New Jersey-2016-A1939-Introduced

An Act concerning notification of certain decisions on applications pursuant to the "Freshwater Wetlands Protection Act," and amending P.L.1987, c.156.

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

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

9. a. A person proposing to engage in a regulated activity shall apply to the department for a freshwater wetlands permit, for a fee not to exceed the cost of reviewing and processing the application, and on forms and in the manner prescribed by the commissioner pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). An agency of the State proposing to engage in a regulated activity shall also apply to the department for a freshwater wetlands permit on forms and in a manner prescribed by the commissioner, but shall not be required to pay a fee therefor. The application shall include the name and address of the applicant, the purpose of the project, the names and addresses of all owners of property adjacent to the proposed project, and at least the following:

(1) A preliminary site plan or subdivision map of the proposed development activities, or another map of the site if no preliminary site plan or subdivision map exists, and a written description of the proposed regulated activity, the total area to be modified, and the total area of the freshwater wetland potentially affected;

(2) Verification that a notice has been forwarded to the clerk, environmental commission, and planning board of the municipality in which the proposed regulated activity will occur, the planning board of the county in which the proposed regulated activity will occur, landowners within 200 feet of the site of the proposed regulated activity, and to all persons who requested to be notified of proposed regulated activities, which notice may be filed concurrently with notices required pursuant to P.L.1975, c.291 (C.40:55D-1 et seq.), describing the proposed regulated activity and advising these parties of their opportunity to submit comments thereon to the department;

(3) Verification that notice of the proposed activity has been published in a newspaper of local circulation;

(4) A statement detailing any potential adverse environmental effects of the regulated activity and any measures necessary to mitigate those effects, and any information necessary for the department to make a finding pursuant to subsection b. of this section.

b. The department, after considering the comments of the environmental commission and planning boards of the county and municipality wherein the regulated activity is to take place, federal and State agencies of competent jurisdiction, other affected municipalities and counties, and the general public, shall issue a freshwater wetlands permit only if it finds that the regulated activity:

(1) Is water-dependent or requires access to the freshwater wetlands as a central element of its basic function, and has no practicable alternative which would not involve a freshwater wetland or which would have a less adverse impact on the aquatic ecosystem, and which would not have other significant adverse environmental consequences, and also complies with the provisions of paragraphs (3)-(9) of this subsection; or

(2) Is nonwater-dependent and has no practicable alternative as demonstrated pursuant to section 10 of [this act] P.L.1987, c.156 (C.13:9B-10) , which would not involve a freshwater wetland or which would have a less adverse impact on the aquatic ecosystem, and which would not have other significant adverse environmental consequences; and

(3) Will result in minimum feasible alteration or impairment of the aquatic ecosystem including existing contour, vegetation, fish and wildlife resources, and aquatic circulation of the freshwater wetland; and

(4) Will not jeopardize the continued existence of species listed pursuant to "The Endangered and Nongame Species Conservation Act," P.L.1973, c.309 (C.23:2A-1 et seq.) or which appear on the federal endangered species list, and will not result in the likelihood of the destruction or adverse modification of a habitat which is determined by the Secretary of the United States Department of the Interior or the Secretary of the United States Department of Commerce as appropriate to be a critical habitat under the "Endangered Species Act of 1973," (16 U.S.C. s.1531 et al.); and

(5) Will not cause or contribute to a violation of any applicable State water quality standard; and

(6) Will not cause or contribute to a violation of any applicable toxic effluent standard or prohibition imposed pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.); and

(7) Will not violate any requirement imposed by the United States government to protect any marine sanctuary designated pursuant to the "Marine Protection, Research and Sanctuaries Act of 1972," (33 U.S.C. s.1401 et al.); and

(8) Will not cause or contribute to a significant degradation of ground or surface waters; and

(9) Is in the public interest as determined pursuant to section 11 of [this act] P.L.1987, c.156 (C.13:9B-11) , is necessary to realize the benefits derived from the activity, and is otherwise lawful.

c. The department shall provide notice, in the form of a postcard, of its decision on an application submitted pursuant to this section to (1) those landowners who received notice of the application pursuant to paragraph (2) of subsection a. of this section, (2) all persons who requested to be notified of proposed regulated activities who received notice pursuant to paragraph (2) of subsection a. of this section, and (3) any person who submitted written comments or provided testimony at a public hearing concerning the application and provided a mailing address for the purposes of this subsection. The postcard shall indicate, at a minimum, the application number, the address of the property that is the subject of the application, whether the application was approved or denied, and information on how a person may appeal the decision of the department, including contact information for the department's Office of Dispute Resolution.

(cf: P.L.1987, c.156, s.9)

2. Section 17 of P.L.1987, c.156 (C.13:9B-17) is amended to read as follows:

17. a. The following activities, except for normal property maintenance or minor and temporary disturbances of the transition area resulting from, and necessary for, normal construction activities on land adjacent to the transition area, are prohibited in the transition area, except in accordance with a transition area waiver approved by the department pursuant to section 18 of [this act] P.L.1987, c.156 (C.13:9B-18) :

(1) Removal, excavation, or disturbance of the soil;

(2) Dumping or filling with any materials;

(3) Erection of structures, except for temporary structures of 150 square feet or less;

(4) Placement of pavements;

(5) Destruction of plant life which would alter the existing pattern of vegetation.

b. A person proposing to engage in an activity prohibited pursuant to subsection a. of this section within 150 feet of a freshwater wetland of exceptional resource value, or within 50 feet of a freshwater wetland of intermediate resource value, shall apply to the department for a transition area waiver, for a fee not to exceed the cost of reviewing and processing the waiver application, and on forms and in the manner prescribed by the commissioner pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). An agency of the State proposing to engage in such an activity in a transition area shall also apply to the department for a transition area waiver on forms and in a manner prescribed by the commissioner but shall not be required to pay a fee therefor. The waiver application shall include at least the following:

(1) A preliminary site plan or subdivision map of the site, or another map of the site if no preliminary site plan or subdivision map exists, containing proposed activities and a written description of the proposed activity, the total areas to be modified, and the total area of the transition area potentially affected; and

(2) Verification that a notice has been forwarded to the clerk, environmental commission, and planning board of the municipality, and the planning board of the county wherein the activity is to occur, and to landowners within 200 feet of the site of the proposed activity, which notice shall describe the activity and advise these instrumentalities of local government and adjacent landowners of their opportunity to submit comments thereon to the department; and

(3) A statement detailing any potential adverse environmental effects of the activity on the freshwater wetlands and any measures that may be necessary to mitigate those effects; and

(4) A transition area averaging plan, if an averaging plan is required in connection with a transition area waiver requested pursuant to section 18 of [this act] P.L.1987, c.156 (C.13:9B-18) .

c. At the applicant's option, the maximum transition area distances established in subsection b. of section 16 of [this act] P.L.1987, c.156 (C.13:9B-16) , or a lesser transition area distance established pursuant to a waiver approved pursuant to section 18 of [this act] P.L.1987, c.156 (C.13:9B-18) , shall be further reduced, or the transition area adjacent to a portion of a wetlands shall be eliminated, pursuant to a transition area averaging plan submitted by the applicant, provided that the plan is consistent with the provisions of subsection a. of section 16 of [this act] P.L.1987, c.156 (C.13:9B-16) .

(cf: P.L.1987, c.156, s.17)

3. Section 18 of P.L.1987, c.156 (C.13:9B-18) is amended to read as follows:

18. a. The department shall grant a transition area waiver reducing the size of a transition area to not less than the minimum distance established in subsection b. of section 16 of [this act] P.L.1987, c.156 (C.13:9B-16) ; provided that (1) the proposed activity would have no substantial impact on the adjacent freshwater wetland or (2) the waiver is necessary to avoid a substantial hardship to the applicant caused by circumstances peculiar to the property. If the proposed activity is the construction of a stormwater management facility having no feasible alternative on-site location or is linear development having no feasible alternative location, the department shall approve a further transition area waiver or elimination of a portion of a transition area as necessary to permit the activity. A transition area waiver approved pursuant to this subsection shall not require transition area averaging to compensate for the reduction of transition area distance or for partial elimination of the transition area.

b. The department shall also approve transition area waivers reducing the transition area distances established in subsection b. of section 16 of [this act] P.L.1987, c.156 (C.13:9B-16) and shall also approve waiver applications eliminating portions of transition areas, provided that the applicant submits a transition area averaging plan. The transition area requirements of [this act] P.L.1987, c.156 (C.13:9B-1 et seq.) shall be satisfied if the transition area averaging plan expands a portion of the transition area to compensate, on a square footage basis, for reduction of a transition area distance or for partial elimination of a transition area. The applicant shall have the right to determine the area of transition area reduction or partial elimination; provided that the transition area averaging plan will result in a transition area consistent with the provisions of subsection a. of section 16 of [this act] P.L.1987, c.156 (C.13:9B-16). If a transition area waiver is approved pursuant to subsection a. of this section, the average transition area required by this subsection shall be based upon the transition area distance established pursuant to subsection a. of this section. If no waiver is approved pursuant to subsection a. of this section, the average transition area shall be based upon the maximum applicable transition area distance provided in subsection b. of section 16 of [this act] P.L.1987, c.156 (C.13:9B-16).

c. Any other provision of this act to the contrary notwithstanding, the transition area distance from a freshwater wetland of exceptional resource value may be reduced to no less than 75 feet except pursuant to section 12 of [this act] P.L.1987, c.156 (C.13:9B-12) . A transition area waiver shall be approved pursuant to this subsection only if a transition area distance reduction would have no substantial adverse impact on the adjacent freshwater wetlands or if denial of a transition area waiver would result in extraordinary hardship to the applicant because of circumstances peculiar to the subject property. A transition area waiver approved pursuant to this subsection shall be conditioned on a transition area averaging plan which provides an average transition area of not less than 100 feet.

d. The department shall issue or deny an application for a transition area waiver within 90 days of submission of a complete application; provided, however, that if the project or activity for which the transition area waiver is requested also involves a regulated activity in a freshwater wetland, or if an application for a permit to conduct a regulated activity in a freshwater wetland adjacent to the transition area for which the transition area waiver is requested is pending before the department, the department shall approve or deny the transition area waiver within the time period set forth for the approval or denial of a permit in subsection c. of section 5 of [this act] P.L.1987, c.156 (C.13:9B-5).

e. The department shall provide notice, in the form of a postcard, of its decision on an application submitted pursuant to this section to (1) those landowners who received notice of the application pursuant to paragraph (2) of subsection b. of section 17 of P.L.1987, c.156 (C.13:9B-17), and (2) any person who submitted written comments or provided testimony at a public hearing concerning the application and provided a mailing address for the purposes of this subsection. The postcard shall indicate, at a minimum, the application number, the address of the property that is the subject of the application, whether the application was approved or denied, and information on how a person may appeal the decision of the department, including contact information for the department's Office of Dispute Resolution.

(cf: P.L.1987, c.156, s.18)

4. This act shall take effect immediately.

STATEMENT

This bill would amend the "Freshwater Wetlands Protection Act" to require the Department of Environmental Protection (DEP) to send notice of the DEP's decision on an application to those landowners within 200 feet of the site of a proposed activity subject to that law and to anyone who submitted written comments or offered testimony at a public hearing on an application pursuant to that law. This notice would be sent in the form of a postcard. The postcard would include, at a minimum, the application number, the address of the property that is the subject of the application, whether the application was approved or denied, and information on how a person may appeal the decision, including contact information for the DEP's Office of Dispute Resolution.

Under current law, and the DEP's implementing rules and regulations, applicants are required to provide certain public notice of their application, including to landowners within 200 feet of the site of the proposed activity in or, in certain cases adjacent to, a freshwater wetland. While the law and the rules and regulations require public notice that an application has been submitted to the DEP, there is no requirement that the DEP notify these nearby landowners of the DEP's decision on the application. This bill would inform those who received notice of the application, and those who submitted written comments or offered testimony at a public hearing, of the DEP's decision on the application.

The bill also would codify in statute the public notice requirement contained in the DEP's rules and regulations that requires an applicant for a transition area waiver to provide notice of the application to landowners within 200 feet of the proposed activity.