New Jersey Highlands Water Protection and Planning Act Rules
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). The Department's Division of Coastal and Land Use Planning 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 Highland 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.
In order to streamline the HAD 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. Since an HPAA application involves an evaluation of several environmental standards or 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 application to the Division 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:
- To protect public health and safety
- For site redevelopment
- To avoid the taking of property without just compensation
- To construct 100 percent affordable housing
For more information, visit the Highlands Council website or contact the Division of Land Use Regulation.