(a) Wetlands or
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.
1. Wetlands areas are identified
and mapped on the following:
i. National
Wetlands Inventory Maps produced by the U.S. Fish and Wildlife Service at a
scale of 1:24,000 (generalized locations only);
ii. Coastal wetland maps, pursuant to the
Wetlands Act of 1970 (13:9A-1 et seq.)
prepared by the DEP at a scale of 1:2,400; and
iii. Freshwater wetland maps prepared by DEP
at a scale of 1:12,000 (generalized locations only).
Note: Maps referenced in (a)1ii above are available from the
Division of Land Use Regulation at the address set forth at
N.J.A.C.
7:7-1.6, and those referenced in (a)1iii
above are available through NJ-GeoWeb (see
http://www.nj.gov/dep/gis/geowebsplash.htm).
2. Generalized
locations of some wetland types can be found in county soil surveys prepared by
the U.S. Department of Agriculture, Soil Conservation Service.
3. The maps referenced under (a)1i, iii, and
2 above shall be useful as an indicator to assist in the preliminary
determination of the presence or absence of wetlands only. They have been
determined to be unreliable for the purposes of locating the actual wetlands
boundary on a specific site.
4. All
tidal and inland wetlands, excluding the delineated tidal wetlands defined
pursuant to
N.J.A.C. 7:7-2.3, shall be
identified and delineated in accordance with the USEPA three-parameter approach
(that is, hydrology, soils, and vegetation) specified under
N.J.A.C.
7:7A-1.3 of the Freshwater Wetlands Protection Act Rules.
(b) Development in wetlands
defined under the Freshwater Wetlands Protection Act is prohibited unless the
development is found to be acceptable under the Freshwater Wetlands Protection
Act Rules,
N.J.A.C. 7:7A, except as provided at (b)1 below.
Pursuant to the Freshwater Wetlands Protection Act,
N.J.S.A.
13:9B-6, coastal activities under
the jurisdiction of the New Jersey Meadowlands Commission shall not require a
Freshwater Wetlands permit, or be subject to transition area requirements of
the Freshwater Wetlands Protection Act, except that discharge of dredged or
fill materials may require a permit issued under the provisions of Section 404
of the Federal Water Pollution Control Act of 1972 as amended by the Federal
Clean Water Act of 1977, or under an individual or general permit program
administered by the State under the provisions of the Federal Act and
applicable State laws. Accordingly, under this rule the Department does not
exert jurisdiction under the Freshwater Wetlands Protection Act,
N.J.S.A. 13:9B-1 et seq.,
in the Hackensack Meadowlands District. However, the Department shall, in
accordance with
N.J.S.A. 13:9B-6 and applicable law, review
any such coastal activity or development as follows:
1. For the purposes of reviewing a coastal
activity or development that proposes the placement of dredged or fill
materials in wetlands located waterward of the mean high water line in the
Hackensack Meadowlands District under the Waterfront Development Law,
N.J.S.A. 12:5-3, Federal
Consistency provisions of the Federal Coastal Zone Management Act,
16 U.S.C. §§
1451 et seq., or water quality certification
under Section 401 of the Federal Clean Water Act,
33 U.S.C.
§§
1251 et seq., the Department
shall use the conditions, limits, and requirements governing activities or
developments in wetlands set forth in the Freshwater Wetlands Protection Act
Rules at
N.J.A.C. 7:7A-5, 7, 9, and 10. For the purposes of
reviewing a coastal activity or development that proposes the placement of
dredged or fill materials in wetlands landward of the mean high water line that
does not require a zoning certificate, resolution, or statement of consistency
from the New Jersey Meadowlands Commission pursuant to
N.J.A.C.
7:7-9.43(c) in the
Hackensack Meadowlands District under the Federal Consistency provisions of the
Federal Coastal Zone Management Act,
16 U.S.C. §§
1451 et seq., or water quality certification
under Section 401 of the Federal Clean Water Act,
33 U.S.C.
§§
1251 et seq., the Department
shall use the conditions, limits, and requirements governing activities or
developments in wetlands set forth in the Freshwater Wetlands Protection Act
Rules at
N.J.A.C. 7:7A-5, 7, 9, and 10.
i. The mitigation requirements at (i) below
shall apply to any coastal activity or development reviewed under this
subsection, unless, where the coastal activity or development is reviewed under
the conditions, limits, and requirements of the Freshwater Wetlands Protection
Act Rules at N.J.A.C. 7:7A-4 and 5, those conditions, limits, and requirements
do not require mitigation.
(c) Except as provided at (d) below,
development of all kinds in all other wetlands not defined in (b) above is
prohibited unless the Department can find that the proposed development meets
the following four conditions:
1. Requires
water access or is water oriented as a central purpose of the basic function of
the activity (this rule applies only to development proposed on or adjacent to
waterways). This means that the use must be water dependent;
2. Has no prudent or feasible alternative on
a non-wetland site;
3. Will result
in minimum feasible alteration or impairment of natural tidal circulation (or
natural circulation in the case of non-tidal wetlands); and
4. Will result in minimum feasible alteration
or impairment of natural contour or the natural vegetation of the wetlands.
(d) The establishment
of a living shoreline in wetlands to address the loss of vegetated shorelines
and habitat in the littoral zone is conditionally acceptable provided the
living shoreline complies with
7:7-12.23. Where the Department
finds the establishment of a living shoreline acceptable, mitigation shall not
be required.
(e) Dumping solid or
liquid wastes and applying or storing certain pesticides on wetlands are
prohibited.
(f) No action by the
Commissioner shall prohibit, restrict or impair the exercise or performance of
the powers and duties conferred or imposed by law on the Department of
Environmental Protection, the Natural Resource Council and the State Mosquito
Control Commission in said Department, the Department of Health, or any
mosquito control or other project or activity operating under or authorized by
the provisions of chapter 9 of Title 26 of Revised Statutes. This rule does not
supersede the authority of the State Mosquito Commission to undertake mosquito
control projects authorized by chapter 9 of Title 26 of the Revised
Statutes.
(g) Development that
adversely affects white cedar stands such as water table drawdown, surface and
groundwater quality changes and the introduction of non-native plant species is
prohibited.
(h) For projects which
require a waterfront development permit, the use of former dredged material
management areas for continued placement of dredged material is conditionally
acceptable provided:
1. The site has existing
dikes or berms in sound condition, and/or has sufficient volume of previously
placed dredged material with suitable geotechnical and engineering properties
within the dredged material management area to allow for the construction or
reconstruction of structurally sound dikes or berms. Where the construction or
reconstruction of structurally sound dikes and berms is required:
i. These structures shall be designed:
(1) By a New Jersey licensed professional
engineer; and
(2) In accordance
with the requirements of Appendix G; and
ii. Any material placed on the exposed
surfaces of the dikes and berms shall comply with the appropriate Soil
Remediation Standards ( N.J.A.C. 7:26D Appendix 1);
2. There are no anticipated adverse effects
on threatened or endangered species;
3. There are no colonial nesting birds
present on site which would be adversely affected (seasonal restrictions may be
required);
4. No wetlands regulated
pursuant to the Wetlands Act of 1970 would be adversely affected;
5. The former dredged material management
area is not subject to daily tidal inundation, and the vegetation community is
limited primarily to scrub/shrub or phragmites; and
6. The required waterfront development permit
and water quality certificate are obtained.
(i) If an application to disturb or destroy
wetlands meets the standards for permit approval, the Department will require
the applicant to mitigate for the loss or degradation of the wetlands in
accordance with N.J.A.C. 7:7-17.
(j) Rationale: The environmental values and
fragility of wetlands have been officially recognized in New Jersey since the
passage of the Wetlands Act of 1970 (
13:9A-1 et seq.) and the passage
of the Freshwater Wetlands Protection Act of 1987 (
13:9B-1 et seq.). Tidal and
freshwater wetlands are the most environmentally valuable land areas within the
coastal zone.
Wetlands contribute to the physical stability of the coastal
zone by serving as (i) a transitional area between forces of the open sea and
upland areas that absorb and dissipate wind-driven storm waves and storm
surges, (ii) a flood water storage area, and (iii) a sediment and pollution
trap.
Also, wetlands naturally perform the wastewater treatment
process of removing phosphorous, nitrogenous, and other water pollutants,
unless the wetlands are stressed.
The biological productivity of New Jersey's wetlands is
enormous and critical to the functioning of estuarine and marine ecosystems.
The emergent cord grasses and associated algal mats convert inorganic nutrients
into organic plant material through the process of photosynthesis. In this way,
the primary base for estuarine and marine food webs is provided. The principal
direct dietary beneficiaries of organic wetland detritus are bacteria and
protozoan, which are in turn fed upon by larger invertebrates. Important
finfish, shellfish, and other resources feed upon these invertebrates. New
Jersey's wetlands are prime wintering habitat annually for hundreds of
thousands of migratory waterfowl. Approximately two-thirds of marine finfish
and shellfish are known to be estuarine, and, therefore, wetlands
dependent.
Inland herbaceous wetlands, such as bogs and marshes, play
an important role in regulating the quality of the water in streams that flow
to the estuaries. They retard runoff and store storm waters. They are important
areas for primary productivity for estuarine systems. They are critical
habitats and movement corridors for several species of plants and animals that
are endangered or threatened.
They are productive habitats for other game and non-game
animals, such as fur bearers and song birds. These wetlands also serve as fire
breaks and may limit the spread of forest, brush, or grass fires. They are
inappropriate development sites due to poor drainage and load bearing capacity
of the underlying soils.
Forested wetlands play a critical role in coastal and other
ecosystems. Roots and trunks stabilize shorelines and trap sediment. They are
physical and biochemical water filter areas maintaining stream water quality.
High productivity, high water availability, and high edge to area ratio make
these areas especially productive wildlife areas.
White cedar stands, as well as other lowland swamp forests,
play an important role in purifying water in coastal streams, retarding runoff,
providing scenic value, and serving as a rich habitat for many endangered plant
and animal species, as well as game species, such as deer. White cedars also
act as forest fire breaks. White cedar stands most commonly occur in flood
plains and in the fringe areas of drainage ways and bogs, which are frequently
underlain with saturated organic peat deposits. This material is particularly
unsuited for development.
White cedar is New Jersey's most valuable timber species and
grows in discrete stands. The wood has a long tradition of maritime and local
craft uses. Unfortunately, white cedars have been eliminated from much of their
previous range in New Jersey.
New Jersey's coastal environment is dynamic, and shaped by
natural forces such as wind, waves, and storms. To protect development from
these forces, shorelines are typically armored with hard structures such as
bulkheads, gabions, or revetments. Shorelines lost due to erosion eliminate
intertidal habitat, reduce the amount of sandy beach, and decrease the amount
of organic matter necessary to maintain tidal wetlands. This erosion results in
the degradation of the coastal environment through impacts to natural habitats,
such as tidal wetlands, intertidal and subtidal shallows, and spawning grounds.
Coastal states are seeking natural solutions, such as the creation of living
shorelines, to address erosion as an alternative that adds diversity to other
shore protection measures. Living shorelines are a shoreline management
practice that addresses erosion by providing protection, restoration, or
enhancement of vegetated shoreline habitats.