The NJ Freshwater Wetlands Protection Act

 

Excerpts from Freshwater Wetlands Protection in New Jersey:
A Manual for Local Officials (ANJEC, 2004)
 
INTENT OF THE ACT                                        

 

The New Jersey legislature passed the Freshwater Wetlands Protection Act on July 1, 1987 to "preserve the purity and integrity of freshwater wetlands from unnecessary and undesirable disturbance." Until that year, only coastal wetlands were protected by law. The legislature found that the public interest in protecting freshwater wetlands required "vigorous action" because of the important functions performed by wetlands and because the federal program was not strong enough.

 

Coastal wetlands – those wetlands along the tidal coastline where dominant vegetation is tolerant of saline conditions – were already protected under the Coastal Area Facility Review Act of 1973 (CAFRA), the Wetlands Act of 1970 and the Waterfront Development Law of 1914. Coastal wetlands provide critical spawning area for saltwater fish.  They provide vital feeding and resting places for water fowl and migrating birds. The DEP has mapped coastal wetlands and has copies available from the DEP as hard copy or on DEP's GIS data.

BACKGROUND

 

Careful study of the existing wetlands protection programs at the local, state and federal levels of govern­ment established that New Jersey needed a more comprehensive wetlands protection strategy. The state had lost a large percentage of its wetlands, in some counties over 50 per cent of them.  The federal wetlands program to protect wetlands, established under Section 404 of the Clean Water Act in 1977, is administered by the U.S. Army Corps of Engineers (COE) whose primary responsibility is to protect the navigable waters of the country. Because the federal program focuses on navigable waters, it does not provide comprehensive freshwater wetlands protection. It limits the authority of the COE to regulation of discharge of dredged or fill material and does not authorize the COE to regulate such activities as draining wetlands or destroying vegetation in wetlands. The federal program also limits the COE's jurisdiction so that no protection is afforded wetlands in headwater areas where substantial acreage of valuable freshwater wetlands occur.  In addition, the federal program is vulnerable to threats from special interests making periodic attempts to weaken the provisions of the federal law.

 

REDUCING REGULATORY DUPLICAT1ON

 

In 1987 the New Jersey legislature emphasized the need to consolidate and make consistent programs involving wetlands, to eliminate duplication between the federal and state programs, and to establish one primary state wetlands program by preempting wetlands regulation by lower levels of government. The legislative intent for these emphases was the need to bring predictability to both the regulated public and the regulating authority concerning wetlands protection.

 

To achieve effective and more consistent state wetlands protection and to provide a timely and coordinated permit review process, the Act also directs the DEP to consolidate wetlands protection aspects of other DEP permit programs such as stream en­croachment, CAFRA, waterfront development, water quality planning, and sewer extensions. (See Chapter V for a more complete discussion of these other programs.)  The Act establishes the intent to make all state programs deal with wetlands in a consistent manner. The same wetlands definition, identification and delineation criteria, and approval standards are being used throughout the DEP.

 

To eliminate duplication with the federal Section 404 program, the New Jersey law directs the state to assume administrative responsibility for the federal program. Under the Clean Water Act, a state may take over the 404 program when the state program in­corporates all the federal law's requirements and when the U.S. Environmental, Protection Agency (EPA) approves state assumption of the program.

 

EPA approved New Jersey assumption of the federal wetlands program in 1994. The COE still maintains jurisdiction over tidal and interstate waters and adjacent wetlands, including the Hackensack Meadowlands, Delaware River, Greenwood Lake and other tidally influenced waterways and adjacent wetlands.  EPA retains oversight of the State program and will coordinate with DEP for certain categories of major activities. The Pinelands Management Area is exempt from the NJ Act; however, as a result of New Jersey’s assumption of the federal program, the DEP has a Memorandum of Understanding with the COE and implements the federal program, regulating the discharge of dredge or fill.  The Pinelands Commission has its own regulations protecting wetlands and may require more stringent regulation for activities other than discharge of dredge and fill.

 

To clarify and consolidate wetlands regulation in the state, the Act provides authority for the DEP to become the sole wetlands regulator in the state. It preempts regulation of freshwater wetlands by municipalities, counties, or regional entities with the exception of areas regulated by the Pinelands Commission, the Hackensack Meadowlands De­velopment Commission, and coastal wetlands subject to the Wetlands Act of 1970.

 

Although the Act preempts municipal ordinances whose sole purpose is to regulate wetlands, ordinances aimed at protecting other natural resources such as floodplains, which incidentally protect wetlands, can remain in effect.

 

In cases where the Act is not in effect at the municipal level, local wetlands regulations may be valid. For example, the Act is not in effect in cases where applicants are exempted from state wetlands regulations in the Pinelands Comprehensive Manage­ment Area or by virtue of a prior Army Corps approval.