Wetlands Update

Wetlands Update

NJDEP Readopts and Revises Freshwater Wetlands Rules

NJDEP readopted and amended its Freshwater Wetlands Regulations, N.J.A.C. 7:7A. This readoption is the first revision of the rules since NJDEP assumed responsibility for administering the federal wetlands permitting program. The readopted rules are significantly reorganized, with the intention of making them more logically organized and easier to understand. For example, all application sections are consolidated. In addition, mitigation requirements are addressed in a new subchapter, which addresses mitigation differently for small and large disturbances. For smaller disturbances, NJDEP en-courages mitigation banking over mitigation creation or restoration. The regulations also establish preferences for types and locations of mitigation projects.

General permits now are contained in their own subchapter. In addition, the scope of the general permit program has been expanded to cover general permit activities that are proposed in transition areas. Formerly, an applicant whose proposed activity was of a type covered by a general permit, but disturbed both wetlands and transition areas, had to obtain both a general permit and a special activity waiver. Now, the general permit covers both. Six new general permits have been added and three deleted. One of the new general permits authorizes redevelopment of previously disturbed sites, allowing an additional acre of disturbance, in an effort to support redevelopment. 33 N.J.R. 3045 (September 4, 2001).

Proposed Relaxing of Wetlands Development Restrictions

The United States Army Corps of Engineers ("Corps") has proposed revisions to nationwide permits that would result in relaxation of development restrictions under certain general permits. For example, the Corps is establishing a process to waive a prohibition on impacts exceeding 300 linear feet of a stream in cases where the activity's impact on the aquatic environment will be minimal. The proposal also would allow the Corps flexibility in its mitigation requirements by allowing it to impose requirements that best protect the environment, rather than automatically requiring one-for-one acreage replacement or restoration (although a preference for one-for-one mitigation will remain in the rules). With respect to nationwide permit administration, the Corps is proposing to consolidate the effective and expiration dates of all nationwide permits (with a transition exception for permits issued in 2000), so that they all will become effective on February 11, 2002, and expire five years thereafter. According to a Corps representative, there is no specific date anticipated for publication of the final rules, although the Corps is looking to promulgate the revisions soon. 66 Fed. Reg. 42070 (August 9, 2001).