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Mitigating Wetlands: What You Need to Know About
NJDEP’s New General Permitting Requirements
by Henry T. Chou
On October 6, 2008, the New
Jersey Department of Environmental
Protection (NJDEP) both
adopted and proposed new standards
for certain general permits concerning
the disturbance of wetlands.
Viewed separately, each of these new
permitting requirements appears to
be relatively manageable. However,
the cumulative effect of all the new
requirements is that development
applications will be further delayed
and developable areas will be further
reduced, as described below.
Wetlands Letter of
Interpretation Submission
Requirement
The new rules give municipal and
county planning boards the authority
to require a NJDEP wetlands letter
of interpretation (LOI) as an administrative
completeness checklist item.
This new requirement allows planning
boards to withhold “completeness”
determinations and delay public hearings
on otherwise complete applications
until the applicant obtains an LOI for
the subject property from NJDEP.
The practical effect of this rule is that
local development applications could
be delayed indefinitely while NJDEP
moves at a glacial pace to issue LOIs.
General Permit Wetlands
Fill Requirements
The acreage limit for projects
requiring a General Permit No. 6
(GP 6) for isolated wetland fill, if
combined with other general permits
(such as those for road crossings and Permit Modification
utility lines) will be reduced from 1.0 Application Requirements
to 0.5 acres. If the amount of isolated
wetlands to be filled exceeds 0.5 acres,
then a GP 6 remains available for
that fill, but no other filling can be
authorized under a general permit.
Instead, an individual permit—which
is much more difficult to obtain—will
be required. The imposition of an
individual permit requirement where
only a General Permit was required
in the past is clearly a new obstacle to
development.
General Permit Plan
Submission Requirements
The new rules require that general
permit applications include a plan
depicting the extent of wetlands on the
entirety of the property, regardless of
the size of the property or the amount
of proposed disturbance. This requirement
will increase applicants’ engineering
costs, as well as increase the
preparation time needed by the site
engineer to prepare plans.
Transition Area Application
Requirements
NJDEP has also codified its current
practice of requiring new Transition
Area applications if a project
has not been constructed during the
initial five year permit period, even in
cases where wetlands transition area
limits have been deed restricted and
recorded. This new rule may not have
a significant impact because NJDEP
implemented the same procedure
on an informal basis years ago, and
developers are already familiar with
the procedure.
Permit Modification Application Requirements
The prior rules required a permit
modification if and when a permit is
transferred from one party to another,
but the rule was generally not adhered
to or enforced. The new rules now
impose significantly expanded application
requirements for such modifications.
While this new rule does not
impact applicants substantively, it does
have the effect of creating another
procedural hoop for applicants to
jump through.
Proposed New Mitigation
Measures Associated with
General Permits
NJDEP has proposed rule amendments
that would require mitigation
measures for certain general permits.
These rule amendments—slated for
adoption in early 2009—were proposed
to bring NJDEP standards into
conformance with the U.S. Environmental
Protection Agency’s 2007
regulatory changes governing nationwide
permits, the federal equivalent of
NJDEP’s general permits. NJDEP’s
proposed rule amendments would
impose new mitigation requirements
for 6 types of general permits for
minor disturbances of wetlands related
to the installation of underground utility
lines, non-surface water connected
wetlands, minor road crossings, outfall
structures and above ground utility
lines. All of these standards have the
effect of reducing the developable area
of properties encumbered by wetlands.
Conclusion
In order to properly gauge the
impact of NJDEP’s newly adopted and
proposed regulations on their individual
projects, property owners and
developers should consult with appropriate
professionals, including a site
engineer who is current with NJDEP
standards and a land use attorney with
experience with NJDEP permitting
issues.
Henry T. Chou is a partner of Hill Wallack
LLP and a member of the firm’s Land Use
Division. His practice is concentrated
in the land development application and
permitting process and the litigation of land
use matters. He has significant experience in
Mount Laurel affordable housing litigation
and administrative matters before the New
Jersey Council on Affordable Housing. He
is also a Member of the Board of Directors
of the Land Use Law Section of the New
Jersey State Bar Association
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