New Jersey Highlands Water & Protection & Planning Act
- Introduction
- Exemptions and Waivers
- Creation of the Highlands Council
- Preservation and Planning Areas
- Preservation Area Rules
Introduction
In 2004 the State legislature acted to protect the entire NJ Highlands by passing the Highlands Water Protection and Planning Act. Although the value of the Highlands as a water supply had been recognized as early as 1906, little had been done to secure the region. Since the early 20th century, Highlands water resources have been continually developed for export to areas outside the region.
By 2004, after several decades of unprecedented development, wetlands destruction, forest losses, farmland losses and a general decline in environmental quality region-wide, the legislature recognized that the vital natural values and functions present in the Highlands region were under imminent threat from unconscious development, suburban sprawl and natural resource abuse. To protect these essential natural functions for future generations, the New Jersey State Legislature responded with the passage of the Highlands Water Protection and Planning Act. The Act became effective on August 10, 2004.
- The Act has "findings and declarations" of the legislature that are useful in understanding the law: Since 1984, 65,000 acres, or over 100 square miles, of the New Jersey Highlands have been lost to development;
- Sprawl and the pace of development in the region has dramatically increased, with the rate of loss of forested lands and wetlands more than doubling since 1995;
- The New Jersey Highlands, because of its proximity to rapidly expanding suburban areas, is at serious risk of being fragmented and consumed by unplanned development; and
- The existing land use and environmental regulation system cannot protect the water and natural resources of the New Jersey Highlands against the environmental impacts of sprawl development." Because of its vital link to the future of the State's drinking water supplies and other key natural resources, it is an issue of State level importance that cannot be left to the uncoordinated land use decisions of 88 municipalities, seven counties, and a myriad of private landowners.
- The State should take action to delineate within the New Jersey Highlands a preservation area of exceptional natural resource value that includes watershed protection and other environmentally sensitive lands where stringent protection policies should be implemented; that a regional approach to land use planning in the preservation area should be established to replace the existing uncoordinated system;
- Such a new regional approach to land use planning should be complemented by increased standards more protective of the environment established by the Department of Environmental Protection (NJDEP) for development in the preservation area of the New Jersey Highlands;
- The new regional planning approach and the more stringent environmental regulatory standards should be accompanied, as a matter of wise public policy and fairness to property owners, by a strong and significant commitment by the State to fund the acquisition of exceptional natural resource value lands;
- In the light of the various pressures now arrayed against the New Jersey Highlands, these new approaches should be implemented as soon as possible.
The Act contains 83 sections. The Highlands
Regional Master Plan (RMP), has an accessible summary of each section
on p.447. The Highlands
Council's website also has the text of the entire law.
This landmark legislation designates a special Highlands planning region
and calls for comprehensive regional planning over the entire 859,358 acre
area. Clearly, the legislature recognized the statewide significance of
the region and the inability of the existing planning and regulatory framework
to protect its resources.
Exemptions and Waivers
The Act creates a total of 17 exemptions from its provisions. Waivers from specific provisions of the Act are also available. For example, construction of a single family home on a lot that was in existence before 2004 (provided that less than one acre is disturbed and total impervious surface is less than ¼ acre) is exempt. Waivers may be requested for projects on a case by case basis if they: protect public health and safety, or are redevelopments of previously developed areas identified by the Highlands Council or avoid a taking of property without just compensation.
- A complete description of the exemptions and waivers may be found at NJ Highlands Council website.
- The Highlands Council website also has an explanation of these exemptions and how they are to be administered
Much of the initial confusion concerning the Highlands Act
has arisen from a lack of understanding of the available exemptions and
waivers. Information about the exemptions and waivers can alleviate unfounded
fears that the Act would prevent the addition of a deck, cutting firewood,
or interfere with farming, rebuilding after a fire or other natural disaster.
In addition, the Highlands Council website has FAQs
and Fact
Sheets, NJDEP has Guidance
on the Act.
Creation of the Highlands Council
The Act (Sections 4 and 5) authorizes creation of a 15-member Highlands Water Protection and Planning Council appointed by the governor with authority to prepare and administer a Regional Master Plan (RMP) for the entire Highlands region. Section 6 of the Act establishes the Council's "powers, duties and responsibilities".Preservation and Planning Areas
The Act divides the Highlands region into two areas and establishes the boundaries. the boundaries are established by the legislation, they cannot be changed without changing the legislation.
- The Preservation Area, encompassing a total of 414,965 acres includes five municipalities in their entirety and portions of 47 others. This area is covered by the special DEP Highlands Rules, also authorized by the Act.
- The Planning Area, with a total of 444,394 acres includes 36 municipalities in their entirety and portions of 47 others.
Generally, the Preservation Area is more sparsely populated, primarily forested and more lightly developed than the Planning Area. In contrast, the Planning Area contains areas of substantial development and some farmland and has a greater population density. The Preservation Area boundary, although generally based on natural features, has been "rationalized" to conform to existing roads, streams and other permanent man-made features.
The Act specifies that once the Highlands Council has adopted the Regional Master Plan (RMP), municipalities located wholly or partially within the Preservation Area must conform their planning and zoning regulations (for land in the Area) to the RMP within 15 months. Because the RMP was formally adopted on Sept. 5, 2008, the closing date for submitting municipal conformance petitions to the Highlands Council was Dec. 8, 2009.
Municipalities with land located in the Planning Area may voluntarily conform their planning and zoning regulations to the RMP at any time.
A complete list of the Preservation and Planning Area
designations in Highlands municipalities and other useful information is
available in ANJEC's New Jersey Highlands Water
Protection & Planning Act Primer (
797kb).Detailed
mapping may be found on the Council's website, using the Interactive
Map Tool.
Preservation Area Rules
The Act authorized the NJDEP to prepare special rules for the Preservation Area, which NJDEP adopted on Nov. 1, 2006. They apply only to projects considered to be Major Highlands Development within the Preservation Area and to Water Allocation permitting and Water Quality Management Plans in both the Planning and Preservation Areas.
As defined in the rules, Major Highlands Development means, except as otherwise
provided (pursuant to subsection a. of section 30 of the Act.):
(1) Any non-residential development in the preservation area:
(2) Any residential development in the preservation area that requires an
environmental land use or water permit or that results in the ultimate disturbance
of one acre or more of land or a cumulative increase in impervious surface
by one-quarter acre or more;
(3) Any activity undertaken or engaged in the preservation area that is
not a development but results in the ultimate disturbance of one quarter
acre or more of forested area or that results in a cumulative increase in
impervious surface by one-quarter acre or more on a lot; or
(4) Any capital or other project of a State entity or local government unit
in the preservation area that requires an environmental land use or water
permit or that results in the ultimate disturbance of one acre or more of
land or a cumulative increase in impervious surface by one quarter acre
or more. Major Highlands development shall not mean an agricultural or horticultural
use in the preservation area.
Municipalities in the Preservation Area should be aware of the NJDEP rules
governing "major development" in the Highlands Preservation Area.
A
Municipal Role to Implementing the Highlands Water Protection and Planning
Act (
366kb) has information on NJDEP's Highlands Preservation Rules.
While the Act allows 17 types of exemptions, such exemptions, if granted by the NJDEP, do not provide exemptions from other NJDEP permit requirements or, importantly, from local zoning requirements.
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