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.