New Jersey Readopts Freshwater Wetlands Protection Act Rules with Amendments

November 16, 2008
Client Alert Newsletter November 2008

On October 6, 2008, the New Jersey Department of Environmental Protection ("NJDEP") readopted, with amendments, regulations promulgated pursuant to the New Jersey Freshwater Wetlands Protection Act ("FWPA"). The new amendments follow three public hearings and numerous written and oral comments that resulted in NJDEP adopting some, but not all, of the originally proposed amendments. The adopted amendments provide for: a decrease in the acreage limits for some general permits; possible imposition of civil penalties for the submission of an incomplete application; the creation of a new general permit for transition areas adjacent to non-tributary wetlands; permanent restrictions through conservation easements or the like for transition areas and their associated wetlands, if said areas are modified through a transition area waiver; and application of Stormwater Management Rules to projects, if the wetlands activity at the project meets the definition of "major development."

NJDEP did not adopt the proposed amendments that would have required mitigation of wetlands impacts for certain general permits; instead, NJDEP introduced new proposed regulations on October 6, 2008, that parallel the existing federal wetlands mitigation regulations and require mitigation for impacts of 0.1 acres or greater for certain general permits (impacts of less than 0.1 acres would require mitigation unless the applicant can demonstrate to NJDEP that wetlands impacts have been minimized and avoided). The comment period for the newly-proposed mitigation requirements expires on December 5, 2008.