The department shall develop a system for the classification of freshwater wetlands based upon criteria which distinguish among wetlands of exceptional resource value, intermediate resource value, and ordinary resource value.

a. Freshwater wetlands of exceptional resource value shall be freshwater wetlands which exhibit any of the following characteristics:

(1) Those which discharge into FW-1 waters and FW-2 trout production (TP) waters and their tributaries; or

(2) Those which are present habitats for threatened or endangered species, or those which are documented habitats for threatened or endangered species which remain suitable for breeding, resting, or feeding by these species during the normal period these species would use the habitat. A habitat shall be considered a documented habitat if the department makes a finding that the habitat remains suitable for use by the specific documented threatened and endangered species, based upon information available to it, including but not limited to, information submitted by an applicant for a freshwater wetlands permit. An applicant shall have the opportunity to request the department that a documented habitat not result in the classification of a freshwater wetland as a freshwater wetland of exceptional value if the applicant can demonstrate the loss of one or more requirements of the specific documented threatened or endangered species, including, but not limited to wetlands or overall habitat size, water quality, or vegetation density or diversity.

b. Freshwater wetlands of ordinary value shall be freshwater wetlands which do not exhibit the characteristics enumerated in subsection a. of this section, and which are certain isolated wetlands, man-made drainage ditches, swales, or detention facilities.

c. Freshwater wetlands of intermediate resource value shall be all freshwater wetlands not included in subsection a. or b. of this section.

d. As used in this section “threatened or endangered species” shall be those species identified pursuant to “The Endangered and Nongame Species Conservation Act,” P.L. 1973, c. 309 (C. 23:2A-1 et seq.) or which appear on the federal endangered species list, and “FW-1, FW-2, trout production (TP) waters” shall mean those waters delineated as such by the department under regulations adopted pursuant to the “Water Pollution Control Act,” P.L. 1977, c. 74 (C. 58:10A-1 et seq.) and the “Water Quality Planning Act,” P.L. 1977, c. 75 (C. 58:11A-1 et seq.).

e. The classification system established in this section shall not restrict the department’s authority to require the creation or restoration of freshwater wetlands pursuant to the provisions of section 13 of this act.

L. 1987, c. 156, s. 7.