NJDEP Land Use Regulation

Freshwater Wetlands Protection Act Rule Summary

• History and Background
• Reorganization
• Table of Citation and Recodification
• Mitigation
• General permits
• Redevelopment
• Public Comments on the December 1996 Proposal
• Back to the LUR Announcements & Notices web page

History and Background

The Freshwater Wetlands Protection Act rules, N.J.A.C. 7:7A, were first adopted in June 1988, in response to the 1987 enactment of the New Jersey Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 et seq. Additional provisions governing transition areas were adopted in July of 1989. On March 2, 1994, the Department assumed responsibility in most of New Jersey for the Federal wetlands permitting program, also known as the "Federal 404 program" because it stems from section 404(g) of the Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. The Federal 404 program had previously been administered in New Jersey by the U.S. Army Corps of Engineers (ACOE). The United States Environmental Protection Agency (EPA) oversees the Department's wetlands program in accordance with the Federal Clean Water Act and a Memorandum of Agreement between the Department and EPA.

While New Jersey's freshwater wetlands program operates in place of the Federal 404 program throughout most of the State, the ACOE has retained responsibility for the Federal 404 program in certain waters in New Jersey. These are all interstate and navigable waters (including adjacent wetlands), and areas under the jurisdiction of the Hackensack Meadowlands Development Commission. Projects in these "non-delegable" waters remain subject to ACOE jurisdiction as well as to the State wetlands program. Thus, activities in these waters may require both a Federal 404 permit from the ACOE and a State permit under this chapter. This is the first readoption of these rules since New Jersey assumed the Federal 404 program. Therefore, the proposal reflects changes in the program necessitated by assumption of the Federal 404 program.

The Department proposed to readopt these rules once before. The proposed readoption with amendments was published in the New Jersey Register at 28 NJR 4981(a) on December 2, 1996. Additional notice of the proposal, the public hearings, and the public comment period, was given through publication in six newspapers of regional circulation throughout the State. Three public hearings were held, on December 18 and 19, 1996 and on January 7, 1997, in Basking Ridge, Pomona, and Trenton, respectively. The required 30 day public comment period for submittal of written comments was extended, upon request, resulting in a 60 day comment period which expired on January 31, 1997.

As a result of the comments on the 1996 proposal (see below for a brief summary of the main points raised by commenters), and unresolved issues raised by EPA, the Department determined to consider the issues further and to obtain more public input on possible rule changes. Accordingly, in March of 1997 the Governor extended the existing rules through March 14, 1998. The Department held two public meetings in September of 1997 to obtain public input and suggestions for changes to the rules. In order to respond to all of the public input on the rules, and to make the rules "user-friendly", the Department determined that all of N.J.A.C. 7:7A should be reviewed, reorganized and edited for clarity. In order to accomplish this, and to develop a proposal that addressed the commenters' and EPA concerns, the Department received two more extensions of the existing rules, through March 2000. The Department held five public meetings in early 1999 to present ideas and draft rule text to the public. The meetings provided the Department with a great deal of valuable public input, as well as a healthy exchange of ideas among different segments of the regulated public.

Reorganization:

This proposal substantially reorganizes the rules for easier reading. The existing chapter was developed before the Department had begun to administer the freshwater wetlands program. Over time, amendments to the rules have made the rules repetitive and unnecessarily long. One goal of these proposed amendments is to make the chapter shorter, simpler, and easier to understand. The amendments will do this through consolidating similar provisions, removing unnecessary detail, and substituting plain language for legalese. This entails many changes, the great majority of which make no change in the meaning of the rule, but merely make that meaning more easily accessible to the reader. An extensive section-by-section description is provided, below in this Summary, to guide the reader through these proposed changes.

The proposal reorganizes the chapter to more closely reflect the actual operation of the program. For example, since the vast majority of the applications the Department receives are for letters of interpretation and general permits, these subchapters are moved closer to the beginning in the chapter, with the less commonly used individual permit standards appearing later in the chapter. In general, the proposed reorganization of the chapter also reflects the chronological order in which a person would move through the permitting process. Accordingly, basic jurisdictional provisions and exemptions come before letters of interpretation, after which come the types of available permits, application requirements, application review procedures, permit contents, mitigation, and enforcement.

The reorganization also consolidates multiple application sections into one subchapter, N.J.A.C. 7:7A-10, that applies to most applications. Since many of the basic application requirements for these different approvals are identical, this allows the Department to reduce redundancy and shorten the rules, making them more user-friendly. In addition, much of the detail regarding application requirements is removed from the rules and placed in application forms and checklists. Drafts of these new application checklists are available for review by contacting the Department by e-mail at lurweb@dep.state.nj.us, or by telephone at (609) 984-3444. The rules retain broad categories describing the basic types of application information the Department will require, but no longer will such details as the size of paper, or the fact that a plan must be folded, appear in the rules. Details of this type are only relevant to a small subset of the regulated community. Putting them in the rules forces others to read through lengthy provisions that do not apply to their situation. These detailed application requirements will now be explained in application forms and checklists that are tailored specifically to the type of approval sought.

Hearings and appeals provisions, which appear in the existing rules in several places, are consolidated at proposed N.J.A.C. 7:7A-1.7. The two subchapters dealing with enforcement (N.J.A.C. 7:7A-15) and penalties (N.J.A.C. 7:7A-17) are consolidated at proposed N.J.A.C. 7:7A-16, with virtually no substantive change in their meaning. These changes will make the rules easier to read and to comply with.

This proposal also simplifies the rule language wherever possible. Excess verbiage and multisyllabic legalisms are proposed for deletion wherever possible, and simpler, more common wording proposed instead. Citations are changed to refer to the most commonly used legal reporters, rather than to public law numbers, bulleted lists are substituted for long narrative paragraphs, in order to help organize information for easier understanding. It is the Department's hope that this more "user-friendly" approach will not only clarify the rules for existing users, but will also encourage more people to use the rules as a source of primary information regarding the freshwater wetlands program.

The following table indicates the location in the proposed readoption of each section of the existing rules:

TABLE OF CITATIONS AND RECODIFICATIONS

Subject matter	Current citation	Proposed citation	Proposed change(s)
General information	1.1 through 1.6	Unchanged	Clarified
Operative date	7:7A-1.7	Deleted	Deleted
Jurisdiction	7:7A-2.1	Unchanged	Clarified, expanded, some provisions moved to other sections
Subchapters that apply	7:7A-2.2	Deleted	Deleted
Regulated activities, designation, resource value	7:7A-2.3 through 2.5	Recodified at 7:7A-2.2 through 7:7A-2.4	Clarified
Designation of State open waters	7:7A-2.6	Deleted	Deleted
Exempted activities	7:7A-2.7	Recodified at 7:7A-2.8	Clarified, expanded, some provisions deleted
Exempted areas	7:7A-2.8	Recodified at 7:7A-2.9	Clarified
Exemption letters	7:7A-2.9	Recodified at 7:7A-2.10	Clarified, some provisions moved to other sections
Individual permit standards	7:7A-3.1 through 3.5	Recodified at 7:7A-7.1 through 7:7A-7.4	Clarified, reorganized
Emergency permits	7:7A-5.1 and 5.2	Recodified at 7:7A-8.1 and 7:7A-8.2	Clarified, expanded
Transition areas	7:7A-6.1 through 6.3	Recodified at 7:7A-2.5 through 7:7A-2.7	Clarified, some provisions moved or deleted
Transition area waivers	7:7A-7.1 through 7.5	Replaced with 7:7A-6.1 through 7:7A-6.6	Reorganized, expanded, reworded
Transition area waiver applications	7:7A-7.6	Moved to 7:7A-6.6	Reworded, some provisions moved to other sections
Waiver application review	7:7A-7.7	Deleted	Substance moved to 7:7A-12.1 through 7:7A-12.5
Waiver appeals	7:7A-7.8	Deleted	Substance moved to 7:7A-1.7
Duration of waivers	7:7A-7.9	Deleted	Substance moved to 7:7A-13.3, 7:7A-13.4, and 7:7A-14.2
Cancellation of waivers	7:7A-7.10	Deleted	Substance moved to 7:7A-12.6
Letters of interpretation	7:7A-8.1 and 8.2	Moved to 7:7A-3.1 through 7:7A-3.4	Reworded and reorganized, some new provisions
LOI applications	7:7A-8.3	Recodified at 7:7A-3.5	Reworded, some provisions moved to other sections
Onsite inspections	7:7A-8.4	Deleted	Substance moved to 7:7A-3.1
Local review, effect, reissuance of LOIs	7:7A-8.5 through 8.7	Recodified at 7:7A-3.5(c), 7:7A-3.6(a), (b), and (c)	Reworded, no change in meaning
Non-issuance of LOI	7:7A-8.8	Deleted	Substance moved to 7:7A-12.1(f)
Cancellation of LOI application	7:7A-8.9	Deleted	Substance moved to 7:7A-12.6
Appeal of an LOI	7:7A-8.10	Deleted	Substance moved to 7:7A-1.7
Issuance of general permits	7:7A-9.1	Recodified at 7:7A-4.1	Clarified
General permits	7:7A-9.2	Recodified at 7:7A-5 and 7:7A-4.2(d) and (e)	Clarified, reworded, expanded and amended
Standard general permit conditions	7:7A-9.3	Recodified at 7:7A-4.3	Clarified, expanded
Multiple general permits	7:7A-9.4	Recodified at 7:7A-4.4	Clarified
Application under a general permit	7:7A-9.5	Recodified at 7:7A-4.5	Reworded, some provisions moved to other sections
Appeal of a general permit authorization	7:7A-9.6	Deleted	Substance moved to 7:7A-1.7
Duration of a general permit authorization	7:7A-9.7	Deleted	Substance moved to 7:7A-13.3
Cancellation of a general permit application	7:7A-9.8	Deleted	Substance moved to 7:7A-12.6
Pre-application conferences	7:7A-10.1 through 10.4	Recodified at 7:7A-9.1 and 7:7A-9.2	Clarified, some provisions deleted
Application procedures	7:7A-11.1 through 11.4	Moved to 7:7A-10	Reworded and reorganized
Review of applications	7:7A-12.1 through 12.6	Citation unchanged	Clarified, reorganized, expanded
Hearings and appeals	7:7A-12.7	Deleted	Substance moved to 7:7A-1.7
Permit contents	7:7A-13.1 through 13.4	Citation unchanged	Clarified, some provisions moved to other sections
Transfer of permits	7:7A-13.5	Moved to 7:7A-14.2	Reworded
Permit modifications	7:7A-13.6 through 13.9	Deleted	Substance moved to 7:7A-14.1, and 7:7A-14.3 through 7:7A-14.5
Mitigation	7:7A-14.1 through 14.6	Deleted	Replaced with new subchapter at 7:7A-15
Enforcement	7:7A-15.1 through 15.5	Recodified at 7:7A-16.1 through 7:7A-16.5	Clarified, expanded, some provisions moved to other sections
Enforcement	7:7A-15.6 and 15.7	Recodified at 7:7A-16.13 and 7:7A-16.14	Clarified
Enforcement	7:7A-15.8 and 15.9	Recodified at 7:7A-16.16 and 7:7A-16.17	Clarified, reworded
Termination of permits	7:7A-15.10	Recodified at 7:7A-14.5	Clarified, some provisions moved to other sections
Public participation	7:7A-15.11	Recodified at 7:7A-16.18	Clarified
Payment of fees	7:7A-16.1	Recodified at 7:7A-11.1	Clarified, reworded
Application fees	7:7A-16.2 through 16.7	Deleted	Replaced with fee tables at 7:7A-11.1
Fee refunds	7:7A-16.8	Deleted	Substance moved to 7:7A-11.1(g)
General penalty provisions	7:7A-17.1	Deleted	Substance moved to 7:7A-16.1
Civil administrative penalty	7:7A-17.2	Recodified at 7:7A-16.8	Clarified, reworded
Civil administrative penalty for regulated activity without approval	7:7A-17.3	Deleted	Substance moved to 7:7A-16.5
Civil administrative penalty for submitting false information	7:7A-17.4	Recodified at 7:7A-16.9	Reworded, expanded
Civil administrative penalty for refusing entry	7:7A-17.5	Recodified at 7:7A-16.10	Clarified, expanded
Civil administrative penalty for failure to pay a penalty	7:7A-17.6	Recodified at 7:7A-16.11	Clarified
Economic benefit factor	7:7A-17.7	Recodified at 7:7A-16.12	Clarified
Procedures for assessing civil administrative penalties	7:7A-17.8	Recodified at 7:7A-16.6	Clarified, expanded
Hearing request procedures for enforcement actions	7:7A-17.9	Recodified at 7:7A-16.7	Clarified

Mitigation

The proposal replaces the existing mitigation subchapter, N.J.A.C. 7:7A-14, with a new, more detailed and clear mitigation subchapter at N.J.A.C. 7:7A-15. The proposed new mitigation subchapter divides mitigation projects into those for smaller and larger disturbances, and provides a hierarchy of mitigation alternatives for each. In general, the Department encourages mitigation banking over other alternatives for smaller disturbances. Smaller mitigation projects do not tend to be as successful as large ones, and tend to provide fewer environmental benefits for the same amount of Department effort in review and monitoring. Using mitigation banking for these disturbances not only reduces administrative burden, but also ensures that mitigation happens closer in time to the disturbance, and often before the disturbance, resulting in greater environmental benefit.

The proposed new mitigation subchapter also clearly sets forth a hierarchy of locations for mitigation in relation to the disturbance for which the mitigation is performed. In general, it is better for mitigation to be as close to the disturbance as possible, and within the same watershed (identified by a USGS HUC 11 code) when possible. When the mitigation cannot be in the same watershed, the rule provides for mitigation in the same watershed management area, in keeping with the Department's watershed planning initiatives. The proposed provisions balance these environmental goals with the logistical realities of where mitigation sites and mitigation banks can be located.

The proposed new mitigation subchapter also spells out requirements for all mitigation alternatives in a comprehensive and organized manner, and includes provisions for review by the Wetlands Mitigation Council of monetary contributions, land donations, and mitigation banks. For more information, see the section-by-section description of the proposal, in this Summary below.

General permits

The proposal reformats the list of adopted general permits in their own subchapter, N.J.A.C. 7:7A-5, in order to reduce the confusing multiple layers of rule sections, subsections, paragraphs, subparagraphs, etc. However, all existing general permits will retain their current general permit number. For example, general permit 1, currently codified at N.J.A.C. 7:7A-9.2(a)1, is located in the proposed readoption at N.J.A.C. 7:7A-5.1; while general permit 2, currently codified at N.J.A.C. 7:7A-9.2(a)2, is located at N.J.A.C. 7:7A-5.2, and so on.

The proposal also adds transition area waiver authorization to general permits that, under the existing rules, would be eligible for a special activity transition area waiver for a general permit activity. Under these general permits, a project with disturbances in freshwater wetlands, transition areas, and/or State open waters can be approved with a single general permit authorization. Although this will consolidate approvals, it will not affect the total acreage allowed under a combined general permit and special activity waiver. The existing rule at N.J.A.C. 7:7A-7.4(e)3 limits the total impact under a general permit and a special activity transition area waiver based on that general permit, such that the total impacts cannot exceed the limits in the general permit. The proposal reflects this, and will make it easier to ensure compliance with this provision, by putting all impacts under one approval. This is explained further in the section-by-section description of N.J.A.C. 7:7A-5, Adopted general permits.

The proposal deletes three general permits, covering the removal of shipwrecks, construction of bulkheads on human-made lagoons, and construction of roads permitted by the ACOE prior to the enactment of the FWPA. The proposed readoption adds six new general permits, which authorize landfill closures, airport sight line clearing, animal waste management activities in farmed wetlands, spring developments in farmed wetlands, stream cleaning, and certain types of redevelopment. Drafts of these general permits were presented for discussion at public meetings in early 1999, along with other possible general permits that are not proposed herein, covering fences and mitigation projects. The new general permits are described in detail in the section-by-section description of the proposed rules, below in this Summary. The environmental analyses required under the FWPA (see N.J.S.A. 13:9B-23c) for the new general permits, and for the amendments to existing general permits, can be obtained by contacting the Department by e-mail at lurweb@dep.state.nj.us, or by telephone at (609) 984-3444.

Redevelopment

The Department supports redevelopment of existing disturbed sites, especially when the alternative would be development of an undisturbed site. Therefore, the proposed readoption encourages such redevelopment in two ways. First, proposed new general permit 27, found at N.J.A.C. 7:7A-5.27, authorizes redevelopment of certain previously disturbed sites. Unlike other general permits, this new proposed general permit allows an extra acre of disturbance, over and above disturbances under other general permits. Second, the proposed readoption retains and clarifies an existing transition area waiver specifically tailored to redevelopment, found at proposed N.J.A.C. 7:7A-6.3(f).

Public comments on the December 1996 proposal

The Department received approximately 450 comments on the 1996 proposal, both written and oral, from 46 commenters. Comments were received from consultants and attorneys, utilities and businesses, developers, environmental non-profit groups, trade associations, mitigation bankers, private citizens, and State and local government agencies. The following is a brief summary of the major points made by the commenters.

Several commenters on the 1996 proposal focussed on how the rules address issues already addressed by other agencies or other Department units. For example, a commenter suggested that the rules should not regulate the spraying of herbicides in wetlands for utility line maintenance, since the Department's Pesticide Control Program also reviews this. Other commenters suggested that the Department remove limits on rip-rap and refer to the standards for soil erosion and sediment control, which address the proper amount of rip-rap for erosion control. Both of these suggestions are addressed in the proposed readoption. The proposal includes an expedited permit process for spraying of herbicides in wetlands for utility line maintenance if a DEP pesticide permit has already been issued, and replaces most limits on rip-rap with requirements that the amount of rip-rap be the minimum necessary for compliance with the standards for soil erosion and sediment control.

Several commenters on the 1996 proposal urged the Department to include provisions in the rules that would restrict the development of infrastructure in undeveloped areas, and that would implement the concepts in the State Development and Redevelopment Plan. The FWPA rules, to the extent possible under the statute, facilitate development in already developed areas in order to remove development pressure on undeveloped high value wetlands, for example, through the proposed redevelopment general permit.

Several commenters on the 1996 proposal suggested that the Department seek feedback from regulated stakeholders. The Department has held seven public meetings since the 1996 proposal, and has obtained valuable feedback which the Department has used in developing this proposed readoption.

A commenter on the 1996 proposal suggested that the rule should encourage use of wetlands for short-term detention of stormwater during storms that occur at a frequency of less than or equal to every two years. The commenter stated that this makes sense because a primary function of wetlands is to store stormwater during the less frequent storms, thus alleviating downstream flooding. The Department has not included such provisions in this proposed readoption. Although it is true that a beneficial function of wetlands is the storage of stormwater, the use the commenter suggests would cause the buildup of sediments and pollutants in the wetland. Thus, stormwater must be pretreated before being released into wetlands, as is required under general permit 11 for stormwater outfalls.

Many commenters on the 1996 proposal addressed the definition of "State open waters", which the 1996 proposal amended to include all "waters of the State", in addition to "waters of the United States." Some commenters felt the proposed definition would be too broad, while others felt it would make the State program more stringent than the Federal 404 program. The Department has retained the proposed amendment to the definition of "State open waters" in this proposed readoption, but has added a proposed list of exclusions which narrow the definition. (See the section-by-section description of N.J.A.C. 7:7A-1.4 for a detailed explanation of the proposed definition.) The proposed definition reflects the fact that the Water Pollution Control Act (WPCA) is the source of the Department's authority to regulate the discharge of dredged or fill material into open waters, and the definition removes the extraneous issue of interstate commerce from jurisdictional determinations. The proposed change, especially with the exclusions in this proposal, does not make the State program more stringent than the Federal 404 program, but simply recognizes that, with respect to the Department's authority over waters of the State, the interstate commerce issue is not germane.

Commenters on the 1996 proposal suggested several activities they believed should be exempt from freshwater wetlands and/or transition area requirements, such as fences that do not obstruct water flow; removal of fill, debris, or structures; and paving of gravel areas. The Department considered these suggestions and has proposed at N.J.A.C. 7:7A-6.3(f) to allow limited redevelopment on transition areas that are significantly degraded but may not be covered with impervious surfaces. The possibility of a general permit for fences in wetlands was also discussed at one of the 1999 public meetings but was dropped because of the difficulty ensuring that such a general permit would not create an incentive to enclose and disturb large areas. The proposed readoption does not include exemptions for removal of fill, debris, or structures, because these are all activities that fit the definition of a regulated or prohibited activity and must be regulated.

A commenter on the 1996 proposal applauded the proposal to add on-going maintenance of stormwater detention basins created in uplands as an activity which does not rise to the level of a regulated activity, because it will support water quality and flood control. The Department has not retained this provision, but has instead proposed an expedited version of general permit 1 that would allow such maintenance upon thirty days notice to the Department, unless the Department raised objections within that thirty days. See proposed N.J.A.C. 7:7A-5.1.

Some commenters objected to provisions in the 1996 proposal to allow above ground swimming pools of up to 500 square feet in transition areas, contending that such pools are too large and are not temporary. Other commenters applauded the proposed provision, but suggested that it should be expanded to allow larger pools. The Department has determined that the proposed rule change is inconsistent with the FWPA and therefore has not included such a provision in this proposed readoption.

Several commenters on the 1996 proposal requested more detailed provisions governing whether two wetland areas are part of the same wetland or are separate wetlands. Commenters suggested several factors that should be considered in making this determination, including the existence of a hydrologic connection, the existence of a surface water connection, or a determination whether impacts to one wetland would be likely to affect the other. The Department has addressed this issue at proposed N.J.A.C. 7:7A-6.1(f), and has included both physical proximity and hydrological connection as factors to be considered.

A commenter on the 1996 proposal objected to a proposed provision prohibiting any transition area averaging that would result in a building within 20 feet of a transition area. The commenter felt that the Department was arbitrarily adding 20 feet to a transition area, and requested a justification for it. The proposed provision was intended to address a perennial problem. The Department's experience has been that it is virtually impossible to build and use a residence immediately adjacent to a transition area without conducting prohibited activities in the transition area. There are hundreds of cases in New Jersey where a developer has built multiple homes immediately adjacent to a transition area and then sold the homes, sometimes without informing the buyers that their backyard is a regulated transition area. Inevitably, use of the home results in prohibited activities in the transition area, resulting in degradation of the transition area and the adjacent wetlands, numerous enforcement cases, and substantial use of Department resources. Possible solutions to this problem were discussed at a public meeting at Department headquarters on February 16, 1999. This proposal includes a definition of "residential development project" that applies to construction of a single family or multi unit residence, which includes the 20 foot wide area surrounding the house. The Department hopes this will solve the problem for future home buyers. See the description of proposed N.J.A.C. 7:7A-2.6 for a more detailed explanation of this concept.

A commenter on the 1996 proposal recommended that no transition area waivers be granted in the Passaic River Watershed above the Dundee Dam, in order to provide flood management and to protect water quality, especially for drinking water sources. The Department has not included such a prohibition in the proposed readoption because the Department's stream encroachment permit program is the appropriate forum in which to address flooding concerns. Further, the FWPA requires that the Department consider the impacts of activities in transition areas on a site-by-site basis.

Many comments were received on the amendments in the 1996 proposal to the redevelopment transition area waiver. The existing rule allows redevelopment only where there is an impervious surface in a transition area, while the 1996 proposal allowed redevelopment also on a lawn covered transition area. Some commenters felt the provisions were not sufficiently protective of the transition area, while others felt that the rule should allow redevelopment of gravel areas and bare ground as well as lawn areas. The proposed readoption includes an amendment to the redevelopment waiver at proposed N.J.A.C. 7:7A-6.3(f), which allows redevelopment on a transition area that is significantly disturbed so that it is not functioning as a transition area. Thus, an area that is not covered with impervious surfaces might be eligible for a redevelopment waiver if this threshold is met. (See the section-by-section description of proposed changes for a detailed explanation of this proposed change.)

Many commenters on the 1996 proposal addressed the amendment allowing construction of pump stations as an authorized activity under general permit 2, which covers underground utility lines. Some commenters were supportive of the change and requested it be expanded, while others were opposed and requested that it be deleted. In the proposed readoption, the Department has included pump stations as an authorized activity under general permit 2 only for sewage lines, because the gravity feed operation of sewage lines severely limit where sewage pump stations may be placed. (See the section-by-section description of proposed changes for a detailed explanation of this proposed amendment.)

Comments were received both in support of and in opposition to the 1996 proposed amendment to general permit 8 for house additions, which removed the requirement that a house be in existence prior to July 1, 1988 in order to be eligible for the general permit. This 1996 proposed amendment was not included in this proposed readoption because the Department determined that the amendment was not consistent with the FWPA.

Many commenters on the 1996 proposal addressed proposed changes to general permit 10 for minor road crossings. Commenters fell into two categories: those who opposed the proposed changes as not sufficiently environmentally protective, and those who felt the general permit should provide more flexibility for permittees. The proposed readoption includes a revamped, two part general permit 10 at proposed N.J.A.C. 7:7A-5.10A and 10B, which the Department believes balances both interests. (See the section-by-section description of proposed changes for a detailed explanation of the proposed new general permit 10.)

A commenter on the 1996 proposal questioned the necessity of regulating dredging of State open waters under general permit 13, since such dredging activities need a stream encroachment permit which already addresses all of the listed concerns. The Department agrees that, if no wetlands are being disturbed, either in the water or on the bank of the water, then no freshwater wetlands permit is needed. An open water fill permit is not needed either, because dredging does not constitute a discharge of dredged or fill material and so is not a regulated activity in a State open water. The proposed readoption clarifies this point.

A few commenters on the 1996 proposal objected to the removal of a prohibition on using general permits 2 and 15 in exceptional resource value freshwater wetlands, on the grounds that this weakens protection of exceptional resource value wetlands. However, this change has been retained in the proposed readoption. The Department believes that the standard condition on all general permits at proposed N.J.A.C. 7:7A-4.3(b)3, which protects threatened or endangered species habitat, will be sufficiently protective. (See the section-by-section description of proposed changes for a detailed explanation of this proposed change.)

Many commenters on the 1996 proposal commended the extension of general permit 17 to include nature trails on private land, and some suggested that the general permit be expanded to allow larger paths and trails, to allow all activities on both public and private land, or to allow activities such as unenclosed structures. Other commenters suggested that the rule allow the use of recycled plastic decking and pilings. The proposed readoption incorporates some of these suggestions, including removing restrictions on the ownership of land upon which a trail or boardwalk may be built, and allowing use of a broader range of materials, including recycled plastic materials. The proposed readoption does not authorize unenclosed structures or large paths or trails. The Department believes that these activities are more appropriately located outside of wetlands.

Three commenters on the 1996 proposal suggested that additional limitations should be placed on the removal of dams under general permit 18, including a requirement for a thorough assessment of the wetlands to be eliminated by the dam removal and a mitigation requirement. This proposed readoption does not include such provisions. Because many dam owners do not own the land under the bottom of the lake created by the dam, they often do not have the legal authority to deed restrict or assess the area. Therefore, this readoption requires a deed restriction only when the dam owner also owns the lake bottom property.

Several commenters on the 1996 proposal addressed the proposed amendments to general permit 20 for bank stabilization, which expanded the length of stream bank that could be stabilized. Objectors stated that the expansion would counter efforts at the local level to protect stream and lake sides by non-structural source controls rather than end of pipe solutions. Supporters of the amendments stressed the importance of expanding the general permit to remedy erosion problems. The proposed readoption does include an extension of the allowable length of a bank stabilization project, but only in two cases: where a project uses environmentally beneficial bioengineering stabilization techniques, or where a project is listed as a priority by the Department's watershed management program.

Many comments were received on a provision in the 1996 proposal allowing disturbances resulting from regional infrastructure development to be considered separately from other wetlands disturbance, for purposes of calculating the one acre cumulative impact limit on general permit disturbances. Some commenters supported the proposed provisions in order not to penalize a property owner who accommodated regional infrastructure, while others strongly objected, stating that the provision was confusing, too broad, and would encourage poor planning at the local level. After consideration of the many comments on the provisions proposed in 1996, the Department has not included this special provision for regional infrastructure in the proposed readoption.

Many commenters on the 1996 proposal addressed issues involving notice of applications, and whether there should be more notice or less. Some commenters wanted more events to trigger notice requirements, such as notice of a minor modification application, and wanted notice to go to more different entities or to be posted on the site. Other commenters requested relief from notice requirements for linear developments, or for developments adjacent to multi-family housing where a condominium association might be notified rather than every family. This issue was discussed at one of the five public meetings held in early 1999. Because the FWPA includes detailed notice requirements, the Department's discretion to modify the rules as requested is limited. This proposed readoption includes a new requirement at N.J.A.C. 7:7A-13.1(d), requiring a copy of the permit to be kept on site for public inspection; and an option for an applicant to notify landowners within 200 feet of the proposed activity rather than within 200 feet of the property line. No other changes to the notice provisions are proposed in this readoption.

A commenter on the 1996 proposal supported the inclusion of provisions for minor modification of a general permit authorization, but urged the Department to include a requirement for notice to the affected municipality of the minor modification, because many developments are approved by municipalities with conditions tied to Department permits. This proposed readoption includes provisions for minor modifications but does not include such notice. The Department does not believe that the very minor types of changes authorized as minor modifications are likely to materially affect municipal approvals issued for these projects.

A commenter on the 1996 proposal urged the Department to streamline the regulatory process by providing for default issuance of permits if the Department failed to meet the deadline for a permit decision. This readoption includes three new general permit authorizations which can be obtained through this type of expedited process, after notice to the Department. However, the Department chose these three activities carefully, and believes the default issuance process is appropriate only in very limited situations.

Several commenters on the 1996 proposal stated that the proposed mitigation subchapter should remain as guidance and should not be incorporated into the rule, because this would inhibit the flexibility necessary for varied sites and situations. The mitigation provisions were also extensively discussed at a public meeting in early 1999, and input from that meeting is reflected in the proposed readoption. The provisions also were discussed at a meeting of the Wetlands Mitigation Council on January 14, 2000. This proposal reflects that Council input. The Department has included more detailed mitigation provisions in the proposed readoption, but has tried to ensure an appropriate level of flexibility.

One commenter on the 1996 proposal opposed a provision allowing public projects to be mitigated for on public property, on the ground that this is not authorized under the FWPA. Another commenter on the 1996 proposal suggested that the rules be amended to allow use of public property for mitigation even if the property was not originally purchased for mitigation. The existing rules at N.J.A.C. 7:7A-14.1(f) allow a public entity to perform mitigation for public projects on public property if the property was obtained for mitigation purposes. This proposed readoption at N.J.A.C. 7:7A-15.4(a) retains this provision, and also allows use of public land in cases where the public agency did not obtain the land for any specific purpose, such as through a tax lien. The Department believes that this comports with the FWPA.

A commenter on the 1996 proposal requested an amendment providing that mitigation for all disturbances in the Passaic River Basin must take place in the watershed. However, due to the small number of potential mitigation sites in this basin, the suggested change could not realistically be implemented. The proposed readoption does, however, strive to ensure that mitigation is performed in the same watershed to the extent reasonably possible. (See the section-by-section description of N.J.A.C. 7:7A-15 for a detailed explanation of these provisions.)

A commenter on the 1996 proposal objected to provisions limiting the use of mitigation banks, and allowing the contribution of monies into the Wetlands Mitigation Fund without first requiring an applicant to use a mitigation bank in the service area of the permitted disturbance. Although the proposed readoption encourages the appropriate use of mitigation banks in many cases, the Department believes that in some cases a monetary contribution must be an option, in order to provide flexibility for mitigators and to achieve environmental goals.

Two commenters on the 1996 proposal objected to the requirement for a No Further Action (NFA) letter from the Department's Site Remediation Program as a component of a proposal for mitigation through upland preservation. Objections were based on whether the workload and delay required to obtain the NFA letter was justified. The commenters instead suggested submittal of a signed affidavit. While the Department recognizes that a No Further Action letter requires more effort to obtain, this requirement has been retained in the proposed readoption. It is doubtful that a contaminated mitigation site could provide the equal ecological value required by the FWPA. Also, accepting potentially contaminated sites could raise substantial liability questions and complicate subsequent site monitoring or remediation. Therefore, the Department believes that submittal of a signed affidavit would provide insufficient assurance that a site proposed for preservation as mitigation is not contaminated, and that a No Further Action letter is necessary.

Some commenters on the 1996 proposal objected to the proposed new factors the Department will consider in determining a penalty amount or settlement amount, on the ground that the factors add more Department discretion. These factors are included in the proposed readoption at N.J.A.C. 7:7A-16.6(c) and N.J.A.C. 7:7A-16.9(f) and N.J.A.C. 7:7A-16.10(d). The proposed changes will codify the factors the Department currently employs in practice, and these factors are consistent with those used in the Department's other regulatory programs. The proposed changes will provide specific guidelines for the Department to apply in exercising its existing discretion to determine the amount of a penalty and to settle an assessed penalty. This will help ensure consistency so that similar violations will have comparable penalties and/or settlements.