Archive for the ‘Wetlands’ Category

NJ is rapidly becoming the City State not the Garden State

Written by Mike Pisauro on August 5th, 2010 in land use, Wetlands | No Comments »

Researchers from Rowan and Rutgers University have recently released a new report looking at the changes in NJ’s land use from 1986 to 2007.  A prior report looked at the changes from 1995 to 2002.  This report adds the period between 2002 to 2007.  This report shows some very amazing facts.

The rate of development in NJ increased by 7% from 2002 to 2007.  From 1995 to 2002 NJ lost an average of 15,123 acres per year to urbanization, but that increased to 16,061 acres per year from 2002 to 2007.  As we continued to increase urbanization in the State of New Jersey we lost forests, wetlands, open space, and forestlands.  These land use changes have ramifications.  For example we lost 66.3 square miles of forest over 21 years.  This loss of land to urbanization has many negative environmental impacts.  The loss of forests has increased the fragmentation of habitat and has created more fringe areas.  Species that rely on large areas of habitat will have less large areas to hunt, bred and to live.  Fringe habitat encourages invasive species to take over.

We continue to lose wetlands to urbanization.  From 2002 to 2007 we lost 8,652 acres of wetlands or the slightly more than the total area of the Hackensack Meadowlands.   It is somewhat surprising at the level of wetlands loss since 1995 as overall federal policy is for zero wetlands loss.  Another issue with NJ’s wetlands loss is NJ’s water quality.  It is well accepted that when a watershed has 10% or more of its land covered by impervious surface that watershed is impacted to various degrees.  Increasing impervious cover will have an impact on water quality as well as flooding.    NJ’s 2008 Integrated Water Quality Report shows that NJ’s waters are not fairing well.  63% of the streams that could be assessed did not meet the standards for aquatic life.   41% of our waters do not meet the designation for recreational use and we do not know enough to determine the status of another 40%.    Interesting, the report reveals that fish and invertebrate communities were commonly impacted in urban areas and that “increase in impervious surfaces was related to a negative response in the aquatic invertebrate community.”   As we continue to pave over NJ our water quality will decrease.  This will also cause continued efforts to clean up our streams, rivers and lakes to be a more expensive proposition.

Another interesting fact the report reveals is that almost 50% of the development has taken place outside of the areas designated for growth within our state plan.  This is contrary to NJ’s State Plan, but a look at this issue will have to wait for another post.

Court allows Threatened Species to exist

Written by Mike Pisauro on December 11th, 2008 in Courts, Endangered Species, Wetlands | No Comments »

In mid-November the Appellate Division handed to DEP a win by finding that the barred owl could be threatened.  In ZRB, LLC. v. NJ Dept. of Environmental Prot., A-6046-06T3, ZRB sought to fill in wetlands under general permit #6.  Under general permit #6, a permittee can fill in limited amounts of freshwater wetlands as long as the freshwater wetlands are not classified as an exceptional resource.  Freshwater wetlands are classified as exceptional, intermediate, or ordinary.

The applicant alleged the wetlands were of intermediate value and could be filled while the DEP alleged because of the property was of exceptional value.  DEP claimed the property was of exceptional value because it was suitable habitat for the barred owl.  In NJ the barred owl is considered to be a threaten species under N.J. Endangered and Non-game Species Act.  While the case is interesting for several reasons, the aspect I am going focus on is whether DEP is authorized to list a species as threatened.

In 1973 both New Jersey and the Federal government enacted endangered species laws.  Under the Federal ESA an “endangered species” is defined:

any species which is in danger of extinction throughout all or a significant portion of its range  . . .  16 U.S.C. 1532(6).

The Federal ESA has a separate definition for “threatened species” and provides a different level of protections.  Under the Federal ESA, “threatened species” are defined as:

any species which is likely to become an endangered species within the foreseeable future throughout all or a signification portion of its range.  16 U.S.C. 1532(20).

The Applicant argued that since the New Jersey Endangered and Non-game statute does not define “threatened,” DEP could not create threatened species in its regulations.  DEP’s regulations define threatened as, “a species that may become endangered if conditions surrounding it begin to or continue to deteriorate.”   NJAC 7:24-4.1.  If there could not be a threatened species, then DEP could not classify the freshwater wetlands as exceptional and the applicant would be able to fill in the wetlands on its property.

The Applicant was only partly correct in its argument.  While the NJ statute does not have a separate definition for “threatened” its definition of endangered is:

“Endangered species” means any species or subspecies of wildlife whose prospects of survival or recruitment are in jeopardy or are likely within the foreseeable future to become so due to any of the following factors . . . NJSA 23:2A-3(C).

According to the Appellate Court, the highlighted section is the lynch pin.  As the DEP’s definition of threaten is actually part of the definition of endangered the Appellate Court found that the DEP did not exceed the authority granted to it under the statute.  Since the DEP was reasonable in creating the threatened category in its implementing regulations and listing species as threatened, its denial of the general permit to ZRB was within DEP’s authority.