An Act exempting certain temporary farm structures from the permit and transition area requirements of 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 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, or the maintenance of drainage ditches; the installation of temporary farm structures, including hoophouses and polyhouses, and any grading or land contouring associated therewith on lands that were actively cultivated on or before July 1, 1988, have been in active agricultural use since then, were in active agricultural use at the time that the temporary farm structures were or are to be erected, and are identified as "ModAg" farmed wetlands on the Wetland Maps promulgated by the Department of Environmental Protection in 1988; 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.

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

2. This act shall take effect immediately and shall also apply to all pending and completed enforcement actions brought by the Department of Environmental Protection.

STATEMENT

This bill would exempt certain temporary farm structures, including hoophouses and polyhouses, from the permit and transition area requirements of the "Freshwater Wetlands Protection Act."

The "Freshwater Wetlands Protection Act" includes an exemption from the permit and transition area requirements for "normal farming" activities. The Department of Environmental Protection (DEP) has adopted regulations which incorporate, but do not expand on, the statutory definition of normal farming.

Farming activities in New Jersey have changed considerably since the enactment of the "Freshwater Wetlands Protection Act" in 1987. Nursery crops and nursery products now account for almost half of New Jersey's farm income, and approximately 90 percent of all nursery stock is grown for all or a portion of the year within temporary farm structures commonly known as hoophouses or polyhouses. These temporary farm structures have the effect of extending the growing season, allowing New Jersey farmers to compete with farmers from states with warmer climates and longer growing seasons. The use of hoophouses and polyhouses minimizes and more effectively controls the use of pesticides and herbicides. These structures also reduce the amount of irrigation water required for crops and, when properly installed and maintained, minimize soil erosion.

In 1988, the DEP issued maps delineating the location and extent of wetlands throughout the State. Included in the mapping process were areas which, according to infrared aerial photography, exhibited some of the characteristics of wetlands, but which were actively farmed as of December 23, 1985. These so-called "farmed wetlands" are labeled on the DEP wetlands maps as "ModAg" farmed wetlands and are defined in the DEP's "Freshwater Wetlands Protection Act" rules at N.J.A.C.7:7A-1.4 as follows:

"Farmed wetland" means a freshwater wetland, as defined in this section, which was both manipulated and cropped before December 23, 1985, and has been in active agricultural use continuously since then. This term also includes a wetland that was manipulated and used for pasture or hayland before December 23, 1985, which has been in active use for pasture or hayland continuously since then. An area that lies fallow as part of a conventional rotational cycle that does not exceed five years is considered to be in active agricultural use.

Farmed wetlands have largely been deprived of their wetland functions and values by ongoing manipulation and cropping. In recognition of this, the federal government considers areas that were actively farmed as of December 23, 1985 to be "prior converted croplands" that are treated as uplands for the purposes of section 404 of the federal "Clean Water Act."

All of the foregoing notwithstanding, the DEP has undertaken enforcement actions pursuant to the "Freshwater Wetlands Protection Act," alleging that the placement of temporary farm structures and the associated grading or contouring of land in pre-existing farm fields which met the definition of farmed wetlands was not a normal farming activity or that it involved bringing an area of wetlands into a use to which it was not previously subject. The initiation of such enforcement activities without the prior promulgation of regulations putting the farming community on notice that it considered such activities to be in violation of the "Freshwater Wetlands Protection Act" was inappropriate and unfair. This bill would apply to all pending and completed enforcement actions.