Mid Atlantic Real Estate Journal — New Jersey — November 8 - 21, 2013 — 13C


C entral N ew J ersey

By Yong S. Kong, PWS, Land Dimensions Engineering Understanding which government agency is in charge of protecting wetlands in New Jersey


ince NJDEP’s assumption of the federal wetlands per- mitting program (Section

of delineating wetlands in non- assumed areas. The general belief was that there would be a negligible difference inwetlands delineation Methodologies of identify- ing hydric soils and wetland hydrology have substantially changed since the publication of bothmanuals. In addition, there have been several federal court cases (i.e., Rapanos v. United States and Carabell v. United States) regarding definition of Waters of the US, which have resulted in the Corps updating the outdated 1987 Manual, as well as the jurisdictional deter-

mination process to determine theWaters of the US.Applicants in NJ requesting Corps permit to conduct regulated activities in non-assumed wetlands must nowutilize theAtlantic andGulf Coastal Plain Regional Supple- ment in addition to the original 1987 Manual. The use of specific regional supplements is part of Corps’ nationwide effort to address regional wetland characteristics and improve the wetland delin- eation procedures. Implementa- tion of this new Corps method of delineating wetlands, along with the Corps staff in deter-

mining the Waters of the US, can result in significant impact in NJ’s non-assumed areas. The Corps’ use of Wetlands Delineation Supplement and revised Jurisdictional Determi- nation application process, and NJDEP’s EPA 1989 Wetlands Delineation Manual on the same propertymay result in two significantly different wetland delineations. Duel wetlands permitting from the Corps and NJDEPwill be required if devel- opment is being proposed in the same non-assumed wetlands. It may be difficult to predict if a specific NJDEP General

Permit with a similar Corps Nationwide Permit application for same wetlands would be in compliance with both agencies without a formal application review. There may be situations where it would be impossible or extremely difficult to obtain GP or NWP from both agencies for the same activity in the same wetlands. It has been almost 20 years since the NJDEP’s wetlands as- sumption not tomention notable changes in the Corps’ JD and NWP application requirements since the adoption. As a result, continued on page 14C

404 of Clean Water Act) in the spring of 1994 from US Environmen- tal Protection Agency (EPA), the land de- v e l o pm e n t communities

Yong S. Kong

in NJ relied on the Memoran- dum of Agreement between NJDEP, EPA and Corps as guidance to which agency would regulate wetlands in NJ. Since the assumption, the NJDEP regulates areas known as the “assumed areas,” which include all wetlands and waters throughout New Jersey, except in the Hackensack Meadow- lands, in interstate and navi- gable waters (including entire length of the Delaware River), and the adjacent waters enu- merated in the MOA. The com- mon understanding from the MOA language is that if land development is being proposed in wetlands that are situated greater than 1000 feet from mean high water line of a tidal stream, NJDEP would have complete jurisdiction. The Corps still retains juris- diction for the remaining areas which are considered “non-as- sumed areas,” and both federal and NJDEP permitting require- ments apply when development is being proposed in the same wetlands. EPAretains oversight author- ity in both cases and receives copies of permit applications or notification of all incoming ap- plications for comment, based on a particular development application. Although the wet- lands delineation methodology differs between these two agen- cies, the 1994 MOA stipulated that NJDEP would be the lead agency and NJDEP’s Letter of Interpretation would be accept- ed by the Corps in certifying ju- risdictional wetlands within the non-assumed areas. However, theMOAalso stipulates that the Corps has the reserved rights to establish wetlands boundary independent from NJDEP. The Corps relies on 1987 US Army Corps Wetlands Delin- eation Manual, while NJDEP utilizes EPA’s 1989 Federal Interagency Wetlands Delinea- tion Manual. Until recently, there has been no (or minimum) conflict between these two agen- cies accepting different methods

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