Highland Regulatory Program in New Jersey

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Table of Contents

Introduction to the Regulation
Background Information
Detail of the Regulation
Impact of the Regulation and Examples
Conclusion
Work Cited

Introduction to the Regulation

The Highlands of New Jersey performs an important role as the source of drinking water to more than half of the state’s residents. Exposure to the degradation of these resources through land-use developments is dangerous because the residents would face more water scarcity. This called for the need for the authorities to come up with a plan to protect the highlands which also act as habitats for animal and plant species.

The Highland Act established a set of rules which were set to be implemented through the Highland Regulatory program. There was established the Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 et seq exist to protect the open space and drinking water for the New Jersey population. In addition to protecting the sources of drinking water, it could also help by making sure that habitats for wildlife species were protected. Again, pristine watersheds, wetlands and forest lands could also be saved through this initiative. About 398, 000 acres of the over 800,000-acre Highland region land consisted of the Highland Preservation Area whereas the rest would be categorized as the Highlands Planning Area. The Highland Open Waters including natural or artificial water bodies except the swimming pools are also in the Highland Region.

An increase in population and industrialization has led to the stress of natural resources which are limited through the establishment of new homes and industries, in addition to expanding the existing ones. Man’s activities can be largely blamed for causing environmental degradation, disruption of wildlife and human habitats, as well as causing pollution and there is a necessity to control these activities. This has called for a need for special regulations to curb the trend. Some activities carried out either initially or developmentally in the preservation area of the Highland Region in New Jersey are regulated to limit disturbance of the forest covers and other resources.

These activities include the development of non-residential or residential areas and state entities or local government units. Agricultural or horticultural development and uses are not regulated by the ‘major highlands development’. The DEP Highlands rules regulate individual property which is located within the Highland Planning Area and that individual property located in the Highland Preservation Area if the latter meets the ‘major Highlands development’ requirement. There are however some exceptions in the latter requisite.

Background Information

Surface water and underground aquifer sources played an important part in the provision of drinking water to the New Jersey citizens through public water companies. Untouched highlands have been indicated by Sean, Matthias, Kim & Daraius to be home to hundreds of brooks and streams filling aquifers and reservoirs in New Jersey. The authors indicate that the highlands housed over 247 threatened and endangered species. Development on these highlands has been increasing, and this increase can be associated with population growth which poses threat to highlands through reclamation.

New Jersey was said to be using up its land faster than any other state in the United States and that it was estimated that the state would run out of the available land within 30-50 years amidst the development rate witnessed in the last two decades. Pristine waterways were said to be facing a risk of contamination and therefore leading to a risk of diseases and deaths for humans, animals and plants. A third of waterways (watersheds at the fringes of major development activities) had their quality deteriorate during the 1990s in New Jersey. Increased urban land use has been linked with deteriorated water quality in data collected by the New Jersey Department of Environmental Protection. Observable deterioration of water quality was likely with a displacement of 5% of land in the watershed.

Increasing levels of sewage discharges and runoffs were the results of development in urban land that would lead to deteriorated water quality. Pollutants like fertilizers, sediments, and others would be delivered through runoffs while pollutants like chemicals and other industrial wastes would be delivered through discharge from these industries. Rivers that were in areas in New Jersey that were experiencing rapid developments were those that showed a decline in quality in the early and late 1990s. These rivers were located in the Northwest, Central and Atlantic coast areas and included Toms Rivers and Shark along the Atlantic Coast, Lawrence Brook in Central New Jersey, Wallkill and Pequest in Northwest New Jersey.

An example that could illustrate the impact of land development on water quality has been issued where a decline by 6.6% of the Lawrence Brook watershed and 7.5% of the Millstone River watershed was experienced between 1986 and 1995 as a result of the development of six of the top 20 municipalities with most new development between the same period of time. The aforementioned decline resulted in a 12% decline in water quality for both rivers in the 1990s in Madsen, Douglas & Dena. Between 1996 and 2001, more than 2000 building permits were issued by each municipality for residential development which could lead to further decline in water quality in the state.

The Wallkill River in the Highlands area of Northwest New Jersey which was reported by Madsen, Douglas & Dena to provide drinking water to roughly 100,000 people in New York and New Jersey recorded a 16% decline in overall water quality. A bigger percentage (9 out of 13 sites) indicated a decline in the quality of water during the 1990s. Pequest River realized a more than 11% decline in quality during the 1990s when 1058 acres of land were developed. Millstone River and Lawrence Brook realized a decline of about 12% in quality.

According to Sean, Matthias, Kim & Daraius, have proposed policy actions that could help to save the quality of the water included prevention of the new or expanded sewage discharges, minimizing impervious surface additions, maintaining buffer corridors and protecting forests and wetlands in vulnerable. The administration in New Jersey had put in place the Clean Water Act with anti-degradation provisions which could ensure that there would be no additional sewage discharge, shrinking of buffer zones and runoff pollution. Recommendations that would see that the scope and effectiveness of the program were ensured were availed by Sean, Matthias, Kim & Daraius and included finalizing the protection provisions of the act to the areas that were proposed, namely the 15 water bodies proposed by the administration and the seven trout streams also proposed.

Sectors and systems on which communities and individuals relied were set to be impacted through continued climatic changes in the United States according to the Center for Integrative Environmental Research, the US Economic Impacts and Costs of Inaction. The rise in temperature, regional droughts, water shortages among others would negatively impact agricultural activities (Sean, Matthias, Kim & Daraius). According to the aforementioned authors, ecosystems and human settlements would be put at risk because of continued fires. Unreliable water productivity would impede agricultural production as well as industrial and household activities. It is therefore important that man’s activities are regulated in order to make sure that the impacts on future trends are minimal.

The demand for drinking and irrigation water would rise up following higher temperatures. Water contamination is a further threat to human, animal and plant life. Therefore, guarding water resources does not only ensure that they are free from extinction to take care of the amount but that they are not contaminated because this would lead to diseases and deaths. Bacteria concentration in water goes up with lesser quantities of water, whereas increased industrial activities are likely to lead to more contamination.

Preservation of water is very important in any environment. The existence of people, plants and animals is derived from water. Sources of water including forests need to be protected from damage by human activities and development.

Detail of the Regulation

The administration aimed at protecting water resources in New Jersey through the Highlands Water Protection and Planning Act established in 2004. According to this bill, development in the Preservation Area would be regulated unlike in the Planning Area. The major developments in the highlands were supposed to be issued with a permit from the Department of Environmental Protection (DEP) with requirements for land use and water protection. Towns adversely affected by decreased property values can be compensated through an annually dedicated fund in the annual bill in addition to supporting other activities. Municipalities permitting voluntary receiving zones within their boundaries can be availed as financial incentives. Any decreased aggregate amount of property tax revenue as a result of the implementation of the aforementioned bill would be covered by the Highlands Protection Fund through the Highlands Municipal Property Tax Stabilization Fund.

Farmland preservation programs or the State’s Green Acres may buy land or developmental rights from farmers, and these farmers would be compensated through the landowner equity provisions.

In case a private property was located in the preservation zone the owners would require to know whether the activities are regulated by the highlands act. If the activities (they have proposed) are part of an approved woodland management plan, these activities would not be regulated by all provisions of the act, just the same case when the said activity is not and it happens to be normal harvesting which is part of an approved forest management plan.

Proposed activities that are agricultural or horticultural development but increase the impervious cover by more than 3% of the land area cannot be under the provisions of this act. A farm conservation plan which would be approved by the local soil conservation district would be the requirement for any developer for any activity which increases impervious cover by 3-9% of the land. A resource management systems plan which has been approved by the soil conservation district and DEP would be the requirement for the developer if the activity increases impervious cover by more or equal to 9% of the land area.

A DEP Highlands Preservation Area Approval would be necessary if the development results in a cumulative increase of ¼ acre impervious surface. If the development consisted of non-developmental activities disturbing a quarter acre of land, in case it would disturb an acre of land, or if it was a non-residential development, the requirement would be an environmental land use or water permit. Under the aforementioned conditions, the development will be prohibited if forest disturbance caused is unavoidable, but if it is avoidable, a disturbance up to 20 feet adjacent to a structure and 10 feet adjacent to a driveway for access to a non-forested area of a site (Rutgers Cooperative Research and Extension). Section 30 provides provisions for exempting some developments falling in the aforementioned category. Landowners can sell or lease developmental rights to the development authorities.

Impact of the Regulation and Examples

The Highlands Act has been blamed by people for violating private control of the property for the property earned by the New Jersey residents because it encourages massive and regulated control of lands. There is no freedom in the use of the private property because of the limitations the act introduces on land use. Whereas the right of usage of one’s property would have been provided for, the Act introduces a situation where a person can lose the rights of the usage of land (New Jersey Real Estate Report).

The Highland Act has sparked some controversy because of its many restrictions. It is clear that the activities on land cannot be prohibited because they play an important role in the provision of food to the populations, as well as acting as sources of raw materials for our industries. However, the extent of land use must be established to ensure that there is a balance in the use of land resources and maintenance of them and that those who are affected- i.e. the landowners get a fair share in the deal. The Act has played an important role in ensuring that increased population does not destroy resources and affect others who are secondary beneficiaries to them. An increase in population can be associated with increased pressure not only for resources like water and land but also increased developmental activities which lead to increased discharge of wastes into the streams.

The various activities involving land use can be grouped into agricultural, industrial or other activities that involve utilization of land. New developments spilling outwards to formerly undeveloped areas have led to pollution of the New Jersey waterways and the elimination or disruption of wildlife habitats. The major factors attributed to the declining stream quality in New Jersey are decreased forests and lands, increase in runoffs and variability of streamflow, increased paved surface and increased human activities and usage of chemicals according to Madsen, Douglas & Dena). Development near rivers through human activities has led to the disruption of buffer zones surrounding the rivers. These buffer zones will not be able to perform as they did before in removing sediments and chemicals that can kill fish and be less suitable for drinking for example (Clean Water Network and the National Resources Defense Council, 1997; cited in Madsen, Douglas & Dena).

The Highland Act cannot be associated with positive impacts alone. People have expressed discontentment over the Act. Expansion of developmental lands and towns can be blamed for the reduction of lands available for sustaining water sources. New Jersey State added 144,000 acres of urban area for example between 1986 to 1995 according to the Rutgers Center for Remote Sensing and Spatial Analysis and at this rate, the state lost 12 acres of forests and 7 acres of wetland filled every day (Hasse & Lathrop; cited in Madsen, Douglas & Dena). Commercial and urban centers come in with other requirements such as the need for road networks and other recreational facilities such as schools, hospitals, and public administration cuts which end up using more lands.

People have raised issues of fairness in the resulting reaction to The Highland Act. For example, it has been argued that the rich got out there lands out of the preservation areas whereas the rich are still stuck there and therefore they are charged heavily, thus the Regulation has been said to bring a situation where the poor are stuck in the preservation area and these carry the burden, which is worse than a condition where the rich would carry the burden.

The argument of water source conservation being the explanation for the restriction of the development of land in the preservation area has been doubted because there is no restriction of land development in those areas and towns where the water from the highlands is used. Some reaction has cast doubt on the interest by viewing that if the concern is nature and development, there should be the preservation of cheap land in Sussex County and Pennsylvania to save it for future generations. The result of the Act as has been claimed includes causing the poor people to move to the cheap lands of Sussex County and Pennsylvania where they destroy more of these lands whereas the rich can live cheaply in the Highlands as they can get the open spaces for free (Salkin).

Industrial activities may influence the quality of the water where sewage is a problem. The development of more industries will lead to increased sewage water production and this water must be disposed of. Where this water is disposed in rivers, it goes through sewage lines and septic systems whose failure may also cause degradation of water quality because they may contaminate groundwater. Provisions of the 1972 Clean Water Act required sewage treatment plants to improve their technology and they were able to improve the status of sewerage water by removing 85% of the solids and oxygen-depleting pollutants (NJDEP, 1992 cited in Madsen, Douglas & Dena).

However, water pollution through sewerage was reported to still cause a problem despite these developments, where treated sewage made up most of the flow in some rivers in heavily developed areas (Madsen, Douglas & Dena). An example is a flow at the Passaic Valley Water Commission public drinking water intake where half of the water flowing comprises sewerage water and these levels have been indicated to be higher during the drought conditions (NJDEP; cited in Madsen, Douglas & Dena).

One of the impacts of the Highland Regulation was to reduce deforestation through the Highlands Regional Master Plan. The clearing of forests would be regulated in the Forest Resource Area and High Integrity Forest sub-watersheds in the Existing Community overlay zone while no regulating of clearing of forests for agricultural development in the Conservation Zone. A requirement for low BMP exists to regulate the clearing of forests for residential development in the Protection Overlay Zone. The regulation was set to restrict the protection of highland open waters through the introduction of a buffer around the water features (Hirsch).

Agricultural activities not only result in the discharge of fertilizers and chemicals into the water bodies but that these activities involve the elimination of trees and vegetation that could result in other problems. These additional problems include loss of homes for animals, destruction of trees and therefore contributing to climatic changes and global warming, destruction of plants with added value such as medicinal value and elimination or reduction of vegetation that could act as food for animals.

The use of fertilizers, pesticides and other chemicals in the highlands can affect the quality of rivers downstream because when there is rainfall, the chemicals and fertilizers would be washed off into rivers and streams. Development through human activities like the building of homes and industrial buildings increases impervious surfaces like concrete sidewalks, parking lots, asphalt roads and driveways by displacing porous soils and plant life. In New Jersey, the impervious surface has been increased through building pavements and roads needed to serve new developments. Runoff increased by about 16 times by packing lots replacing a meadow according to the facts available for New Jersey (The Center for Watershed Protection, nd. cited in Madsen, Douglas & Dena).

Observable stream degradation could result from 5% coverage of watersheds with rooftops and concrete. The natural balance of different nutrients like phosphorus and nitrates in waterways can be affected by human activities and this may lead to the growth of harmful aquatic vegetation like algae. The animal and plant life in this water may be further affected if these algae consume the oxygen from the water as it dies and decays, through a process called eutrophication. In addition, the water becomes less useful or probable to support industrial activities like fishing and human consumption (Sharpley; cited in Madsen, Douglas & Dena). Water that has been contaminated with high levels of nitrates may cause a blue baby syndrome in infants less than six months of age including life-threat in extreme case situations where the ability of the blood to carry oxygen to cells around the infant’s body is weak. The industrial activities of a place may lead to the release of combustion byproducts in the atmosphere and as the runoff passes it may pick up a variety of these byproducts and cause further pollution of water.

As more people get to reclaim land for settling purposes, water bodies and sources that are located in the highland forests get exposed when these forests are eliminated and they may eventually dry out.

The New Jersey Department of Environmental Protection (DEP) was able to monitor the quality of stream through the Ambient Biomonitoring Network (AMNET) program established earlier on. Through this program, it would have been probable to track the changes in communities of insects and other organisms at different sites across the state and the information used to monitor quality, used to decide the rivers and streams which are impaired.

The number of organisms in polluted water may vary because of the fact that some organisms are sensitive and would die with a given level of pollution and degradation for example which would lead to oxygen deprivation. The level of pollution can also be estimated with the numbers of these organisms. It has been reported that the waterways in New Jersey (that have high levels of treated sewage water and are surrounded by urban centers) lack a wide range of pollution-tolerant species (Kennen) pointing to the fact that pollution has affected aquatic life. Maintenance of wetlands and forests that serve to provide water, food and habitats to these species may save the situation (Todd, 2000; cited in Madsen, Douglas & Dena).

The impacts of the Highland Act can be perceived in the positive sense that continued uncontrolled development in the highlands would have negative impacts on water sources that provide drinking water to more than half of the New Jersey residents. This is the case, especially with continued population growth. In addition, pollution of water through runways as a result of increased industrial and agricultural activity would have been a bigger problem if no concern was raised for the protection of the highlands.

The Highland Act established a valuation for lands based on the 2004 figures as a basis for negotiation for compensation to the landowners. The Act availed that the compensation could use the 2004 value as compared to the present if the latter was higher. This dual appraisal provision was set to end in June 2009 and although Executive Order 114 called for a reasonable extension, this call never made it through the Legislature. The value of the open spaces in the highland has been termed to have degraded since the act was passed, and the current value of land has been termed as paling in comparison to that of the pre-Highlands because of the intense regulation dictated on the property by the regulation (Alice’s Restaurant).

The impact of the Highland regulation has been more opportunity for farmers to gain access to funding, which could increase productivity. Some programs allow farmers to continue owning property and at the same time accessing grants. An amount of money which is the difference between the development value and the agriculture value can be paid to the farmers as a compensation fee to have their land easement transferred from them. The piece of land so affected can be transferred in the future only for the purpose of agricultural use and its present and future usage is limited. This is one way through which a farmer can participate.

The other option is where the owner’s development rights can be donated. This case befits that owner who stands a chance to benefit through significant income and estate tax benefits. The Farmland Preservation Program is managed by the State Agriculture Development Committee (SADC). The SADC may opt to purchase a piece of property outright at a fair-market value where preservation is of high priority and then auction the same with an agricultural deed restriction.

The government is able to reduce the potentials for the development of the land by compensating farmers. The TDR program through which farmers may get compensation for the development rights yet remain to own property has been criticized because there have been no mandatory receiving areas designated for the high-density developments. The impact fee of up to $ 15,000 per unit on the builder poses another difficulty to the success of the TDR because it would appear easier to build elsewhere or the builder to choose not to enter the TDR program and build at the zoned density. In addition, the regulation limits the development of amenities such as schools and infrastructure.

The Highlands Act has also placed the burden of protecting Highland resources on farmers only whereas the beneficiaries would be more people (Alice’s Restaurant). In addition, in spite of the deadline of June 30 this year for the Dual-Appraisal Process, no stable compensation fund was established for the diminishing value of the Highlands. The programs introduced through the Highlands Act, namely the Preservation Program and the TDR program have been faulted on the basis that they involve time constraints, professional analysis, permits and attorney and application fees, being onerous and selective among other challenges.

Conclusion

Water sources are important in providing drinking water and for other uses. Forestlands do not only play a significant source of water but also act as habitant to various animal and plant species. There is a need for protecting these resources which act as sources of water and habitats against disruption through human activities like urban and agricultural development. These developments not only expose the water sources to dry but also lead to contamination and pollution, which could lead to the spreading of diseases.

New Jersey Highland Area plays an important role in supplying water for homes and increased development of land in these areas and may continue to expose these water resources such that the citizens will face a lack of water for home and industrial use. Agricultural use of land in the Highlands could cause a risk of water resources through polluting the water because the activities involve the use of fertilizers and chemicals which could be dragged into the streams through runoffs. Further industrial development would result in the release of more sewerage water into the rivers, in addition to increasing the impervious areas as the government continues to build pavements, roads and other developments that serve the urban areas and the industries. The Highland Act was established in a view to regulate activities of land use in the Highlands of New Jersey through preservation programs. Farmers are allowed to lease development rights or sell them to receiving municipalities or groups for development for compensation. This program provided opportunities for separation of the property itself and the property rights and an opportunity for the farmers to earn a total of 17.5% from the discounting of their credits.

The government could reduce development activities in prone areas through the programs. These programs have however been indicated as inadequate in achieving their initial objective because they lead to overburdening the landowners in achieving this objective whereas the benefit would be harnessed by the community in general. The Act is therefore inadequate, further, because it leaves out areas for high-density developments and a $ 15,000 impact fee on builders would restrict the execution of the TDR program as it appears easier not to enter the program or to build elsewhere or in the zoned densities.

Work Cited

Alice Restaurant. Fighting for Political Truth & Accountability.
Clean Water Network and the National Resources Defense Council. Wetlands for Clean Water: How Wetlands Protect Rivers, Lakes, and Coastal Waters from Pollution. Albert Todd, “Making Decisions About Riparian Buffer Width,” in Riparian Ecology and Management in Multi-Use Watersheds, (Middleburg, VA: American Water Resources Association, 2000), 445-450.
Hirsch Guliet. NJ Highlands regional master plan: Critical water supply protection… or land preservation tool. 2008.
John Hasse and Richard Lathrop. Center for Remote Sensing and Spatial Analysis at Rutgers University, Measuring Urban Growth in New Jersey, 2001.
Kennen, J. U.S. Geological Survey, “Relation of Macroinvertebrate Community Impairment to Catchment Characteristics in New Jersey Streams” Journal of the American Water Resources Association 35, 939-955, 1999.
New Jersey Department of Environmental Protection. New Jersey State Water Quality Inventory Report, Section 305 (b). I-19, 1996.
New Jersey Department of Environmental Protection. Passaic River Water Quality Management Study, I-1, 1987.
New Jersey Real Estate Report. (2006). Homeowners speak out against Highlands.
Madsen, T. Douglas O’Malley and Dena Mottola. Rivers in dangers: The impact of the development of water quality in New Jersey. 2003.
Rutgers Cooperative Research and Extension. (2005). Highlands Preservation Act Flowchart.
Sean W., Mathias R., Kim R., and Darius I. Economic Impacts of Climate Change on New Jersey. Web.
Sharpley et, al. Agricultural Phosphorus and Eutrophication. U.S. Department of Agriculture, 1999.
Salkin, P. “New Jersey Highlands Act examined in law review”. Responses. 2007. Web.
Todd, A. “Making Decisions About Riparian Buffer Width,” in Riparian Ecology and Management in Multi-Use Watersheds, (Middleburg, VA: American Water Resources Association, (2000), 445-450.
The Center for Watershed Protection. “Site Planning for Urban Stream Protection: Chapter 2, The Importance of Imperviousness”. 2003.

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