EELC appeared before judges Parrillo, Harris, and Guadagno at New Jersey’s Appellate Court in the first series of oral arguments concerning the NJDEP’s approval of a permit on April 18, 2012, granting developer Jaylin Holdings, LLC (the “applicant”) the right to construct a Walmart Supercenter (the “project”) in Toms River, New Jersey. At the hearings, EELC represented appellants American Littoral Society, Sierra Club-New Jersey Chapter, Save Barnegat Bay, and New Jersey Conservation Foundation.
At the arguments, EELC requested that the court vacate the NJDEP’s approval of a permit for applicant’s construction of a Walmart Supercenter, consisting of a 187,798 sq. ft. building, garden, parking lot, and access road on a 21-acre plot of vacant land along Route 37 West in Toms River, New Jersey. Although the project site is located in the development corridor of Toms River, it is also home to the northern pine snake, which is listed as an endangered species in New Jersey, and contains critical habitat for that species.
The NJDEP’s permit approval raised serious concerns among the appellants, including a total loss of 21 acres of critical habitat for the endangered northern pine snake. Furthermore, the project lies in the Coastal Zone, and is in an area governed by the Coastal Area Facilities Review Act (CAFRA). New Jersey’s legislature created CAFRA in 1973 to protect the state’s valuable and irreplaceable natural resources. CAFRA’s strict regulations control development along New Jersey’s shoreline, which contains fragile Pinelands, coastal, and wetlands habitat. CAFRA’s regulations prohibit development unless a Habitat Impact Assessment for a proposed project sufficiently demonstrates that critical habitat will not be adversely affected through primary or secondary impacts on the site or the surrounding area. By granting the permit, the NJDEP contradicted its own conclusion, twice reached, that the project would destroy 20.9 acres of prime pine snake habitat and create secondary impacts. Habitat loss from development of roads and infrastructure, which prevent movement and breeding, cause population decline, and are primary threats to the northern pine snake. Additionally, appellants argued that the novel Habitat Evaluation Method (HEM), created and applied by the NJDEP to assess the project’s impact on the snakes and their habitat, contradicts CAFRA’s intent to protect and preserve critical natural resources and prevent habitat loss for threatened and endangered species. Furthermore, the NJDEP failed to comply with rulemaking procedures and mandates established by the Administrative Procedure Act (APA). Appellants argued that the NJDEP’s HEM meets the test for a rule established in Metromedia Inc. V. Division of Taxation. Therefore, the NJDEP is subject to the APA’s rulemaking procedures and its mandate for a public notice and comment period. However, the NJDEP never provided a public comment period after creating the HEM.
In 2005, the NJDEP received a proposal from the applicant to build a 203,091 sq. ft. building, road, and parking lot on 43 acres of land in the Pinelands regions between Dover and Manchester Township. The application was submitted to, and reviewed by, the NJDEP’s Endangered and Nongame Species Program (ENSP). Using a northern pine snake habitat model to determine the presence of the threatened northern pine snake in the area, the ENSP identified 32.4 out of 43 acres of the applicant’s site as undisturbed pine snake habitat. It found seven snakes on the premises, along with a nest, and concluded that the primary and secondary impacts of the project, including the construction of a new road to the shopping center, would create long-term increases in noise and pose a risk to the snakes. The ENSP concluded that the project would cause irreversible damage to the snake population and recommended denial of the permit. The NJDEP concluded the project would be non-compliant with CAFRA regulations, which require “no diminution” in the area’s capacity to sustain the pine snake population, and would violate its 30% impervious coverage limit. The NJDEP found that the project would cause a direct loss of over 21 acres of pine snake habitat, along with secondary impacts, including the snakes’ abandonment of the on-site den. It also found that while a portion of the project site lies in the coastal regional center of Toms River, which allows an 80% limit on impervious coverage, the majority of the site falls within an area that is subject to a more stringent 30% limit because it contains critical northern pine snake habitat and wetlands.
The NJDEP denied the application in 2006, but gave the applicant time to revise and resubmit a project proposal with mitigation plans. Jaylin Holdings, LLC revised and resubmitted an application with a reduced scope of work, consisting of a 187,798sq. ft. building, and smaller parking lot and garden. This time around, the project would cover 40.5 rather than 43 acres. The applicant also proposed the purchase and preservation of two non-adjacent parcels to compensate for the snake’s habitat loss.
Despite this revision, the NJDEP once again denied the applicants’ permit in 2010, citing non-compliance with CAFRA’s regulations governing endangered species protection and impervious coverage limits. However, the NJDEP permitted the applicant to revise and resubmit an application for the project with additional mitigation plans.
Jaylin Holdings, LLC revised its application, complete with plans to reduce pine snake habitat loss, and resubmitted the proposal to the NJDEP. The third proposal included construction of a 150-foot buffer zone around the den and a four-foot wall around the den’s perimeter to reduce human and snake interactions, the preservation of 20.9 acres on site, and preservation of six off-site parcels to preserve snake habitat. The NJDEP concluded, using this novel technique, that the project would not adversely affect the pine snakes on the project site. The NJDEP granted Jaylin Holdings, LLC approval to build a Walmart Supercenter consisting of a 187,798 sq. ft. building, parking lot, access road, and garden on April 18, 2012, despite the presence of northern pine snakes and a snake den on the project site, and despite denying two previous applications for the project twice before.
A final decision has yet to be reached concerning this matter, but we will post updates as they arise.
(written by Lucy Halse, EELC blog contributor)