Is 2008 the Year for New NJ Endangered and Threatened Species Habitat Rules?

January 16, 2008
by BRUCE KATCHER
Client Alert Newsletter Forecast 2008

Since 2003, the New Jersey Department of Environmental Protection ("NJDEP") has promised comprehensive rules designed to regulate development activity in the upland habitat of state threatened and endangered species, paralleling the protection of these species already afforded in wetlands pursuant to the Freshwater Wetlands Act. While a comprehensive set of requirements applicable to all uplands habitats has yet to be adopted, several recent developments suggest that 2008 may finally be the year.

First, in NJDEP's 2007 Priorities and Action Plan, the agency identified the promulgation of regulations governing endangered and threatened species habitat as an action that will be important to enhance its stewardship over the state's natural resources and to maximize use of NJDEP's resources to encourage sustainable growth, two of the six environmental and pubic health priorities identified in the plan.

Second, as the initial step in what may eventually be a more comprehensive program, the new Flood Hazard Area Control Act Rules (N.J.A.C. § 7:13-10.6), adopted in November 2007, contain provisions designed to protect threatened and endangered species located on upland sites that are subject to permitting under that Act.

Finally, in NJDEP Commissioner Lisa Jackson's January 28, 2008, testimony before the Senate Environment Committee, she identified Smart Growth as one of the five major policy areas she intended to focus on in 2008. Given that almost of all major programs affecting growth and development in the state saw new rules proposed or adopted in 2007, that leaves habitat regulation as the one remaining area for the agency to work on in the coming year.