Chapter 9B C Freshwater
Wetlands
13:9B‑1. Short Title
This act shall be known and may be cited as the
Freshwater Wetlands Protection Act."
13:9B‑2. Legislative
findings and declarations
The Legislature finds and declares that freshwater
wetlands protect and preserve drinking water supplies by serving to purify
surface water and groundwater resources; that freshwater wetlands provide a
natural means of flood and storm damage protection, and thereby prevent the
loss of life and property through the absorption and storage of water during
high runoff periods and the reduction of flood crests; that freshwater wetlands
serve as a transition zone between dry land and water courses, thereby retarding
soil erosion; that freshwater wetlands provide essential breeding, spawning,
nesting, and wintering habitats for a major portion of the State's fish and
wildlife, including migrating birds, endangered species, and commercially and
recreationally important wildlife; and that freshwater wetlands maintain a
critical baseflow to surface waters through the gradual release of stored flood
waters and groundwater, particularly during drought periods.
The Legislature further finds and declares that while the
State has acted to protect coastal wetlands, it has not, except indirectly,
taken equally vigorous action to protect the State's inland waterways and
freshwater wetlands; that in order to advance the public interest in a just
manner the rights of persons who own or possess real property affected by this
act must be fairly recognized and balanced with environmental interests; and
that the public benefits arising from the natural functions of freshwater
wetlands, and the public harm from freshwater wetland losses, are distinct from
and may exceed the private value of wetland areas.
The Legislature therefore determines that in this State,
where pressures for commercial and residential development define the pace and
pattern of land use, it is in the public interest to establish a program for
the systematic review of activities in and around freshwater wetland areas
designed to provide predictability in the protection of freshwater wetlands;
that it shall be the policy of the State to preserve the purity and integrity
of freshwater wetlands from random, unnecessary or undesirable alteration or
disturbance; and that to achieve these goals it is important that the State
expeditiously assume the freshwater wetlands permit jurisdiction currently
exercised by the United States Army Corps of Engineers pursuant to the Federal
Act and implementing regulations.
13:9B‑3. Definitions
As used in this act:
"Bank" means the Wetlands Mitigation Bank
established pursuant to section 14 of this act;
"Commissioner" means the Commissioner of the
Department of Environmental Protection;
"Council" means the Wetlands Mitigation Council
established pursuant to section 14 of this act;
"Department" means the Department of
Environmental Protection;
"Environmental commission" means a municipal
advisory body created pursuant to P. L. 1968, c. 245 (C. 40:56A‑1 et
seq.):
"Federal Act" means section 404 of the
"Federal Water Pollution Control Act Amendments of 1972" as amended
by the Clean Water Act of 1977" (33 U.S.C. '1344) and the regulations
adopted pursuant thereto;
"Freshwater wetland" means an area that is
inundated or saturated by surface water or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances does
support, a prevalence of vegetation typically adapted for life in saturated
soil conditions, commonly known as hydrophytic vegetation; provided, however,
that the department, in designating a wetland, shall use the 3‑parameter
approach (i.e. hydrology, soils and vegetation) enumerated in the April 1, 1987
interim‑final draft "Wetland Identification And Delineation
Manual" developed by the United States Environmental Protection Agency,
and any subsequent amendments thereto;
"Freshwater wetlands permit" means a permit to
engage in a regulated activity issued pursuant to this act;
"Hydrophyte" means plant life adapted to growth
and reproduction under periodically saturated root zone conditions during at
least a portion of the growing season;
"Linear development" means land uses such as
roads, drives, railroads, sewerage and stormwater management pipes, gas and
water pipelines, electric, telephone and other transmission lines and the
rights‑of‑way therefor, the basic function of which is to connect
two points. Linear development shall not mean residential, commercial, office,
or industrial buildings;
"Person" means an individual, corporation,
partnership, association, the State, municipality, commission or political
subdivision of the State or any interstate body;
"Regulated activity" means any of the following
activities in a freshwater wetland:
(1) The removal, excavation, disturbance or dredging of
soil, sand, gravel, or aggregate material of any kind;
(2) The drainage or disturbance of the water level or
water table;
(3) The dumping, discharging or filling with any
materials;
(4) The driving of pilings;
(5) The placing of obstructions;
(6) The destruction of plant life which would alter the
character of a freshwater wetland, including the cutting of trees;
"Transition area" means an area of land
adjacent to a freshwater wetland which minimizes adverse impacts on the wetland
or serves as an integral component of the wetlands ecosystem.
13:9B‑4. Activities
exempt from permit and transition area requirements
The following are exempt from the requirement of a
freshwater wetlands permit and transition area requirements unless the United
States Environmental Protection Agency's regulations providing for the
delegation to the state of the federal wetlands program conducted pursuant to
the Federal Act require a permit for any of these activities, in which case the
department shall require a permit for those activities so identified by that
agency:
a. Normal farming, silviculture, and ranching activities
such as plowing, seeding, cultivating, minor drainage, harvesting for the
production of food and fiber, or upland soil and water conservation practices;
construction or maintenance of farm or stock ponds or irrigation ditches, or
the maintenance of drainage ditches; construction or maintenance of farm roads
or forest roads constructed and maintained in accordance with best management
practices to assure that flow and circulation patterns and chemical and
biological characteristics of freshwater wetlands are not impaired and that any
adverse effect on the aquatic environment will be minimized;
b. Normal harvesting of forest products in accordance
with a forest management plan approved by the State Forester;
c. Areas regulated as a coastal wetland pursuant to P.L.
1970, c. 272 (C. 13:9A‑1 et seq.);
d. Projects for which (1) preliminary site plan or
subdivision applications have received preliminary approvals from the local
authorities pursuant to the Municipal Land Use Law, P.L. 1975, c. 291 (C.
40:55D‑1 et seq.) prior to the effective date of this act, (2)
preliminary site plan or subdivision applications have been submitted prior to
June 8, 1987, or (3) permit applications have been approved by the U.S. Army Corps
of Engineers prior the effective date of this act, which projects would
otherwise be subject to State regulation on or after the effective date of this
act, shall be governed only by the Federal Act, and shall not be subject to any
additional or inconsistent substantive requirements of this act; provided,
however, that upon the expiration of a permit issued pursuant to the Federal
Act any application for a renewal thereof shall be made to the appropriate
regulatory agency. The department shall not require the establishment of a
transition area as a condition of any renewal of a permit issued pursuant to
the Federal Act prior to the effective date of this act. Projects not subject
to the jurisdiction of the United States Army Corps of Engineers and for which
preliminary site or subdivision applications have been approved prior to the
effective date of this act shall not require transition areas;
e. The exemptions in subsections a. and b. of this
section shall not apply to any discharge of dredged or fill material into a
freshwater wetland incidental to any activity which involves bringing an area
of freshwater wetlands into a use to which it was not previously subject, where
the flow or circulation patterns of the waters may be impaired, or the reach of
the waters is reduced.
13:9B‑5.
Consolidation of other regulatory programs affecting activities in freshwater
wetlands with permit process; permit application; public hearing; issuance or
denial; notice; fees
a. The department shall consolidate the processing of
wetlands related aspects of other regulatory programs which affect activities
in freshwater wetlands, including, but not limited to, sewer extension
approvals required pursuant to P.L. 1977, c. 74 (C. 58:10A‑1 et seq.),
permits required pursuant to P.L. 1973, c. 185 (C. 13:19‑1 et seq.), and
any permits and approvals required pursuant to P.L. 1977, c. 75 (C 58:11A‑1
et seq.) and P.L. 1962, c. 19 (C. 58:16A‑50 et seq.), with the freshwater
wetlands permit process established herein so as to provide a timely and
coordinated permit process consistent with the Federal Act.
b. Within 60 days after the department receives comment
on a complete application for a permit from the United States Environmental
Protection Agency, or upon receipt of notice from the United States
Environmental Protection Agency that no comment will be forthcoming, the
department may hold a public hearing on the application for a permit. If such a
hearing is held, it shall be in the county wherein the freshwater wetland is
located whenever practicable. The department may issue or deny a permit without
a public hearing, unless there is a significant degree of public interest in
the application as manifested by written requests for a hearing within 20 days
after the publication of notice of the permit application in the Bulletin of
the department.
c. The department shall issue or deny a permit within 90
days of receipt of comments, or notice that comments will not be forthcoming,
from the United States Environmental Protection Agency, or within 180 days of
submittal of a complete application, whichever is later. Until the State
assumes the implementation of the Federal Act, the department shall issue or
deny a permit within 180 days of submittal of a complete application, except as
may otherwise be provided by the Federal Act. The department shall review an
application for a permit for completeness, and make any necessary requests for
further information, within 30 days of receipt of the application for a permit;
provided, however, that this deadline shall not apply to requests for further
information made by the department on the basis of comments received from the
United States Environmental Protection Agency. If the department issues the
permit, the department shall send notice thereof to the applicant. If the
department denies, or requests a modification of, the complete permit
application, the department shall send notice thereof to the applicant. The
department may issue a permit imposing conditions necessary for compliance with
this act and the Water Pollution Control Act, P.L. 1977, c. 74 (C. 58:10A‑1
et seq.).
d. The fees authorized pursuant to sections 8, 9 and 17
of this act shall be dedicated to further the specific purposes of this act.
13:9B‑6. Exemptions;
Hackensack Meadowlands and Pinelands
a. Activities in areas under the jurisdiction of the
Hackensack Meadowlands Development Commission pursuant to P.L. 1968, c. 404 (C.
13:17‑1 et seq.) shall not require a freshwater wetlands permit, or be
subject to transition area requirements, except that the discharge of dredged
or fill material shall require a permit issued under the provisions of the
Federal Act, or under an individual and general permit program administered by
the State under the provisions of the Federal Act and applicable State laws.
b. Activities in areas under the jurisdiction of the
Pinelands Commission pursuant to P.L. 1979, c. 111 (C. 13:18A‑1 et seq.)
shall not require a freshwater wetlands permit, or be subject to transition
area requirements established in this act, except that the discharge of dredged
or fill material shall require a permit issued under the provisions of the
Federal Act, or under an individual and general permit program administered by
the State under the provisions of the Federal Act and applicable State laws,
provided that the pinelands commission may provide for more stringent
regulation of activities in and around freshwater wetland areas within its
jurisdiction.
13:9B‑7. Freshwater
wetlands classification system; criteria; exceptional, ordinary and
intermediate resource value
The department shall develop a system for the
classification of freshwater wetlands based upon criteria which distinguish
among wetlands of exceptional resource value, intermediate resource value, and
ordinary resource value.
a. Freshwater wetlands of exceptional resource value
shall be freshwater wetlands which exhibit any of the following
characteristics:
(1) Those which discharge into FW‑1 water and FW‑2
trout production (TP) waters and their tributaries; or
(2) Those which are present habitats for threatened or
endangered species, or those which are documented habitats for threatened or
endangered species which remain suitable for breeding, resting, or feeding by
these species during the normal period these species would use the habitat. A
habitat shall be considered a documented habitat if the department makes a
finding that the habitat remains suitable for use by the specific documented
threatened and endangered species, based upon information available to it,
including but not limited to, information submitted by an applicant for a
freshwater wetlands permit. An applicant shall have the opportunity to request
the department that a documented habitat not result in the classification of a
freshwater wetland as a freshwater wetland of exceptional value if the
applicant can demonstrate the loss of one or more requirements of the specific
documented threatened or endangered species, including, but not limited to
wetlands or overall habitat size, water quality, or vegetation density or
diversity.
b. Freshwater wetlands or ordinary value shall be
freshwater wetlands which do not exhibit the characteristics enumerated in
subsection a. of this section, and which are certain isolated wetlands, man‑made
drainage ditches, swales, or detention facilities.
c. Freshwater wetlands of intermediate resource value
shall be all freshwater wetlands not included in subsections a. or b. of this
section.
d. As used in this section "threatened or endangered
species" shall be those species identified pursuant to The Endangered and
Nongame Species Conservation Act, P.L. 1973, c. 309 (C. 23.2A‑1 et seq.)
or which appear on the federal endangered species list, "FW‑1, FW‑2,
trout production (TP) waters" shall mean those waters delineated as such
by the department under regulations adopted pursuant to the Water Pollution
Control Act, P.L. 1977, c. 74 (C. 58:10A‑1 et seq.) and the Water Quality
Planning Act, P.L. 1977, c. 75 (C. 58:11A‑1 et seq.).
e. The classification system established in this section
shall not restrict the department's authority to require the creation or
restoration of freshwater wetlands pursuant to the provisions of section 13 of
this act.
13:9B‑8. Letter of
interpretation to establish location of proposed activity and boundaries;
request; additional information; issuance; onsite inspection; fee; failure to
respond within deadlines; copy of Environmental Protection Agency; publication
of permit status
a. A person proposing to engage in a regulated activity
in a freshwater wetland or in an activity which requires a transition area
waiver may, prior to applying for a freshwater wetlands permit or transition
area waiver, request from the department a letter of interpretation to
establish that the site of the proposed activity is located in a freshwater
wetland or transition area.
b. Within 20 days after receipt of a request for a letter
of interpretation, the department may require the submission of any additional
information necessary to issue the letter of interpretation.
c. If no additional information is required, the
department shall issue a letter of interpretation within 30 days after
receiving the request.
d. If addition information is required the department
shall issue a letter of interpretation within 45 days after receipt of the
information.
e. The department may require an applicant for a letter
of interpretation to perform and submit to the department an onsite inspection
to determine or verify the general location of the freshwater wetland boundary
and the applicable transition area. This inspection shall be subject to
approval and verification by the department. If the department determines that
onsite inspection by the department is necessary, the department shall make the
inspection. If an on‑site inspection is required by the department the
time specified in this section for issuance of the letter of interpretation
shall be extended by 45 days.
f. If a person requesting the letter has not made a
reasonable good faith effort to provide the department with information
sufficient to make a determination, the department shall issue a letter of
interpretation requiring the application for a freshwater wetlands permit or
transition area waiver.
g. A person applying for a letter of interpretation may
also submit a report of an onsite freshwater wetlands delineation and receive
within the time specified in this section a letter of interpretation verifying
the actual freshwater wetlands and transition area boundaries.
h. The department may charge a fee not to exceed the
costs for reviewing the information submitted, conducting on‑site
inspections pursuant to subsection e. of this section, and for issuing a letter
of interpretation.
i. Any person who requests a letter of interpretation
pursuant to the provisions of this act and does not receive a response from the
department within the deadlines imposed in this section shall not be entitled
to assume that the site of the proposed activity which was the subject of the
request for a letter of interpretation is not in a freshwater wetland. A person
who receives a letter of interpretation pursuant to this section shall be
entitled to rely on the determination of the department, except as provided in
subsection j. of this section.
j. The department shall transmit to the United States
Environmental Protection Agency a copy of any letter of interpretation
determining that the site of a proposed regulated activity is not in a
freshwater wetland. Any letter of interpretation which determines that the site
of a proposed regulated activity is not in a freshwater wetlands shall be
subject to review, modification, or revocation by the United States
Environmental Protection Agency.
k. The department shall publish in the bulletin of the
department a list indicating the status of each application for a permit
submitted to the department pursuant to the provisions of this act.
13:9B‑9. Application
for permit; fee; procedure; contents; findings
a. A person proposing to engage in a regulated activity
shall apply to the department for a freshwater wetlands permit, for a fee not
to exceed the cost of reviewing and processing the application, and on forms
and in the manner prescribed by the commissioner pursuant to the Administrative
Procedure Act, P.L. 1968, c. 410 (C. 52:14B‑1 et seq.). An agency of the
State proposing to engage in a regulated activity shall also apply to the
department for a freshwater wetlands permit on forms and in a manner prescribed
by the commissioner, but shall not be required to pay a a fee therefor. The
application shall include the name and address of the applicant, the purpose of
the project, the names and addresses of all owners of property adjacent to the
proposed project, and at least the following:
(1) A preliminary site plan or subdivision map of the
proposed development activities, or another map of the site if no preliminary
site plan or subdivision map exists, and a written description of the proposed
regulated activity, the total area to be modified, and the total area of the
freshwater wetland potentially affected;
(2) Verification that a notice has been forwarded to the
clerk, environmental commission, and planning board of the municipality in
which the proposed regulated activity will occur, the planning board of the
county in which the proposed regulated activity will occur, landowners within
200 feet of the site of the proposed regulated activity, and to all persons who
requested to be notified of proposed regulated activities, which notice may be
filed concurrently with notices required pursuant to P.L. 1975, c. 291 (C.
40:55D‑1 et seq.), describing the proposed regulated activity and
advising these parties of their opportunity to submit comments thereon to the
department;
(3) Verification that notice of the proposed activity has
been published in a newspaper of local circulation.
(4) A statement detailing any potential adverse
environmental effects of the regulated activity and any measures necessary to
mitigate those effects, and any information necessary for the department to
make a finding pursuant to subsection b. of this section.
b. The department, after considering the comments of the
environmental commission and planning boards of the county and municipality
wherein the regulated activity is to take place, federal and State agencies of
competent jurisdiction, other affected municipalities and counties, and the
general public, shall issue a freshwater wetlands permit only if it finds that
the regulated activity:
(1) Is water‑dependent or requires access to the
freshwater wetlands as a central element of its basic function, an has no
practicable alternative which would not involve a freshwater wetland or which
would have a less adverse impact on the aquatic ecosystem, and which would not
have other significant adverse environmental consequences, and also complies
with the provisions of paragraphs 3‑9 of this subsection; or
(2) Is nonwater‑dependent and has no practicable
alternative as demonstrated pursuant to section 10 of this act, which would not
involves a freshwater wetland or which would have a less adverse impact on the
aquatic ecosystem, and which would not have other significant adverse
environmental consequenees; and
(3) Will result in minimum feasible alteration or
impairment of the aquatic ecosystem including existing contour, vegetation,
fish and wildlife resources, and aquatic circulation of the freshwater wetland;
and
(4) Will not jeopardize the continued existence of
species listed pursuant to The Endangered and Nongame Species Conservation Act,
P.L. 1973, c. 309 (C. 23:2A‑1 et seq.) or which appear on the federal
endangered species list, and will not result in the likelihood of the
destruction or adverse modification of a habitat which is determined by the
Secretary of the United States Department of the Interior or the Secretary of
the United States Department of Commerce as appropriate to be a critical
habitat under the Endangered Species Act of 1973, 16 U.S.C. '1531 et al.; and
(5) Will not cause or contribute to a violation of any
applicable State water quality standard; and
(6) Will not cause or contribute to a violation of any
applicable toxic effluent standard or prohibition imposed pursuant to the Water
Pollution Control Act, P.L. 1977, c. 74 (C.58:10A‑1 et seq.); and
(7) Will not violate any requirement imposed by the
United States government to protect any marine sanctuary designated pursuant to
the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. '1401 et
al.); and
(8) Will not cause or contribute to a significant
designation of ground or surface waters; and
(9) Is in the public interest as determined pursuant to
section 11 of this act, is necessary to realize the benefits derived from the
activity, and is otherwise lawful.
13:9B‑10. Rebuttable
presumption of practicable alternative to nonwater‑dependent regulated
activity not involving wetland; contents of permit application to rebut;
compelling public need
a. It shall be a rebuttable presumption that there is a
practicable alternative to any nonwater‑dependent regulated activity that
does not involve a freshwater wetland, and that such an alternative to any
regulated activity would have less of an impact on the aquatic ecosystem. An
alternative shall be practicable if it is available and capable of being
carried out after taking into consideration cost, existing technology, and
logistics in light of overall project purposes, and may include an area not
owned by the applicant which could reasonably have been or be obtained,
utilized, expanded, or managed in order to fulfill the basic purpose of the
proposed activity.
b. In order to rebut the presumption established in
subsection a. of this section an applicant for a freshwater wetlands permit
must demonstrate the following:
(1) That the basic project purpose cannot reasonably be
accomplished utilizing one or more other sites in the general region that would
avoid, or result in less, adverse impact on an aquatic ecosystem; and
(2) That a reduction in the size, scope, configuration,
or density of the poroject as proposed and all alternative designs to that of
the project as proposed that would avoid, or result in less, adverse impact on
an acquatic ecosystem will not accomplish the basic purpose of the project; and
(3) That in cases where the applicant has rejected
alternatives to the project as proposed due to constraints such as inadequate
zoning, infrastructure, or parcel size, the applicant has made reasonable
attempts to remove or accommodate such constraints.
c. In order to rebut the presumption established in
subsection a. of this section with respect to wetlands of exceptional resource
value, an applicant, in addition to complying with the provisions of subsection
b. of this section, must also demonstrate that there is a compelling public
need for the proposed activity greater than the need to protect the freshwater
wetland that cannot be met by essentially similar projects in the region which
are under construction or expansion, or have received the necessary
governmental permits and approvals; or that denial of the permit would impose
an extraordinary hardship on the part of the applicant brought about by
circumstances peculiar to the subject property.
13:9B‑11. Factors
used to determine if activity is in public interest
In determining whether a proposed regulated activity in
any freshwater wetland is in the public interest, the department shall consider
the following:
a. the public interest in preservation of natural
resources and the interest of the property owners in reasonable economic
development;
b. the relative extent of the public and private need for
the proposed regulated activity;
c. where there are unresolved conflicts as to resource use,
the practicability of using reasonable alternative locations and methods,
including mitigation, to accomplish the purpose of the proposed regulated
activity;
d. the extent and permanence of the beneficial or
detrimental effects which the proposed regulated activity may have on the
public and private uses for which the property is suited;
e. the quality of the wetland which may be affected and
the amount of freshwater wetlands to be disturbed:
f. the economic value, both public and private of the proposed
regulated activity to the general area; and
g. the ecological value of the freshwater wetlands and
probable impact on public health and fish and wildlife.
13:9B‑12.
Departmental waiver or modification of transition area requirement
If a freshwater wetlands permit is approved and issued
pursuant to the provisions of this act the department shall waive or modify the
requirement for a transition area to the extent required to provide access to
the site of the approved regulated activity.
13:9B‑13. Permit;
conditions; creation or restoration of wetlands, or contribution to wetlands
mitigation bank
a. The department shall require as a condition of a
freshwater wetlands permit that all appropriate measures have been carried out
to mitigate adverse environmental impacts, restore vegetation, habitats, and
land and water features, prevent sedimentation and erosion, minimize the area
of freshwater wetland disturbance and insure compliance with the Federal Act
and implementing regulations.
b. The department may require the creation, enhancement
or restoration of an area of freshwater wetlands of equal ecological value to
those which will be lost, and shall determine whether the creation, enhancement
or restoration of freshwater wetlands is conducted onsite or offsite. The
department shall accept and evaluate a proposal to create, enhance or restore
an area of freshwater wetlands only after the department has evaluated the
permit application for which the proposal is made, and shall evaluate the proposal
to create, enhance or restore an area of freshwater wetlands independently of
the permit application. The department's evaluation of a proposal to create,
enhance or restore an area of freshwater wetlands shall be conducted in
consultation with the United States Environmental Protection Agency.
c. If the department determines that the creation,
enhancement or restoration of freshwater wetlands onsite is not feasible, the
department, in consultation with the United States Environmental Protection Agency,
may consider the option of permitting the creation of freshwater wetlands or
the enhancement or restoration of degraded freshwater wetlands offsite on
private property with the restriction on these freshwater wetlands of any
future development; the protection of transition areas or upland areas offsite,
on private property, that are deemed by the department to be valuable for the
protection of a freshwater wetlands ecosystem, with the restriction on these
areas of any future development; or the making of a contribution to the
Wetlands Mitigation Bank. The contribution shall be equivalent to the lesser of
the following costs: (1) purchasing and enhancing or restoring existing
degraded freshwater wetlands, resulting in preservation of freshwater wetlands
of equal ecological value to those which are being lost; or (2) purchase of
property and the cost of creation of freshwater wetlands of equal ecological
value to those which are being lost. The applicant may also donate land as part
of the contribution if the Wetlands Mitigation Council determines that the
donated land has potential to be a valuable component of the freshwater
wetlands ecosystem. The department shall permit the donation of land as a part
of the contribution to the Wetlands Mitigation Bank only after determining that
all alternatives to the donation are not practicable or feasible.
13:9B‑14. Wetlands
mitigation bank; establishment; governance by council; quorum; chairman;
reimbursement for expenses; employees; rules and regulations
a. There is established in the Executive Branch of State
Government the Wetlands Mitigation Bank. For the purpose of complying with
Article V, section IV, paragraph 1 of the New Jersey Constitution, the bank is
allocated within the Department of Environmental Protection but,
notwithstanding this allocation, the bank shall be independent of any
supervision or control by the department or the commissioner, or any other
officer or employee thereof.
b. The bank shall be governed by the Wetlands Mitigation
Council which shall comprise seven members as follows: the Commissioner of
Environmental Protection, who shall serve ex officio; and six members of the
general public to be appointed by the Governor with the advice and consent of
the Senate, two of whom shall be appointed from persons recommended by
recognized building and development organizations; two of whom shall be
appointed from persons recommended by recognized environmental and conservation
organizations; and two of whom shall be appointed from institutions of higher
learning in the State. Each of the members appointed from the general public
shall serve for a term of three years and until a successor is appointed and
qualified, except that of the members first appointed, two shall serve terms of
one year, and two shall serve terms of two years. All vacancies, except those
created through the expiration of term, shall be filled for the unexpired term
only, and in the same manner, and with a member having the same class, as the
original appointment. Each member shall be eligible for reappointment, but may
be removed by the Governor for cause.
c. A majority of the membership of the council shall
constitute a quorum for the transaction of council business. Action may be
taken and motions and resolutions adopted by the council at any meeting thereof
by the affirmative vote of a majority of the full membership of the council.
d. The Governor shall appoint a chairman from the public
members and the council may appoint such other officers as may be necessary. The
council may appoint such staff or hire such experts as it may require within
the limits of appropriations made for these purposes.
e. Members of the council shall serve without
compensation, but may be reimbursed for expenses necessarily incurred in the
discharge of their official duties.
f. The council may call to its assistance such employees
as are necessary and made available to it from any agency or department of the
State or its political subdivisions.
g. The council may adopt, pursuant to the Administrative
Procedure Act, and in consultation with the department, any rules and
regulations necessary to carry out its responsibilities.
13:9B‑15. Powers and
duties of council
a. The Wetlands Mitigation Council shall be responsible
for disbursements of funds from the bank to finance mitigation projects. The
council shall have the power to purchase land to provide areas for the
enhancement or restoration of degraded freshwater wetlands, to engage in the
enhancement or restoration of degraded freshwater wetlands on any public lands,
including public lands other than those acquired by the bank, and to preserve
freshwater wetlands and transition areas determined to be of critical
importance in protecting freshwater wetlands. The council shall assist the
department in preparing the portions of the report required pursuant to section
29 of this act which pertain to mitigation.
b. The council may contract with nonprofit organizations,
the Division of Fish, Game and Wildlife in the department, the United States
Fish and Wildlife Service, and other appropriate agencies to carry out its
responsibilities, and may aggregate mitigation actions to achieve economies of
scale. Any contrast proposed by the council pursuant to this subsection shall
be subject to review and approval by the United States Environmental Protection
Agency.
c. The council, in consultation with the United States
Environmental Protection Agency, may transfer any funds or lands restricted by
deed, easement or other appropriate means to mitigation and freshwater wetlands
conservation purposes, to a state or federal conservation agency that consents
to the the transfer, to expand or provide for:
(1) Freshwater wetlands preserves;
(2) Transition areas around existing freshwater wetlands
to preserve freshwater wetland quality;
(3) Future mitigation sites for freshwater wetlands
enhancement, restoration, or other mitigation efforts; or
(4) Research to enhance the practice of mitigation.
13:9B‑16. Transition
areas; purposes; width
a. There shall be transition areas adjacent only to
freshwater wetlands of exceptional resource value and of intermediate resource
value. A transition area shall serve as:
(1) An ecological transition zone from uplands to freshwater
wetlands which is an integral portion of the freshwater wetlands ecosystem,
providing temporary refuge for freshwater wetlands fauna during high water
episodes, critical habitat for animals dependent upon but not resident in
freshwater wetlands, and slight variations of freshwater wetland boundaries
over time due to hydrologic or climatologic effects; and
(2) A sediment and storm water control zone to reduce the
impacts of development upon freshwater wetlands and freshwater wetlands
species.
b. The width of the transition area shall be determined
by the department as follows:
(1) No greater than 150 feet nor less than 75 feet for a
freshwater wetland of exceptional resource value;
(2) No greater than 50 feet nor less than 25 feet for a
freshwater wetland of intermediate resource value.
c. The minimum width of a transition area established
pursuant to this section may be further reduced consistent with a transition
area averaging plan approved under section 18 of this set.
13:9B‑17. Prohibited
activities in transition area; waiver, application; fee; contents; averaging
plan
a. The following activities, except for normal property
maintenance or minor and temporary disturbances of the transition area
resulting from, and necessary for, normal construction activities on land
adjacent to the transition area, are prohibited in the transition area, except
in accordance with a transition area waiver approved by the department pursuant
to section 18 of this act:
(1) Removal, excavation, or disturbance of the soil;
(2) Dumping or filling with any materials;
(3) Erection of structures, except for temporary
structures of 150 square feet or less;
(4) Placement of pavements;
(5) Destruction of plant life which would alter the
existing pattern of vegetation.
b. A person proposing to engage in an activity prohibited
pursuant to subsection a. of this section within 150 feet of a freshwater
wetland of exceptional resource value, or within 50 feet of a freshwater
wetland of intermediate resource value, shall apply to the department for a
transition area waiver, for a fee not to exceed the cost of reviewing and
processing the waiver application, and on forms and in the manner prescribed by
the commissioner pursuant to the Administrative Procedure Act, P.L. 1968, c.
410 (C.52:14B‑1 et seq.). An agency of the State proposing to engage in
such an activity in a transition area shall also apply to the department for a
transition area waiver on forms and in a manner prescribed by the commissioner
but shall not be required to pay a fee therefor. The waiver application shall
include at least the following:
(1) A preliminary site plan or subdivision map of the
site, or another map of the site if no preliminary site plan or subdivision may
exists, containing proposed activities and a written description of the
proposed activity, the total areas to be modified, and the total area of the
transition area potentially affected; and
(2) Verification that a notice has been forwarded to the
clerk, environmental commission, and planning board of the municipality, and
the planning board of the county wherein the activity is to occur, which notice
shall describe the activity and advise these instrumentalities of local government
of their opportunity to submit comments thereon to the department; and
(3) A statement detailing any potential adverse
environmental effects of the activity on the freshwater wetlands and any
measures that may be necessary to mitigate those effects; and
(4) A transition area averaging plan, if an averaging
plan is required in connection with a transition area waiver requested pursuant
to section 18 of this act.
c. At the applicant's option, the maximum transition area
distances established in subsection b. of section 16 of this act, or a lesser
transition area distance established pursuant to a waiver approved pursuant to
section 18 of this act, shall be further reduced, or the transition area
adjacent to a portion of a wetlands shall be eliminated, pursuant to a
transition area averaging plan submitted by the applicant, provided that the
plan is consistent with the provisions of subsection a. of section 16 of this
act.
13:9B‑18. Waiver
reducing size or eliminating portions of transition area; conditions; time
period to determine
a. The department shall grant a transition area waiver
reducing the size of a transition area to not less than the minimum distance
established in subsection b. of section 16 of this act provided that (1) the
proposed activity would have no substantial impact on the adjacent freshwater
wetland or (2) the waiver is necessary to avoid a substantial hardship to the
applicant caused by circumstances peculiar to the property. If the proposed
activity is the construction of a stormwater management facility having no
feasible alternative on‑site location or is linear development having no
feasible alternative location, the department shall approve a further
transition area waiver or elimination of a portion of a transition area as
necessary to permit the activity. A transition area waiver approved pursuant to
this subsection shall not require transition area averaging to compensate for
the reduction of transition area distance or for partial elimination of the
transition area.
b. The department shall also approve transition area
waivers reducing the transition area distances established in subsection b. of
section 16 of this act and shall also approve waiver applications eliminating
portions of transition areas, provided that the applicant submits a transition
area averaging plan. The transition area requirements of this act shall be
satisfied if the transition area averaging plan expands a portion of the
transition area to compensate, on a square footage basis, for reduction of a
transition area distance or for partial elimination of a transition area. The
applicant shall have the right to determine the area of transition area
reduction or partial elimination provided that the transition area averaging
plan will result in a transition area consistent with the provisions of
subsection a. of section 16 of this act. If a transition area waiver is
approved pursuant to subsection a. of this section, the average transition area
required by this subsection shall be based upon the transition area distance
established pursuant to subsection a. of this section. If no waiver is approved
pursuant to subsection a. of this section, the average transition area shall be
based upon the maximum applicable transition area distance provided in subsection
b. of section 16 of this act.
c. Any other provision of this act to the contrary
notwithstanding, the transition area distance from a freshwater, wetland of
exceptional resource value may be reduced to no less than 75 feet except
pursuant to section 12 of this act. A transition area waiver shall be approved
pursuant to this subsection only if a transition area distance reduction would
have no substantial adverse impact on the adjacent freshwater wetlands or if
denial of a transition area waiver would result in extraordinary hardship to
the applicant because of circumstances peculiar to the subject property. A
transition area waiver approved pursuant to this subsection shall be
conditioned on a transition area averaging plan which provides an average
transition area of not less than 100 feet.
d. The department shall issue or deny an application for
a transition area waiver within 90 days of submission of a complete
application; provided, however, that if the project or activity for which the
transition area waiver is requested also involves a regulated activity in a
freshwater wetland, or if an application for a permit to conduct a regulated
activity in a freshwater wetland adjacent to the transition area for which the
transition area waiver is requested is pending before the department, the
department shall approve or deny the transition area waiver within the time
period set forth for the approval or denial of a permit in subsection c. of section
5 of this act.
13:9B‑19. Denial of
permit; tax valuation
If the department denies an application for a freshwater
wetlands permit, the owner of record of the property affected may request, and
the local tax assessor shall provide, that this fact be taken into account when
the property is valued, assessed, and taxed for property tax purposes.
13:9B‑20. Request for
administrative hearing on decision to issue or deny permit; final agency
action; judicial review
An applicant for a freshwater wetlands permit issued
pursuant to this act may request the commissioner for an administrative hearing
on any decision to issue or deny a permit made by the department pursuant to
this act. Upon receipt of such a request, the commissioner shall refer the
matter to the Office of Administrative Law, which shall assign an
administrative law judge to conduct a hearing on the matter in the form of a
contested case pursuant to the Administrative Procedure Act, P.L. 1968, c. 410
(C.52:14B‑1 et seq.). Within 45 days of receipt of the administrative law
judge's decision, the commissioner shall affirm, reject, or modify the
decision. The commissioner's action shall be considered the final agency action
for the purposes of the Administrative Procedure Act, and shall be subject only
to judicial review as provided in the Rules of Court.
13:9B‑21. Violation
of act; order of compliance, civil action, civil penalties, criminal action and
fines upon conviction; notice of violation on deed; after the fact permit;
burden of proof; program to facilitate public participation; availability of
information; additional information requirement; departmental authority to
enter property
a. Whenever, on the basis of available information, the
commissioner finds that a person is in violation of any provision of this act,
or any rule or regulation adopted, or permit or order issued, pursuant to this
act, the commissioner may:
(1) Issue an order requiring any such person to comply in
accordance with subsection b. of this section; or
(2) Bring a civil action in accordance with subsection c.
of this section; or
(3) Levy a civil administrative penalty in accordance
with subsection d. of this section; or
(4) Bring an action for a civil penalty in accordance
with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal
action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this
section shall not preclude recourse to any of the other remedies.
b. Whenever, on the basis of available information, the
commissioner finds a person in violation of any provision of this act, or of
any rule or regulation adopted, or permit or order issued, pursuant to this
act, the commissioner may issue an order:
(1) specifying the provision or provisions of this act,
or the rule, regulation, permit or order of which he is in violation;
(2) citing the action which constituted the violation;
(3) requiring compliance with the provision or provisions
violated;
(4) requiring the restoration of the freshwater wetland
or transition area which is the site of the violation; and
(5) providing notice to the person of his right to a
hearing on the matters contained in the order.
c. The commissioner is authorized to institute a civil
action in Superior Court for appropriate relief from any violation of any
provisions of this act, or any rule or regulation adopted, or permit or order
issued, pursuant to this act. Such relief may include, singly or in
combination:
(1) A temporary or permanent injunction;
(2) Assessment of the violator for the costs of any
investigation, inspection, or monitoring survey which led to the establishment
of the violation, and for the reasonable costs of preparing and bringing legal
action under this subsection;
(3) Assessment of the violator for any costs incurred by
the State in removing, correcting, or terminating the adverse effects upon the
freshwater wetland resulting from any unauthorized regulated activity for which
legal action under this subsection may have been brought;
(4) Assessment against the violator for compensatory
damages for any loss or destruction of wildlife, fish or aquatic life, and for
any other actual damages caused by an unauthorized regulated activity.
Assessment under this subsection shall be paid to the State Treasurer, except
that compensatory damages shall be paid by specific order of the court to any
persons who have been aggrieved by the unauthorized regulated activity;
(5) A requirement that the violator restore the site of
the violation to the maximum extent practicable and feasible.
d. The commissioner is authorized to assess a civil
administrative penalty of not more than $10,000.00 for each violation, and each
day during which each violation continues shall constitute an additional,
separate, and distinct offense. Any amount assessed under this subsection shall
fall within a range established by regulation by the commissioner for
violations of similar type, seriousness, and duration. No assessment shall be
levied pursuant to this section until after the party has been notified by
certified mail or personal service. The notice shall identify the section of
the statute, regulation, or order or permit condition violated; recite the
facts alleged to constitute a violation; state the amount of the civil
penalties to be imposed; and affirm the rights of the alleged violator to a
hearing. The ordered party shall have 20 days from receipt of the notice within
which to deliver to the commissioner a written request for a hearing. After the
hearing and upon finding that a violation has occurred, the commissioner may
issue a final order after assessing the amount of the fine specified in the
notice. If no hearing is requested, the notice shall become a final order after
the expiration of the 20‑day period. Payment of the assessment is due
when a final order is issued or the notice becomes a final order. The authority
to levy an administrative order is in addition to all other enforcement
provisions in this act, and the payment of any assessment shall not be deemed
to affect the availability of any other enforcement provisions in connection
with the violation for which the assessment is levied. Any civil administrative
penalty assessed under this section may be compromised by the commissioner upon
the posting of a performance bond by the violator, or upon such terms and
conditions as the commissioner may establish by regulation.
e. A person who violates this act, an administrative
order issued pursuant to subsection b., or a court order issued pursuant to
subsection c., who fails to pay a civil administrative assessment in full
pursuant to subsection d., shall be subject, upon order of a court, to a civil
penalty not to exceed $10,000.00 per day of such violation, and each day during
which the violation continues shall constitute an additional, separate, and
distinct offense. Any civil penalty imposed pursuant to this subsection may be
collected with costs in a summary proceeding pursuant to "the penalty
enforcement law" (N.J.S. 2A:58‑1 et seq.). The Superior Court shall
have jurisdiction to enforce "the penalty enforcement law" in
conjunction with this act.
f. A person who willfully or negligently violates this
act shall be guilty, upon conviction, of a crime of the fourth degree and shall
be subject to a fine of not less than $2,500.00 nor more than $25,000.00 per
day of violation. A second offense under this subsection shall subject the
violator to a fine of not less than $5,000.00 nor more than $50,000.00 per day
of violation. A person who knowingly makes a false statement, representation,
or certification in any application, record, or other document filed or
required to be maintained under this act, or who falsifies, tampers with or
knowingly renders inaccurate, any monitoring device or method required to be
maintained pursuant to this act, shall, upon conviction, be subject to a fine
of not more than $10,000.00
g. In addition to the penalties prescribed in this
section, a notice of violation of this act shall be recorded on the deed of the
property wherein the violation occurred, on order of the commissioner, by the
clerk or register of deeds and mortgages of the county wherein the affected
property is located and with the clerk of the Superior Court and shall remain attached
thereto until such time as the violation has been remedied and the commissioner
orders this notice of violation removed.
h. If the violation is one in which the department has
determined that the restoration of the site to its previolation condition would
increase the harm to the freshwater wetland or its ecology, the department may
issue an "after the fact" permit for the regulated activity that has
already occurred; provided that assessment against the violator for costs or
damages enumerated in subsection c. of this section have been made, the
creation or restoration of freshwater wetlands resources at another site has
been required of the violator, an opportunity has been afforded for public
hearing and comment, and the reasons for the issuance of the "after the
fact" permit are published in the New Jersey Register and in a newspaper
of general circulation in the geographical area of the violation. Any person
violating an "after the fact" permit issued pursuant to this subsection
shall be subject to the provisions of this section.
i. The burden of proof and degrees of knowledge or intent
required to establish a violation of this act shall be no greater than the
burden of proof or degree of knowledge or intent which the United States
Environmental Protection Agency must meet in establishing a violation of the
Federal Act or implementing regulations.
j. The department shall establish and implement a program
designed to facilitate public participation in the enforcement of this act
which complies with the requirements of the Federal Act and implementing
regulations.
k. The department shall make available without
restriction any information obtained or used in the implementation of this act
to the United States Environmental Protection Agency upon a request therefor.
l. The department may require an applicant or permittee
to provide any information the department requires to determine compliance with
the provisions of this act.
m. The department shall have the authority to enter any
property, facility premises or site for the purpose of conducting inspections,
sampling of soil or water, copying or photocopying documents or records, and
for otherwise determining compliance with the provisions of this act.
13:9B‑22. Recorded
interest holder; action to determining taking without just compensation; option
of compensation
a. Any person having a recorded interest in land affected
by a freshwater wetlands permit issued, modified or denied pursuant to the
provision of this act may file an action in a court of competent jurisdiction
to determine if the issuance, modification or denial of the freshwater wetlands
permit constitutes a taking of property without just compensation.
b. If the court determines that the issuance,
modification, or denial of a freshwater wetlands permit by the department
pursuant to this act constitutes a taking of property without just
compensation, the court shall give the department the option of compensating the
property owner for the full amount of the lost value, condemning the affected
property pursuant to the provisions of the "Eminent Domain Act of
1971," P.L. 1971, c.361 (C. 20:3‑1 et seq.), or modifying its action
or inaction concerning the property so as to minimize the detrimental effect to
the value of the property.
13:9B‑23. General
permits; adoption of nationwide permits; issuance for categories of activities;
special conditions; review; written notice of proposed activity; individual
permits
a. The department shall consider for adoption as general
permits, to the extent practicable and feasible, and to the extent that this
adoption is consistent to the maximum extent practicable and feasible with the
provisions of P.L.1987, c. 156 (C. 13:9B‑1 et seq.), all applicable
Nationwide Permits which were approved under the Federal Act as of November 13,
1986 by the U.S. Army Corps of Engineers.
b. The department shall issue a general permit for an
activity in a freshwater wetland which is not a surface water tributary system
discharging into an inland lake or pond, or a river or stream, and which would
not result in the loss or substantial modification of more than one acre of
freshwater wetland, provided that this activity will not take place in a freshwater
wetland of exceptional resource value. The department shall issue a general
permit for a regulated activity in a freshwater wetland located in an area
considered a headwater pursuant to the Federal Act if the regulated activity
would not result in the loss or substantial modification of more than one acre
of a swale or a man‑made drainage ditch. The provisions of this
subsection shall not apply to any wetlands designated as priority wetlands by
the United States Environmental Protection Agency.
c. The department shall issue additional general permits
on a Statewide or regional basis for the following categories of activities, if
the department determines, after conducting an environmental analysis and
providing public notice and opportunity for a public hearing, that the
activities will cause only minimal adverse environmental impacts when performed
separately, will have only minimal cumulative adverse impacts on the
environment, will cause only minor impacts on freshwater wetlands, will be in
conformance with the purposes of P.L.1987, c. 156 (C. 13:9B‑1 et seq.),
and will not violate any provision of the Federal Act:
(1) Maintenance, reconstruction, or repair of roads or
public utilities lawfully existing prior to the effective date of P.L.1987, c.
156 (C. 13:9B‑1 et seq.) or permitted under P.L.1987, c. 156 (C. 13:9B‑1
et seq.), provided that such activities do not result in disturbance of
additional wetlands upon completion of the activity;
(2) Maintenance or repair of active irrigation or
drainage ditches lawfully existing prior to the effective date of P.L.1987, c.
156 (C. 13:9B‑1 et seq.) or permitted under P.L.1987, c. 156 (C. 13:9B‑1
et seq.), provided that such activities do not result in disturbance of
additional freshwater wetlands upon completion of the activity;
(3) Appurtenant improvements or additions to residential
dwellings lawfully existing prior to the effective date of P.L.1987, c. 156 (C.
13:9B‑1 et seq.), provided that the improvements or additions require
less than a cumulative surface area of 750 square feet of fill and will not
result in new alterations to a freshwater wetland outside of the fill area;
(4) Mosquito management activities determined to be
consistent with best mosquito control and freshwater wetlands management practices
and for which all appropriate actions to minimize adverse environmental effects
have been or shall be taken. Notwithstanding any law, rule, or regulation to
the contrary, if the department requires public notice to be given prior to the
undertaking of mosquito management activities pursuant to a general permit, a
permittee that is a county or municipality or county or municipal entity shall
be given the option of complying with that requirement by publication of a
display advertisement of at least four column inches in size in at least one
newspaper of local circulation and one of regional circulation within the
county or municipality;
(5) Activities, as determined by the department, which
will have no significant adverse environmental impact on freshwater wetlands,
provided that the issuance of a general permit for any such activities is
consistent with the provisions of the Federal Act and has been approved by the
United States Environmental Protection Agency;
(6) Regulated activities which have received individual
or general permit approval or a finding of no jurisdiction by the U.S. Army
Corps of Engineers pursuant to the Federal Act, and which have received a grant
waiver pursuant to the "National Environmental Policy Act of 1969" (42
U.S.C. '4321 et seq.); provided, that upon the expiration of a permit any
application for a renewal or modification thereof shall be made to the
department;
(7) State or federally funded roads planned and developed
in accordance with the "National Environmental Policy Act of 1969"
and the Federal Act, and with Executive Order Number 53, approved October 5,
1973 and for which application has been made prior to the effective date of
P.L.1987, c. 156 (C. 13:9B‑1 et seq.) to the United States Army Corps of
Engineers for an individual or general permit under the Federal Act; provided
that upon expiration of a permit any application for a renewal or modification
thereof shall be made to the department, and, provided, further, that the
department shall not require transition areas as a condition of the renewal or
modification of the permit;
(8) Maintenance and repair of stormwater management
facilities lawfully constructed prior to the effective date of P.L.1987, c. 156
(C. 13:9B‑1 et seq.) or permitted under P.L.1987, c. 156 (C. 13:9B‑1
et seq.), provided that these activities do not result in disturbance of
additional freshwater wetlands upon completion of the activity;
(9) Maintenance, reconstruction, or repair of buildings
or structures lawfully existing prior to the effective date of P.L.1987, c. 156
(C. 13:9B‑1 et seq.) or permitted under P.L.1987, c. 156 (C. 13:9B‑1
et seq.), provided that these activities do not result in disturbance of
additional freshwater wetlands upon completion of the activity.
d. The department may, on the basis of findings with
respect to a specific application, modify a general permit issued pursuant to
this section by adding special conditions. The department may rescind a general
permit and require an application for an individual permit if the commissioner
finds that additional permit conditions would not be sufficient and that
special circumstances make this action necessary to insure compliance with
P.L.1987, c. 156 (C. 13:9B‑1 et seq.) or the Federal Act.
e. The department shall review general permits adopted or
authorized pursuant to subsection c. every five years, which review shall
include public notice and opportunity for public hearing. Upon this review the
department shall either modify, reissue or revoke a general permit. If a
general permit is not modified or reissued within five years of publication in
the New Jersey Register, it shall automatically expire.
f. The date of publication of the general permits
authorized by subsections a. and b. of this section shall be the effective date
of P.L.1987, c. 156 (C. 13:9B‑1 et seq.).
g. A person proposing to engage in an activity covered by
a general permit shall provide written notice to the department containing a
description of the proposed activity at least 30 working days prior to
commencement of work. The department, within 30 days of receipt of this
notification, shall notify the person proposing to engage in the activity
covered by a general permit as to whether an individual permit is required for
the activity.
13:9B‑24. Temporary
emergency freshwater wetlands permit
a. Notwithstanding the provisions of this or any other
act to the contrary, the department may issue a temporary emergency freshwater
wetlands permit for a regulated activity if:
(1) An unacceptable threat to life or severe loss of
property will occur if an emergency permit is not granted; and
(2) The anticipated threat or loss may occur before a
permit can be issued or modified under the procedures otherwise required by
this act and other applicable State law.
b. The emergency permit shall incorporate, to the
greatest extent practicable and feasible but not inconsistent with the
emergency situation, the standards and criteria required for non‑emergency
regulated activities under this act and shall:
(1) Be limited in duration to the time required to
complete the authorized emergency activity, not to exceed 90 days;
(2) Require the restoration of the freshwater wetland
within this 90 day period, except that if more than the 90 days from the issuance
of the emergency permit is required to complete restoration, the emergency
permit may be extended to complete this restoration.
c. The emergency permit may be issued orally or in
writing, except that if it is issued orally, a written emergency permit shall
be issued within five days thereof.
d. Notice of the issuance of the emergency permit shall
be published and public comments received, in accordance with the provisions of
the Federal Act, and applicable State law, provided that this notification
shall be sent no later than 10 days after issuance of the emergency permit.
e. The emergency permit may be terminated at any time
without process upon a determination by the department that this action is
appropriate to protect human health or the environment.
13:9B‑25. Rules and
regulations; list of vegetative species; map and inventory
a. Within 10 months of the enactment of this act, and
after a 60 day comment period, the department shall adopt, pursuant to the
provisions of the Administrative Procedure Act, any rules and regulations
necessary to implement the provisions of this act. These rules and regulations
shall include the general permits which the department will issue pursuant to
section 23 of this act.
b. Within one year of the enactment of this act, the
department shall adopt, in consultation with the United States Environmental
Protection Agency; a list of vegetative species classified as hydrophytes, as
defined in section 3 of this act, indicative of freshwater wetlands and
consisteent with the geographical regions of the State.
c. The department shall develop a functional, complete,
and up to date composite freshwater wetlands map and inventory using the most
recent available data, which shall include, but need not be limited to, aerial
photographs and soils inventories at a scale suitable for freshwater wetlands
regulatory purposes, and shall make appropriate sections of this map and
inventory available on a periodic basis to the county clerk or register of
deeds and mortgages in each county, as appropriate, and to the clerk of each
municipality.
13:9B‑26. Forwarding
inventory maps to municipalities; notice to residents of availability for
inspection
The department shall, within 180 days of enactment of
this act, forward to the clerk of each municipality copies of the appropriate
National Wetlands Inventory maps for the State prepared by the United States
Fish and Wildlife Service and direct the clerk to notify the residents of the
municipality of the availability for inspection of these maps, by publication
in a newspaper of general circulation. The department shall inform the clerk of
each municipality that these maps have not been determined to be accurate for
the purposes of locating the actual wetlands boundary, and that the department
will be preparing a composite freshwater wetlands maps and inventory at the
specified uniform scale.
13:9B‑27. Assumption
of permit jurisdiction under Army corps of engineers by department and attorney
general; permit applications, forms and procedures; review in conjunction with
federal personnel; concurrent review
a. The department and the Attorney General shall take all
appropriate action to secure the assumption of the permit jurisdiction
exercised by the United States Army Corps of Engineers pursuant to the Federal
Act. The department shall make an initial application to the United States
Environmental Protection Agency for this assumption within one year of
enactment of this act, and shall provide the Governor and the Legislature with
a schedule therefor and a copy of the application and supporting material
forwarded to the federal government.
b. The department shall utilize, to the maximum extent
practicable and feasible, forms and procedures for permit applications which
are identical to those used by the United States Army Corps of Engineers in
issuing permits under the Federal Act.
c. The department shall seek to conduct the review of an
application for a freshwater wetlands permit in conjunction with federal personnel
responsible for reviewing an application of a permit under the Federal Act.
d. It is the intention of the Legislature that the permit
process imposed in this act be conducted by the department concurrently with
the review conducted by the federal government until such time as the
department secures assumption of the permit jurisdiction exercised by the
United States Army Corps of Engineers.
13:9B‑28. Public
education program
The department shall, within one year of the effective
date of this act, conduct a public education program on the provisions of this
act and the rules and regulations adopted pursuant hereto.
13:9B‑29. Report by
department; contents
The department shall, within two years of the effective
date of this act, prepare and submit a report to the Governor, the President of
the Senate and the Speaker of the General Assembly, and the Senate Energy and
Environment Committee and the Assembly Energy and Natural Resources Committee,
or their designated successors. The report shall describe:
(1) The success or failure of mitigation measures
performed in actual development situations, both within the State and in other
states, the nature of the mitigation measures, and the state‑of‑the‑art
techniques used for mitigation; and
(2) Recommendations for legislative or administrative
action necessary to ensure the long term protection of freshwater wetlands from
damage and degradation resulting from land use activities, pollution, and
hydrologic changes which occur in upstream regions of the same watersheds of
particular freshwater wetlands.
13:9B‑30. Exclusive
regulation by this act; exception
It is the intent of the Legislature that the program
established by this act for the regulation of freshwater wetlands constitute
the only program for this regulation in the State except to the extent that
these areas are regulated consistent with the provisions of section 6 of this
act. To this end no municipality, county, or political subdivision thereof,
shall enact, subsequent to the effective date of this act, any law, ordinance,
or rules or regulations regulating freshwater wetlands, and further, this act,
on and subsequent to its effective date, shall supersede any law or ordinance
regulating freshwater wetlands enacted prior to the effective date of this act.
Between the enactment and effective date of this act, no municipality, county,
or political subdivision thereof shall enact any law, ordinance, or rule and
regulation requiring a transition area adjacent to a freshwater wetland; provided
however, that any such law, ordinance, or rule and regulation adopted prior to
the enactment of this act shall be valid until the effective date of this act.