WHAT ARE THEY?
Vernal pools or habitats are confined
depressions, either natural or man-made, that maintain
ponded water for part of the year and are devoid of
breeding fish populations. These temporary, isolated wetlands provide habitat
to many species of amphibians-several of which breed exclusively in vernal
pools-as well as a multitude of insects, reptiles, plants, and other wildlife.
WHY
DO THEY NEED PROTECTION?
Although
the NJ Freshwater Wetlands Protection Act has been in place since 1989, it has
done little to protect vernal habitats because wetlands <1 acre (most vernal
pools in NJ are <0.25 acre) were exempt from the regulatory protection. Vernal pools could be filled, drained, or
modified with a general permit. The loss of this critical habitat put the
species that depend on vernal pools for breeding habitat at risk.
In 1987, when NJ passed a law to enact much stronger
wetland regulations than the federal program, SGP 6
was included as a compromise with building interests. It
allows applicants to fill up to one acre of an isolated
wetland – a wetland that has no connection to a surface water
body. This is one of the most commonly
applied-for permits and has resulted in a substantial amount
of wetland losses.
In 2001, the NJ Department of Environmental Protection
adopted regulations to protect vernal habitats by prohibiting issuance of
Statewide General Permit #6 which allows filling of isolated wetlands.
COURT
DECISION
The New
Jersey Supreme Court ruled on July 26, 2004 that the NJDEP exceeded its
statutory authority under the NJ Freshwater Wetlands Regulations when it
adopted amendments in 2001 that prohibited issuance of Statewide General Permit
(SGP) 6 in vernal habitats.
The court case ruled that the NJDEP could not limit
issuance of SGP-6 in vernal habitats “by way of a rule of general
applicability.”
Since that time, research has established the
importance of vernal habitats as breeding or foraging habitats for a suite of
species, including several which are threatened or endangered, for which these
seasonally ponded areas play a critical role in their
annual life-cycle.
ALL IS NOT LOST
The court noted that under N.J.S.A. 13:9B-23(d), the
NJDEP still has the authority– on a case-by-case basis – to require an individual
permit for any SGP-6 proposal which it determines would result in impacts
contrary to the intent of the Freshwater Wetlands Protection Act. And the
regulations prohibiting NJDEP from issuing any of the other 25 general permits
in vernal habitats remains unchanged. The Act also prohibits issuance of
several statewide general permits, including SGP-6, in exceptional resource
value wetlands, as established through a Letter of Interpretation (LOI)
process, issued by the NJDEP.
An LOI process provides the NJDEP with an opportunity
to identify specific wetlands conditions on a site. It also allows the
municipality to comment on any known vernal habitats within its borders.
While some vernal habitats may feature known occurrences
of threatened or endangered species and
therefore receive the highest level of protection, many do not
have known habitat for threatened or endangered. As a result:
in order to protect known vernal pools, citizens
with knowledge of the presence of threatened or endangered species should
submit supporting information to the NJDEP.*
* (see Vernal Habitat Data Sheet at www.nj.gov/dep/landuse/forms/vernalfm.pdf).
And municipalities should make sure that applicants
who have development sites that include vernal habitats obtain an LOI from NJDEP
to protect these special places to the greatest extent possible.
Source: ANJEC Report, May 22, 2006