FRESHWATER WETLANDS PROTECTION ACT RULES

N.J.A.C. 7:7A

SUBCHAPTER 2 APPLICABILITY

Please Note: The Department has made every effort to ensure that the text of this regulation is identical to the official, legally effective version set forth in the New Jersey Register. However, should there be any discrepancies between the text on this web site and the official version of the rule, the official version will govern. For more information on obtaining official versions of the rules, see "How To Get a Paper Copy of Department Rules".

7:7A-2.1 Jurisdiction; permit or waiver requirement
7:7A-2.2 Regulated activities in freshwater wetlands and State open waters
7:7A-2.3 Identifying freshwater wetlands
7:7A-2.4 Classification of freshwater wetlands by resource value
7:7A-2.5 General transition area provisions
7:7A-2.6 Regulated activities in transition areas
7:7A-2.7 Transition areas due to freshwater wetlands on adjacent property
7:7A-2.8 Activities exempted from permit and/or waiver requirement
7:7A-2.9 Geographic areas exempted from permit and/or waiver requirement
7:7A-2.10 Exemption letters
7:7A-2.11 Stormwater management
7:7A-2.12 Conservation restrictions or easements


7:7A-2.1 Jurisdiction; permit or waiver requirement

(a) A person proposing to engage in a regulated activity, as described at N.J.A.C. 7:7A-2.2, shall first obtain a general permit authorization or an Individual freshwater wetlands or open water fill permit. A person proposing to engage in a prohibited activity, as described at N.J.A.C. 7:7A-2.6,in a transition area shall first obtain approval from the Department through a transition area waiver or general permit authorization. The discharge of dredged or fill material in a State open water or wetland may also require a stream encroachment permit pursuant to the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq.

(b) An agency of the State proposing to engage in a regulated activity shall first obtain a freshwater wetlands and/or open water fill permit, and/or a transition area waiver, but shall not be required to pay an application fee.

(c) On March 2, 1994, the Department assumed responsibility for administering the Federal wetlands program (also known as the 404 program) in delegable waters, as defined at N.J.A.C. 7:7A-1.4. In non-delegable waters, the ACOE retains jurisdiction under Federal law, and both Federal and State requirements apply. A project in non-delegable waters requires two permits, one from the Department under this chapter and one from the ACOE under the Federal 404 program.

(d) A permit issued under this chapter shall constitute the water quality certificate required under the Federal Act at 33 U.S.C. §1341 for any activity covered by this chapter. If a discharge of dredged or fill material into waters of the United States, as defined at N.J.A.C. 7:7A-1.4, does not require a permit under this chapter but does require a water quality certificate, the Department shall use the standards and procedures in this chapter to determine whether to issue the water quality certificate, except in the New Jersey Coastal zone, as described at N.J.A.C.7:7E-1.2(b). For a discharge of dredged or fill material in the Coastal zone, the Department shall use the standards and procedures in the Coastal Permit Program rules and the Coastal Zone Management rules, N.J.A.C. 7:7 and 7:7E, respectively, to determine whether to issue a water quality certificate.

(e) A permittee shall be responsible for ensuring that the permitted project complies with all requirements in this chapter. However, any person who owns the property on which the project occurs, or who manages, oversees or works on the project may share liability for work or activities that are not performed in accordance with this chapter.

(f) Only an activity specifically identified as authorized in a permit, including a transition area waiver or general permit authorization, shall be authorized under that permit.

(g) Failure to obtain a permit or waiver to conduct regulated or prohibited activities, or to conduct regulated or prohibited activities in accordance with an approved permit or waiver shall constitute a violation of the Freshwater Wetlands Protection Act and this chapter and shall be subject to enforcement action in accordance with N.J.A.C. 7:7A-16.

7:7A-2.2 Regulated activities in freshwater wetlands and State open waters

(a) The following activities are regulated under this chapter when performed in a freshwater wetland unless excluded under (c) below:

(b) The term "regulated activity" shall also mean the discharge of dredged or fill material into State open waters, except for a discharge into a non-delegable State open water which is subject to the Waterfront Development Law, N.J.S.A. 12:5-3.

(c) Notwithstanding (a) above, the following activities are not regulated activities:

7:7A-2.3 Identifying freshwater wetlands

(a) Freshwater wetlands shall be identified and delineated using the three-parameter approach (that is, hydrology, soils and vegetation) enumerated in the 1989 Federal manual, as defined at N.J.A.C. 7:7A-1.4.

(b) To aid in determining the presence or absence of freshwater wetlands, the Department

may refer to any of the following sources of information:

(c) Vegetative species classified as hydrophytes and indicative of freshwater wetlands shall include, but not be limited to, those plants listed in "National List of Plant Species that Occur in Wetlands: 1988-New Jersey," compiled by the United States Fish and Wildlife Service in cooperation with the ACOE, USEPA, and the United States Soil Conservation Service, and any subsequent amendments thereto.

(d) To obtain a determination from the Department of the presence, absence, or boundaries of freshwater wetlands on a particular site, a person may apply to the Department for a letter of interpretation under N.J.A.C. 7:7A-3.

(e) The Department has developed freshwater wetlands maps at a scale of 1:12000 to provide guidance and for general informational purposes. These freshwater wetlands maps can help to determine the approximate extent and location of wetlands. However, these maps are for guidance only and do not take the place of nor supersede a wetland delineation that the Department has approved through a letter of interpretation issued for a particular site.

(f) The Department has provided the New Jersey freshwater wetlands maps to the following offices for public inspection:

7:7A-2.4 Classification of freshwater wetlands by resource value

(a) Freshwater wetlands shall be divided into three classifications based on resource value. The Department shall consider the resource value classification of a wetland in, among other things, evaluating alternatives to the proposed regulated activity, in determining the size of the transition area, and in determining the amount and/or type of mitigation required.

(b) A freshwater wetland of exceptional resource value, or exceptional resource value wetland, is a freshwater wetland which:

(c) The Department identifies present or documented habitat for threatened or endangered species for purposes of (b) above using the Landscape Project method, which focuses on habitat areas required to support local populations of threatened or endangered wildlife species. The details of this method are described in the Division of Land Use Regulation freshwater wetlands technical manual, available from the Department's Office of Maps and Publications at the address in N.J.A.C. 7:7A-1.3. An applicant may request that a documented habitat not result in the classification of a freshwater wetland as a freshwater wetland of exceptional resource value. Such a request shall include a demonstration of the long-term loss of one or more habitat requirements of the specific documented threatened or endangered species, including, but not limited to, wetlands size or overall habitat size, water quality, or vegetation density or diversity. Upon such a request, the Department shall review all available information, and shall make a final classification of the wetland.

(d) A freshwater wetland of ordinary resource value, or an ordinary resource value wetland, is a freshwater wetland which does not exhibit any of the characteristics in (b) above, and which is:

(e) A freshwater wetland of intermediate resource value, or intermediate resource value wetland, is any freshwater wetland not defined as exceptional or ordinary.

(f) The classification system established under this section shall not restrict the Department's authority to require the creation or restoration of freshwater wetlands under N.J.A.C. 7:7A-15.

(g) To obtain a Department determination of the resource value classification for a particular wetland, an applicant may obtain a letter of interpretation from the Department under N.J.A.C. 7:7A-3.

7:7A-2.5 General transition area provisions

(a) A transition area serves as:

(b) Acts or acts of omission in a transition area that adversely affect a transition area's ability to serve as any of the areas described below at (b)1 to 7 shall be deemed inconsistent with (a) above:

(c) A transition area is required adjacent to a freshwater wetland of exceptional resource value and of intermediate resource value as classified in N.J.A.C. 7:7A-2.4. A transition area is not required adjacent to a freshwater wetland of ordinary resource value or adjacent to a State open water.

(d) The standard width of a transition area adjacent to a freshwater wetland of exceptional resource value shall be 150 feet. This standard width shall only be modified through the issuance of a transition area waiver. The types of transition area waivers are listed at N.J.A.C. 7:7A-6.1(a).

(e) The standard width of a transition area adjacent to a freshwater wetland of intermediate resource value shall be 50 feet. This standard width shall only be modified through the issuance of a transition area waiver. The types of transition area waivers are listed at N.J.A.C. 7:7A-6.1(a).

(f) A person shall not engage in regulated activities, as described at N.J.A.C. 7:7A-2.6, in a transition area except pursuant to a transition area waiver.

(g) A transition area shall be measured outward from a freshwater wetland boundary line on a horizontal scale perpendicular to the freshwater wetlands boundary line as shown in N.J.A.C. 7:7A-6, Appendix A, which is incorporated by reference in this chapter. The outside boundary line of a transition area shall parallel, that is, be equidistant from, the freshwater wetlands boundary line, unless the Department issues a transition area waiver.

The width of the transition area shall be measured as the minimum distance between the freshwater wetlands boundary and the outside transition area boundary.

Figure 1 - Transition Area

7:7A-2.6 Regulated activities in transition areas

(a) Except as provided in (b) and (c) below, the following are regulated activities when they occur in transition areas:

(b) Notwithstanding (a) above, the following activities are not regulated in transition areas and do not require Department approval under this chapter, provided that the activities are performed in a manner that minimizes adverse effects to the transition area and adjacent freshwater wetlands, and provided that the transition area is not contained within a conservation restriction or easement. If the transition area is contained in a conservation restriction or easement, none of the following activities are allowed unless explicitly stated in the conservation restriction or easement:

(c) Certain regulated activities are exempt from transition area requirements under N.J.A.C.

7:7A-2.8(f). In addition, an activity that is exempt from freshwater wetlands permit requirements under N.J.A.C. 7:7A-2.8(c) for farming activities, or N.J.A.C. 7:7A-2.8(d) for forestry activities, is also exempt from transition area requirements, subject to the limits on freshwater wetlands exemptions at N.J.A.C. 7:7A-2.8. A person may request an exemption letter confirming the exemption status of an activity by using the procedures at N.J.A.C. 7:7A-2.10.

7:7A-2.7 Transition areas due to freshwater wetlands on adjacent property

(a) The outside boundary of a transition area is determined solely by reference to the freshwater wetlands boundary and is not affected by property lines. Therefore, a property within 150 feet of a freshwater wetlands may contain a transition area that arises from a freshwater wetlands on another property. Every property containing a transition area is subject to this chapter, even if the freshwater wetland that causes the transition area is located on another property.

(b) To determine whether a site has transition areas on it caused by wetlands on another property:

(c) It may be necessary to obtain written permission from adjacent property owners to

investigate their land within 150 feet of the site's boundary.

7:7A-2.8 Activities exempted from permit and/or waiver requirement

(a) This section sets forth certain activities that are exempt from certain permit requirements in this chapter. However, even if an activity is exempt under this chapter, it may still require a permit from the Army Corps of Engineers under the Federal wetlands program, and/or a water quality certificate issued by the Department. Any activity conducted under an exemption that does not meet all standards, conditions, or limitations of the exemption shall constitute a violation of this chapter, and shall be subject to enforcement action in accordance with N.J.A.C. 7:7A-16.

(b) The farming, ranching, and silviculture exemptions in (c) and (d) below are subject to the following limits:

(c) Subject to the limitations of this section, the following activities, when part of an established, ongoing farming, ranching or silviculture operation, on properties which have received or are eligible for a farmland assessment under the New Jersey Farmland Assessment Act, N.J.S.A. 54:4-23.1 et seq., are exempt from the requirement of a freshwater wetlands or open water fill permit, or transition area waiver:

(d) Normal harvesting of forest products in accordance with a forest management plan approved by the State Forester before the conduct of the forest management activities is exempt from the requirement of a freshwater wetlands permit, transition area waiver, or open water fill permit, subject to the limitations of this section. A woodland management plan prepared for tax purposes but that does not address wetlands is insufficient to qualify for the exemption. However, the removal of stumps results in a discharge of dredged or fill material, and a change in use and an impairment of flow or circulation. Therefore, under (b)1 above, the removal of stumps is not exempt and shall require a permit under this chapter.

(e) Until March 2, 1994, when the Department assumed responsibility for the Federal 404 program, the Department issued certain exemptions based on prior local approvals.

However, as of March 2, 1994, these exemptions are void as they apply to freshwater wetlands permit and open water fill requirements. The exemptions continue to apply to transition area requirements, and are described at (f) below.

(f) Subject to the limitations of this section including (g) below, the following projects, as defined at N.J.A.C. 7:7A-1.4, are exempt from transition area requirements, but are subject to freshwater wetlands and State open water requirements:

(g) The following limits apply to the transition area exemptions at (f) above:

(h) If any discharge of dredged or fill material resulting from the activities exempted by this section contains any toxic pollutant listed under section 307 of the Federal Act, such discharge shall be subject to any applicable toxic effluent standard or prohibition, and shall require a freshwater wetlands or open water fill permit.

(i) A project covered by an individual permit issued by the U.S. Army Corps of Engineers prior to July 1, 1988 shall be governed only by the Federal Act, and shall not be subject to additional or inconsistent substantive requirements of this chapter. However, when the ACOE permit expires, any application for an extension shall be made to the Department under N.J.A.C. 7:7A-14.6. The Department shall not require a transition area as a condition of any extension of an ACOE permit issued prior to July 1, 1988.


7:7A-2.9 Geographic areas exempted from permit and/or waiver requirement

(a) Regulated activities in areas under the jurisdiction of the Hackensack Meadowlands Development Commission under N.J.S.A. 13:17-1 et seq. do not require a permit under this chapter, but may require other State and/or Federal wetlands approvals, such as a Federal 404 permit from the ACOE, and/or a Water Quality Certificate issued by the Department, and/or a Federal Consistency Determination issued under the Federal Coastal Zone Management Act, 16 U.S.C. ?? 1451 et seq.

(b) The discharge of dredged or fill material in a freshwater wetlands or State open water under the jurisdiction of the Pinelands Commission is subject to freshwater wetlands and open water fill permit requirements under this chapter. However, regulated activities in areas under the jurisdiction of the Pinelands Commission, other than the discharge of dredged or fill material, are not subject to this chapter. Transition areas are not regulated under this chapter in areas under the jurisdiction of the Pinelands Commission. However, the Pinelands Commission may provide for more stringent regulation of activities in and around freshwater wetland areas within its jurisdiction, which include transition area regulations. For information on freshwater wetlands and transition areas in the Pinelands under this chapter and under the Pinelands Comprehensive Management Plan (CMP), contact the Pinelands Commission at (609) 894-7300 or through its website at www.state.nj.us/pinelands.

(c) An application for the discharge of dredged or fill material in areas under the jurisdiction of the Pinelands Commission shall be reviewed as follows:

(d) Regulated activities in tidally influenced wetlands which are defined as coastal wetlands pursuant to the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq. are not subject to this chapter, but may require other State and/or Federal approvals.

7:7A-2.10 Exemption letters

(a) A person with a project or activity which qualifies for an exemption under this subchapter may obtain a letter from the Department certifying that an activity is exempt. The letter will be based on the information required by this section, and will be void if the information submitted is not complete and accurate, if the approval upon which it was based becomes invalid for any reason, or if the project or activity is not carried out as represented in the submittal(s) to the Department. This exemption will remain valid for the duration of the approval upon which it was based.

(b) To apply for an exemption letter for a farming, silviculture or ranching exemption under N.J.A.C. 7:7A-2.8(c), an applicant shall submit the following:

(c) To apply for an exemption letter for a forest products harvesting exemption pursuant to N.J.A.C. 7:7A-2.8(d), an applicant shall submit the following:

(d) To apply for an exemption letter for a transition area exemption pursuant to N.J.A.C. 7:7A- 2.8(f), an applicant shall submit the following:

7:7A-2.11 Stormwater management

If a project requires and individual permit under these rules and the project in its entirety (that means the whole project, not just the portions within wetlands or transition areas) meets the definition of “major development” at N.J.A.C. 7:8-1.2, then the project shall comply in its entirety with the Stormwater Management rules at N.J.A.C. 7:8. If an activity requires a general permit under these rules and the regulated activity meets the definition of “major development” at N.J.A.C. 7:8-1.2, then the project of which the regulated activity is a part shall comply in its entirety with the Stormwater Management rules at N.J.A.C. 7:8. In accordance with N.J.A.C. 7:7A-1.6(b), the Pinelands Commission may require equal or more stringent stormwater management regulation of activities in and around freshwater wetland areas within its jurisdiction.

7:7A-2.12 Conservation restrictions or easements

(a) With the exception of a waiver for access, as described at N.J.A.C. 7:7A-6.1(a)6, and for redevelopment waivers when practicable, in accordance with N.J.A.C. 7:7A-6.3(f)4, any transition area modified through a transition area waiver and its adjacent wetlands, and mitigation areas whether on or offsite, shall be permanently protected from any future development through the grant of a conservation restriction or easement as defined at N.J.A.C. 7:7A-1.4 in favor of the Department. A “modified” transition area is the entire transition area on a site after a transition area waiver is obtained. Wetland areas remaining on a site after the Department approves a wetland permit may be restricted in those cases where the Department determines that the restriction is necessary to protect the remaining wetland;

(b) The Department shall provide the applicant with the form of the conservation restriction or easement. The applicant shall not alter the form except in consultation with the Department and only when the Department agrees that an alteration is necessary to address site-specific conditions. The Department’s forms are posted at www.state.nj.us/dep/landuse.

(c) The conservation restriction or easement shall require that the designated area be permanently preserved in its natural state, and shall prohibit all regulated activities as described at N.J.A.C. 7:7A-2.3 and 2.6, and any other activities that inhibit the natural succession of vegetation unless specifically authorized. In addition, the conservation restriction or easement shall include the following:

(d) Unless the approved permit, waiver, or conservation restriction or easement states otherwise, former agricultural lands that are the subject of a conservation restriction or easement shall be allowed to revert to their natural state and shall not be subject to mowing or other practices that prevent or inhibit the natural succession of vegetation.

(e) The conservation restriction or easement shall run with the land and shall be binding upon the landowner, and all successors in interest in the land or any part of the land on which the restricted area is located. To ensure that notice of the restriction is provided to all present and future interested parties, applicants for mitigation banks and land donations shall follow the requirements at N.J.A.C. 7:7A-15.14. All other applicants for permits shall:

(f) With the exception of upland preservation or a land donation in accordance with N.J.A.C. 7:7A-15.2(j), areas subject to the conservation restriction or easement shall be shown on a site plan, which also depicts the approved project with all approved wetland and transition area impacts, and other relevant site conditions such as encumbrances or areas of known contamination.

(g) A conservation restriction or easement shall include the deed book and page number of the recorded deed that shows that the applicant owns the subject property in fee simple, and a survey prepared in accordance with the requirements at N.J.A.C. 7:7A-10.1(q) including the metes and bounds of the entire restricted area and any approved access.

(h) Upon proper recording of a conservation restriction or easement in accordance with (e)2 above, the restriction shall not be released except in accordance with the provisions of the New Jersey Conservation Restriction and Historic Preservation Restriction Act, N.J.S.A.13:8B-1 et seq.

(i) The Department shall allow de minimis modifications of the restricted area boundary established in a conservation restriction or easement associated with a transition area waiver or wetland permit in accordance with the following:

(j) The Department shall not allow any de minimis modification of the boundary established in a conservation restriction or easement unless the conservation restriction or easement contains language that expressly reserves the right of the permittee to undertake de minimis modifications of the restricted area. If the restriction does not expressly reserve this right, then (h) above applies.

(k) The Department shall not allow any modification of the boundary established in a conservation restriction or easement associated with a mitigation site.

(l) If the Department approves the applicant’s written request to modify the boundary established in a conservation restriction or easement, the applicant shall, within 30 days of such approval, amend the conservation restriction or easement by preparing and submitting to the Department for review and approval a revised site plan and all requirements as described in (f) and (g) above revised to show the modification.

(m) Upon the Department’s written approval of the amended conservation restriction or easement, the applicant shall, within 60 days, re-record the documents in accordance with the requirements in (e) above.