NJ Freshwater Wetlands Protection Act & Regulations
Excerpts from Freshwater Wetlands Protection in NewJersey:
A Manual for Local Officials(ANJEC, 2004)
OVERVIEW OF MAJOR PROVISIONS
The Act directs the DEP to provide comprehensive protection for freshwater wetlands (no matter what their size), their adjacent transition areas, and state open waters through regulation of actions which may impact these areas. Individuals, companies and all levels of government must obtain permits.
The Act covers the following resources:
Freshwater wetlands are wet areas including bogs, swamps, and marshes. The Act authorizes the DEP to regulate virtually all activities in freshwater wetlands including dredging, filling, soil removal and construction. These activities all have a significant potential for causing substantial harm to and loss of freshwater wetlands.
Transition areas, or buffer areas, adjacent to wetlands, are an integral part of the wetlands ecosystem. The Act authorizes the DEP to regulate many activities in transition areas including soil removal, dumping or filling, erection of permanent structures, and destruction of plant life which would alter the existing pattern of vegetation. The Act requires regulation of transition areas of 150 feet around exceptional resource value wetlands and 50 feet around intermediate resource value wetlands.
State open waters are inland waters including ponds, lakes, streams, and rivers. The New Jersey law provides for state assumption of the federal wetlands or 404 program which regulates both wetlands and waters of the nation. (See discussion on previous page.) The regulation of state open waters is limited to the discharge of dredged or fill material to protect water quality, aquatic habitat, and navigability.
REGULATED NATURAL RESOURCES
Nearly all activities intended to be carried out in freshwater wetlands and many activities intended in transition areas and state open waters require a permit from the DEP. Illustrative examples are indicted below.
RESOURCE PROTECTEDREGULATED ACTIVITIES ILLUSTRATIONS
Freshwater WetlandsRemoval, excavation, disturbance orSoil mining
dredging of any kind
Drainage or disturbance of the waterDraining land for conversion to hay
level or tablefield
Dumping, discharging or filling with Placing soil next to a wetland or
any materialswater with no sediment control
protection
Driving of pilingsPutting in a boat mooring
Placing of obstructionsBuilding a road across a
drainage area
Transition AreasRemoval, excavation, or disturbance of theConstruction of detention basin
soil
Dumping or filling with any materialsFilling for grade changes
Erection of structuresBuilding a garden shed
Placement of pavementsTerrace construction
Destruction of plant life which would alterClear cutting
vegetation patterns
State Open WatersDischarge of dredged or fill material Filling a stream channel
Exemptions
Geographical Areas
The Act exempts certain geographical areas and certain classes of activities from the freshwater wetlands regulations. Geographical areas exempted are those under the jurisdiction of the Hackensack Meadowlands Development Commission and coastal wetlands subject to the Wetlands Act of 1970 where the Army Corps still regulates deposition of dredge material. The Army Corps also retains jurisdiction of wetlands adjacent to waters washed by the tide and interstate waters, such as the Delaware River.
Farming, Ranching orSilviculture
The intent of the Act is that only those areas that are currently part of ongoing farming, ranching or silviculture are exempt from the requirements of the Act. Activities such as the deposition of dredged or fill material or the clearing of vegetation, which would result in the modification of wetlands areas that are not currently under active cultivation require a permit. Activities that result in gradual conversion of a wetland to a nonwetland also require a permit.
Forestry
Normal harvesting of forest products in accordance with an approved forest management plan is exempt subject to the same limitations as those for farming, ranching and silviculture.
Municipal approvals
Until March 2, 1994, when the Department assumed responsibility for the Federal 404 program, the Department issued certain exemptions based on prior local approvals. However, as of March 2, 1994, these exemptions are void as they apply to freshwater wetlands permit and open water fill requirements. Exemptions based on local approvals are still valid. See discussion in Chapter IV.
SIGNIFICANT AMENDMENTS SINCE 2000
Use of Landscape Project to Identify Exceptional Resource Value Wetlands
The DEP Landscape Project catalogues both freshwater wetland areas and habitat for endangered wildlife species. By combining these two databases, the Landscape Project can identify areas that qualify as having exceptional resource value under the Freshwater Wetlands Protection Act.
Sightings of threatened and endangered species are entered into a DEP database. The Landscape Project then determines “critical area habitat” for areas where selected endangered or threatened species have been sighted. These critical area habitat designations are based on the DEP’s expert knowledge of the range and habits of that species. Use of the Landscape Project data as a basis for designating wetlands as extraordinary value differs from current wetlands delineation in that it uses broader criteria so it includes more land area. It provides more certainty as to location of critical habitat for both the developer and the municipality. (See Page for more discussion.)
Protection of Historic and Archeological Resources (Section 106 Review)
The proposed new rules and amendments relate to the identification and consideration of historic resources in the Freshwater Wetlands Protection Act program permitting process. These include:
- amendments to the standard conditions for general and individual permits to reflect review of projects that will adversely affect historic resources;
- new rules establishing a checklist of wetlands permit application categories presenting a high probability of the presence of historic and archaeological resources; and,
- new procedures for coordinating with the freshwater wetlands review process the Federal Section 106 review, or the State's review procedures for projects encroaching upon New Jersey Register properties.
The intent of the rules is to avoid authorizing projects that will adversely affect historic resources; however, the regulations do provide a process when adverse impact cannot be avoided. In those instances, a condition is addedto the permit, after coordination between the Land Use Regulation Program (LURP) and the Historic Preservation Office (HPO), to minimize or mitigate adverse effects. If serious historic preservation concerns cannot be properly and sufficiently mitigated, the DEP will not issues the permit.
Mitigation for Small and Large Disturbances
Because mitigation is complicated, the regulations provide comprehensive guidance for successful mitigation and encourage applicants to obtain conceptual review of mitigation proposals from DEP. The amendments distinguish between small (1.5 acres and less)and large (larger than 1.5 acres) wetland disturbances. For small disturbances, the regulations require purchase of credits from mitigation banks. For larger disturbances, if mitigation is not possible on site, purchase of credits from a mitigation bank is required. See Chapter VII for a more complete discussion.
Preventing Impacts from Impervious Surface
Any permit that involves over one-quarter of an acre of impervious surface is now required to meet the Flood Hazard Area Regulations best management measures to control water quality impacts. On- quarter of an acre of impervious surface also initiates the need for compliance with the new stormwater management standards at N.J.A.C. 7:8.
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