Vernal
Ponds Can Still Be Protected
The
New
Jersey Supreme Court ruled on July 26, 2004 that the NJ DEP exceeded its
statutory authority under the NJ Freshwater Wetlands Regulations when it adopted
amendments in 2001 that:
In
1987, when New Jersey 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 wetlands losses. Vernal habitats
typically occur as isolated wetlands and did not receive special protection
at the time the wetlands act was passed.
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 case ruled that the DEP cannot limit issuance of SGP-6
in vernal habitats “by way of rule of general applicability.” However, the
court did note that under N.J.S.A. 13:9B-23(d), the DEP 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
DEP 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 DEP.
The
LOI process provides the DEP with an opportunity to identify specific wetlands
conditions on a site. It also allows the Municipality to comment on any known vernal habitats
within their 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.
As a result, in order to protect known vernal pools, citizens with knowledge
of their presence should submit supporting information to NJDEP,
and municipalities should make sure that applicants who have development sites
that include vernal habitats obtain an LOI from DEP to protect these special
places to the greatest extent possible.
