wetlands on the property would not preclude approval of the general 

permit application. The CCP reengineered the entire project to 

increase wetlands transition areas, conserve sixteen acres of 

uplands, and reduce the project's size by approximately one-third. 

The CCP also 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 project's potential impact on 

Barred 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

this 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 conservation 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 consistent with the 

standards of subchapters 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 the 
23 A-3180-14T1

amount of wetland and transition areas that 

remain and that will be preserved. 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 habitat 

components without threatening the existence 

of the population in the area.

Further, 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 and forest 

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]arred [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 preservation of 16.81 acres of 

suitable upland forest habitat, which is 

proximate to wetlands and within 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 conservation 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 the 
24 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 

will also serve as a corridor to habitat south 

and north of the parcel.

[(Emphasis added).]

The record confirms that DEP carefully considered the 

project's impacts 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 evidence 

that the property serves as habitat for the federally-endangered 
25 A-3180-14T1

Indiana Bat and Long-Eared Bat, and federally-threatened SmallWhorled Pogonia. Appellants argue that DEP failed to consider 

that USFWS identified the exceptional resource value wetlands on 

the property as habitat for these species, and the DEP settlement 

never mentioned them. Appellants also argue that USFWS's comments 

raised concerns that the project occurs within the summer migratory 

range of the endangered Northern Long-Eared Bat, and lies within

a maternity colony buffer. Finally, appellants note that USFWS

requested surveys for the Northern Long-Eared Bat and SmallWhorled Pogonio. 

Bi-County's CCP, which the DEP settlement expressly 

incorporated by reference, acknowledged there were other T&E

species on the property. 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 focus of a baseline 

monitoring program." 

Second, although the DEP settlement does not expressly 

reference the Indiana Bat, DEP considered the project's impact on 

T&E species other than the Barred Owl, including the Indiana Bat, 

Long-Eared Bat, and Small-Whorled Pogonia. In its response to 

public comments, DEP acknowledged that these three species might 
26 A-3180-14T1

live on the property 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 complete 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 expressly prohibited BiCounty 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 pre-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 arbitrarily and 

capriciously in granting a transition area waiver. 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 rather than provide the 

documentation necessary to secure a transition area waiver, the 

DEP settlement proposed to compensate for the loss of requisite 

150-foot transition area 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), and does not satisfy the 

legislative purpose of protecting 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. 7:7A2.5(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 substantial 
28 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 sediment, nutrient, and pollutant 

transport and removal; impacts on 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 statement, which it 

revised in October 2014, demonstrates 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. In its compliance statement, Bi-County 

cited N.J.A.C. 7:7A-6.1(d) in its entirety and described the 

project's impact on sediments, nutrients, and pollutants, 

sensitive species, and water quality in the transition area. BiCounty addressed the sediment and pollutant issue by recognizing 

that "wetlands protect water quality by trapping sediments and 
29 A-3180-14T1

retaining excess nutrients and other pollutants." Bi-County then 

stated that its plan preserves those wetlands by using "nonstructural measures . . . such as grass swales and interrupted 

impervious surfaces, as well 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 the 

reduction and expansion areas. Bi-County also explained that its 

plan reduced impacts on sensitive species by preserving, in 

addition to the compensation areas, four additional forested 

upland conservation areas that total 16.81 acres. Further, BiCounty acknowledged that while Barred Owls may not use the site 

for habitat purposes due to the relatively small size of the 

wetlands area, the site may function as a corridor for them. 

Regarding water quality, Bi-County stated that Wayne will 

handle its wastewater, while Bi-County will protect riparian 

corridors and freshwater wetlands with an average 100-foot upland 

buffer around wetlands and stream corridors in which there are no

major encroachments, and conserve four open spaces totaling over 

16.81 acres of forested habitat. Bi-County also represented that 

it will preserve a portion of the isolated wetland to reduce 

surface water quality impacts. 
30 A-3180-14T1

Second, Bi-County explained it needed a transition area 

waiver to effectuate the proposed residential development because 

the transition area must be reduced to allow for the construction 

of single-family dwellings and an above-ground detention basin. 

Specifically, to build the dwellings and basin, Bi-County had to 

construct roadways, stormwater 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. 7:7A6.1(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 resource 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 and 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 

freshwater wetlands 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 houses 
31 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 project for 

compliance with the standards at [N.J.A.C.]

7:7A-6.1(d). The project does meet these 

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 with all regulatory requirements in issuing a 

transition area waiver. The record supports DEP's decision to 

issue a transition area waiver, and the decision is not arbitrary, 

capricious, or unreasonable.

Affirmed.