New Freshwater Wetlands Rules Impose Onerous Mitigation Requirements for Minor Disturbances
By: Henry T. Chou, Esq.
In a move that went largely unnoticed, the New Jersey Department of Environmental Protection (NJDEP) has adopted new wetlands mitigation rules that impose onerous and costly mitigation requirements for minor wetlands disturbances.
The new rules, which became effective on November 2, 2009, require mitigation for all permanent disturbances to wetlands or state open waters exceeding .1 acres under six types of Freshwater Wetlands General Permits: GP#2 (underground utility lines); GP#6 (filling of isolated wetlands); GP#10A & 10B (roadways); GP#11 (outfalls and intake structures); GP#21 (above-ground utility lines); and GP#27 (redevelopment of previously disturbed areas).
Under the new rules, NJDEP reserves the right to require mitigation even when the disturbance is less than .1 acres. To avoid mitigation measures for disturbances less than .1 acres, an applicant must demonstrate that the impacts of the disturbance are effectively minimized through one of the following ten different mitigation measures, with 1 being the most preferred and 10 being the least preferred:
1. Purchase of mitigation credits from a mitigation bank in the same watershed (HUC11) as the disturbance.
2. Purchase of mitigation credits from a mitigation bank approved prior to January 1, 1999 for a disturbance within the bank's service area.
3. Purchase of mitigation credits from a mitigation bank in an adjacent watershed (HUC11) within the same watershed management area.
4. Purchase of mitigation credits from a mitigation bank in the same watershed management area as the disturbance.
5. Purchase of mitigation credits from a mitigation bank for a disturbance within the bank's service area.
6. On-site wetland restoration, creation or enhancement.
7. Off-site wetland restoration, creation or enhancement in the same watershed (HUC11) as the disturbance.
8. Off-site wetland restoration, creation or enhancement in an adjacent watershed (HUC11) as the disturbance.
9. Monetary contribution to the Wetland Mitigation Fund (currently at a rate of $300,000 per acre).
10. Upland preservation.
It is unclear how NJDEP plans to implement the aforementioned mitigation measures. The more preferred means of mitigation are not readily available because there are limited mitigation banks in New Jersey and few mitigation credits available for purchase. Assuming one can find mitigation credits for purchase, the costs are extraordinarily high. The going rate for such credits is $300,000 to $400,000 per acre, so even a minor .1 acre disturbance will cost $30,000 to $40,000, in addition to the consulting fees required for the mitigation proposal application and approval process. Undoubtedly, many applicants seeking approval for minor disturbances of .1 acre or less will be individual property owners that cannot afford such high fees.
The lesser preferred measures may also prove difficult to implement because NJDEP has generally dissuaded applicants from pursuing on and off-site restoration, creation and enhancement because of the significant long-term costs and risks associated with such activities.
Under the new rules, existing General Permits are grandfathered from the new mitigation requirements. Any application for a General Permit not deemed complete prior to November 2, 2009 will be subject to the new mitigation requirements.