Critical Habitat Regulations under the New Jersey Endangered and Nongame Species Conservation Act . . . Protecting Habitat or Combating Sprawl?

On July 15, 2003, Bradley Campbell, Commissioner of the New Jersey Department of Environmental Protection ("DEP"), announced his plans to expand the scope of the New Jersey Endangered and Nongame Species Conservation Act ("State Act")1 by promulgating regulations that protect the habitat of threatened and endangered species. The State Act regulates the taking, possession, transportation, exportation, processing and sale of endangered and certain non-game species2 and, heretofore, has never been used by the DEP as a comprehensive tool to guide the use and development of land containing critical habitat. Indeed, although the State Act went into effect nearly 30 years ago3, which, according to the Commissioner, made New Jersey "among the earliest leaders in species protection"4, even predating the federal Endangered Species Act of 1973 ("Federal Act") by about 14 days6, it "was never implemented through regulation."7

According to a DEP news release, the proposed regulations, which are scheduled to appear in draft form some time later this year, will require, among other things, "habitat conservation plans whenever new development occurs in environmentally sensitive areas that serve as habitat for threatened or endangered species[,] . . . [and will] be comparable to protections extended to federally protected species, protections that deem habitat destruction equivalent to the taking of a species."8 Although there are a number of state laws that already empower the DEP to protect threatened and endangered species from development, their reach is limited to critical habitat areas within wetlands9, flood plains10, coastal areas11 and the Pinelands Region12. According to the Commissioner, these "[e]xisting regulations do a good job of protecting listed species[,] . . . but . . . fail to protect species found elsewhere[,]" such as in uplands regions. The impetus behind the Commissioner's proposed regulations is to close this gap.13

Under the Commissioner's plan, the applicability of the proposed regulations will be tied to the "Landscape Project", a database of known habitats for threatened and endangered species created by the Endangered and Nongame Species Program. Presently, the public can access Landscape Project maps14 to determine whether individual properties or larger geographic areas contain critical habitat for threatened or endangered species. Ultimately, critical area maps from the Landscape Project database will be incorporated into the so-called Blueprint for Intelligent Growth Map ("Big Map").15 Not surprisingly, the DEP anticipates using the proposed regulations to limit the use and development potential of properties identified on the BIG Map as hosting critical habitat for a threatened or endangered species.16 It may be of import to potential developers to note that this rule may also apply even to urban and suburban properties, which would otherwise be earmarked for development under Governor James McGreevey's Smart Growth agenda (as outlined in Executive Order 38).

Aside from the foregoing, very little else has been disclosed publicly regarding the substantive content of the proposed regulations.17 Presumably, the Commissioner will seek to create rules for the State Act that emulate existing regulations under other statutes, such as the Federal Act.18

Under the Federal Act, the taking of an endangered species is permitted if "[s]uch taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."19 Application requirements for an "incidental taking permit" under the Federal Act pursuant to the rules implemented by the United States Fish and Wildlife Service ("Service")20, include a completed application form, a description of the proposed activity, certain information regarding the particular endangered species to be covered under the permit, and a habitat conservation plan.21 The habitat conservation plans must contain a discussion of the following four points: (1) the likely impact upon endangered species resulting from the proposed taking, (2) the steps proposed to minimize and mitigate such impact and the availability of funding to implement same, (3) the alternatives to the proposed activity considered by the applicant and the reasons why such alternatives are not being pursued and (4) such other measures that the federal government may require as being necessary or appropriate.22 Upon receipt of a complete application, the Service will publish notice thereof in the Federal Register. This notice shall inform the public of its right to submit written comments within thirty days of the date of such notice.23

In the event that an application for incidental taking meets certain criteria, the Service shall issue a permit. Specifically, the applicant must show the following: (1) the taking will be incidental and will not appreciably reduce the likelihood of survival and recovery of the subject species, (2) the impact of the proposed activity will be minimized and mitigated, (3) the conservation plan and procedures for dealing with unforeseen circumstances will receive adequate funding, and (4) the additional measures and other assurances deemed necessary and appropriate by the Service, if any, will be met.24 In making its decision on a permit application, the Service "[s]hall also consider the anticipated duration and geographic scope of the applicant's planned activities, including the amount of listed species habitat that is involved and the degree to which listed species and their habitats are affected."25

One of the more remarkable things about incidental taking permits under the Endangered Species Act is the protection the statute affords to permit holders against the imposition of additional regulatory measures for certain changed or unforeseen circumstances that occur after the permit has been issued.26 This set of "no further action" assurances is known as the "No Surprises" policy. As to changed circumstances, the Service is prohibited from requiring a permit holder to employ any conservation and mitigation measures in addition to those already provided for in the habitat conservation plan, notwithstanding a determination by the Service that additional conservation and mitigation measures might be necessary, unless the permit holder has failed properly to implement the approved plan.27 The application of the No Surprises policy to unforeseen circumstances is a little more complicated, and is reproduced below:

(A) In negotiating unforeseen circumstances, the Director [of the U.S. Fish and Wildlife Service] will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed upon for the species covered by the conservation plan without the consent of the permittee.

(B) If additional conservation and mitigation measures are deemed necessary to respond to unforeseen circumstances, the Director may require additional measures of the permittee where the conservation plan is being properly implemented, but only if such measures are limited to modifications within conserved habitat areas, if any, or to the conservation plan's operating conservation program for the affected species, and maintain the original terms of the conservation plan to the maximum extent possible. Additional conservation and mitigation measures will not involve the commitment of additional land, water or financial compensation or additional restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the conservation plan without the consent of the permittee.

(C) The Director will have the burden of demonstrating that unforeseen circumstances exist, using the best scientific and commercial data available. These findings must be clearly documented and based upon reliable technical information regarding the status and habitat requirements of the affected species. The Director will consider, but not be limited to, the following factors:

(1) Size of the current range of the affected species;

(2) Percentage of range adversely affected by the conservation plan;

(3) Percentage of range conserved by the conservation plan;

(4) Ecological significance of that portion of the range affected by the conservation plan;

(5) Level of knowledge about the affected species and the degree of specificity of the species' conservation program under the conservation plan; and

(6) Whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild.28

Although it is at this point uncertain whether the Commissioner is going to incorporate into the proposed regulations a No Surprises policy, or even consider doing so, it goes without saying that some measure of no further action assurances would surely be a welcome surprise to landowners throughout this state, which is sorely needed in this era of ever-tightening regulations.

In any event, there is also the problematic question of whether the DEP has the authority to regulate land use through the State Act. A clear reading of the State Act reveals that none of its provisions, either expressly or impliedly, empower the DEP to guide the use and development of land to promote the purposes of the statute or otherwise require the DEP to consider the care and protection of critical habitats in administering the statute. Moreover, the State Act has never been used in such fashion by the DEP since its inception in 1973.

There is little doubt that the Commissioner's proposed rules could provide some benefit to endangered species across the state. However, the overarching purpose behind their promulgation, seemingly, is to serve as ammunition in "Governor McGreevey's war on sprawl."29 This objective, however good-intentioned, is neither expressly nor impliedly contained in the legislative findings and declaration to the State Act.30 Rather, the focus of this statute has been on the regulation of direct contact between protected species and people - not the indirect contact that results from the use and development of critical habitat.31

Presumably, had the Legislature wanted or intended the DEP to institute a state permitting process for the development of critical habitat, it could have done so simply by amending the State Act.32 The fact that the Legislature has not effected any such change over the course of this statute's thirty year history is instructive, and the DEP's current attempt to do so through the administrative rule-making process might very well be rebuffed by the judiciary if (and when) the proposed regulations, once adopted, reach the courthouse steps for review.33

ENDNOTES


1. N.J.S.A. 23:2A-1, et. seq.

2. N.J.S.A. 23:2A

3. L. 1973, c. 309, § 1, eff. Dec. 14, 1973.

4. DEP Commissioner Announces Upgraded Protections for Endangered Species, DEP News Release No. 03/99 (July 15, 2003).

5. 16 U.S.C.A. § 1531, et. seq.

6. Pub. L. 93-304, § 16, eff. Dec. 28, 1973.

7. DEP News Release, supra. Actually, it should be noted that the DEP has adopted some rules pursuant to the Endangered and Nongame Species Conservation Act, which are contained within the Division of Fish and Wildlife Rules codified at N.J.A.C. 7:25-1.1, et. seq. For example, the DEP prepared and periodically updates an official list of endangered species pursuant to the State Act. See N.J.A.C. 7:25-4.13. There are also a series of regulations governing the possession of endangered species, which requires a permit. See N.J.A.C. 7:25-4.10 and N.J.A.C. 7:25-4.14.

8. DEP News Release, supra; see also Alexander Lane, Development rules keep eye on wildlife - New limits would guard threatened species, The Star Ledger, July 16, 2003.

9. Under the Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A-1.1, et. seq., which implement, among other legislation, the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1, et. seq., a person acting under the authority of a statewide general permit "[s]hall 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).

10. Similarly, under the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50, et. seq., the DEP is empowered to regulate the development of land in flood hazard areas and for the purpose of controlling stream encroachments. Administrative regulations under this statute, which give consideration to the protection of endangered and threatened species, can be found at N.J.A.C. 7:13-1.3 and N.J.A.C. 7:13-3.9.

11. The Coastal Zone Management Rules, N.J.A.C. 7:7E-1.1, et. seq., which implement, among other legislation, the Wetlands Act of 1970, N.J.S.A. 13:9A-1, et. seq., and the Coastal Area Facility Review Act, N.J.S.A. 13:19-1, et. seq., prohibit the development of places containing endangered or threatened species "[u]nless it can be demonstrated, through an Endangered or Threatened Wildlife or Plant Species Impact Assessment . . . that endangered or threatened wildlife or plant species habitat would not directly or through secondary impacts on the relevant site or in the surrounding area be adversely affected.". N.J.A.C. 7:7E-3.38(b).

12. The Pinelands Protection Act, N.J.S.A. 13:18A-1, et. seq., affords the DEP with authority to limit the disturbance or destruction of critical habitats for endangered or threatened species in the Pinelands region. Under this statute's implementing regulations "[n]o development shall be carried out unless it is designed to avoid irreversible adverse impacts on habitats that are critical to the survival of any . . . threatened or endangered animal species[.]" N.J.A.C. 7:50-6.33. As to threatened and endangered plants see N.J.A.C. 7:50-6.27.

13. DEP News Release, supra.

14. In order to obtain critical areas maps from the Landscape Project database, log onto the website of the DEP's Division of Fish and Wildlife at www.njfishandwildlife.com or contact the DFW directly at The Landscape Project, New Jersey Division of Fish and Wildlife, Endangered and Nongame Species Program, P.O. Box 400, Trenton, New Jersey 08625, Phone (609-292-9400), Fax (609-984-1414).

15. DEP News Release, supra; see also Colleen Diskin, Endangered species' habitats get protection; Rules regulating development of uplands take effect in fall, The Record, July 16, 2003.

16. DEP News Release, supra; see also Lane, supra.

17. Although not contained in the July 15th DEP news release, it has been reported elsewhere that the DEP will include in the proposed rules a requirement that habitat conservation plans include a species inventory for the property that is the subject of review and be prepared by an environmental consultant who has been pre-approved by the state. Earl Ainsworth, Endangered Species: State moving to protect their turf 12 NJL 1365 (2003).

18. 16 U.S.C.A. § 1531, et. seq. An example of a development review procedure dedicated to the protection of endangered and threatened species that already exists under New Jersey law would be Subchapter 3C of the Coastal Zone Management rules. Under these regulations, a person applying for a permit to use or develop lands containing or abutting areas mapped as endangered or threatened species habitat on the Landscape Project maps, is required to submit an Endangered or Threatened Wildlife Species Impact Assessment, which must "demonstrate that endangered or threatened wildlife . . . would not, directly or through secondary impacts on the relevant site or in the surrounding area, be adversely affected by the proposed development." N.J.A.C. 7:7E-3C.1(b). The specific standards for conducting, and reporting the results of, Species Impact Assessments are further detailed at N.J.A.C. 7:7E-3C.2 and N.J.A.C. 7:7E-3C.4.

19. 16 U.S.C.A. § 1539(a)(1)(B).

20. All Federal Act regulations referenced herein are those implemented by the United States Fish and Wildlife Service in the Department of the Interior. Other federal agencies that administer the Endangered Species Act include the National Marine Fisheries Service and the National Oceanic and Atmospheric Administration (50 C.F.R. § 222.101, et. seq.) , both under the United States Department of Commerce, and the Animal and Plant Health Inspection Service (7 C.F.R. § 355.1, et. seq.) under the United States Department of Agriculture.

21. 50 C.F.R.. § 17.22(b)(1).

22. 16 U.S.C.A. § 1539(a)(2)(A). For more information on government expectations associated with the habitat conservation planning process, go to the U.S. Fish and Wildlife Service website at http://endangered.fws.gov/. Among the various resources contained on this website is the Habitat Conservation Planning Handbook put out jointly by the U.S. Fish and Wildlife Service and the National Marine and Fisheries Service, which provides practical information on the preparation and submission of the incidental taking permit application and habitat conservation plan.

23. 50 C.F.R.. § 17.22.

24. 50 C.F.R.. § 17.22(b)(2)(i).

25. 50 C.F.R.. § 17.22(b)(2)(ii).

26. 50 C.F.R.. § 17.22(b)(5).

27. 50 C.F.R.. § 17.22(b)(5)(ii).

28. 50 C.F.R.. § 17.22(b)(5)(iii).

29. DEP News Release, supra.

30. N.J.S.A. 23:2A

31. As indicated, supra, the State Act regulates the taking, possession, transportation, exportation, processing or sale of endangered and certain non-game species. N.J.S.A. 23:2A-6. There is nothing in the statute that authorizes the DEP to regulate the use and development of land containing critical habitat, either expressly or impliedly. Indeed, although the acts associated with possessing, transporting, exporting, processing or selling wildlife are not defined in the statute, the nature of these activities is self-explanatory and clear from their ordinary meaning in common usage; none of them can reasonably be construed to involve the use, alteration or development of land, except in the most general and superficial sense. For example, the act of possessing a wild animal, technically, cannot ordinarily be accomplished without occupying land or the improvements thereon to some extent, but this basic reality cannot serve as a basis for regulating land use under the State Act.

The concept of taking wildlife is less clear than the other regulated activities under Section 6 of the State Act, but is specifically defined under the statute and means to harass, hunt, capture, kill or to attempt to do so. N.J.S.A. 23:2A-3(e). This definition or description consists of actions that require direct contact between the offender and the protected species themselves, and does not encompass or contemplate the type of injury that might be caused to protected species by indirect contact, such as the alteration or destruction of critical habitat.

Interestingly, the definition of the word "take" under the Federal Act, which is much broader than the one contained in the State Act, includes the concept of "harm". In the regulations promulgated by the United States Department of the Interior under the Federal Act, the Department Secretary clarified the meaning of the word "harm", as it relates to the definition of "take", to include, among other things, "[s]ignificant habitat modification or degradation where it actually kills or injures wildlife[.]" 50 C.F.R. § 17.3. The United States Supreme Court in Babbit v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 115 S.Ct. 2407 (1995), upheld the validity of this regulation. One of the grounds on which the Unites States Supreme Court based its ruling was that "the ordinary meaning of ‘harm' naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species." 515 U.S. at 687, 697-698, 115 S.Ct. at 2408, 2412-2413.

32. It is noteworthy that all of the administrative rules cited herein, which authorize the DEP to regulate the development of critical habitat through the permitting process, are supported by clear statutory authority. Specifically, under the Freshwater Wetlands Protection Act, the State Legislature expresses its concern for the welfare of endangered and threatened species by characterizing wetlands containing critical habitat as being of exception resource value and by requiring that the impact of a regulated activity upon critical habitat be considered before the issuance of permits. See N.J.S.A. 13:9B-7 and N.J.S.A. 13:9B-9. Similarly, the use of land use planning as a means of protecting species and habitat under the Pinelands Protection Act is clearly articulated by the Legislature in the Committee Statement codified at N.J.S.A. 13:18A-1. The Flood Hazard Area Control Act empowers the DEP to adopt land use regulations at N.J.S.A. 58:16A-50(b). Finally, the applicable sections of the Coastal Area Facility Review Act and the Wetlands Act of 1970 are located, respectively, at N.J.S.A. 13:19-10(e) and N.J.S.A. 13:9A-2(a) and N.J.S.A. 13:9A-4(d).

33. New Jersey courts give considerable leeway to administrative agencies in the interpretation and enforcement of legislation under their jurisdiction, and will readily imply to such agencies all powers that are necessary to carry out the policies and purposes contained in the statute. However, if administrative regulations exceed the authority delegated to the agency, they are ultra vires. New Jersey Guild of Hearing Aid Dispensers, 75 N.J. 544, 561-562 (1978); Medical Soc'y v. Dep't of Law & Pub. Safety, 120 N.J. 18, 25-26 (1990). Indeed, administrative agencies do not have inherent power and, consequently, may not seek to accomplish ends or employ means that are not provided in the statute, Perreira v. Rediger, 169 N.J. 399, 416 (2001), and if reasonable doubt exists as to whether a particular power is vested in an administrative body, such power is denied. In re Jamesburg High School Closing, 83 N.J. 540, 549 (1980).