On September 7, 2010, the NJ Department of Environmental Protection (DEP) adopted amendments to its Costal Permit Program Rules, Costal Zone Management regulations and Flood Hazard Area Control Act Rules to facilitate the development of wind turbines and solar energy facilities. Some highlights of these amended and supplemented rules follow below.
Coastal Permit Program Rules
Under the amendments to the Coastal Permit Program Rules, wind turbines may be installed without having to obtain a CAFRA permit provided that they (1) are placed on or structurally attached to a legally existing building; (2) stand less than 200 feet high; (3) are not larger than 2,000 square feet in cumulative “rotor swept area” (such term being defined at N.J.A.C. 7:7-1.3, as amended); and (4) utilize a freestanding monopole structure for any portion of the tower of the wind turbine that is higher than 100 feet above the ground surface. Solar panels may be installed without a CAFRA permit, as well, provided that they meet certain specified conditions. The amendments to the Coastal Permit Program Rules also create new general permits and permits-by-rule for the wind and solar power installations.
Coastal Zone Management Regulations
The amendments to the Coastal Zone Management regulations allow for, among other things, the erection of wind turbines on the pier in Atlantic City provided that their height shall not exceed 200 feet and provided further that “[t]here shall be no occupancy above the 100-foot elevation.” These amendments also significantly revise the Coastal Zone Management regulations governing energy facility use. Under these revised regulations, which are codified at N.J.A.C. 7:7E-7.4, “[t]he construction of electric generating facilities using renewable forms of energy, such as solar radiation, wind, and water . . . is conditionally acceptable provided that such facilities do not significantly detract from scenic or recreational values, and for wind energy facilities, comply with” a host of requirements related to the minimization of adverse effects upon birds and bats (and upon marine organisms where the facility is located in tidal waters).
For example, among other protective measures, the amended regulations for energy facility use restrict the location of wind turbines that are higher than 200 feet or have a cumulative rotor swept area larger than 4,000 square feet to areas identified on the DEP’s Large Scale Wind Turbine Siting Map and require performance of pre- and post-construction monitoring “[i]n order to establish the flight patterns and distribution of avian species and bats and impacts of the operation of these facilities on these species.”
Flood Hazard Area Control Act Rules
Finally, under the Flood Hazard Area Control Act Rule amendments, there is now a new permit-by-rule for “the placement of one to three wind turbines.” This new permit-by-rule is codified at N.J.A.C. 7:13-7.2(b) and requires, among other things, that (1) each wind turbine shall be less than 200 feet in height and if higher than 120 feet “the tower shall be a freestanding monopole,” (2) the rotor swept area shall be no greater than 2,000 square feet, (3) no site disturbance shall occur within a floodway or “within 25 feet of any top of bank or edge of water,” (4) no portion of any wind turbine shall be situated within an area designated as threatened or endangered species habitat on the DEP’s Landscape Maps, except as otherwise expressly provided, (5) no lighting shall be placed on or directed at any wind turbine, except for lighting required by the Federal Aviation Administration and shielded ground level security lighting, (6) no construction activity shall constitute a “major development, as defined at N.J.A.C. 7:8-1.2,” (7) no vegetation within a riparian zone shall be cleared, cut or removed, except where previous development or disturbance has occurred and (8) all vegetated areas temporarily disturbed within a riparian zone shall be replanted with indigenous, non-invasive species upon completion of work.