Submerged Aquatic Vegetation: Navigating NJDEP Waterfront Development Permit Process Difficult for Applicants
April 13, 2012 | Comments Off on Submerged Aquatic Vegetation: Navigating NJDEP Waterfront Development Permit Process Difficult for Applicants
Posted by Steven M. Dalton
Applicants seeking approval from NJDEP for waterfront structures such as recreational docks and piers often face the challenge of satisfying NJDEP’s Submerged Vegetation rule. The rule applies where submerged aquatic vegetation (SAV) exists or where water areas are mapped as SAV habitat. Under the SAV rule, boats must be moored at four feet depth of water, a provision that often leads to conflicts with other NJDEP rules concerning the appropriate length of piers, minimization of potential impacts, and impacts on navigation. A recent DEP Commissioner decision (Sourlis and Whitehouse v. NJDEP) discusses the burden applicants face when attempting to demonstrate that mapped SAV habitat areas are not capable of supporting actual SAV growth.
The decision was a victory for the applicant. The DEP Commissioner agreed with a decision of an Administrative Law Judge that a permit should be issued for the proposed dock because the applicant demonstrated by “clear and convincing evidence” that SAV habitat did not exist in the water area where the dock was proposed, even though the area was shown on NJDEP’s maps as SAV habitat. Therefore, the proposed mooring location in less than four feet depth of water was acceptable.
While the applicant in this case satisfied the “clear and convincing evidence” standard, future applicants may have difficulty achieving similar results given the fact sensitive nature of the Commissioner’s analysis. SAV habitat maps often do not reflect actual presence of SAV. But because SAV is mobile, applicants must demonstrate more than the absence of SAV to establish that SAV habitat mapping is not accurate. Of critical importance to the Decision was the significant disturbance to the mapped SAV habitat area from high volume boating activity due to the property being located adjacent to a municipal boat ramp. Testimony also supported disturbance from other recreational use of the water area such as pedestrian use and dog walking during low tide. Future applicant’s who challenge the validity of NJDEP’S SAV habitat maps will likely be judged based on comparison to the facts of this decision.
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