Natural Lands Stewardship Workshop - Amy...

PRESENTED BY AMY S. GREENE

PRESIDENT, AMY S. GREENE ENVIRONMENTAL CONSULTANTS, INC.

DECEMBER 3, 2015

Natural Lands Stewardship Workshop Wetlands Management:

Regulated Activities and Permit Requirements

Today’s Topics

• Regulatory Requirements for wetlands and riparian habitat management – Regulated areas – Regulatory programs – Regulated & exempt

activities – Permit requirements

Image courtesy of NJ Bureau of GIS

Regulated Areas

• Freshwater wetlands, wetland transition areas, State open waters

• Flood Hazard and Riparian Areas

• Tidal waters and wetlands

• Coastal areas

Image Courtesy of Liz Dancer

Regulatory Programs

• NJ Freshwater Wetlands Protection Act • NJ Flood Hazard Area Control Act • NJ Coastal areas

– Coastal Area Facility Review Act (CAFRA) – Wetlands Act of 1970 – Waterfront Development Law

• US Clean Water Act Sect. 404 • US Rivers and Harbors Act Section 10

NJ Freshwater Wetlands Protection Act

• Regulated Areas: – Freshwater wetlands – Wetland transition

areas of 0, 50, or 150 feet – State open waters

• Regulating Agency: NJDEP Division of Land Use Regulation

NJ Freshwater Wetlands Protection Act Regulated Activities in Freshwater Wetlands and

State Open Waters • YES: The destruction of plant life which would alter the character of the

freshwater wetland. Such activities include: – The killing of vegetation by herbicide application or other means – The physical removal of wetlands vegetation – The cutting of trees – Excavation and fill, erection of structures

• Not regulated: The placement of temporary structures (observation blinds, artificial nesting structures, etc.) that: – Do not have permanent foundations – Do not require the deposition of fill – Have no footprint larger than 32 square feet

NJ Freshwater Wetlands Protection Act Regulated Activities in Freshwater Wetlands and

State Open Waters

• Forest Management/Stewardship Activities – Normal harvesting of forest products must be in

accordance with a forest management plan approved by the State Forester - Exempt

– Otherwise, a freshwater wetlands permit, transition area waiver, or open water fill permit may be required.

NJ Freshwater Wetlands Protection Act Permits Available for Wetland Habitat Management

• N.J.A.C. 7:7A-5.16 • Freshwater Wetland

General Permit 16- Habitat Creation and Enhancement activities

NJ Freshwater Wetlands Protection Act Permits Available for Wetland Habitat Management

• Freshwater Wetland General Permit 16 authorizes habitat creation/enhancement activities in wetlands, transition areas, and state open waters.

• Project must be sponsored or substantially funded by a federal or state agency, or other agency.

• The following are authorized: – A fish/wildlife management plan created or approved by the NJ Division of Fish and Wildlife – A project plan approved under Partners for Fish and Wildlife Program (USFWS) – A project plan created by the USDA NRCS (under the Wetlands Reserve Program, Conservation Reserve

Program, or related programs), and approved by the local Soil Conservation District. – A plan approved by the NJDEP Office of Natural Resource Damages for the restoration/creation/enhancement

of natural resources damaged by oil or hazardous material spills. – A mitigation project required by and approved by a gov’t agency (ex. USACE) – A habitat creation or enhancement plan carried out by any of the above gov’t agencies or a gov’t resource

protection agency (ex. A parks commission). – A habitat creation/enhancement plan carried out by a charitable conservancy.

Freshwater Wetlands Protection Act Permits Available for Wetland Habitat Management

• To be eligible for authorization under Freshwater Wetland General Permit 16, the proposed project:

– Must be part of a comprehensive plan for restoration/creation/enhancement of habitat and water quality functions and values of wetlands/transition areas/state open waters.

– Must be sponsored or substantially funded by a federal agency, state agency, or charitable conservancy.

– Must be consistent with the goals of the Freshwater Wetlands Protection Act. – Will improve the values and functions of the ecosystem – Will have a reasonable likelihood of success

FWW General Permit 16 does NOT authorize any activity unless the sole purpose of the activity is habitat creation or enhancement.


• Examples of projects authorized under FWW General Permit 16:

– Altering hydrology to restore or create wetlands conditions (ex. Blocking, removing, or disabling human-made drainage ditches, removing culverts, etc).

– Breaching a structure (dike, berm) to allow water into an area

– Placing habitat improvement structures (nesting islands, fences to prevent intrusion by livestock, fish habitat enhancement devices, etc)

– Regrading to provide proper elevation or topography for wetlands restoration/creation/enhancement

– Cutting, burning, or otherwise managing vegetation to increase habitat diversity/control nuisance fauna

Image courtesy of Liz Dancer


• Activities under FWW General Permit 16 must meet the following requirements:

– Minimal disturbance to wetlands/transition areas/state open waters

– Must not decrease the total combined area of wetlands/transition areas/state open waters (unless approved by the NJDEP)

– The area of habitat enhancement/creation shall be protected from any future development by a recorded conservation restriction or easement in accordance with N.J.A.C. 7:7A-12.

Image courtesy of Liz Dancer


• N.J.A.C. 7:7A-5.17 Freshwater Wetland

General Permit 17- Trails and Boardwalks

– Authorizes activities needed for construction of trails/boardwalks to be used by pedestrians/bicycles/non-motorized methods of transport.

– Disturbance must be limited to 1/4 acre of wetlands/transition areas/state open waters – No limit on Public Lands

– Trail/boardwalk must not exceed 6’ width (unless required to meet standards of Barrier Free Subcode of the Standard Uniform Construction Code).

N.J.A.C. 7:7A-5.17A General permit 17A -Non-Motorized, Multiple-use Paths ¼ acre disturbance limit


• FWW General Permit 17: Authorized trails/boardwalks shall: – Be located and configured to minimize disturbance to habitat – Incorporate features designed to educate the user about the importance of the

wetland/transition area/state open water (ex. Signs identifying wildlife, explaining hydrology, etc.)

• The authorized activities: – Must not interfere with the natural hydrology of the area – Must have a minimal impact on vegetation

Must delineate wetlands, show proposed activities, and prepare FWW General Permit application and submit to NJDEP.

NJ Flood Hazard Area Control Act

• Regulated Areas: – Regulated Waters – Floodway – Flood Hazard Area – Riparian Zone or

stream buffers of 50, 150, or 300 ft width, adjacent to regulated waters (streams, lakes, etc.)

NJ Flood Hazard Area Control Act Regulated Activities

• The alteration of topography through excavation, grading, and/or placement of fill

• The clearing, cutting, and/or removal of vegetation in a riparian zone

• Stewardship Activity: Invasive species removal

Image courtesy of Great Lakes Phragmites Collaborative

NJ Flood Hazard Area Control Act Proposed Permits

• N.J.A.C. 7:13-9.4: Proposed General

Permit 4: Creation, restoration, and enhancement of habitat and water quality values/functions.

– Sets forth authorization of activities for creation/restoration/enhancement of habitat and water quality values/functions.

– A companion to FWW General Permit 16 (authorizes similar regulated activities)


• Proposed FHACA General Permit 4 authorizes the following activities, provided those activities are necessary to create/restore/enhance habitat:

– Altering hydrology – Breaching a structure – Placing habitat improvement structures – Regrading to restore proper topography and elevation – Managing vegetation to increase habitat diversity and control nuisance fauna – Similar language to FWW General Permit 16

• The plan must be approved by one of the following: – NJ Division of Fish and Wildlife – NJDEP Office of Natural Resource Restoration – USFWS – USDA NRCS – A gov’t resource protection agency – A charitable conservancy

• Otherwise, the plan must be required or approved by a gov’t agency under a mitigation plan


• N.J.A.C. 7:13-9.13: General

Permit 13: Would authorize construction of a trail and/or boardwalk for use by pedestrians, livestock, or light vehicles

– A companion to existing general permits 17 and 17A in the FWPA rules. Much of the language and requirements are the same.


• Proposed rules allow stream channel restoration under a Flood Hazard Area Individual Permit.

– Issued to restore a natural condition to a regulated water that is significantly ecologically degraded

– May require: • Ecological enhancement • Riparian zone creation/restoration • Restoration of waterway’s natural flow • Removal of structures enclosing or lining

the water • Stabilization of channel using

vegetation/bioengineering • Minimization of adverse impacts related

to offsite flooding

NJ Coastal Rules

• Regulated Areas: – CAFRA Zone – Mapped Coastal Wetlands – Waterfront Development Area (above and below

the mean high water line)

NJ Coastal Rules Regulated Activities

• CAFRA – Construction of any development in a designated coastal area (N.J.S.A.

13:19-3 & 13:19-4; N.J.A.C.7:7-2.1)

• Wetlands Act of 1970 – Draining, dredging, excavation, or deposition of material; erecting of any

structure, driving of pilings, placement of obstructions in a mapped/delineated coastal wetland (N.J.A.C.7:7-2.2).

• Waterfront Development Law – The filling or dredging of, or placement or construction of structures, pilings, or

other obstructions in any tidal waterway (or certain upland areas adjacent to tidal waterways outside of CAFRA zone)(N.J.A.C.7:7-2.3).

• NJ Tidelands Act

NJ Coastal Rules Permits Available

• 7:7-7.22: Coastal General Permit

for avian nesting structures • 7:7-7.17: Coastal General Permit

for the construction of recreational facilities at public parks – Allows for fencing that does not

require permanent footings – Permits trail/boardwalk

construction in wetlands provided that certain conditions are met.

Image courtesy of LynnHaven River Now


• 7:7-7.29: Coastal General Permit for habitat creation, restoration, enhancement, and living shoreline activities. – Authorizes habitat creation, restoration, enhancement, AND living

shoreline activities necessary to implement a plan for the restoration, creation, enhancement, OR protection of the habitat, water quality values/functions, wetland buffers, and open water areas.

– Activities must be sponsored by a federal agency, state agency, or other entity.


• 7:7-7.29 Coastal General Permit authorizes activities provided they demonstrate compliance through:

– A fish/wildlife plan created or approved by the NJ Division of Fish and Wildlife – A project plan approved under the Partners for Fish and Wildlife Program (USFWS) – A project plan created by the USDA NRCS under the Wetlands Reserve Program,

Conservation Reserve Program, or similar program – A plan approved by the NJDEP Office of Natural Resource Damages (pertaining to

damage caused by spills, releases of hazardous substances). – A mitigation project approved by a gov’t agency (ex. USACE). – A plan carried out by a government resource protection agency (ex. A parks

commission). – A project carried out by a charitable conservancy. – A living shoreline plan implemented by a college or university for the purpose of research.


• 7:7-7.29 Coastal General Permit authorizes: – Altering hydrology – Breaching a structure – Placing habitat

improvement structures – Regrading – Vegetation management – Establishing a living shoreline

to protect/restore/enhance habitat.

Image courtesy of Press of Atlantic City


• To be eligible for the 7:7-7.29 Coastal General Permit, the proposed project: – Must be part of a plan for restoration/creation/enhancement of

habitat and water quality, wetlands buffers, and/or state open waters.

– Must be consistent with the requirements of the Wetlands Act of 1970, the Waterfront Development Law, CAFRA, and the Coastal Zone Management Rules.

– Will improve or maintain the values and functions of the ecosystem. – Will have a reasonable likelihood of success, or, if performed by an

educational institution, will advance the level of knowledge regarding living shorelines in the state.

7:7-7.29 Coastal General Permit Living Shoreline Activities

• Must comply with the following: – Project area below the mean high water line is one acre in size or

less (unless applicant is a county, state, or federal agency that demonstrates need for a larger area).

– Minimal disturbance to special areas – Where the living shoreline is intended to restore an existing

shoreline to a previous location, the living shoreline-including all associated fill-shall not exceed the footprint of the shoreline (as it appears on applicable Tidelands maps) • Exemption: a structural component of the project intended to reduce wave energy.

Federal Clean Water Act and Rivers and Harbors Act

• Regulated Areas: – CWA 404 – tidal waters, interstate waters and

adjacent wetlands within 1,000 feet – RHA 10 – Navigable waters: Tidal waters up

to the MHW line


Regulated Activities

• CWA 404 – Placement of dredged or fill materials into Waters of the US

• Section 10 – construction of any structure or obstruction – Dredging or disposal of dredged materials, excavation, filling,

rechannelization

Adminstering Agency: USACE (USCG May take Section 10 Jurisdiction)


Permit Available • Nationwide Permit #27 Aquatic Habitat Restoration, Establishment.

and Enhancement Activities. 33 CFR 330 – Authorizes restoration, enhancement, and establishment of tidal

and non-tidal wetlands and riparian areas, the restoration and enhancement of nontidal streams and other non-tidal open waters, and the rehabilitation or enhancement of tidal streams, tidal wetlands, and tidal open waters, provided those activities result in net increases in aquatic resource functions and services. Activities must be sponsored by a federal agency, state agency, or other entity

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Natural Lands Stewardship Workshop - Amy...

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