NJ Freshwater Wetlands Protection Act & Regulations
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
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 PROTECTED REGULATED ACTIVITIES ILLUSTRATIONS
Freshwater Wetlands Removal,
excavation, disturbance or Soil
mining
dredging
of any kind
Drainage
or disturbance of the water Draining
land for conversion to hay
level
or table field
Dumping,
discharging or filling with Placing
soil next to a wetland or
any materials water
with no sediment control
protection
Driving of
pilings Putting
in a boat mooring
Placing of obstructions Building
a road across a
drainage
area
Transition Areas Removal,
excavation, or disturbance of the Construction
of detention basin
soil
Dumping
or filling with any materials Filling
for grade changes
Erection
of structures Building
a garden shed
Placement
of pavements Terrace
construction
Destruction
of plant life which would alter Clear
cutting
vegetation
patterns
State Open Waters Discharge of
dredged or fill material Filling
a stream channel
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
Farming, Ranching or Silviculture
The
intent of the Act is that only those areas that are currently part of on‑going
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 non‑wetland 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.
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 added to 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.
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.
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.