                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1173-16T1

NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
COASTAL AND LAND USE
COMPLIANCE AND ENFORCEMENT,

        Petitioner-Respondent,

v.

WILLIAM WARRINGTON,

     Respondent-Appellant.
______________________________

              Argued March 12, 2018 – Decided August 17, 2018

              Before Judges Accurso, O'Connor and Vernoia.

              On appeal from the New Jersey Department of
              Environmental Protection.

              Mitchell H. Kizner argued the cause for
              appellant (Flaster Greenberg, PC, attorneys;
              Mitchell H. Kizner and Scott C. Oberlander,
              on the briefs).

              Robert J. Kinney, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General, attorney; Melissa H.
              Raksa, Assistant Attorney General, of counsel;
              Robert J. Kinney, on the brief).

PER CURIAM
     Appellant William Warrington appeals from the New Jersey

Department of Environmental Protection's (NJDEP) final agency

decision finding he violated the Freshwater Wetlands Protection

Act (FWPA), N.J.S.A. 13:9B-1 to -30, and its regulations, N.J.A.C.

7:7A-1.1 to -22.20, and the Flood Hazard Area Control Act (FHACA),

N.J.S.A. 58:16A-50 to -101, and its regulations, N.J.A.C. 7:13-

1.1 and -24.11, by clearing trees and vegetation, filling and

grading, constructing a gravel road and installing a concrete pad

on wetlands, freshwater wetlands transition and flood hazard areas

on his Elk Township property. Because we are convinced the NJDEP's

findings and conclusions are supported by substantial credible

evidence, we affirm.

                                  I.

     The essential facts are not in dispute.      Warrington owns an

over three-acre, rectangular-shaped residential property with its

eastern boundary comprised of approximately 100 feet of frontage

on   Whig   Lane   Road.    The   northern   boundary   line   extends

approximately 1180 feet west from the northern point of frontage

on Whig Lane Road.     The southern boundary line is more than 1200

feet, and extends westerly from the southern point of frontage on

Whig Lane Road.    The western boundary, located at the rear of the

property, is approximately 150 feet.    As described by the DEP, the



                                  2                            A-1173-16T1
property "is narrow and deep, widening somewhat toward the western

boundary line."

     The property is comprised of four distinct areas.    The first

is the "residential area," which is closest to Whig Lane Road and

extends approximately 250 feet westerly from the road.     This is

the area where Warrington's home is situated.

     We refer to the second area as the "front property."          It

extends westerly approximately 230 feet from the residential area

to a fifty-foot-wide riparian buffer through which a "tributary

of Still Run" dissects the property.1    The fifty-foot-wide buffer

which includes the tributary is the property's third area, which

we refer to as the "riparian buffer."     The fourth area consists

of all of the property extending westerly from the riparian buffer

to the property's western boundary.     We refer to the fourth area

as the "rear property."

     Commencing in 2000, and over the ensuing years, Warrington

cleared vegetation from the front property and riparian buffer and

removed vegetation and trees from the rear property.     Warrington

also filled and graded the front property and rear property.

Warrington replaced the wooden decking of an existing twelve-foot-



1
   A tributary is a "river or stream flowing into a larger river
or stream."   Webster's II New College Dictionary 1205 (3d ed.
2005).

                                3                           A-1173-16T1
wide bridge over the tributary, and constructed an access road

which wound from Whig Lane Road, through the residential area,

front property, across the bridge and in a large circle on the

rear property.       In 2008, Warrington built a thirty by forty-foot

concrete pad on the rear property in the middle of the circular

portion of the access road.       He later constructed a pole barn on

the pad.

     In 2008, NJDEP Inspector Olufunsho Sekoni conducted a site

inspection of the property, and took four soil borings from the

rear property.       On May 13, 2008, he issued a Field Notice of

Violation (FNOV) to Warrington, charging Warrington engaged in

unauthorized regulated activities on the rear property and in the

riparian    buffer    by   constructing    the   concrete   pad,   clearing

vegetation and disturbing approximately 14,000 square feet of

wetlands transition area, clearing and disturbing approximately

8000 square feet of wetlands, installing a bridge across the

tributary, filling and grading, and creating a road in freshwater

wetlands.    The FNOV directed corrective or restoration actions

including    "restor[ation]     [of]   the   site   to   its   predisturbed

condition or appl[ication] for permits from" the Division of Land

Use Regulation.

     The next day, Warrington prepared a letter advising Sekoni

that his wife contacted the Division to obtain the necessary

                                       4                            A-1173-16T1
permits.      Warrington advised it was his "intention to get all

permits rather than try to restore the land [to] its original

condition."       Warrington retained Key Engineering, Inc. for the

purpose of obtaining the necessary permits.

      On June 2, 2010, NJDEP Inspector Trent Todash inspected the

property.      Prior to the inspection, he reviewed soil survey

overlays to determine the soils in the area, and reviewed NJDEP

files and historical aerial photographs of the property. During

his inspection, he focused on the residential area, the front

property and the riparian buffer.

      Todash issued a notice of violation (NOV) on June 29, 2010,

alleging Warrington violated the FWPA by "clearing[ ]vegetation,

filling and grading to create an access road" and constructing the

concrete pad on wetlands and freshwater wetlands transition areas

in the front property and rear property.                 It further alleged

Warrington violated the FHACA by constructing a road, and filling

and grading within the riparian buffer.              Warrington was directed

to   submit   a   restoration   plan       or   an   explanation   of   planned

corrective measures.

      On September 27, 2010, Robert Scott Smith from Key Engineering

submitted a revised September 21, 2010 "Wetlands Boundary Survey"

on Warrington's behalf to "demonstrate potential compliance with

the terms and conditions of a Freshwater Wetland General Permit

                                       5                                A-1173-16T1
10B, Freshwater Wetland Transition Area Waiver . . . ." The survey

showed the roadway, bridge and concrete pad, and included comments

acknowledging the placement of fill and clearing of vegetation,

and a "total disturbance of wetlands and [wetlands] transition

areas associated with [the concrete] pad and [circular] loop road

[of] 13,500" square feet in the rear property.

      Ten months later, on July 13, 2011, Todash further inspected

the property and observed that Warrington constructed a pole barn

on   the    concrete   pad.        In   August   2011,   Todash   conducted    an

inspection of the front property and riparian buffer, and took

three      soil   borings     at    locations     immediately     adjacent     to

Warrington's property that had not been filled or disturbed.                   He

considered making a fourth soil boring, but did not because the

location had standing water.            He did, however, observe vegetation

consistent with the presence of wetlands in that area.

      Based on his analysis of the soil borings, observations of

the fill and vegetation, and examination of the county soil

surveys, Todash determined Warrington disturbed 19,780 square feet

of freshwater wetlands on the front property and 4300 square feet

on the riparian buffer.

        Relying on Sekoni's inspection notes and records, Todash

also determined Warrington cleared and filled approximately 8720

square feet of wetlands and an additional 14,000 square feet of

                                          6                             A-1173-16T1
wetlands transition area in the rear property.                        Todash further

determined Warrington constructed a bridge across the tributary

that disturbed an additional 360 square feet within the riparian

buffer.

       In January 2012, the NJDEP issued an Administrative Order and

Notice      of   Civil   Administrative        Penalty     Assessment       (AONOCAPA)

asserting Warrington conducted activities on his property without

first obtaining permits in violation of the FWPA and the FHACA.

The AONOCAPA alleged Warrington violated the FWPA by: clearing

vegetation and placing fill material and grading to create an

access road in the front property "resulting in the disturbance

of approximately 8720 square feet of freshwater wetlands" without

a permit; clearing vegetation and placing fill material and grading

in the front property "to create a lawn area and access road

resulting in the disturbance of approximately 19,780 square feet

of freshwater wetlands" without the required permits; clearing

vegetation       and   constructing   a       "30   by   40   foot    concrete     pad,

resulting in the disturbance of approximately 14,000 square feet

of freshwater wetlands transition area" in the rear property

without a permit; and erecting a "30 by 40 foot pole barn/garage

structure" on the concrete pad in 2011.

       The AONOCAPA also stated Warrington violated the FHACA in

2008   by    constructing    a   bridge       over   the      Still   Run    tributary

                                          7                                    A-1173-16T1
"impacting approximately 360 square feet" of a "flood hazard area"

without a permit, and in 2010 by creating a lawn area and access

road resulting in the disturbance of "approximately 4300 square

feet of the Riparian Buffer associated with a tributary of Still

Run."

     The   AONOCAPA   identified    a    total   wetlands   disturbance   of

28,500 square feet, a wetlands transition area disturbance of

14,000   square   feet,   and   a   flood    hazard   area/riparian    zone

disturbance of 4660 square feet.

     The AONOCAPA required that Warrington "immediately cease all

regulated activities" and submit a restoration plan within twenty

days.    The DEP also imposed a $17,000 administrative penalty.

Warrington requested a hearing, and the matter was transferred to

an administrative law judge (ALJ) for a hearing.

     At the hearing before the ALJ, Sekoni did not testify because

he was no longer employed by the NJDEP,2 but his field notes from

his 2008 inspection of the rear property, describing his soil

borings, observations of the rear property, calculations of the

size of the total freshwater wetlands disturbance (8720 square

feet), freshwater wetlands transition disturbance (14,000 square


2
    It was represented by NJDEP counsel that Sekoni had also
relocated to Texas.



                                     8                             A-1173-16T1
feet) and flood hazard area disturbance (360 square feet),3 and

including drawings of the property and disturbed areas, were

admitted in evidence.

       Todash testified concerning his review of Sekoni's notes,

aerial photographs of the property and his inspections of the

property in June 2010 prior to the issuance of the NOV.            He also

testified concerning his subsequent inspection of the property in

July   2011,   and   the   soil   borings   and   property   inspection    he

conducted the following month.        He explained that he compared the

soil borings to the colors on a Munsell Soil Color Chart (Munsell

Chart),4 made other observations of the soil and drainage patterns,

considered the dominant vegetation and aerial photographs showing

the front property had been cleared, and determined the front

property was comprised of wetlands and wetlands transition areas

that Warrington cleared and filled.          Todash also explained that




3
   Although the record refers to a 360 square foot disturbance
attributable to the bridge construction, Sekoni's notes list a 306
square foot disturbance.       The NJDEP ultimately determined
Warrington did not violate the FHACA because he did not construct
the bridge. We therefore need not address or resolve the conflict
between the sizes of the alleged disturbance areas.
4
      The  Federal   Manual  for   Identifying  and   Delineating
Jurisdictional Wetlands, 11-12 (1989) provides for the use of the
Munsell Soil Color Chart to test and compare soil samples.


                                      9                             A-1173-16T1
the fifty-foot riparian buffer had been cleared, resulting in a

total flood hazard area disturbance of 4300 square feet.5

      NJDEP   senior    geologist   and   Land   Use    Permitting   Section

Officer Brett Kosowski testified he visited the property in June

2010 and, based on his "best professional judgment," determined

there was fill in the front property because it was at an elevation

different than the surrounding undisturbed areas and its surface

had what appeared to be recently planted grass.           He also testified

he asked Smith from Key Engineering to prepare a pre-permit

application document summarizing the "viability of a permit."

      Kosowski identified a September 27, 2010 letter from Smith,

which included the Wetland Boundary Survey.            Warrington's counsel

objected to the admission of the letter and survey, contending

they were inadmissible because they were provided as part of

settlement negotiations.       The NJDEP argued they were provided

pursuant to the pre-application process for the requisite permits,

and   constituted      admissions   on    Warrington's     behalf    by   his

authorized agent.      The court admitted the letter, which included

a statement that Warrington placed fill on the property, because




5
    Todash calculated the 4300 square foot flood hazard area
disturbance by multiplying the fifty-foot width of the riparian
buffer by the eighty-six-foot length of the tributary across
Warrington's property.

                                    10                               A-1173-16T1
the letter did not identify the location of the fill and Warrington

did not dispute he filled in areas of the property.

     The court reserved decision as to whether the survey, which

included statements concerning the placement of fill and the

location of wetlands and wetlands transition areas, constituted

an admission by Warrington.        The NJDEP later moved the survey into

evidence and, without any objection from Warrington, the ALJ

admitted    it   in   evidence.      In    the   ALJ's    final   opinion     and

recommendation, he addressed the admissibility of the survey, and

concluded the survey was prepared by Smith as Warrington's agent

and constituted an admission on Warrington's behalf.                     The ALJ

rejected the notion the survey was submitted to the NJDEP in

furtherance of any settlement negotiations.

     The NJDEP's final witness, Barbara Baus, testified concerning

the agency's calculation of the administrative penalty.                       She

explained   there     was   a   miscalculation    of     the   $17,000   penalty

assessed in the AONOCAPA, and that the correct penalty was $16,000.

     Warrington presented Gary Brown, a licensed site remediation

professional, who was qualified as an expert in wetlands and

delineation of wetlands.         He testified that one of his employees,

Ahren Ricker, conducted tests of the soil on the property and took

photographs in September 2014.            Ricker did not compare any soil

on the property to the Munsell Chart, but instead used open test

                                      11                                 A-1173-16T1
pits to assess the presence of wetlands and wetlands transition

areas.    According to Brown, the test pits showed no wetlands on

the property except in the areas adjacent to the tributary.                 He

based his opinion on the lack of standing water in the test pits,

the water level in the soil and the surrounding vegetation.

       Warrington also testified.     He explained the bridge over the

tributary was on the property when he purchased it in 1999.                 He

explained that he only replaced the decking on the bridge.                  He

admitted he cleared the property to make his yard "a little

bigger," by "cut[ting] down all the vegetation in 2000" and

building the road. He also acknowledged cutting down approximately

twenty trees in the rear property, and installing the concrete

pad.   He denied seeing any muddy areas, or standing water, on any

of the areas he disturbed.

       The ALJ issued a detailed and comprehensive written decision.

He observed that there was no dispute Warrington disturbed the

areas of the property alleged by the NJDEP and that the issue

presented    was   whether   the   NJDEP   proved   the   affected     areas

constituted wetlands, wetlands transition areas and flood hazard

areas. The ALJ determined the front property consisted of wetlands

and wetlands transition areas based on Todash's testimony, which

the judge found more credible than Brown's testimony.



                                    12                               A-1173-16T1
     The ALJ also determined the NJDEP proved the disturbed areas

in the rear property were wetlands and wetlands transition areas.

He relied on portions of Sekoni's notes and records, finding they

were admissible as business records, N.J.R.E. 803(6), and public

records, N.J.R.E. 803(8).           He found those portions of Sekoni's

notes setting forth his determination the rear property consisted

of wetlands and wetlands transition areas were hearsay, but he

found   independent          admissible      evidence     corroborating       the

determination was provided in the September 21, 2010 Wetland

Boundary Survey Smith submitted to the NJDEP.               The ALJ concluded

the survey constituted an admission by Warrington because Smith

was Warrington's agent, the survey was submitted in furtherance

of the permit process and it was not provided as part of any

settlement negotiations.

     Last, the ALJ determined the NJDEP established Warrington

violated   the       FHACA   by    disturbing     the   riparian   buffer     and

constructing     a     bridge     across    the   tributary.       He   rejected

Warrington's post-trial contention that the tributary was exempt

from the FHACA's coverage because it was a manmade canal.                     See

N.J.A.C. 7:13-2.2.           The ALJ determined Warrington waived the

argument because it was not raised during pretrial discovery or

asserted during trial, and was asserted for the first time in

Warrington's post-trial submissions.

                                       13                                A-1173-16T1
     Warrington filed exceptions to the ALJ's decision.      In its

final decision, the NJDEP accepted in part and rejected in part

the ALJ's findings and recommendation.   The NJDEP found the front

property and rear property consisted of wetlands and wetlands

transition areas, and that Warrington disturbed them by removing

vegetation, installing fill, and constructing the road, concrete

pad and barn. The NJDEP also accepted the ALJ's finding Warrington

disturbed the 4300 square foot riparian buffer, thereby violating

the FHACA.    The NJDEP rejected the ALJ's finding Warrington

disturbed 360 square feet of the riparian buffer by constructing

the bridge because it accepted Warrington's testimony the bridge

was present when he purchased the property in 1999.        The NJDEP

thereby reduced the recommended administrative penalty to $14,000.

Warrington appealed.

     On appeal, Warrington presents the following arguments for

our consideration:

          POINT ONE

          THE TRIAL JUDGE IMPROPERLY CONSIDERED THE
          NOTES AND OTHER DOCUMENTS OF . . . SEKONI, WHO
          DID NOT TESTIFY. MOREOVER, EVEN IF SEKONI'S
          NOTES WERE SOMEHOW PROPERLY ADMITTED, THEY
          WERE INSUFFICIENT TO ESTABLISH THE ALLEGED
          VIOLATIONS INVOLVING THE GARAGE AREA[.]




                               14                            A-1173-16T1
          POINT TWO

          THE   KEY  ENGINEERS    DOCUMENTS   WERE  NON-
          EVIDENTIAL   SETTLEMENT    COMMUNICATIONS  AND
          PROPOSALS OF ADJUSTMENT[.]

          POINT THREE

          THE NJDEP FAILED TO SATISFY ITS BURDEN OF
          PROOF THAT . . . WARRINGTON DISTURBED 19,780
          SQUARE FEET OF FRESHWATER WETLANDS IN THE
          FRONT OF THE PROPERTY OR 14,220 SQUARE FEET
          OF WETLANDS TRANSITION AREA IN THE BACK OF THE
          PROPERTY BECAUSE MR. BROWN WAS NOT REQUIRED
          TO UTILIZE A MUNSELL CHART WHEN CONDUCTING HIS
          TESTING, AND THE NJDEP FAILED TO SHOW THAT ITS
          TESTING WAS EVEN CONDUCTED ON THE PROPERTY[.]

          POINT FOUR

          THE FHACA AND ITS ACCOMPANYING REGULATIONS DO
          NOT APPLY TO THIS MATTER BECAUSE THE WATERWAY
          IN QUESTION IS A "MANMADE CANAL," THEREBY
          PLACING IT OUTSIDE THE SCOPE OF THE FHACA[.]

                                  II.

     Our scope of review of agency decisions is limited.    We defer

to the agency's ultimate determination unless it is arbitrary,

capricious   or   unreasonable,    violates   legislative   policies

expressed or implied in the enabling legislation, or the findings

on which the decision was based were not supported by substantial,

credible evidence.    In re Virtua-West Jersey Hosp., 194 N.J. 413,

422 (2008). When an error in the agency's fact finding is alleged,

our review is limited to assessing whether sufficient credible

evidence exists in the record to support those findings.       Close


                                  15                         A-1173-16T1
v. Kordulak Bros., 44 N.J. 589, 599 (1965). This review must

encompass "the proofs as a whole," and must take into account "the

agency's expertise where such expertise is a pertinent factor."

Ibid.    "The burden of demonstrating that the agency's action was

arbitrary,     capricious   or    unreasonable     rests   upon    the   [party]

challenging the administrative action."             In re Arenas, 385 N.J.

Super. 440, 443-44 (App. Div. 2006).               Warrington fails to meet

that burden here.

                                       A.

      Warrington first contends the ALJ and the NJDEP erred by

basing    their   conclusions     he   disturbed     wetlands     and    wetlands

transition areas in the rear property on Sekoni's determination,

as reflected in his field notes, that the disturbed portions of

the   rear     property   were    comprised   of    wetlands      and    wetlands

transition areas.     Warrington argues the notes constitute hearsay,

which was not corroborated by other competent evidence as required

under    the   residuum   rule,    N.J.A.C.   1:1-15.5(b).         We    are   not

persuaded.

      Subject to a judge's discretion, N.J.A.C. 1:1-15.5(a) permits

the admission of hearsay in administrative proceedings.                  ZRB, LLC

v. N.J. Dep't of Envtl. Prot., Land Use Regulation, 403 N.J. Super.

531, 557 (App. Div. 2008).        Nevertheless, "some legally competent

evidence must exist to support each ultimate finding of fact to

                                       16                                 A-1173-16T1
an extent sufficient to provide assurances of reliability and to

avoid the fact or appearance of arbitrariness."            N.J.A.C. 1:1-

15(b).   "Under the residuum rule, N.J.A.C. 1:1-15.5.5(b), hearsay

is admissible in administrative hearings to corroborate other,

non-hearsay evidence."    Hemsey v. Bd. of Trs., Police & Firemen's

Retirement Sys., 393 N.J. Super. 524, 534 (App. Div. 2007), rev'd

in part on other grounds, 198 N.J. 215 (2009).

     Sekoni's   notes   included   his   determination     the   disturbed

portions of the rear property were comprised of wetlands and

wetlands   transition   areas.     The   ALJ   correctly   concluded    the

determination constituted hearsay,6 see N.J.R.E. 801, but properly


6
   The ALJ found the portions of Sekoni's notes reflecting his
objective findings were admissible under the business records,
N.J.R.E. 803(c)(6), and public records, N.J.R.E. 803(8),
exceptions to the hearsay rule, N.J.R.E. 801. Warrington does not
challenge those determinations on appeal. The ALJ, however, also
determined that Sekoni's opinions, including his opinion the
disturbed areas of the rear property were comprised of wetlands
and wetlands transition areas constituted inadmissible hearsay.
See N.J.R.E. 805 (providing that a statement "within the scope of
an exception" to the rule against hearsay is inadmissible where
it includes a hearsay statement not falling within any hearsay
exception). "[W]hen 'statements are hearsay-within-hearsay, each
level . . . requires a separate basis for admission into
evidence.'"   Konop v. Rosen, 425 N.J. Super. 391, 402 (App. Div.
2012) (citation omitted). Moreover, under N.J.R.E. 808, where an
otherwise admissible hearsay statement includes embedded hearsay
in the form of an expert opinion, the expert opinion "shall be
excluded if the declarant has not been produced as a witness unless
. . . the circumstances involved in rendering the opinion . . .
tend to establish its trustworthiness." N.J.R.E. 808; see also
James v. Ruiz, 440 N.J. Super. 45, 62 (App. Div. 2015) (noting


                                   17                              A-1173-16T1
admitted the notes because hearsay is admissible in a contested

case, N.J.A.C. 1:1-15.5(a); ZRB, LLC, 403 N.J. Super. at 557.

     Warrington contends, however, that Sekoni's determination was

not sufficiently corroborated by competent evidence as required

under the residuum rule.    More particularly, Warrington contends

the ALJ erred by finding Sekoni's determination was corroborated

by the Key Engineering survey because the ALJ erroneously concluded

the survey constituted an admission made on Warrington's behalf,

and the survey was otherwise inadmissible under N.J.A.C. 1:1-15.10

because it was submitted to the NJDEP in furtherance of settlement

negotiations.

     We find no basis to reverse the ALJ's acceptance of the survey

as   Warrington's   admission,   and     rejection   of     Warrington's

contention the survey was inadmissible under N.J.A.C. 1:1-15.10.

Generally, the "admission or exclusion of proffered evidence is

within the discretion of the trial judge whose ruling is not

disturbed unless there is a clear abuse of discretion."           Dinter

v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991).

An abuse of discretion "arises when a decision is 'made without

rational   explanation,   inexplicably    departed   from    established



that the "import of N.J.R.E. 808 . . . is that some expert opinions
contained in business records or other sources are admissible, but
others are not.").

                                 18                              A-1173-16T1
policies, or rested on an impermissible basis.'"               Flagg v. Essex

Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted).                 We

find no abuse of discretion here.

      "Settlement of litigation ranks high in our public policy."

Nolan v. Lee Ho, 120 N.J. 465, 472 (1990).              N.J.A.C. 1:1-15.10

provides that "[o]ffers of settlement, proposals of adjustment and

proposed stipulations shall not constitute an admission and shall

not be admissible" in administrative hearings.             In Gannett N.J.

Partners, LP v. Cty. of Middlesex, 379 N.J. Super. 205, 221 (App.

Div. 2005), we construed N.J.R.E. 408, which provides that "offers

of compromise or any payment in settlement of a related claim,

shall not be admissible to prove liability for, or invalidity of,

or   amount   of    the   disputed    claim."     We   determined      that    a

communication      is   not   a   "settlement   communication"     where    the

communication "does not contain any 'offer[] of compromise' or

other statement related to [a] settlement."            Ibid.

      As noted, Sekoni issued the initial FNOV on May 13, 2008, and

the next day Warrington advised the NJDEP he intended to obtain

permits for the disturbance of his property.           He testified he then

retained Key Engineering in support of his efforts to obtain the

permits.      In    rejecting      Warrington's   contention     the    survey

constituted an offer of settlement or compromise under N.J.A.C.

1:1-15.10, the ALJ found Warrington

                                      19                               A-1173-16T1
          decided to seek to obtain a permit or permits
          to regularize the legal status of his
          property, that is, he determined to follow the
          normal application process and submit to the
          [NJ]DEP whatever was needed to obtain the
          appropriate permits. In the normal course of
          that application process, his authorized agent
          decided to first prepare a Wetland Boundary
          Survey, and then to revise it to take into
          account whatever he believed was proper to
          secure the permit(s), which no doubt might
          include     consideration     of     [NJ]DEP's
          understanding as to what the condition of the
          property was and had previously been. There
          appears to be nothing at all unusual about the
          preparation of a revision of the original
          survey.   At the time of its submission, no
          claim was made that is was confidential, that
          it was prepared as an offer of settlement or
          compromise . . . . There is no suggestion here
          that Warrington, acting through an authorized
          agent in a manner that could then be
          considered as a statement by Warrington
          himself, was by his communication offering a
          settlement or compromise.        There is no
          evidence of attorney involvement here, [and]
          no suggestion of any ongoing "negotiation."

     We defer to the ALJ and the NJDEP's findings of fact where,

as here, they are supported by substantial credible evidence.     In

re Taylor, 158 N.J. 644, 656 (1999).     The findings support the

NJDEP's determination the survey was submitted by Warrington's

authorized agent in furtherance of Warrington's efforts to obtain

permits, and not as an offer of compromise or as part of any

settlement negotiations.   The ALJ did not abuse its discretion by




                                20                         A-1173-16T1
rejecting Warrington's objection to admission of the survey under

N.J.A.C. 1:1-15.10.7

     In sum, the record supports the ALJ's determination the survey

was submitted in furtherance of the processing of Warrington's

permit requests, and not as an offer of settlement or compromise

subject to the strictures of N.J.A.C. 1:1-15.10.         The ALJ did not

err by admitting the survey in evidence, concluding it constituted

an admission by Warrington through his authorized agent, and

determining it provided competent evidence corroborating Sekoni's

determination defendant disturbed wetlands and wetlands transition

areas on the rear property under the residuum rule.          See Ruroede

v. Borough of Hasbrouck Heights, 214 N.J. 338, 361-62 (2013)

(noting the residuum rule was not violated where inadmissible

hearsay   evidence   was   supported   by   hearsay   evidence   "properly

admitted under N.J.R.E. 803(b)(1)").        We affirm the NJDEP's order

finding Warrington violated the FWPA by disturbing wetlands and

wetlands transition areas in the rear property.


7
   We note that the ALJ erred by suggesting, in reference to the
submission of the survey, that Warrington first decided to obtain
permits following the January 2012 AONOCAPA.     Warrington first
advised the NJDEP he intended to obtain permits two years earlier
on the day following Sekoni's May 13, 2008 FNOV, and Kosowski
testified he requested that Key Engineering a provide a pre-permit
application guidance document summarizing the "viability of a
permit." The survey is dated September 21, 2010 and submitted by
letter dated September 27, 2010, sixteen months before the
AONOCAPA.

                                  21                               A-1173-16T1
                                   B.

     Warrington    also   argues   there    was   insufficient   evidence

supporting   the   NJDEP's   determination    the   front   property    was

comprised of wetlands and wetlands transition areas.          Warrington

contends the NJDEP erred by finding Todash's testimony credible,

and rejecting Brown's testimony that the front property contained

neither wetlands nor wetlands transition areas.

     Warrington's argument is without merit sufficient to warrant

discussion in a written opinion.        R. 2:11-3(e)(1)(E).   We add only

that Warrington does not dispute Todash's testimony, if accepted

as credible, established the disturbed portions of the front

property consisted of wetlands and wetlands transition areas.

     We give "due regard" to the ability of the factfinder who

heard the witnesses to judge credibility, Close, 44 N.J. at 599,

and defer to credibility findings "that are often influenced by

matters such as observations of the character and demeanor of

witnesses and common human experience that are not transmitted by

the record."   State v. Locurto, 157 N.J. 463, 474 (1999).             More

specifically, "the choice of accepting or rejecting the testimony

of witnesses rests with the administrative agency, and where such

choice is reasonably made, it is conclusive on appeal."             Renan

Realty Corp. v. State, Dep't of Cmty. Affairs, Bureau of Hous.

Inspection, 182 N.J. Super 415, 421 (App. Div. 1981).

                                   22                             A-1173-16T1
     We defer to the ALJ's determinations that Todash provided

credible testimony and Brown did not, and affirm the NJDEP's order

finding Warrington violated the FWPA because Todash's testimony

established Warrington disturbed wetlands and wetlands transition

areas in the front property.

                                     C.

     Warrington    last   contends    the   NJDEP   erred   by   finding    he

violated the FHACA by disturbing the fifty-foot-wide riparian

buffer.     Warrington contends the tributary is actually a manmade

canal and therefore exempt from the FHACA's coverage under N.J.A.C.

7:13-2.2(a)(1), which provides that "[a]ll waters in New Jersey

are regulated under this chapter except for . . . any manmade

canal."   In support of his position, Warrington relies on Brown's

testimony the alleged tributary is a manmade waterway constructed

for purposes of irrigation during the property's prior usage as

farmland.

     The ALJ did not address the merits of Warrington's contention

because it was not asserted in any of the pretrial discovery

requests for the identification of Warrington's defenses, and was

not argued during trial.     The ALJ determined Warrington's failure

to raise the defense in his pretrial discovery responses unfairly

prejudiced the NJDEP.



                                     23                              A-1173-16T1
     In its final decision, the NJDEP did not reject Warrington's

claim on the grounds relied upon by the ALJ, and instead addressed

the merits. The NJDEP noted although the term canal is not defined

in N.J.A.C. 7:13-2.2(a)(1), it is "understood to be a manmade

feature that does not have a distinct flood hazard area or riparian

zone, and which is often maintained by a government agency."     See

39 N.J.R. 4595 (Nov. 5, 2007).   The NJDEP noted Todash's testimony

the tributary is a regulated water with a fifty-foot riparian

buffer and found Brown's testimony was insufficient to establish

the tributary was manmade within the meaning of N.J.A.C. 7:13-

2.2(a)(1).

     Again, the NJDEP's determination is supported by sufficient

credible evidence, and we defer to its determination accepting

Todash's testimony and not Brown's.       We discern no abuse of

discretion in the NJDEP's determination there was insufficient

evidence establishing the tributary was an exempt manmade canal

under N.J.A.C. 7:13-2.2(a)(1).   Warrington's contention the NJDEP

bore the burden of proving the tributary was not an exempt manmade

canal under N.J.A.C. 7:13-2.2(a)(1) is without merit sufficient

to warrant discussion in a written opinion.   R. 2:11-3(e)(1)(E).

     Affirmed.




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