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Highlands

Highlands: New Jersey Highlands Water Protection and Planning Act Rules

Forms for this program can be found on the Forms and Checklists
webpage by clicking on the "Highlands Program" tab
.

  • Overview
  • Definition of Terms
  • Exemptions
  • Frequently Asked Questions

The Highlands Water Protection and Planning Act Rules (Rules), N.J.A.C. 7:38-1 et seq., were promulgated after the August 2004 passage of the Highlands Water Protection and Planning Act (Act), N.J.A.C. 13:20-1 et seq.  The Rules establish the environmental standards and procedures by which the Department shall review any application pursuant to the Highlands Act.  

The Highlands Region is found in portions of Bergen, Hunterdon, Morris, Passaic, Somerset, Sussex and Warren Counties, and the Highlands Region is divided into two areas: the Highland Planning Area, and the Highlands Preservation Area.

Any person wishing to commence work on a major Highlands development in the preservation area must first obtain a Highlands Preservation Area Approval (HPAA), or a Highlands Applicability Determination (HAD) for an exemption determination.  The Department's Division of Land Use Regulation is responsible for reviewing HAD applications and determining whether a proposed project meets exemption criteria established in the Rules for certain types of projects.  If the project is determined to be exempt from the Highlands Rules, the project still may be subject to other rules and regulations including the Freshwater Wetlands Protection Act Rules and the Flood Hazard Area Control Act Rules. 

Since an HPAA application involves an evaluation of multiple environmental standards or may request one of the Highland Resource Waivers listed below, a pre-application conference is sometimes required prior to submitting a HPAA application.  Pre-application conferences are also available to applicants even if they are not required by the Rules.  Applicants may request a pre-application hearing in writing to the Division of Land Use Regulation pursuant to N.J.A.C. 7:38-8.1.

In some cases, property owners evaluate their property in advance of a project in order to establish the location and extent of any environmental resources.  Once this evaluation is completed, the property owner may submit a Highlands Resource Area Determination (HRAD) application to the Division of Land Use Regulation for concurrence and verification of the environmental resources on the property.  The Highlands Rules also provide for Emergency Approvals and for Highland Resource Waivers.  There are four types of potential Waivers:

  1. To protect public health and safety
  2. For site redevelopment
  3. To avoid the taking of property without just compensation
  4. To construct 100 percent affordable housing

For more information, contact the Division of Land Use Regulation, or call the Technical Support Center at: (609) 777-0456.


Highlands Region

The New Jersey Highlands Region is an over 800,000 acre region covering over 1,250 square miles and 88 municipalities in seven counties (Bergen, Hunterdon, Morris, Passaic, Somerset, Sussex and Warren). The Highlands Region is an essential source of drinking water for half of the residents of New Jersey.

Highlands Preservation Area

Of the over 800,000 acres that make up New Jersey’s Highlands Region, the Highlands Act designates approximately 398,000 acres of exceptional natural resource value as the Highlands Preservation Area. Approximately 145,000 acres within the Highlands Preservation Area are undeveloped. All of the land in the Highlands Region that is not in the Highlands Preservation Area lies within the Highlands Planning Area. A complete description of the Highlands Preservation Area boundaries is set forth in Section 7 of the Highlands Water Protection and Planning Act.

Highlands Planning Area

The Highlands Planning Area is the portion of the Highlands Region that is not included in the Highlands Preservation Area. While the Act does not establish any new standards for the Highlands Planning Area, the Highlands regional master plan, which was adopted by the Highlands Water Protection and Planning Council, provides an avenue for enhanced standards in this portion of the Highlands Region.

Highlands Open Waters

Highlands open waters means all springs, streams including intermittent streams, wetlands, and bodies of surface water, whether natural or artificial, located wholly or partially within the boundaries of the Highlands Region, but shall not mean swimming pools.

Major Highlands Development

"Major Highlands development" means, except as otherwise provided pursuant to subsection a. of section 30 of the Highlands Water Protection and Preservation Act, (1) any non-residential development in the preservation area; (2) any residential development in the preservation area that requires an environmental land use or water permit or that results in the ultimate disturbance of one acre or more of land or a cumulative increase in impervious surface by one-quarter acre or more; (3) any activity undertaken or engaged in the preservation area that is not a development but results in the ultimate disturbance of one-quarter acre or more of forested area or that results in a cumulative increase in impervious surface by one-quarter acre or more on a lot; or (4) any capital or other project of a State entity or local government unit in the preservation area that requires an environmental land use or water permit or that results in the ultimate disturbance of one acre or more of land or a cumulative increase in impervious surface by one-quarter acre or more. Major Highlands development shall not mean an agricultural or horticultural development or agricultural or horticultural use in the preservation area.

 Highlands Water Protection and Planning Council

The Highlands Water Protection and Planning Council is charged with preparing a regional master plan for the Highlands' Preservation area and Planning Area. The Council's 15 members, appointed by the Governor, must formally adopt the regional master plan within 18 months of their first meeting. The Highlands Council's authority includes identifying environmental and farmland preservation priorities within the Preservation Area, designating critical areas within the Planning area, supporting a Highlands Transfer of Development Rights program, and advising the DEP on Highlands water resources regulations.

Regional Master Plan

The regional master plan is intended to protect, preserve and enhance precious water resources, open space and the wealth of unique natural resources within the Highlands Region; to prohibit or limit to the maximum extent possible construction or development which is incompatible with such preservation; and to encourage, consistent with the State Development and Redevelopment Plan, appropriate, development, redevelopment and economic growth.

Regulated Activities

All major Highlands development as defined in the Highlands rules (pdf) that is located in the Highlands Preservation Area shall require a Highlands Preservation Area Approval from the DEP. The Highlands Preservation Area Approval will consist of the standards in the Highlands rules (pdf) established pursuant to the Highlands Act and related aspects of other regulatory programs including the "Freshwater Wetlands Protection Act, "The Endangered and Nongame Species Conservation Act,", the "Water Supply Management Act,", the "Water Pollution Control Act,", "The Realty Improvement Sewerage and Facilities Act, the "Water Quality Planning Act," the "Safe Drinking Water Act,", the "Flood Hazard Area Control Act," and any rules and regulations adopted pursuant to these Acts.

Municipal Exemptions Notice:

In order to streamline the exemption process, the Department and the Highlands Council signed a Memorandum of Understanding on July 19, 2012 which provides conforming municipalities with the authority to review and issue 7 out of the 17 exemptions available under the Highlands Act (specifically, exemptions #1, 2, 4, 5, 6, 7 and 8; collectively, the “Municipal Issued Exemptions”).  However, municipalities may only issue these exemptions after the Highlands Council issues: (a) formal approval of the municipality's Highlands Exemption Ordinance; and (b) certification that the applicable officers and representatives of the Conforming Municipality have satisfactorily completed the Highlands Exemption Training Program.

If a project is not exempt, a Highlands Preservation Area Approval (HPAA) will be required.

The activities in (1) through (17) below are exempt from meeting Highlands regulatory standards as implemented by DEP. These exemptions do not alter or eliminate the requirements of any other applicable State or local laws, rules, regulations, development regulations, or ordinances. These exemptions are found at Section 2.3 of the Highlands rule.

1.  The construction of a single-family dwelling, for an individual's own use or the use of an immediate family member, on a lot owned by the individual on August 10, 2004 or on a lot for which the individual has on or before May 17, 2004 entered into a binding contract of sale to purchase that lot;

2.  The construction of a single-family dwelling on a lot in existence on August 10, 2004, provided that the   construction does not result in the ultimate disturbance of more than one acre of land or a cumulative increase in impervious surface by one-quarter acre or more;

3.   A major Highlands development that received on or before March 29, 2004:

    1. one of the following approvals pursuant to the "Municipal Land Use Law," :
      1. Preliminary or final site plan approval;
      2. Final municipal building or construction permit;
      3. Minor subdivision approval where no subsequent site plan approval is required; or
      4. Preliminary or Final subdivision approval where no subsequent site plan approval is required; and
    1. At least one of the following DEP permits, if applicable to the proposed major Highlands development:
      1. A permit or certification pursuant to the "Water Supply   Management Act,";
      2. A water extension permit or other approval or authorization pursuant to the "Safe Drinking Water Act,"
      3. A certification or other approval or authorization issued pursuant to the "The Realty Improvement Sewerage and Facilities Act (1954),"
      4. A treatment works approval pursuant to the "Water Pollution Control Act,"); or
    1. One of the following DEP permits, if applicable to the proposed major Highlands, and if the proposed major Highlands development does not require one of the permits listed above:
      1. A permit or other approval or authorization issued pursuant to the "Freshwater Wetlands Protection Act," ;
      2. A permit or other approval or authorization issued pursuant to the "Flood Hazard Area Control Act
    1. The exemption provided c. above applies only to the land area and the scope of the major Highlands development addressed by the qualifying approvals applicable to the project and described in a-c. above and shall expire:
      1. If any of those qualifying approvals expire;
      2. If construction beyond site preparation does not commence within three years after August 10, 2004; or
      3. If construction ceases for a cumulative total of one year after August 10, 2007

4.    Reconstruction of any building or structure for any reason within 125 percent of the footprint of the lawfully existing impervious surfaces on   the  site, provided that the reconstruction or redevelopment does not  increase the lawfully existing impervious surface by one-quarter acre or more. This exemption shall not apply to the reconstruction of any agricultural or horticultural building or structure for a non-agricultural or non-horticultural use;

5.    Any improvement to a legally existing single-family dwelling in existence on August 10, 2004, including but not limited to an addition garage, shed, driveway, porch, deck, patio, swimming pool, or septic system as long as the improvement maintains the use as a single family dwelling as defined by code or ordinance in the municipality in which the dwelling is located and does not permit the use of the structure as a multiple unit dwelling;

6.    Any improvement, for non-residential purposes, to a place of worship owned by a nonprofit entity, society or association, or association organized primarily for religious purposes, or a public or private school, or a hospital, in existence August 10, 2004, including but not limited to new structures, an addition to an existing building or structure, a site improvement, or a sanitary facility;

7.  An activity conducted in accordance with an approved woodland  management plan issued pursuant to the Farmland Assessment Act, N.J.S.A.54:4-23.3 or for public lands, the normal harvesting of forest products in accordance with a forest management plan approved by the State Forester;

8.    The construction or extension of trails with non-impervious surfaces (use definition of “impervious” in the act to establish the meaning of non-impervious) on publicly owned lands or on privately owned lands where a conservation or recreational use easement has been established and filed with the deed for the lots on which the easement exists;

9.    The routine maintenance and operations, rehabilitation, preservation, reconstruction, or repair of transportation or infrastructure systems by a State entity or local government unit, provided that the activity is consistent with the goals and purposes of the Highlands Act and does not result in the construction of any new through-capacity travel lanes;

10.   The construction of transportation safety projects and bicycle and  pedestrian facilities by a State entity or local government unit, provided that the activity does not result in the construction of any new through-capacity travel lanes;

11.   The routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of the Highlands Act;

12.   The reactivation of rail lines and rail beds existing on August 10, 2004;

13.   The construction of a public infrastructure project approved by public referendum prior to January 1, 2005 or a capital project approved by public referendum prior to January 1, 2005.

14.   The mining, quarrying, or production of ready mix concrete, bituminous  concrete, or Class B recycling materials occurring or which are permitted to occur on any mine, mine site, or construction materials facility existing on June 7, 2004;

15.   The remediation of any contaminated site pursuant to N.J.S.A. 58:10B-1 et seq.;

16.   Any lands of a federal military installation existing on August 10, 2004 that lie within the Highlands Region; and

17.  A major Highlands development located within an area designated as Planning Area 1 (Metropolitan), or Planning Area 2 (Suburban), as  designated pursuant to the State Planning Act, N.J.S.A. 52:18A-196 et seq. as of March 29, 2004, that on or before March 29, 2004 has been the subject of a settlement agreement and stipulation of dismissal issued by the Superior Court, or a builder's remedy issued by the Superior Court, to satisfy the constitutional requirement to provide for the fulfillment of the fair share obligation of the municipality in which the development is located. This exemption shall expire if construction beyond site preparation does not commence within three years after receiving all final approvals required pursuant to the "Municipal Land Use Law," N.J.S.A. 52:18A-196 et seq.

 

 

Frequently Asked Questions About the Act

  1. What is the Highlands Water Protection and Planning Act?
  2. Why is protecting the Highlands Region important?
  3. How did this legislation come about?

Homeowners and Property Owners

  1. What activities are regulated in the Highlands Preservation Area?
  2. Do the Highlands Water Protection and Planning Act or Highlands Rules have an impact on my property?
  3. What standards does DEP use to review regulated activities?
  4. How can I determine if my project is exempt (grandfathered)?
  5. Can I make an improvement to my house if I am in the Highlands Preservation Area?
  6. If a home was constructed after August 10, 2004, after being deemed exempt (exemption #3), would a homeowner be allowed to add an improvement, such as an addition, garage, shed, porch, deck, pool, etc. (improvements listed under exemption #5)?
  7. If I have questions about the Highlands Rule, whom can I call?

1. What is the Highlands Water Protection and Planning Act?

The Highlands Water Protection and Planning Act is a law signed in August 2004 that preserves open space and protects the State's greatest diversity of natural resources including the precious water resources that supply drinking water to more than half of New Jersey's families. The Highlands Act documents the geographical boundary of the Highlands Region and establishes the Highlands Preservation Area and the Highlands Planning Area. It required the Department to establish regulations in the Highlands Preservation Area and that the Highlands Water Protection and Planning Council develop a regional master plan for the entire Highlands Region.

2. Why is protecting the Highlands Region important?

The Highlands Region is a vital source of drinking water for more than half of New Jersey’s families, yielding approximately 379 million gallons of water daily. In addition to water resources, the Highlands Region contains exceptional natural resources such as contiguous forest lands, wetlands, pristine watersheds and plant and wildlife species habitats. The region contains many sites of historic significance and provides abundant recreational opportunities. Approximately 110,000 acres of agricultural lands are in active production in the Highlands region.

3. How did this legislation come about?

On September 19, 2003, the Highlands Task Force was created through Executive Order. The Governor charged the Task Force to provide recommendations within six months on how best to advance conservation efforts, smart growth, regional planning and water resource protections in the region. The task force called for the identification of a Preservation Area in the Highlands to protect a core area of the most sensitive land, which the Legislature should then officially designate by statute. The Act was signed into law on August 10, 2004.


Homeowners and Property Owners

1. What activities are regulated in the Highlands Preservation Area? 

major Highlands development”, as defined by the Highlands Act, in the Preservation Area is regulated and will require DEP approval, unless otherwise exempted (See the "exemptions" tab for more information) by the Act.

2. Do the Highlands Water Protection and Planning Act or Highlands rules have an impact on my property?

To determine if the law affects your property, you can enter the property location into DEP's interactive mapping system to determine if the property is in the Highlands Preservation Area or Planning Area or you may submit an application for a Highlands Jurisdictional Determination.

If your property is located within the Highlands Planning Area, then the DEP Highlands rules do not apply to your project.

If your property is located within the Highlands Preservation Area and your proposed project does not meet the definition of major Highlands development, then your project is not subject to the DEP Highlands rules.

If your property is located within the Highlands Preservation Area and your proposed project meets the definition of 
major Highlands development, then your project may be regulated. Some activities and projects, however, may be exempt. See the "Exemptions" tab to see a list of exemptions. To apply for an exemption, known as a Highlands Applicability Determination (HAD) from the DEP, please download the HAD form.

3. What standards does DEP use to review regulated activities?

The DEP standards for review of regulated activities (i.e., major Highlands development) in the Highlands Preservation Area are known as the Highlands Water Protection and Planning Act rules.
Click here to view the Highlands rules.

4. How can I determine if my project is exempt?
The Highlands Act set forth provisions for exemptions which are found in subchapter 2.3 of the Highlands rules. Certain activities, such as the construction of a single family home, may be exempt.

To apply for an exemption, known as a Highlands Applicability Determination, from the DEP, click here for a copy of the Highlands Applicability Application Form.

Exemptions based on prior approvals

Exemptions based on prior approvals are found at in subchapter 2.3 of the Highlands rule.

Only certain local and DEP approvals issued before March 29, 2004 will be eligible for this exemption.
If you received a DEP or local approval after this date and have started construction and your property is located within the Preservation Area, you may be in violation of the Highlands Act. Construction should cease immediately until it can be determined that your project is exempt from the Highlands Act or until the DEP issues a Highlands Preservation Area Approval.

5. Can I make an improvement to my house if I am in the Highlands Preservation Area?

Yes. Within the Highlands Preservation Area, the new law exempts "any improvement to a single-family dwelling in existence on the date of enactment of this act, including but not limited to an addition, garage, shed, driveway, porch, deck, patio, swimming pool, or septic system."
The exemption applies only to the Highlands Water Protection and Planning Act and does not exempt applicants from any other state or local regulations (ex. freshwater wetlands, flood hazard area).

  • To determine if your property is in the Highlands Preservation Area, clickhere. to use DEP's interactive mapping system.
  • To apply for an exemption, known as a Highlands Applicability Determination (HAD), from the DEP, click here for a copy of the Highlands Applicability Application Form.

6. If a home was constructed after August 10, 2004, after being deemed exempt (exemption #3), would a homeowner be allowed to add an improvement, such as an addition, garage, shed, porch, deck, pool, etc. (improvements listed under exemption #5)?

Improvements to legally existing single family dwellings in existence on August 10, 2004 qualify for Exemption #5. In the scenario where the home was not legally existing as of August 10, 2004, but was found exempt under exemption #3, the homeowner would be allowed up to one year after the Certificate of Occupancy was issued for the home in which to add the improvement. There would be no need to apply for an exemption to allow the improvement as it would be considered to be part of the exempt project that it was previously reviewed under.
In addition, improvements to single-family homes that were previously determined, by the Department,  not to meet the definition of  Major Highlands Development must be located within the delineated metes and bounds if the project was required to have a deed restriction.

7. Who do I call if I have questions about the Highlands rules?

  • For assistance in determining if your property is in the Highlands Preservation Area, please see the Department's interactive mapping tool.
  •  or apply for a Highlands Jurisdictional Determination (JD) and our staff will determine if a lot is within the Preservation area for you.  Click here for the JD application form.
  • To determine whether your project is regulated by the Highlands Act or qualifies for an exemption you may apply for a Highlands Applicability Determination (HAD), from the DEP, click here for a copy of the Highlands Applicability Application Form.
  • To inquire about the Highlands rules, contact the Division of Land Use Regulation support center at (609) 777-0456.
  • For questions about water supply, water allocation and wells within the Highlands Preservation Area, contact the Water Supply Administration, at (609) 292-7219.
  • For information about treatment-works approvals or the New Jersey Pollutant Discharge Elimination System (NJPDES) within the Highlands Preservation Area, contact the Division of Water Quality at (609) 292-4543.
If you believe that you have observed a violation of the Highlands Water Protection and Planning Act, contact the DEP Hotline at 1-877-WARN-DEP (1-877-927-6337).

 

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