A4186

An Act concerning freshwater wetlands and preserved farmland and amending P.L.1987, c.156.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 3 of P.L.1987, c.156 (C.13:9B-3) is amended to read as follows:

3. As used in this act:

"Bank" means the Wetlands Mitigation Bank established pursuant to section 14 of this act;

"Commissioner" means the Commissioner of the Department of Environmental Protection;

"Council" means the Wetlands Mitigation Council established pursuant to section 14 of this act;

"Department" means the Department of Environmental Protection;

"Environmental commission" means a municipal advisory body created pursuant to P.L. 1968, c. 245 (C. 40:56A-1 et seq.);

"Federal Act" means section 404 of the "Federal Water Pollution Control Act Amendments of 1972" as amended by the "Clean Water Act of 1977" (33 U.S.C. s. 1344) and the regulations adopted pursuant thereto;

"Freshwater wetland" means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation; provided, however, that the department, in designating a wetland, shall use the 3-parameter approach (i.e. hydrology, soils and vegetation) enumerated in the April 1, 1987 interim-final draft "Wetland Identification and Delineation Manual" developed by the United States Environmental Protection Agency, and any subsequent amendments thereto;

"Freshwater wetlands permit" means a permit to engage in a regulated activity issued pursuant to this act;

"Hydrophyte" means plant life adapted to growth and reproduction under periodically saturated root zone conditions during at least a portion of the growing season;

"Linear development" means land uses such as roads, drives, railroads, sewerage and stormwater management pipes, gas and water pipelines, electric, telephone and other transmission lines and the rights-of-way therefor, the basic function of which is to connect two points. Linear development shall not mean residential, commercial, office, or industrial buildings;

"Person" means an individual, corporation, partnership, association, the State, municipality, commission or political subdivision of the State or any interstate body;

“Preserved farmland” means land on which a development easement was conveyed to, or retained by, the State Agriculture Development Committee, a county agriculture development board, a municipality, or a qualifying tax exempt nonprofit organization pursuant to the provisions of section 24 of P.L.1983, c.32 (C.4:1C-31), section 5 of P.L.1988, c.4 (C.4:1C-31.1), section 1 of P.L.1989, c.28 (C.4:1C-38), section 1 of P.L.1999, c.180 (C.4:1C-43.1), sections 37 through 40 of P.L.1999, c.152 (C.13:8C-37 through C.13:8C-40), or any other State law enacted for farmland preservation purposes.

"Regulated activity" means any of the following activities in a freshwater wetland:

(1) The removal, excavation, disturbance or dredging of soil, sand, gravel, or aggregate material of any kind;

(2) The drainage or disturbance of the water level or water table;

(3) The dumping, discharging or filling with any materials;

(4) The driving of pilings;

(5) The placing of obstructions;

(6) The destruction of plant life which would alter the character of a freshwater wetland, including the cutting of trees;

"Transition area" means an area of land adjacent to a freshwater wetland which minimizes adverse impacts on the wetland or serves as an integral component of the wetlands ecosystem.

(P.L.1987, c.156, s.3)

2. Section 4 of P.L.1987, c.156 (C.13:9B-4) is amended to read as follows:

4. The following are exempt from the requirement of a freshwater wetlands permit and transition area requirements unless the United States Environmental Protection Agency's regulations providing for the delegation to the state of the federal wetlands program conducted pursuant to the Federal Act require a permit for any of these activities, in which case the department shall require a permit for those activities so identified by that agency:

a. Normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food and fiber, or upland soil and water conservation practices; construction or maintenance of farm or stock ponds or irrigation ditches, irrigation ponds, or the maintenance of drainage ditches; construction or maintenance of farm roads or forest roads constructed and maintained in accordance with best management practices to assure that flow and circulation patterns and chemical and biological characteristics of freshwater wetlands are not impaired and that any adverse effect on the aquatic environment will be minimized;

b. Normal harvesting of forest products in accordance with a forest management plan approved by the State Forester;

c. Areas regulated as a coastal wetland pursuant to P.L. 1970, c. 272 (C. 13:9A-1 et seq.);

d. Projects for which (1) preliminary site plan or subdivision applications have received preliminary approvals from the local authorities pursuant to the "Municipal Land Use Law," P.L. 1975, c. 291 (C. 40:55D-1 et seq.) prior to the effective date of this act, (2) preliminary site plan or subdivision applications have been submitted prior to June 8, 1987, or (3) permit applications have been approved by the U.S. Army Corps of Engineers prior to the effective date of this act, which projects would otherwise be subject to State regulation on or after the effective date of this act, shall be governed only by the Federal Act, and shall not be subject to any additional or inconsistent substantive requirements of this act; provided, however, that upon the expiration of a permit issued pursuant to the Federal Act any application for a renewal thereof shall be made to the appropriate regulatory agency. The department shall not require the establishment of a transition area as a condition of any renewal of a permit issued pursuant to the Federal Act prior to the effective date of this act. Projects not subject to the jurisdiction of the United States Army Corps of Engineers and for which preliminary site or subdivision applications have been approved prior to the effective date of this act shall not require transition areas;

e. The exemptions in subsections a. and b. of this section shall not apply to any discharge of dredged or fill material into a freshwater wetland incidental to any activity which involves bringing an area of freshwater wetlands into a use to which it was not previously subject, where the flow or circulation patterns of the waters may be impaired, or the reach of the waters is reduced.

f. If the Federal Act does not allow a permit exemption under subsection a. of this section for the construction or maintenance of farm or stock ponds or irrigation ditches, irrigation ponds, or the maintenance of drainage ditches on preserved farmland, the department shall automatically issue a permit for such purposes on preserved farmland without requiring a permit application and permit application review. The department, however, may require documentation that the land is preserved farmland and a written description of the project to confirm the applicability of this subsection.

(P.L.1987, c.156, s.4)

3. This act shall take effect immediately.

STATEMENT

This bill allows the construction or maintenance of irrigation ponds on farmland without a freshwater wetlands permit.

The bill also provides that if federal law does not allow for a permit exemption for the construction or maintenance of farm or stock ponds or irrigation ditches, irrigation ponds, or the maintenance of drainage ditches on preserved farmland, the bill directs the Department of Environmental Protection to automatically issue the permit, if the construction or maintenance is on preserved farmland, without a permit application or permit application review. However, the bill authorizes the department to require documentation that the land is preserved farmland and a written description of the project to confirm the applicability of this exemption.