DEP Forestry Wetlands BMP Manual Exempts Forestry From Wetlands Permits
The Supreme Court’s decision to gut wetlands protections under the Clean Water Act has shone a bright spotlight on the importance of clearly defining the scope of what’s know as “regulated activity”, see: Sackett v. EPA
In response to this decision, many falsely claim that NJ’s wetlands are adequately protected under NJ State wetlands laws, see:
Belying those claims, the recent case of DEP’s clearcutting over 20 acres of forested wetlands illustrates huge loopholes in NJ wetlands and other laws and regulations.
Specifically, the DEP wetlands laws exempt forestry and the Soil Conservation Service says that “Woodland / Forestry Management is recognized as a form of agriculture” and exempt from soil erosion and sediment control and other environmental laws.
So, I wrote to Senate Environment Committee Chairman Bob Smith to demand that he conduct oversight on and close these loopholes in his upcoming forestry legislation:
Dear Chairman Smith –
I write to you in light of the US Supreme Court’s controversial decision on the scope of the Clean Water Act regulation of wetlands as “waters of the United States”, a decision that highlighted the critical importance of clearly defining the scope and applicability of regulatory requirements (see: Sackett v. EPA ).
Given that you are considering forestry legislation that involves wetlands impacts and regulatory issues, I thought it important to bring the important issue described below to your attention regarding the NJ Soil Conservation Service’s interpretation of regulated activity under NJ’s State soil erosion and sediment control act with respect to “Agricultural or Horticultural Activities” that adversely impact wetlands.
The Gloucester County Soil Conservation District, relying on State law and regulation, has found that the Act is “not applicable” to an over 20 acre clearcut of mature forest and forested wetlands. SCS found that “Woodland / Forestry Management is recognized as a form of agriculture.”
This determination (provided below) was made with respect to the DEP logging at the Glassboro Wildlife Management Area (WMA). SCS regulations apparently define that clearcut logging and wetlands destruction as unregulated “Agricultural or Horticultural Activities”.
As you know, DEP issued enforcement action for the wetlands destruction.
Soil Conservation standards and soil erosion and sediment control permit requirements include, among other things, delineation of wetlands. see Appendix 2
“Delineating of streams, wetlands, pursuant to NJSA 13:9B and other significant natural features within the project area.”
Had DEP’s “forest management” work been subject to SCS permit requirements, the Glassboro WMA wetlands would have ben delineated and not destroyed.
Therefore, the exemption of “Agricultural or Horticultural Activities” that adversely impact wetlands is an important issue, given the scope of that definition as applied to “forestry management”.
In addition, the DEP “Forestry And Wetlands Best Management Practices Manual” (1995) includes “Regulations and Procedures For Wetlands And Buffers”.
see:
https://www.nj.gov/dep/parksandforests/forest/docs/nj_bmp_manual1995.pdf
That DEP BMP Manual states:
“Forestry activities have been granted a conditional exemption of the requirement of needing a wetlands permit”.
The condition requires approval of a Forest Management Plan by the State Forester.
For private lands, even that approval is not required:
“Normal silvicultural activities, ongoing as of 1987, are exempt from the requirement of a wetlands permit without an approved forest management plan, as long as the practices are conducted in accordance with the BMP’s”.
I strongly urge you to conduct oversight of DEP and SCS regarding these issues and close these loopholes in your forestry legislation.
Bill Wolfe
c: DEP Commissioner LaTourette
———- Original Message ———-
From: Karol Blew <Karol-Blew@gloucesterscd.org>
To: Bill WOLFE <>
Date: 05/24/2023 5:45 PM PDT
Subject: Re: EXTERNALRe: EXTERNALRe: Fwd: DEP staff false certification of soil conservation application
Mr. Wolfe –
In accordance with N.J.A.C. 2:90, Subchapter 1 – Soil Erosion and Sediment Control on Land Disturbance Activities
2:90-1.8 Clearing or Grading of Land
(a) Except as provided in (b) and (c) below, a person proposing to engage in or who is engaging in clearing or grading of more than 5,000 square feet of land shall be subject to the act unless such land disturbance is for agricultural or horticultural purposes. To demonstrate to the district that such activity is related to proposed agricultural or horticultural activities, the owner shall provide proof that the land is enrolled in a farmland preservation program, eligible for farmland assessment, qualifies for right-to-farm protections or possesses a farm conservation plan or forest management plan, timber harvest sale contract or other proofs deemed appropriate by the district.
Non-Applicable Activities –
Agricultural or Horticultural Activities:
The Act is not applicable to clearing or grading of land for agricultural or horticultural proposes under certain circumstances. Proof that the land is enrolled in a farmland preservation program, eligible for farmland assessment, qualifies for right-to-farm protections, or possesses a farm conservation plan or forest management plan, timber harvest sale contract or proofs deemed appropriate by the district must be provided to demonstrate that such activity is associated with agricultural or horticultural activities.
The project in question – habitat creation for the American Woodcock – consisted of clearing wooded/vegetated areas and replanting vegetation in those cleared areas. The following documents were submitted to the District in support of the Request for Determination of Non-Applicability – U.S. Fish & Wildlife Service American Woodcock Population Status, 2022; USDA NRCS Wildlife Insight No. 89, American Woodcock: Habitat Best Management Practices for the Northeast; American Woodcock Conservation Plan – A Summary of and Recommendations for Woodcock Conservation in North America; American Ornithology Research Article – Migratory status determines resource selection by American Woodcock at an important fall stopover, Cape May, New Jersey; and Glassboro Wildlife Management Area Woodcock Habitat Creation document.
Woodland / Forestry Management is recognized as a form of agriculture. The project is removing areas of vegetation and replanting other vegetation in those areas. No impervious areas (parking lots, structures, etc.) are included in this project.
As previously discussed over the phone, a project that is “Exempt” from the Soil Erosion and Sediment Control Act is not required to obtain a Request for Determination of Non-Applicability.
Appeal Process: Any person aggrieved by a decision or action of the district shall first submit a written request for reconsideration to the District within 10 working days of the action taken. The Request for Determination of Non-Applicability was approved on March 23, 2023.
Oversight: The State Soil Conservation Committee oversees the soil conservation districts.
Karol Blew
Gloucester Co Soil Conservation District
545 Beckett Road, Suite 107
Swedesboro, NJ 08085
(856) 589-5250