New Jersey Appellate Court Finds NJDEP Has Authority to Protect Threatened Species

November 16, 2008
by NICOLE MOSHANG
Client Alert Newsletter November 2008

On November 17, 2008, a New Jersey Appeals Court upheld the New Jersey Department of Environmental Protection's ("NJDEP's") denial of a wetlands development permit for a Cape May County property NJDEP claimed to be a habitat of the barred owl—a threatened, but not endangered, species in New Jersey. The permit applicant, a developer, appealed the permit denial arguing, inter alia, that while the Endangered and Nongame Species Conservation Act (the "Act"), authorized NJDEP to protect endangered species, it did not give them the authority to designate and protect merely "threatened" species. In ruling that NJDEP acted within its authority under the Act in denying the wetlands permit application to protect a threatened species, the court found that the Act's plain language applies to "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."

The ruling is the first reported New Jersey decision addressing NJDEP's authority with respect to protecting threatened species and is likely to have significant implications for developers looking to develop land that may qualify as a habitat for an endangered or threatened species, even where there is no site-specific evidence establishing that the property is such a habitat.