DETERMINING WHAT PERMITS ARE NEEDED

Excerpted from: Freshwater Wetlands Protection in New Jersey:

A Manual for Local Officials (ANJEC, 2004)

LETTERS OF INTERPRETATION

Applicants intending to conduct activities in wetlands can request that the DEP verify the need for a permit and identify what permit they may need by requesting Letters of Interpretation (LOI)... Very few applications will qualify for the strict criteria for Individual Permits. When wetlands cannot be avoided, applicants should design proposed activities to meet the requirements of the Statewide General Permits.

The LOI provides the state’s official determination of:

‑ the presence or absence of freshwater wetlands, state open waters, and/or transition areas;

‑ the presence or absence of freshwater wetlands, state open waters, and/or transition areas where the footprint of disturbance on a site is less than one acre;

‑ the delineation of freshwater wetlands, state open waters and/or transition areas for property less than one acre in size;

‑ verification of a wetlands, or state open water boundary on any site

Classification of Wetlands Resource Value

LOIs include a determination of the classification of the freshwater wetlands on or adjacent to the site and the appropriate standard transition area width for this wetland.

The Act distinguishes among different classes of wetlands. Because each freshwater wetland might not exhibit all possible wetland resource values ‑ e.g. flood control, water purification, plant and wildlife habitat, groundwater recharge, discharge ‑ the New Jersey wetlands legislation establishes criteria that classify wetlands according to the resource values present.

The DEP considers wetlands classifications when evaluating the acceptability of a proposed activity; when determining the size of the transition area; or, assessing mitigation proposals. Transition areas are required only adjacent to exceptional and intermediate (defined below) resource value wetlands. Wetlands and transitions areas may extend across property boundaries, but not usually across paved roads (except in the Pinelands). In some cases it may be necessary to delineate a wetland on an adjacent property to determine the extent of regulated area on the subject property. When wetlands are on an adjacent property and there is no access to that property, an applicant should assume a 150 foot buffer. (See NJAC 7:7A-2.7.

An exceptional resource value classification places additional restrictions on the issuance of Individual Freshwater Wetlands Permits and limits the types of Statewide General Permits which may be approved. (See permit discussion starting on page 2.)

The type and number of activities allowed in ordinary and/or intermediate resource value wetlands are not as restrictive. Both classifications permit certain eligible activities under all 26 Statewide General Permits.

In addition to the New Jersey law's wetlands classifications, the Act requires the DEP to take into account wetlands designated as EPA Priority Wetlands. EPA has identified these wetlands as especially valuable and threatened. The DEP may not approve Statewide General Permits 6, 7, and 24 in EPA Priority Wetlands. (A list of EPA Priority wetlands is available from the DEP's Bureau of Maps and Licensing, Bureau of Revenue, PO Box 402, Trenton, NJ 08625, 609‑777‑1039 or from the web at (ww.state.nj.us/dep/landuse/fww/priority/index.html.)

Exceptional resource value wetlands are those which:

- discharge into FW‑1 waters or FW‑2 (trout production) waters (as defined in the DEP's Surface Water Quality Standards) and their tributaries.

FW‑1 waters are those within federal or state parks and lands that are to be maintained for the future in their natural state.

FW‑2 waters are trout production waters and their tributaries. These waters support trout spawning.

- provide, or documentation shows can provide, habitat for state and federally identified threatened and endangered species. (The state and federal list of threatened and endangered plant species are available from the DEP's Office of Natural Lands Management at 609‑984‑1339. Lists of state and federally identified threatened or endangered animal species are available from the DEP's Endangered and Nongame program at 609‑292‑9400. )

Ordinary resource value wetlands do not exhibit the characteristics of exceptional resource value wetlands and are

- isolated wetlands that are not surface tributary systems of a lake, river, or stream and are more than 50 percent surrounded by development and less than 5,000 square feet in size;

- drainage ditches;

- swales; or

- detention facilities

Intermediate resource value wetlands are all freshwater wetlands not defined as exceptional or ordinary.

Wetlands classification depends on available information on the DEP threatened and endangered species data base. Gaps in the data base resulted in disagreements between DEP and applicants on particular sites and some legal battles. To take the guesswork out of the process, the DEP proposed a method of classifying wetlands that did not rely on site by site contentions by applicants. In January 2002 DEP adopted use of the Landscape Project for classifying wetlands.

Use of the Landscape Project to Identify Wetlands of Extraordinary Resource Value

The NJ DEP is using the Landscape Project in addition to the Natural Heritage Database to identify extraordinary value wetlands. The Landscape Project is a pro-active, ecosystem-level approach that identifies habitats of rare species in New Jersey. The project was compiled by the N.J. Division of Fish Wildlife's Endangered and Nongame Species Program (ENSP).

The Landscape Project focuses on large land areas called "landscape regions" that are ecologically similar with regard to their plant and animal communities. Using an extensive database that combines rare species location information with land cover data, the Endangered and Nongame Species Program has identified and mapped areas of critical habitat for rare species within each landscape region.

DEP developed Landscape Project critical habitat maps to provide users with peer-reviewed, scientifically-sound information that is easily accessible via the internet and hard copy (paper maps). Use of the Landscape Project maps provides developers and municipalities with information that puts predictability into freshwater wetlands classification which determines the size of buffers. This information is critical to project planning and/or review. The maps are available for download from: www.state.nj.us/dep/fgw/ensp/landscape/download.htm.

PUBLIC COMMENT ON LOIs

Public comment on LOIs is welcome. The DEP provides opportunities for and encourages municipal comments on LOIs to insure the applicant has submitted complete and accurate information concerning a specific site. For this reason, applicants for Letters of Interpretation are required to send notice of their applications to the municipal clerk and construction official, the municipal environmental commission and planning board as well as all property owners within 200 feet of the proposed project's property line.

The DEP provides a 15 day response time from receipt of the notice for municipal or public comments. Comments received after this time‑frame but prior to the final decision on an application will be considered by the DEP.