)-fwpa-rules.pdf · david haas 159. david hall, new jersey audubon society 160. amy hansen, new...

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NEW JERSEY REGISTERCopyright © 2017 by the New Jersey Office of Administrative Law

VOLUME 49, ISSUE 24

ISSUE DATE: DECEMBER 18, 2017

RULE ADOPTIONS

ENVIRONMENTAL PROTECTIONLAND USE MANAGEMENTDIVISION OF LAND USE REGULATION

49 N.J.R. 3849(a)

Adopted Recodifications with Amendments: N.J.A.C. 7:7A-1.4 as 1.3; 1.7 as 21.1; 2.3, 2.4, and 2.5 as 3.1, 3.2,and 3.3; 2.6 as 2.3; 2.7 as 3.4; 2.8 as 2.4; 2.9 as 2.5; 2.10 as 2.6; 2.11 as 2.7; 3.1, 3.2, 3.3, and 3.4 as 4.2, 4.3, 4.4, and4.5; 3.6 as 4.6; 4.1 as 5.2; 4.2 as 5.3; 4.3 as 5.7; 4.4 as 5.4; 5.1 through 5.21 as 7.1 through 7.21; 5.23 through 5.27as 7.22 through 7.26; 6.1, 6.2, and 6.3 as 8.1, 8.2, and 8.3; 6.5 as 8.4; 7.1 and 7.2 as 10.1 and 10.2; 7.4 as 10.3; 11.1as 18.1; 12.1 as 19.2; 12.2 as 19.5; 12.3 as 19.6; 12.5 as 19.7; 13.1 as 20.2; 13.2 as 20.3; 13.4 as 1.2; 14.3 as 20.6;14.4 as 20.8; 14.5 as 20.9; 14.6 as 20.4; 15.1, 15.2, 15.3, and 15.4 as 11.1, 11.2, 11.3, and 11.4; 15.5 as 11.9; 15.6 as11.10; 15.7 as 11.8; 15.9 as 11.13; 15.10 as 11.5; 15.11 as 11.6; 15.13 as 11.17; 15.15 as 11.7; 15.16 as 11.12; 15.18as 11.16; 15.19 as 11.15; 15.20 as 11.22; 15.23 as 11.25; 15.25 as 11.26; 15.26 as 11.11; 16.1, 16.2, and 16.3 as 22.1,22.2, and 22.3; 16.4 as 22.14; 16.5 through 16.9 as 22.4 through 22.8; 16.12, 16.13, and 16.14 as 22.11, 22.12, and22.13; 16.15 as 22.15; 16.17 through 16.20 as 22.17 through 22.20; and 17 as 13

Adopted New Rules: N.J.A.C. 7:7A-1.5, 4.1, 4.7, 5.1, 5.5, 5.6, 6, 8.5, 9, 11.14, 11.18 through 11.21, 11.23,11.24, 12, 14 through 17, 19.1, 19.3, 19.4, 19.8 through 19.11, 20.1, 20.5, 20.7, 21.2, 21.3, and 21.4

Adopted Recodifications: N.J.A.C. 7:7A-1.5 as 1.6, 16.10 and 16.11 as 22.9 and 22.10, and 16.16 as 22.16

Adopted Amendments: N.J.A.C. 7:7-9.27, 17.11, 17.14, 24.3, and 24.4; 7:7A-1.1, 1.3, 2.1, 2.2, and 15.12, and7:7A Appendix 1; and 7:13-2.1, 9.1, and 19.3

Adopted Repeals: N.J.A.C. 7:7A-1.2, 1.6, 2.12, 3.5, 4.5, 5.17, 5.22, 6.4, 6.6, 7:7A-6 Appendix, 7.3, 8, 9, 10,12.4, 12.6, 12.7 13.3, 13.5 through 13.9, 14.1, 14.2, 15.8, 15.14, 15.17, 15.21, 15.22, and 15.24

Freshwater Wetland Protection Act Rules

Flood Hazard Area Control Act Rules

Coastal Zone Management Rules

Proposed: May 1, 2017, at 49 N.J.R. 834 (a).

Adopted: November 16, 2017, by Bob Martin, Commissioner, Department of Environmental Protection.

Filed: November 21, 2017, as R.2017 d.242, with non-substantial changes not requiring additional public notice (seeN.J.A.C. 1:30-6.3).

Authority: As to N.J.A.C. 7:7: N.J.S.A. 12:3-1 et seq., 12:5-3, 13:1D-1 et seq., 13:1D-9 et seq., 13:1D-29 et seq., and13:9A-1 et seq.;

As to N.J.A.C. 7:7A: N.J.S.A. 13:9B-1 et seq., and 58:10A-1 et seq.; and

As to N.J.A.C. 7:13: N.J.S.A. 13:1D-1 et seq., 13:1D-29 et seq., 13:20-1 et seq., 58:10A et seq., 58:11A-1et seq., and 58:16A-50 et seq.

DEP Docket Number: 06-17-03.

Effective Date: December 18, 2017.

Expiration Dates: N.J.A.C. 7:7, November 15, 2021;

N.J.A.C. 7:7A, August 5, 2022;

N.J.A.C. 7:13, October 6, 2021.

The rule adoption can also be viewed or downloaded from the Department's website at www.nj.gov/dep/rules.

The Department of Environmental Protection (Department) is adopting comprehensive changes to the FreshwaterWetland Protection Act (FWPA) Rules, N.J.A.C. 7:7A, which implement the Freshwater Wetlands Protection Act (theAct), N.J.S.A. 13:9B-1 et seq., in order to protect the purity and integrity of the State's inland waterways and freshwaterwetlands from random, unnecessary, or undesirable alteration or disturbance, and to provide predictability in theprotection of freshwater wetland resources. Specifically, the adopted amendments, repeals, recodifications, and newrules consolidate similar provisions, simplify language, incorporate additional detail and description [page=3850]regarding the substantive standards that must be met to undertake regulated activities, harmonize certain proceduralprovisions with the Department's other land use rules, and create consistency with statutory amendments. TheDepartment is also adopting related amendments to the Coastal Zone Management (CZM) Rules, N.J.A.C. 7:7, and theFlood Hazard Area Control Act (FHACA) Rules to ensure consistency between the three chapters.

In response to public comment on the May 1, 2017 notice of proposal, and to ensure consistency between the landuse rules, the Department has made a number of changes on adoption. These changes are described below in responsesto comments and in the Summary of Agency-Initiated Changes.

Summary of Hearing Officer's Recommendation and Agency's Response:

The Department held two public hearings on the notice of proposal on Wednesday, May 24, 2017, at 6:00 P.M. atthe Batso Visitor Center Auditorium, Hammonton, and on Thursday, June 1, 2017, at 9:30 A.M. at the New JerseyDepartment of Environmental Protection Public Hearing Room, Trenton. Ms. Virginia Kop'kash, Assistant

49 N.J.R. 3849(a)

Commissioner, Land Use Management, was the hearing officer for the May 24th hearing and Ms. Kim Springer,Manager, Office of Policy Implementation, was the hearing officer for the June 1st hearing. Eight persons providedwritten and/or oral comments at the hearings. The hearing officer recommended that the rulemaking be adopted with thechanges described in the responses to comments and summary of agency-initiated changes below. The Departmentaccepts the recommendation. The hearing records are available for inspection in accordance with applicable law bycontacting:

Office of Legal AffairsAttention: DEP Docket No 06-17-03.Department of Environmental Protection401 East State Street, 7th floorMail Code 401-04LPO Box 402Trenton, NJ 08625-0402

Summary of Public Comments and Agency Responses:

The following persons timely submitted comments on the notice of proposal:

1. Sarah Abowitz

2. Karleen Aghevli

3. Grace Agnew

4. Cheri Alexander

5. Sue Altman

6. Margaret Amelia

7. Erik Anderson

8. Nora Anderson

9. Gloria Antaramian

10. Sherry Apgar

11. Beth April

12. Carroll Arkema

13. Gail Ashley

14. Alice Artzt

15. Jean Avins

16. Rudy Avizius

17. Margaret Babcock

18. Laurie Babicki

49 N.J.R. 3849(a)

19. Patricia Baird

20. Joseph Balwierczak

21. Susan Barnes

22. Joe Basralian

23. Tom Beatini

24. Allison Beesley

25. Barbara Belasco

26. William Beren

27. Nick Berezansky

28. Edward Bennett

29. Jeannette Bergeron

30. Rohan Bhargava

31. June Bilenky

32. Cori Bishop

33. Susan Blubaugh

34. Kevin Bolembach

35. Ryan Bolton

36. Kenneth Bonte

37. Jane Books

38. Jennifer Books

39. Judy Books

40. George Bourlotos

41. Toni Bowman

42. Lorraine Brabham

43. Martha Brennen

44. Julie Brenner

45. Frank A. Brincka

46. Robert Broderick

49 N.J.R. 3849(a)

47. Phyllis Brown

48. Scott Bruinooge

49. Ada Brunner

50. Reid Bryant

51. Joseph Buchanan

52. Terese Buchanan

53. Joe Budelis

54. Andrew Budwig

55. Jean Burnett

56. Bruce Bush

57. Rog Byn

58. Anthony Cacciapuoti

59. Mark Canright

60. Rebecca Canright

61. Carolyn Cantor

61A. Anne Carroll

62. Margaret Casagrande

63. David Case

64. Dorothy Cassimatis

65. Brian de Castro

66. Rosemarie Ceaser

67. D. Cerniglia

68. Helen Chaitman, HALT PennEast

69. David Charette, Langan Engineering

70. Tyler Christensen

71. Linda Christman, HALT PennEast

72. Morgan Clark

73. Josephine Coakley

49 N.J.R. 3849(a)

74. Christine Coari

75. Barbara Cochrane

76. Susan Coen

77. Jennifer Coffey, ANJAC

78. Martin Cohen

79. Sheila Cort

80. Norman Coryell

81. Julia Cranmer

82. Ellen Cronan

83. William Crosbie

84. Patricia Cronheim, Rethink Energy New Jersey and Hopewell Township Pipeline Taskforce

85. Barbara Cuthbert

86. William J. Cutts, Amercian Cranberry Growers Association

87. Joseph Darlington, Joseph J. White, Inc.

88. Mike De Blasi

89. Rudolph De Vries

90. Isabella DeAnglis

91. Sari DeCesare

92. Michael Dee

93. Jeremy Delaney

94. Michael DeLozier

95. Gloria DeSalvo

96. Joan Detyna

97. Kathleen Dezottis

98. Richard DiBianca

99. Sarina DiBianca

[page=3851] 100. Vincent DiBianca, HALT PennEast

101. William Doan

49 N.J.R. 3849(a)

102. Richard Dodds, Lower Delaware Wild & Scenic Management Council

103. Jennifer Downing

104. Ken Dolsky

105. Carolyn Dorflinger

106. Roger Dreyling, Monroe Township

107. Lesley de Dufour

108. Hogan Dwyer

109. Elaine Dzeima

109A. George Eckelmann

110. Stephanie Eckert

111. Thomas Eckert

112. Catherine Eiref

113. Janet Eisenhauer

114. Styra Eisinger

115. Alan Epstein

116. Naomi Epstein

117. Dean Escue

118. Jacqueline Evans, HALT PennEast

119. Katherine Evans, HALT PennEast

120. Lloyd Evans, HALT PennEast

121. Sharon Fadini

122. Judy Fairless

123. Rosemary Farr

124. Erika Feaster

125. Heather Fenyk, Lower Raritan Watershed Partnership

126. Christiana Foglio, HALT PennEast

127. Kathy Fox

128. Lawrence Franz

49 N.J.R. 3849(a)

129. Lorraine Franz

130. Gary Frederick

131. Jackie Freedman

132. Gregory Frick

133. Eleanor Friedl

134. Denise Frullo

135. Mary Gallagher

136. Victoria Galow

137. Maria Geiselhart

138. Sally Jane Gellert

139. Maryjane Genestra

140. Elizabeth George-Cheniara, New Jersey Builders Association

141. Ann Gillespie

142. Jule Girman

143. Alan S. Godber, Lawrence Brook Watershed Partnership, Inc.

144. Gregory Goellner, Coalition Against Pilgrim Pipeline

145. Steve Golin

146. Marfy Goodspeed

147. Bruce Gordon

148. Katalin Gordon

149. Sherry Gordon

150. Eugene Gorrin

151. Joyce Grant

152. Melanie Gray

153. Wendy Greenspan

154. Nancy Griffeth

155. Steve Gross

156. Martine Gubernat

49 N.J.R. 3849(a)

157. Adele Gugliotta

158. David Haas

159. David Hall, New Jersey Audubon Society

160. Amy Hansen, New Jersey Conservation Association

161. Lois Hansen

162. Brian Hanson-Harding

163. Kimberly Haren

164. Guy Harris

165. Louis C. Harris Jr.

166. Sarah Hartman

167. John Hawkshead

168. Kerry Heck

169. Michael Heffler

170. Mary Heinz

171. Donna Henry

172. Robert Hofstrom

173. Nicholas Homyak

174. Wanda Homyak

175. Gurdon Hornor

176. Al Hough

177. Andrew Howard

178. Georgina Hricak

179. Fairfax Hutter, Hopewell Township Citizens Against PennEast

180. Melinda Illingworth

181. Howard Iwahashi

182. Dorothy Jackson

183. Michelle Jacob

184. Alana Jamieson

49 N.J.R. 3849(a)

185. Susan Jamieson

186. Erica Johanson

187. Eric Johnson

188. Diane Jones

189. Lisa Jordan

190. Edward Jurenka

191. Dennis L. Kager, Sr.

192. Joan Kager

193. Caroline Kane

194. Adam Karas

195. Angela A. Karas

196. Daria M. Karas

197. Richard Karas

198. Barbara Karolski

199. Freda Karpf

200. Rajani Karuturi

201. Jessica Keener

202. Karen Kelleher

203. Robert Keller

204. Ann Kelly

205. Edward M. Kelly

206. Carla Kelly-Mackey

207. Laurel Kempe

208. Brian Kempf, New Jersey Association for Floodplain Management

209. Julie Kirsh

210. Philip Klimek

211. Mark Kneece

212. Suzanne Knudsen

49 N.J.R. 3849(a)

213. Denise Kobylarz

214. Christine Koehler

215. Boris Kofman

216. Liz Kohler

217. Eddie Konczal

218. Patricia Kortjohn

219. Thomas Koven

220. Greg Krawczyk

221. Susan Krista, Franciscan Response to Fracking

222. Kevin Kuchinski, Mayor, Hopewell Township

223. Carol Kuehn

224. Robb Kushner

225. Arnold Kushnick

226. Marion M. Kyde

227. Joseph Labuda

228. Norbert Langer

229. Loretta Larkin

230. Joseph Latore

231. Marilyn Latore

232. Mary Lauko

233. David Lavender

234. Mary A. Leck

235. Mary-Michael Levitt

236. John Lezak

[page=3852] 237. Shawn Liddick

238. Doris Lin

239. Patricia Linard

240. Dan Longhi

49 N.J.R. 3849(a)

241. Catherine Longi

242. Howard Lopshire

243. Michael Lucas

244. Janet Lyons-Fairbanks

245. Denise Lytle

246. James Macaluso

247. Linda Mack, Trustee, Monmouth County Audubon Society

248. C. Sharyn Magee

249. Jacqueline Majorossy

250. Kenneth Malkin

251. Kathy Manese

252. Cate Manochio

253. Debbie Mans, NY/NJ Baykeeper

254. Valerie Marks

255. Walter Marks, McCormick Taylor

256. Jay Marowitz

257. Ann Marshall, HALT PennEast

258. Jennifer Martinez

259. Michael Masley

260. Alexandra Mathews

261. Michael McCune

262. Michael McGuinness, NAIOP New Jersey

263. Margaret C. McHugh

264. Colleen McKee

265. Lonette McKee

266. Linda McKillip

267. Susan Meacham

268. Nicolo Messina, HALT PennEast

49 N.J.R. 3849(a)

269. Jennifer Meyer

270. Liz Mikre

271. Barbara Miller

272. Jim Miller

273. Lorraine Miller

274. Mary Miller

275. Tara Miller

276. Robin Millis

277. Alison Mitchell, New Jersey Conservation Foundation

278. Marianne Moessner

279. Robert Moore

280. Margaret Monks

281. Brian Morgan

282. Lauren Morse

283. Susan Mullins

284. Peter Mulshine

285. Virginia Murchison

286. Tara Murphy

287. Debra Neher

288. Heather Nemeth

289. Mike Neuhaus

290. Janine Nichols

291. Andrew Nurkin

292. Doug O'Malley, Environment New Jersey

293. Patricia Oceanak

294. Karen J. Ohland

295. Tullis Onstott

296. Alice Orrichio

49 N.J.R. 3849(a)

297. Peter Orsini

298. Patricia Palermo

299. Joanne Pannone

300. Jennifer Pantow

301. Janice Papenberg

302. Judy Papiez

303. C.W. Parker

304. S. Pasricha

305. Carol Pastushok

306. Nimesh Patel

307. Diana Patton

308. Michael F. Paul, Mohawk Canoe Club

309. Paul Payton

310. Jacquelyn Pedersen

311. Suzanne Pelkaus

312. Ruth Pennoyer

313. Claire Perrault

314. Hilary Persky

315. Diane Peters

316. Teresa Petersen

317. Ellen Piascik

318. Kathryn Pierro

319. Michael L. Pisauro, Jr., Stony Brook Millstone Watershed Association, Lower Raritan Watershed Partnership,Bergen SWAN, Rahway River Watershed Association, Save Barnegat Bay, Raritan Headwaters Association, CohanseyRiver Watershed Association, Musconetcong Watershed Association, Passaic River Coalition, Whippany RiverWatershed Action Committee, Lawrence Brook Watershed Partnership, New Jersey Audubon Society, New JerseyCouncil of Watershed Associations

320. Mike Pisauro, Stony Brook-Millstone Watershed Association

321. Renard Pongrac

322. Nancy Ponter

49 N.J.R. 3849(a)

323. Maureen Porcelli

324. Linda Powell

325. Suzan Preiksat

326. David Pringle

327. Jean Publieee

328. Noemi de la Puente, New Jersey Environmental Lobby

329. Rebecca Rabinowitz

330. Donna Racik

331. Rev. Susan Joseph Rack, Christ Presbyterian Church

332. Robert Rader

333. Joann Ramos

334. Gregory Recine

335. Mark Renna, Evergreen Environmental

336. Mrs. Bruce Revesz

337. Mr. Bruce Revesz

338. Mary Rickards

339. Anthony Rizzello

340. Sarah Roberts

341. Elizabeth A. Roedell

342. Stewart Rosen

343. Maurice Rosenstraus

344. Elliott Ruga, New Jersey Highlands Coalition

345. Vera Rushmer

346. Barbara Sachau

347. George Sarle

348. William Sanderson

349. Ellen Sandin

350. Eric Sandrow

49 N.J.R. 3849(a)

351. Michelle Sandrowsey

352. Cynthia Sanford

353. Leslie Sauer

354. Robert Scardapane

355. Ryan Scerbo, DeCotiis, FitzPatrick, Cole & Giblin LLP

356. Marjorie Schmidt

357. Douglas Schneller

358. John Schucker

359. Vicki Schwartz

360. Martin Seigel

361. Donald Sena

362. Stephanie Seymour

363. Georgina Shanley, Citizens United for Renewable Energy (CLUE)

364. Bill Sheenhan, Hackensack Riverkeeper

365. Robert Sherwood

366. Cynthia Shevelew

367. Vikram Sikand

368. Sandra Simpson

[page=3853] 369. Frank Sinden

370. Grace Sinden

371. Geri Siwulic, HALT PennEast

372. Charles Slonsky

373. Charles Slotkin

374. Ludlow Smethurst

375. Brandi Smith

376. Katherine Smith, Pinelands Preservation Alliance

377. Matthew Smith

378. David Snope

49 N.J.R. 3849(a)

379. Elizabeth Anne Socolow

380. Aniko Somogyi

381. Lotte Sonnenschein

382. Katherine Sparrow

383. Aurelle Sprout

384. Howard Steinberg

385. Faith Steinfort

386. Robert Steinfort

387. Teresa Stimpfel

388. Fred Stine, Delaware Riverkeeper Network

389. Daniel Stopfer

390. Clarence Stone

391. Gloria Stone

392. Sharon Stoneback

393. Barbara Stomber, Franciscan Response to Fracking

394. Constance Stroh

395. Pamela Sturt

396. Mary Sullivan

397. Lisa Suydam

398. Ronald Sverdlove

399. Eric Sween

400. C. Brant Switzler

401. Maureen Syrnick, HALT PennEast

402. Maureen Syrnick, Kingwood Township Planning Board

403. Victor Sytzko

404. Zofia Szebiotko

405. Patricia Sziber

406. Sasha Taner

49 N.J.R. 3849(a)

407. Sherry Taylor

408. John Teevan

409. Karin Tekel, EcolSciences, Inc.

410. Dena Temple

411. Russell Tepper

412. Paul Teshima

413. Samantha Thompson

414. Kathi Thonet

415. Jeff Tittel, New Jersey Sierra Club

416. Taylor Todd

417. Mary Tolmie

418. Patricia Tomeske

419. Kierstyn Toth

420. Rich Toth, Jr.

421. Norman Torkelson

422. Daphne Townsend

423. Rosanne Traficante

424. Minh Chau Tran

425. Debra Troy

426. Mary Tulloss

427. Daniel Tumpson

428. R. Vanstrien

429. Ruth H. Varney

430. Sebastiaan de Voogd

431. Lois Voronin, Kingwood Township Environmental Commission

432. William David Wagenblast

433. Jonathan Wall

434. Kirsten Wallenstein

49 N.J.R. 3849(a)

435. Sally Warner

436. Aaron Warren

437. Mary Watkins

438. Yael Webber

439. Zorina Weber

440. Kimi Wei

441. Peddrick Weis

442. Piper Weldy

443. Rosalind Westlake, HALT PennEast

444. Donna Wharton

445. Barbara White

446. Anne Whitehurst

447. Suzanne Wilder

448. Linda Williams

449. Lisa Williams

450. Martin Wissig

451. Tim Worts

452. Jessica Wortsmann

453. Marian Young

454. G. Yuzawa

455. Jane Zeff

456. Brook Zelcer

457. Barbara Ziemian

458. Andrew Zimmerman

459. Christine Zon

460. Laura Zurfluh

461. The Sierra Club submitted an identical comment letter on behalf of 367 individuals. The Department hasdesignated this standard letter as commenter 461. Where individuals added comments in addition to those appearing onthe form letter, their name is listed separately in the commenter list above.

49 N.J.R. 3849(a)

The comments received and the Department's responses are summarized below. The number(s) in parentheses aftereach comment identify the respective commenter(s) listed above.

General Comments

General

1. COMMENT: Amending the FWPA Rules for consistency and alignment with other land use regulatory programswhile also protecting wetlands and waters of the State is supported. (140)

2. COMMENT: The Department is commended for its efforts to reduce unnecessary regulatory burden, addappropriate flexibility and predictability, and provide consistency with Federal, local, and other State requirements.Procedural consistency with the FHACA Rules is a great step forward for the Department. The notice of proposal alsoaddresses many longstanding implementation issues. (262)

RESPONSE TO COMMENTS 1 AND 2: The Department acknowledges these comments in support of the rules.

3. COMMENT: Please provide a table of contents including a page directory similar to the FHACA Rules. (255)

RESPONSE: The courtesy copy of the adopted FWPA Rules posted on the Department's website will include a fulltable of contents with page numbers.

4. COMMENT: Diagrams or exhibits should be included whenever possible in the FWPA Rules to illustrate andclarify the requirements, such as the difference between disturbance in a transition area that must be counted under ageneral permit and disturbance that is allowed separately for access. (140)

RESPONSE: The Department agrees that in some cases illustrations, diagrams, and figures help to clarify therequirements of the rule text. The figures depicting scenarios under general permits 10 and 10A, for example, have beenretained in the adopted rules to aid understanding. While the Department believes the plain language of the rules, asfurther explained in the notice of proposal Summary, is sufficient to understand their substance, the Department willconsider suggestions to further clarify requirements through a visual aid within the rules themselves or in a guidancedocument.

5. COMMENT: Work is needed for water and power infrastructure but is not allowed. (173)

RESPONSE: The adopted rules discourage any development in wetlands and transition areas that has an alternativelocation outside of regulated areas. However, the Department recognizes that there are some situations where there arenot suitable sites outside of wetlands or [page=3854] transition areas, and, therefore, permits development thatsufficiently minimizes impacts to freshwater wetlands and their transition areas, and the environment. Several generalpermits authorize appropriately constructed infrastructure. For example, general permit 2 authorizes underground utilitylines and general permit 21 authorizes above-ground utility lines. For work in transition areas, water and powerinfrastructure projects may be authorized under a special activity waiver for linear development. Finally, projects maybe authorized under an individual permit, provided the stringent environmental standards can be met. Individual permitsallow activities at a larger scale than general permits, provided the activity is in the public interest and meets a numberof other environmental requirements.

Public comment period, notice of proposal logistics

6. COMMENT: The online comment submission portal should allow longer comments, considering the length ofthe notice of proposal. (327)

RESPONSE: The electronic submission portal located at: http://www.nj.gov/dep/rules/comments/index.html,

49 N.J.R. 3849(a)

allows for comments up to 20,000 characters. For comments longer than 20,000 characters, or approximately 10 pages,the commenter is directed to send an email to [email protected] and attach all comments as a Worddocument. These two options provide sufficient opportunity for a commenter to submit as many comments asnecessary.

7. COMMENT: The notice of proposal, including the table of recodifications, is too confusing to be useful. (327)

RESPONSE: The notice of proposal Summary, including, in this case, the "table of citations and recodifications"referenced by the commenter, is designed to explain the rationale for all the proposed changes within the notice ofproposal. Because this rulemaking included the relocation of many existing sections to new locations within the rules aspart of the Department's effort to make its land use rules as uniform as possible to make the rules more user-friendly, theDepartment included a table of citations and recodifications. The list identified the then-existing citations of the sectionsof the rule that were proposed to be relocated and the corresponding proposed new citation of that same provision, toassist the reader in more easily locating discussion of the proposed changes to that provision. Using the table, the readerwould be more easily able to determine how the rulemaking might impact sections of the rules most important to them.The Department believes that the use of such a table can be a valuable tool in allowing a reader to understand both howthe rules are being rearranged and in finding information in the Summary explaining the purpose behind any proposedchanges in addition to the relocation.

8. COMMENT: Due to the extensive nature of the proposed changes, 60 days is an inadequate period for comment.(415)

RESPONSE: As indicated by the commenter, a 60-day public comment period was provided, consistent with therequirements of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. (APA). In addition to publication of thenotice of proposal in the New Jersey Register, the Department provided additional notice of the notice of proposal on itswebsite, to media outlets in the Statehouse, by e-mail to the Department's rulemaking listserv, and publicized therulemaking by press release. Further, the Department conducted extensive stakeholder outreach in developing thisnotice of proposal.

A total of 829 individuals and agencies submitted comments within the 60-day comment period on a variety oftopics related to the rulemaking. Based on the extensive comments timely submitted during the 60-day comment period,the Department believes that there was ample opportunity to provide comments and discuss the rulemaking. Anadditional period for public comment would not likely result in the Department receiving comments relevant to theproposed rulemaking that raise issues or provide new information, data, or findings that were not previously raised orprovided during the development of the proposed rule or during the 60-day comment period.

Stakeholder process

9. COMMENT: The rule development process was corrupt. The stakeholder meetings only included a select fewwho were biased in favor of the Department and are motivated by profits. The public, as taxpayers, should have beeninvited to the meetings held to prepare the notice of proposal. In past rulemakings, public comments did not seem tohave an effect on whether a notice of proposal would be adopted. The flawed rulemaking process results in a lack ofconfidence in the contents of the notice of proposal. (327)

10. COMMENT: The Department should withdraw the current notice of proposal until more thorough scientificreview and input from local governments and environmental stakeholders can be gathered. Nearly all of the changesproposed weaken New Jersey's more stringent wetland protections, which are necessary in the face of additional stresseson the State's water resources due to increased development pressures. (84, 160, 179, and 222)

RESPONSE TO COMMENTS 9 AND 10: Stakeholder involvement is an important component of rule and policydevelopment. The purpose of the stakeholder process is to convene representatives of all affected interests to seek their

49 N.J.R. 3849(a)

experiences and perspectives on a given topic, so that well-informed and balanced decisions are made when draftingrules. In this case, stakeholders invited to participate in the process included a wide range of interests, as outlined in theResponse to Comments 18 and 19, including representatives of municipal governing bodies and environmentalstakeholders. The purpose of the stakeholder process is not to reach a consensus or to draft a rule that is supported byone interest over another, but to generate an informed rulemaking that reflects the Department's determination as to howto best satisfy its statutory mandates. The Department posted on its stakeholder webpage the sign-in sheet of allstakeholder meeting attendees, as well as audio recordings of all meetings. This information is available from theDepartment's website at http://www.nj.gov/dep/transformation/landuse/landuse_rules.html. Many of the amendmentsadopted herein reflect the suggestions and recommendations of the subcommittees and stakeholders. The purpose of therulemaking is to seek comments from the public, including both those who participated in the stakeholder process andthose that did not, on the rule that was developed following the stakeholder process. The Department reviews andconsiders all timely submitted comments concerning the notice of proposal received during the comment period andresponds to those comments in the comment/response section of the rule adoption.

Public comments often lead the Department to make corrections and changes on adoption, and/or to addresscommenters' concerns in future rulemakings. For example, several comments were received on the amendments to theFHACA Rules asking the Department to establish a hierarchy of mitigation alternatives, similar to that in the FWPARules, for different riparian zone mitigation alternatives, and asserting that on-site mitigation should be the mostpreferable alternative (see 48 N.J.R. 1067(a), particularly the Response to Comments 781 through 786). In response tothose comments, the Department proposed, and recently adopted, a mitigation hierarchy for riparian zone mitigationthat prioritizes on-site creation, restoration, or enhancement (see 48 N.J.R. 1014(a); 49 N.J.R. 2246(a)).

11. COMMENT: The rule changes have been proposed without adequate input from the environmental community;without scientific data, analyses, or legal justification; and without careful drafting and detail regarding the scope ofproposed definitions and language changes. (59, 115, 236, 277, and 398)

RESPONSE: As explained in the Response to Comments 9 and 10, the Department conducted a robust stakeholderprocess involving a number of internal and external stakeholders, including representatives from the environmentalcommunity. The notice of proposal Summary details the scientific and legal reasons the Department has determined theadopted changes are necessary and appropriate. As demonstrated in the notice of proposal Summary, the Departmenthas analyzed the probable effects of the amendments, including social impacts, economic impacts, environmentalimpacts, impacts on jobs, agricultural industry impacts, effects on small businesses, impacts on housing affordability,and impacts on the State's smart growth goals. The adopted amendments are the result of five years of internaldiscussions, stakeholder engagement, and a robust review process to ensure that the amendments achieve theDepartment's transformation goals.

[page=3855] General opposition

12. COMMENT: Development should not occur in areas that are protected. Economic progress can be made byinvesting in wind and solar energy rather than pursuing development in wetlands. (139)

13. COMMENT: The proposed rules will have serious negative consequences to New Jersey's wetlands becausethey permit filling of wetlands. (153)

14. COMMENT: The FWPA recognized that wetlands are among the most valuable and fragile natural resources inthe State and put restrictions in place to ensure wetlands are safe from pollution, intrusion, and development. However,the new rules would permit pipelines, highways, and other projects to destroy the characteristics that make wetlandsunique and valuable. The proposed rules sacrifice irreplaceable natural resources to development pressure and are a stepbackwards. (18)

15. COMMENT: New Jersey is already the most densely populated state with resources already suffering from the

49 N.J.R. 3849(a)

impacts of development, including flooding, which leads to runoff flowing into stressed rivers and streams, and damageto property. Wetlands are an essential part of New Jersey's ecosystem. The proposed amendments will allowdevelopment of the State's limited remaining wetlands, which will harm the environment and public health. These rulesshould not be adopted; no development or pollution should be allowed in any wetlands. (3, 8, 20, 39, 42, 43, 67, 80, 95,106, 108, 117 through 121, 130, 134, 143, 153, 157, 166, 168, 169, 187, 191, 207, 212, 216, 221, 224, 231, 232, 233,235, 250, 254, 260, 263, 267, 268, 270, 283, 286, 295, 298, 307, 318, 348, 363, 369, 370, 371, 373, 379, 380, 389, 396,400, 404, 411, 423, 426, 452, 454, and 457)

RESPONSE TO COMMENTS 12 THROUGH 15: The FWPA recognizes the many important functions and valuesof freshwater wetlands and their role in the natural and built environments. The Department has created andimplemented the freshwater wetlands permitting program in consideration of these functions and values. The FWPAspecifies that "it is in the public interest to establish a program for the systematic review of activities in and aroundfreshwater wetland areas designed to provide predictability in the protection of freshwater wetlands" and "that it shall bethe policy of the State to preserve the purity and integrity of freshwater wetlands from random, unnecessary orundesirable alteration or disturbance." However, the FWPA does not prohibit development in or near wetlands. Instead,the FWPA required the Department to establish a permitting program for such activities and establishes the criteria forapproving activities in freshwater wetlands. The FWPA does not specifically prohibit any type of development fromoccurring in or near wetlands as long as the criteria for approval in the Act are met. The adopted rules fulfill theFWPA's mandate by maintaining the Act's strict standards for development in wetlands and by only providing forapproval of activities with either a de minimis impact, individually and cumulatively, or those activities which, amongother requirements, do not have a feasible alternative location, result in the minimum feasible alteration or impairmentof the aquatic ecosystem, and are in the public interest.

16. COMMENT: The proposed rules raise significant environmental justice concerns for the most urbancommunities in New Jersey and will compromise the ability of future generations to benefit from the ecosystemservices provided by wetlands. (125)

RESPONSE: The adopted rules maintain the stringent protection of wetlands, transition areas, and State openwaters in the prior rules while aligning the permitting process in the FWPA Rules with that in the CZM and FHACARules. As explained in more detail in the Response to Comments 20 through 32, the notice of proposal does not weakenprotections and will, therefore, not compromise the ability of future generations to benefit from the many ecosystemservices provided by wetlands. The FWPA Rules apply equally to all areas of the State, from wilderness to the mostdensely populated cities. All of the rules recognize potential hardships in certain circumstances, which may be used, asappropriate to facilitate redevelopment.

17. COMMENT: The Department must withdraw these proposed regulatory changes and, based on sound science,data, and analyses, enforce New Jersey's existing regulations more aggressively to protect the public's remainingirreplaceable natural resources. (59, 114, 236, 277, and 399)

RESPONSE: The adopted rules create a more efficient permitting process, allowing the Department to focus effortson the activities with the greatest potential environmental impact while maintaining the stringent protection of wetlands,transition areas, and State open waters present in the prior rules. The adopted rules align the enforcement provisions ofthe FWPA Rules with those in the CZM and FHACA Rules, which will facilitate enforcement actions against violationsof the rules. The adopted changes will allow the Department to more effectively manage development in and nearfreshwater wetlands throughout the State and improve enforcement of these protective requirements.

18. COMMENT: Wetlands provide significant economic and environmental benefits. However, studies show thatNew Jersey has been losing wetlands, including a report by the United States Geological Survey showing that the Statelost 39 percent of its wetlands between the 1780s and the 1980s and a study by Lathrop and Hasse showing that anadditional 56,703 acres of wetlands were lost between 1986 and 2012. Therefore, at least 45 percent of New Jersey'swetlands have been lost. Other studies, such as New Jersey's Integrated Water Quality Monitoring and Assessment

49 N.J.R. 3849(a)

Report, show that there have not been significant improvements in water quality. Therefore, it is vital that New Jersey,through its regulations and permitting decisions, protect its remaining wetlands from degradation. As such, theDepartment should not adopt the rules as proposed, but should convene a true stakeholder process with relevant groupsto develop a new proposal that will strengthen the protections to our remaining wetlands. (319)

19. COMMENT: What is the science behind these proposed rule changes? (179)

RESPONSE TO COMMENTS 18 AND 19: The Department recognizes past wetlands losses and has, therefore,maintained stringent protections of freshwater wetlands, transition areas, and State open waters in the adopted rules.The improvements to the permitting process will allow the Department to more effectively administer the freshwaterwetlands permitting program and will direct Department time and resources to reviewing projects with the greatestpotential for environmental impact. In developing these rule changes, the Department evaluated successes andlimitations of the prior rules and, through analysis and collaboration with internal and external stakeholders, identifiedchanges that will allow the Department to more efficiently effectuate the purposes of the FWPA through the FWPARules.

As explained in the notice of proposal Summary, the Department sought input from local governments, thedevelopment community, the environmental community, and State and Federal agencies through three stakeholdermeetings held on April 11, 2011, April 29, 2011, and March 24, 2014. Issues discussed with stakeholders includedpotential changes to the application process, the standards governing development within freshwater wetlands, Stateopen waters and transition areas, and mitigation standards. In addition to local, State, and Federal agency participants,organizations, and companies participating in the stakeholder process included Evergreen Environmental, DuBoisEnvironmental, PSE&G, the New Jersey Audubon Society, Amy Greene Environmental Consultants, EcolSciences,Inc., Sokol, Behot & Fiorenzo, Maser Consulting, and the New Jersey Builders Association. A number ofenvironmental organizations, including the American Littoral Society, the Association of New Jersey EnvironmentalCommissions (ANJEC), New Jersey Conservation Foundation, and Stony Brook Millstone Watershed Association,were invited to participate in the process. The Department also held several meetings with members of the agriculturalcommunity including representatives from the New Jersey Department of Agriculture, the New Jersey Farm Bureau,and the American Cranberry Growers Association (ACGA) in order to address amendments intended to clarify theexisting exemptions of certain agricultural activities from the FWPA Rules.

20. COMMENT: Weakening wetlands protections will only hurt water quality and cause other issues in the LowerDelaware. (102 and 226)

21. COMMENT: Negative impacts of wetlands loss can be better managed with a landscape plan that prioritizesprotection of remaining [page=3856] wetlands. However, the proposed rules reduce those protections. Many of NewJersey's waters do not meet Federal water quality standards; it is important to not reduce existing protections. (125)

22. COMMENT: The proposed rules are opposed. New Jersey has some of the strongest wetlands protections in thenation; these protections must be upheld. (48, 59, 60, 75, 114, and 161)

23. COMMENT: Wetlands are critical for the environment. Wetlands protect against flooding, improve waterquality, recharge aquifers, and provide important habitat. Over half of New Jersey's wetlands have been lost in the last200 years and a couple thousand acres continue to be lost every year. The State cannot afford to lose more wetlands. (5,6, 13, 15, 16, 19, 22, 27, 29, 33, 35, 36, 37, 38, 39, 41, 45, 55, 57, 59, 65, 67, 73, 74, 76, 78, 82, 83, 92, 93, 97, 103,121, 122, 123, 124, 127, 133, 137, 138, 142, 148, 162, 165, 167, 170, 171, 173, 175, 182, 183, 204, 206, 212, 217, 219,220, 229, 237, 238, 239, 241, 242, 244, 245, 249, 256, 259, 265, 266, 271, 274, 275, 280, 282, 283, 289, 294, 301, 312,314, 316, 321, 326, 329, 330, 332, 349, 360, 374, 382, 383, 387, 394, 395, 406, 407, 410, 414, 427, 429, 435, 437, 442,446, 448, 449, 456, 458, and 461)

24. COMMENT: The State is already overdeveloped, which increases risk for natural disasters. There are also

49 N.J.R. 3849(a)

already many oil and gas pipelines, with plans to increase the number of pipelines. These man-made threats makewetlands protections essential. (223)

25. COMMENT: The notice of proposal to weaken the FWPA is opposed. The proposed changes would extendpermits for pipeline projects, could fragment wildlife habitat, leave communities vulnerable to flooding, and makewaterways more susceptible to pollution. (334)

26. COMMENT: Weakening the FWPA Rules is inconsistent with the goals and objectives of the Lower DelawareWild and Scenic Council Management Plan. (102 and 226)

27. COMMENT: The notice of proposal is an example of how the current administration has not used its powerwisely in regard to the environment. (139)

28. COMMENT: Protect the precious resource that is New Jersey's wetlands to avoid creating environmentaltragedy that is all too common in the State's history. (256)

29. COMMENT: Do not move forward with this notice of proposal. (5, 6, 12, 34, 75, 109, 130, 166, 173, 174, 207,214, 223, 228, 274, 313, 323, 411, and 455)

30. COMMENT: The proposed rules seem contrary to the Department's previous work to protect the environmentagainst unnecessary development. (21, 28, 50, 68, 71, 80, 98, 99, 100, 109A, 118, 119, 120, 126, 131, 157, 169, 194,195, 196, 197, 201, 216, 235, 254, 257, 267, 268, 293, 295, 315, 350, 351, 371, 390, 391, 400, 401, and 443)

31. COMMENT: The proposed rules are a retrenchment of the policy commitments made in the FWPA and willestablish barriers to successful conservation, restoration, and enhancement of the Lower Raritan Watershed. (125)

32. COMMENT: Wetlands are important to the health of humans, wildlife, and the environment in general.Benefits provided by wetlands cited by commenters include wildlife habitat (including habitat for threatened andendangered species and economically valuable fish species, which has decreased significantly over the last 20 years),water filtration and storage, flood control/protection, water quality benefits like aquifer recharge that ensure theavailability of safe drinking water, and public open space and enjoyment. Wetlands provide these benefits at no cost,while saving billions in potential costs from flood damage, water treatment, and more. Accordingly, wetlands must beprotected. The proposed amendments reduce protections and will have a negative impact on present and futuregenerations and the environment by, for example, increasing water pollution, flooding, and wildlife habitatfragmentation. Once wetlands are lost, they are difficult or impossible to recreate. The amendments should not beadopted. (1, 2, 3, 6, 7, 9, 10, 11, 12, 14, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 27 through 39, 41, 44, 45, 46, 47, 48, 50through 59, 61 through 68, 70, 71, 72, 73, 74, 76, 77, 78, 79, 80, 82, 83, 85, 89, 90, 91, 92, 93, 94, 96 through 103, 107,108, 109A, 110, 111, 112, 113, 115, 116, 118 through 127, 130 through 139, 141, 142, 143, 145, 147, 148, 149, 150,152, 153, 155, 156, 157, 158, 159, 162, 163, 164, 165, 167, 169 through 175, 177, 178, 181, 182, 183, 184, 186, 187,188, 192, 193, 194, 195, 196, 197, 198, 200, 201, 202, 203, 204, 205, 206, 209 through 220, 223, 225, 226, 227, 229,231, 232, 233, 235, 237, 238, 239, 241 through 254, 256, 257, 258, 259, 260, 264 through 272, 274 through 283, 285,286, 287, 289, 291, 292, 293, 294, 295, 296, 299, 301, 302, 303, 304, 305, 306, 307, 309, 310, 311, 312, 314, 315, 316,317, 318, 321, 322, 323, 324, 325, 326, 327, 329, 330, 331, 332, 333, 334, 339, 341, 342, 343, 345, 349, 350, 351, 352,353, 354, 356, 357, 358, 359, 360, 362, 364, 365, 366, 367, 368, 369, 370, 371, 372, 374, 375, 376, 377, 378, 380, 382,383, 385, 386, 387, 388, 390, 391, 392, 394, 395, 397, 398, 399, 400, 401, 402, 403, 405, 406, 407, 408, 410, 412, 413,414, 416, 418, 419, 420, 421, 422, 424, 425, 426, 427, 429, 430, 431, 432, 434, 435, 436, 437, 438, 439, 440, 442, 443,444, 446, 448, 449, 450, 451, 452, 453, 454, 456, 457 458, 460, and 461)

RESPONSE TO COMMENTS 20 THROUGH 32: The adopted amendments do not weaken the Department'swetlands protections, which represent a legacy of strong environmental protection dating back to the enactment of theFWPA and implementing rules during the Kean administration. The Department recognizes the many essentialfunctions and values of wetlands, including their role in maintaining water quality, managing stormwater, and providing

49 N.J.R. 3849(a)

wildlife habitat. The recognition of these functions and values guided the adoption of the FWPA Rules in 1989 andcontinues to guide the freshwater wetlands permitting program today.

The amendments, repeals, and new rules adopted herein align the permitting processes of the FWPA Rules with theCZM and FHACA Rules to the extent the respective enabling statutes allow following previous amendments to theCZM Rules (see 47 N.J.R. 1392(a)) and FHACA Rules (see 48 N.J.R. 1067(a)). This alignment streamlines permittingwithout sacrificing the substantive protections that are essential to maintaining freshwater wetland functions and values.Aligning the structure of the rules and the permitting process across the three land use programs promotesunderstanding of, and compliance with, the protective standards contained within each rule chapter. The proposed newgeneral permits-by-certification and proposed amendments to existing general permits and transition area waiverscontain specific acceptability standards and requirements that will ensure the environmental impact of new developmentand activities authorized under these permits is minimized. While in some cases amendments provide more flexibility,increasing flexibility is not equivalent to weakening protections. The Department embraces a results-based approach inbalancing the need to locate certain activities in or near wetlands with the public's interest in preserving freshwaterwetlands and State open waters; additional flexibility is acceptable if the result remains minimization of impacts to theState's freshwater wetlands and State open water resources. The FWPA Rules continue to set a high bar fordevelopment in and around wetlands even while increasing flexibility and streamlining processes.

33. COMMENT: Landowners of New Jersey have dedicated millions of tax dollars to farmland and open spacepreservation because they believe it is important to keep the State as "green" as possible. New Jersey landownersunderstand the connections between open space, which is vital to creating water recharge areas, and the protection ofwetlands and their buffers, in ensuring the State's economic health and future. Any effort to loosen regulatoryrequirements that keep water standards high run counter to the public's commitment to the State's environmental future.(8, 21, 28, 50, 68, 71, 80, 98, 99, 100, 109A, 117, 118, 119, 120, 126, 131, 157, 169, 194, 195, 196, 197, 201, 212, 216,235, 254, 257, 267, 268, 293, 295, 315, 350, 351, 371, 390, 391, 400, 401, 417, and 443)

34. COMMENT: New Jersey's preserved open space is an important asset for such a densely populated State andessential to quality of life in the State. The Department, therefore, must continue to protect wetlands. (19, 39, 198, 199,219, 349, 418, 439, 441, and 455)

RESPONSE TO COMMENTS 33 AND 34: The Department recognizes the value of open space and wetlands tothe quality of life in communities across the State. As explained in the Response to Comments 20 through 32, theDepartment is not weakening freshwater wetlands protections by adopting the amendments, repeals, and new rules inthe FWPA Rules. The adopted rules require minimization of [page=3857] impacts in and adjacent to wetlands and inmany cases require applicants to consider alternative locations and configurations for proposed regulated activities tominimize or eliminate adverse impacts to wetlands, transition areas, and State open waters. Generalpermits-by-certification and general permits authorize activities with only very minor individual and cumulativeimpacts and are strictly limited in their size and scope to ensure minimal impact on the quality and character of awetland. Individual permits authorize activities that the Department cannot predetermine will have minimal impacts,and are accordingly subject to more rigorous review standards. Among other requirements, activities authorized byindividual permits must be in the public interest, in recognition of the many public benefits that wetlands provide.

In addition to maintaining the protective standards of the prior rules, it is anticipated that the adopted amendmentsimprove the Department's protections of wetlands. The administrative alignment with other land use rules andreorganization and consolidation of provisions facilitates understanding of, and compliance with, the protectivestandards in the rules. Furthermore, amendments to general permit 16 that replace the requirement that activities aresponsored or substantially funded by a Federal or State agency or other approved entity with the requirement thatactivities are only approved by such an entity, expand the activities authorized under the permit to include alteration ofhydrology to enhance wetlands conditions, and remove the conservation restriction requirement, encourage the creation,restoration, or enhancement of water quality and habitat functions and values by improving organization and aligningthe requirement to be approved by a government agency or charitable conservancy with a similar general permit in the

49 N.J.R. 3849(a)

FHACA Rules.

35. COMMENT: Wildlife, particularly threatened and endangered species, are suffering from continued habitatfragmentation. Simplifying the process to fill or degrade wetlands will result in more fragmentation of habitat, to thedetriment of New Jersey's wildlife. (14, 18, 53, 54, 77, 85, 90, 91, 102, 107, 143, 163, 177, 178, 200, 205, 226, 248,251, 253, 258, 264, 267, 269, 291, 292, 307, 322, 331, 339, 364, 372, 421, 426, 432, and 450)

36. COMMENT: Wetlands must be protected to ensure continued survival of many species. (59, 188, 230, 265,284, 397, 412, 419, 420, and 456)

37. COMMENT: New Jersey is already overdeveloped and losing wetlands and open space, leading to a reductionin bird species. Protecting the birds' feeding, resting, breeding, and migration habitats is, therefore, especially critical.There must be a high barrier against filling or degrading wetlands. The notice of proposal to weaken regulations goes inthe entirely wrong direction and is opposed. (159 and 241)

RESPONSE TO COMMENTS 35 THROUGH 37: As explained in the Response to Comments 20 through 32, theDepartment recognizes the important role that freshwater wetlands, transition areas, and State open waters serve aswildlife habitat. The adopted rules will not have a negative impact on wildlife. First, general permits-by-certificationand general permits strictly limit the amount of disturbance allowed in wetlands, transition areas, and State open watersto ensure activities under these permits have a minimal impact individually and cumulatively. These permits, as well asindividual permits, are additionally subject to the condition that "the activities shall not destroy, jeopardize, or adverselymodify a present or documented habitat for threatened or endangered species; and shall not jeopardize the continuedexistence of any local population of a threatened or endangered species" to provide additional protection for the mostvulnerable species and their habitats (see N.J.A.C. 7:7A-5.7(b)3, in Conditions that apply to all generalpermits-by-certification and general permits and N.J.A.C. 7:7A-10.2(b)3 in Standard requirements for all individualpermits).

The Department's Threatened and Endangered Species Unit routinely conducts site inspections to confirm thepresence of threatened or endangered species habitat and assess the potential impacts on that habitat from proposedregulated activities. In addition, the FWPA Rules prescribe a 150-foot transition area around a wetland of exceptionalresource value. This classification of freshwater wetlands includes wetlands that are either present habitat of threatenedor endangered species habitat and wetlands that are documented habitat for threatened or endangered species thatremains suitable for breeding, resting, or feeding by these species during the normal period they would use the habitat.Impacts to protected transition areas are only allowed through transition area waivers, which are issued only when theDepartment determines that the activity, when performed in accordance with any conditions added to the waiver, doesnot result in a substantial impact on the adjacent wetlands, and does not impair the purposes and functions of transitionareas (see N.J.A.C. 7:7A-8.1(b)). For a special activity waiver for stormwater management and a special activity waiverfor linear development, the applicant must also demonstrate that there is no alternative feasible location for the activity(see N.J.A.C. 7:7A-8.3(d) and (e)). The purposes of a transition area listed at N.J.A.C. 7:7A-3.3 that may not beimpaired include the rule's recognition that wetlands function as a habitat area for activities, such as breeding, spawning,nesting and wintering for migrating, endangered, commercially and recreationally important wildlife, and that theyperform other functions important to wildlife and the environment in general (see adopted N.J.A.C. 7:7A-3.3(a) and(b)). For transition area averaging plan waivers, the Department presumes that an activity in a transition area wouldhave a substantial impact on the adjacent wetland and will not issue a transition area waiver if the wetlands adjacent tothe transition area in question is breeding or nesting habitat for a threatened or endangered species, unless the applicantdemonstrates that the activity would qualify for an individual permit. Under the individual permit standards at N.J.A.C.7:7A-10.2, the Department will only issue an individual permit if the proposed activities "will not destroy, jeopardize oradversely modify a present or documented habitat for threatened or endangered species; and shall not jeopardize thecontinued existence of a local population of a threatened or endangered species." The Department may issue a transitionarea waiver for an activity that does not fit any of the types of transition area waivers listed at N.J.A.C. 7:7A-8.1(a) if, inaccordance with N.J.A.C. 7:7A-8.1(d), the applicant documents that the activity will have no substantial impact on the

49 N.J.R. 3849(a)

adjacent wetlands (including impacts on sediment, nutrient, and pollutant transport and removal, impacts on sensitivespecies, and surface water quality impacts), which may include wildlife habitat suitability studies and other scientificdocumentation. In no case will the Department approve an activity that would result in a transition area of less than 75feet wide adjacent to a wetland of exceptional resource value and, in accordance with N.J.A.C. 7:7A-8.1(g), a transitionarea waiver for an activity adjacent to an exceptional resource value wetland must be conditioned on a transition areaaveraging plan that provides an average transition area width of at least 100 feet.

In the case of transition area waivers, the rules allow the Department to add equivalent protections throughconditions that ensure that an activity does not result in a substantial impact on the wetlands and does not impair thefunctions and values of transition areas, which, as specified above, includes habitat functions. (see N.J.A.C.7:7A-8.1(b)).

To be issued an individual permit, an applicant must also demonstrate that the proposed activity "will result in theminimum feasible alteration or impairment of the aquatic ecosystem including existing contour, vegetation, fish andwildlife resources, and aquatic circulation of the freshwater wetland and hydrologic patterns of the HUC 11 in which theactivity is located," among several requirements. The combination of the restrictions and protections in the FWPA Rulesare, therefore, protective of wildlife, including both threatened or endangered species, and species not so designated.

38. COMMENT: Considering the history of wetland losses and water quality degradation caused by inconsistentapplication of existing standards, only standards that would more stringently protect the remaining wetlands should beallowed. (59, 75, 114, 236, 277, and 399)

RESPONSE: The adopted rules are intended to create a more efficient and predictable permitting process. Theadopted amendments, repeals, and new rules will allow the Department to more effectively and efficiently administerthe freshwater wetlands permitting program. The chapter has been reorganized for clarity and substantially improves thefreshwater wetlands permitting process by relocating sections, consolidating similar provisions, simplifying language,and harmonizing administrative requirements with other Department rules. The adopted amendments improveconsistency between the Department's land use rules and within the FWPA Rules themselves, which will facilitate[page=3858] understanding and compliance among applicants and promote consistency in land use regulatory decisionsby the Department.

39. COMMENT: Water quality regulations should not be "easy"; what the regulations protect is precious andirreplaceable. While those seeking relaxed standards are motivated by profit, those fighting to keep strict standards haveno financial agenda and only want to ensure the environmental health and water quality of the State. Do not implementchanges that relax the existing protections. (8, 21, 28, 50, 68, 71, 80, 98, 99, 100, 109A, 118, 119, 120, 117, 126, 131,157, 169, 185, 194, 195, 196, 197, 201, 212, 216, 235, 254, 257, 267, 268, 293, 295, 315, 350, 351, 371, 390, 391, 400,and 443)

40. COMMENT: The proposed rules promote short-term economic gain but will have long-term negativeconsequences. (22, 36, 44, 65, 92, 173, 347, 385, 386, 433, 449, and 458)

41. COMMENT: The proposed amendments place economic development and financial profit above protection ofwetlands. The environmental resources of the State, including its wetlands and the environmental and public healthbenefits they provide (including drinking water, flood control/stormwater absorption, carbon storage, water and airpollution removal, local climate regulation, wildlife habitat, viewsheds, and recreation), are more important andvaluable than private gain. The State is already overdeveloped; once its remaining environmental resources aredestroyed, they cannot be replaced. The Department should not give in to political or development pressures and greed;the proposed rules should not be adopted. (2, 4, 8, 24, 88, 33, 35, 37, 50, 51, 52, 55, 65, 104, 106, 124, 125, 144, 160,173, 174, 176, 181, 187, 190, 206, 237, 239, 260, 270, 273, 282, 285, 288, 289, 297, 306, 309, 311, 312, 314, 324, 346,348, 352, 347, 358, 361, 374, 381, 382, 384, 397, 407, 417, 428, 433, 446, 448, 451, and 459)

49 N.J.R. 3849(a)

42. COMMENT: The rules should not be weakened to benefit various economic interests at the expense of theenvironmental resources the rules are designed to protect. Interests cited by commenters as benefiting from the proposedamendments include gas pipeline and energy interests, construction companies and developers, and heavy industry. (31,56, 123, 173, 190, 321, and 366)

43. COMMENT: Through New Jersey's recent history, there have been environmental changes that make the Statea less desirable place to live. While there is a need to reduce regulatory burden to attract companies to the State andinvigorate the economy, the consequences of environmental deregulation must be carefully considered. Seriousenvironmental changes are very difficult, if not impossible, to reverse. (424)

44. COMMENT: New Jersey has placed economic gain ahead of environmental protection for too long, with thedestruction of natural resources and the economy as the result. However, there is still plenty left to protect. Do notweaken protections under the misguided belief that it will improve the economy. (88)

RESPONSE TO COMMENTS 39 THROUGH 44: This rulemaking is intended to increase clarity through theconsolidation of redundant provisions, the simplification of language or, conversely, the incorporation of additionaldetail and description where necessary, and the alignment of procedural requirements across the Department's land usepermitting programs. These changes will simplify the permit process and facilitate greater compliance by prospectiveapplicants. The Department summarized rule amendments, repeals, and new rules in the notice of proposal Summary,which discussed changes in the context of several major topic areas. The Department also summarized the stakeholderprocess that guided the notice of proposal, which included local governments, the development community, theenvironmental community, and State and Federal agencies across three meetings in 2011 and 2014.

The Department recognizes the importance of a healthy environment in promoting a healthy economy. NewJersey's environment continues to recover from a history of industrial misuse, even in the face of immense developmentpressure. The Department's mission statement recognizes the role that the Department must play in balancing economicgrowth with environmental protection, stating that "it is crucial ... to recognize the interconnection of the health of NewJersey's environment and its economy, and to appreciate that environmental stewardship and positive economic growthare not mutually exclusive goals." The adopted FWPA Rules reflect the Department's continued commitment toprotection of this important environmental resource and accomplishment of its mission.

The adopted rules are intended to reduce unnecessary regulatory burden; add appropriate flexibility; provide betterconsistency with Federal, local, and other State requirements; and address implementation issues identified since thelast readoption with amendments of the rules in October 2008. In addition to increasing the amount of monetarycontribution required to compensate for activities that qualify for general permits under the rules to ensure that thecompensation required reflects current mitigation costs, the adopted amendments, repeals, and new rules consolidatesimilar provisions, simplify language, and harmonize certain procedural provisions with the Department's other land userules. While there will be a positive economic impact associated with the streamlining of land use permitting processesbecause time and money spent preparing applications is anticipated to decrease, the Department does not anticipate anymajor economic benefit for any particular interest. Further, the Department does not anticipate a positive economicimpact generated by more new development in and near wetlands because the adopted rules do not facilitatedevelopment nor do they provide for activities that would not have been authorized by the prior rules.

The adopted FWPA Rules continue to recognize the public's interest in protecting wetlands and State open waters.Accordingly, the rules provide that the Department will only issue an individual permit if the Department determines,after consideration of a number of factors (including the public interest in preservation of natural resources, the interestof the property owners in reasonable economic development, and the functions and values provided by the freshwaterwetlands and probable individual and cumulative impacts of the regulated activity on public health and fish andwildlife), that the activity is in the public interest.

As demonstrated above, the adopted amendments and new rules do not prioritize economic growth over

49 N.J.R. 3849(a)

environmental protection. Instead, the rules continue to reflect the Department's commitment to satisfy its role inprotecting the State's resources in the most efficient and successful manner possible.

45. COMMENT: The proposed rules include an extended time period for temporary impacts, an expansion tostream cleaning distances, and the extension of pipeline permits from five years to 10 years. On what scientific evidenceare these changes based? Or are they merely an industry wish list? (84)

46. COMMENT: The proposed rules facilitate development in and around wetlands, but reduce the Department'soversight over developers. (26, 141, 173, 174, and 296)

47. COMMENT: Please ensure that wetlands protections are not watered down by efforts to streamline thepermitting process. (447)

48. COMMENT: The proposed FWPA Rules do not provide sufficient regulation to hold developers accountable asthe State continues to be developed. The proposed rules should be rescinded in order to maintain New Jersey'senvironmental integrity for future generations. (406)

49. COMMENT: Many of the proposed changes would harm the protection of vital wetlands resources (whichbelong to the public) by lowering the standard of review that has previously been determined, based on policy andscience, essential to the protection of water resources. No changes should be made to the implementation of the FWPAat this time. (59, 114, 236, 277, and 399)

50. COMMENT: Developers and industries who seek to weaken or "streamline" regulations have proven they aremore concerned with profit than with environmental stewardship. Calls by these interests for longer permit durations orrelaxed regulations clearly demonstrate that profit motivation. In the face of global environmental changes andworldwide assault on the environment, maintaining or strengthening regulations benefits all rather than provide profitfor the few. The Department must stand strong in its defense of existing protections by rejecting the implementation ofnew exemptions and ways to circumvent the current rules. (8, 21, 28, 50, 68, 71, 80, 98, 99, 100, 109A, 118, 119, 120,126, 131, 157, 169, 194, 195, 196, 197, 201, 212, 216, 235, 254, [page=3859] 257, 267, 268, 293, 295, 315, 350, 351,371, 390, 391, 400, 401, and 443)

51. COMMENT: The proposed amendments to streamline and expedite permitting processes for the benefit of theregulated community will compromise the efficacy, accountability, transparency, inclusiveness, and openness of landuse decision making. (125)

RESPONSE TO COMMENTS 45 THROUGH 51: As explained in the Response to Comments 39 through 44above, the adopted rules are intended to increase the efficiency of the freshwater wetlands permitting program byaligning it with the flood hazard area and coastal permitting programs. While appropriate flexibility is incorporated intosome rule provisions, the stringent protections of freshwater wetlands, transition areas, and State open waters present inthe prior rules are maintained in the adopted rules. The clarifications proposed are anticipated to reduce the number ofviolations of the FWPA Rules by facilitating the public's understanding of the requirements. Much of the adoptedamendments, repeals, and new rules serve to align the organization, structure, and processes in the FWPA Rules withthose in the CZM and FHACA Rules to increase efficiency and predictability in the permitting process.

The three specific changes referred to by the commenter are intended to align the requirements across the three landuse permitting programs and, in the case of stream cleaning activities, ensure consistency with amendments to theStream Cleaning Act that became effective on January 11, 2016 (see P.L. 2015, c. 210). See the Response to Comments147 through 156 for more explanation of how the Department will implement amendments to the definition of"temporary disturbance" and the Response to Comments 366 and 367 for more detail on amendments related to streamcleaning. As explained in more detail in the Response to Comments 99 through 112, the adopted rules do notsubstantively change the Department's regulation of utility line projects. With reference to the concerns about extendedpermit duration, the rules have for many years provided for the potential extension of the original five-year permit

49 N.J.R. 3849(a)

duration upon application to the Department with the total term of the extended permit limited 10 years. TheDepartment had proposed to allow some particular permits to be valid for up to 10 years without the need forapplication for extension. While a maximum term, including the duration of the original permit and an extension, willstill be 10 years, as explained in the Response to Comments 227 through 234, the Department has not adopted theproposed change and will continue to require that applicants seeking to continue activities past the initial five-year termof the permit seek Department approval of an extension of the original approval prior to expiration of the initial permitduration.

The adopted rules will continue to effectively regulate activities in and near freshwater wetlands and State openwaters and in many cases more effectively protect these important resources. The adopted rules continue to providetransparency in the permitting process by requiring public notice of all applications, publishing notice of eachapplication throughout the permit review process, providing public comment periods on applications, and providing forpublic fact-finding meetings for applications with significant interest from the public.

52. COMMENT: The notice of proposal states that the purpose of the amendments is to align various aspects of theFHACA, CZM, and FWPA Rules to the extent the enabling statutes allow. However, each of the enabling statutesregulates separate aspects of the development approval process and separate ecosystems. The regulatory necessity orbenefit to aligning standards is not evident in the text of the notice of proposal. The Department should providejustification in public safety and environmental contexts for why alignment is desirable beyond ease of permitting.(208)

RESPONSE: While the commenter is correct that the enabling statutes of the Department's land use rules arefocused on different resources, it is incorrect to state that they are concerned with separate aspects of the developmentapproval process. The enabling statutes of the three land use rule chapters all identify the spatial boundaries of theDepartment's jurisdiction and the activities that require Department approval within those boundaries. The enablingstatutes all provide for the Department to establish and carry out a permitting program to grant or deny permission toconduct regulated activities within regulated areas, and provide for enforcement of the requirements of the statutes andrules promulgated pursuant thereto. While the different statutes define their jurisdictions differently, in many cases theareas regulated under different statutes overlap. In the past, this overlap has caused considerable confusion where theprocesses of the various rules did not align, creating an inefficient and, in the view of applicants, unpredictablepermitting experience. The Department has previously amended the CZM Rules (see 47 N.J.R. 1392(a)) and theFHACA Rules (see 48 N.J.R. 1067(a)) to align these chapters and address various inefficiencies and inconsistencies.The adoption of amendments to the FWPA Rules now ensures the rules governing the process for obtaining a permitwill be standardized across all three chapters as much as possible and will be organized in a uniform order and format.This transformation is not intended to make permitting "easier" in the sense that there is a lower bar for demonstratingcompliance with all applicable rules, but is intended to streamline the administrative aspects of the permitting process tomore efficiently implement the freshwater wetlands, flood hazard area, and coastal permitting programs. Creatingconsistent, clear, and uniformly organized regulations facilitates compliance with the protective requirements of thethree land use rule chapters on the part of applicants and facilitates a consistent and timely review on the part ofDepartment staff. Improved efficiencies in the Department's review of activities carefully circumscribed to ensure onlyminor impact allows Department resources to be dedicated to the review of other proposed activities that couldpotentially have greater impacts to environmental resources. The result is a more efficient and navigable permittingprocess that does not sacrifice the stringent resource protections unique to each rule chapter.

53. COMMENT: Considering recent efforts by the United States Environmental Protection Agency (USEPA) toroll back the Waters of the United States rule and its wetlands protections, New Jersey's wetlands need the strong levelof protection provided by the Department for generations. (292)

54. COMMENT: The State is trying to weaken the FWPA Rules at the same time as the Federal governmentweakens its regulations. (46, 51, 52, 59, 189, 193, 227, 259, 271, 276, 352, 360, 394, 395, 403, and 425)

49 N.J.R. 3849(a)

55. COMMENT: The Department must maintain or strengthen its wetlands protections as the Federal governmentis seeking to reduce its regulations. (220, 290, 324, and 460)

56. COMMENT: The Freshwater Wetlands Protection Act became law under Governor Kean. To weaken this actwould be a detriment to New Jersey's environment, especially as current Federal policy has been to cut funding towetlands and water quality protection. (308)

RESPONSE TO COMMENTS 53 THROUGH 56: The Department's authority for regulating development withinfreshwater wetlands and State open waters is derived from both Federal and State law. Since March 2, 1994, inaccordance with Section 404(g) of the Federal Water Pollution Control Act (also known as the Clean Water Act), 33U.S.C. §§ 1344(g), New Jersey's freshwater wetlands program has operated in place of the Federal wetlands permittingprogram in most of New Jersey. In waters where the United States Army Corps of Engineers (USACE) has retained itsjurisdiction to implement the Federal 404 program, both the USACE and the State permitting programs apply. Inaddition to the authority assumed under the Federal Clean Water Act, the FWPA establishes the Department's authorityto establish a permitting program for activities in freshwater wetlands, transition areas, and State open waters. TheFWPA Rules include definitions that explain the areas regulated by the Department under these rules, includingdefinitions of "waters of the United States" and "waters of the State." "Waters of the United States" are those waterssubject to the requirements of the Clean Water Act, which, pursuant to the assumption discussed above, are regulated inNew Jersey under the FWPA Rules. The definition of "waters of the State" has historically encompassed more wetlandsand waters than the definition of "waters of the United States." For example, the USACE, in implementing the CleanWater Act, does not take jurisdiction over isolated wetlands, while the Department does. Therefore, any waters in anarea regulated under the FWPA Rules that meet the definition of "waters of the United States" will also be protected as"waters of the State." In cases where the water does not meet the definition of "waters of the United States" and,therefore, [page=3860] would not be regulated under Federal law, but does meet the definition of "waters of the State,"activities would be regulated under the FWPA Rules. For the waters listed above that are jointly regulated by the Stateand the USACE, a change in the USACE's jurisdiction will not affect the Department's jurisdiction. The activities inthose waters would continue to be regulated under the FWPA Rules or CZM Rules. In sum, any change to the USEPA'sdefinition of "waters of the United States" will not change the Department's authority to regulate activities in freshwaterwetlands, transition areas, and State open waters in New Jersey.

The adopted rules add flexibility, where appropriate; address implementation issues; provide consistency with otherFederal, local, and State requirements; align procedures with flood hazard and coastal permitting procedures, wherepossible; and simplify language to improve the permitting process and reduce the cost of compliance. The proposedchanges retain the appropriate level of stringency to ensure compliance with Federal law and, in many cases, continue tobe more stringent than the Federal permitting program to ensure sufficient protection of the State's freshwater wetlandsresources.

57. COMMENT: Because the Federal government is in the process of developing sweeping changes to section 404of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq., and of the delegation of authority under §1344(g) to implement and enforce a New Jersey Freshwater Wetlands program, it is premature and unwise to adoptsweeping changes in the State's freshwater wetlands regulations before understanding the impact on New Jersey and theState's ability to adequately protect the ecological values of wetlands and the public benefits derived therefrom. Inresponse to Federal law changes, the Department may be required to significantly increase its jurisdiction in order tomaintain the current level of protection against impairments to water quality and quantity provided today, which aredirectly linked to quality of life and economic stability. It is in the best interest of the people of New Jersey, and of theDepartment in preventing an unnecessary and burdensome challenge to Department resources, to delay amending theFWPA Rules until changes to section 404 of the Federal Water Pollution Control Act are made. (344)

RESPONSE: The adopted rules reduce unnecessary regulatory burden; add appropriate flexibility; provide betterconsistency with Federal, local, and other State requirements; and address implementation issues identified since thereadoption with amendments of the rules in October 2008. The adopted rules also consolidate similar provisions,

49 N.J.R. 3849(a)

simplify language, and harmonize certain procedural provisions with the Department's other land use rules. Thesechanges will positively impact the freshwater wetlands permitting program and the public regardless of any changes thatmay or may not occur on the Federal level. The Department does not believe that there is any reason to delay theadoption of these rules pending potential Federal law changes. While the President has recently directed the USEPA andUSACE to review and rewrite the 2015 "Clean Water Rule," amendments to the Federal rule will not have any impacton New Jersey's assumption of wetlands permitting authority under the Federal Act, as explained in the Response toComments 53 through 56 above.

58. COMMENT: Wetlands provide $ 150,000 per acre in environmental and flood control benefits according to theDepartment's own report. In addition, one acre of wetlands can hold back more than a million gallons of water during aheavy rain. These benefits must be recognized and protected. (12, 22, 35, 46, 51, 52, 62, 63, 76, 81, 85, 131, 143, 218,232, 233, 243, 244, 261, 281, 294, 306, 323,327, 329, 334, 338, 343, 362, 392, 395, 399, 408, 414, 427, 430, 431, 445,451, 454, and 460)

59. COMMENT: New Jersey has been affected and will continue to be affected by sea level rise and climatechange, including increasingly heavy and frequent rains and resultant flooding. In light of these current and futurechanges, protection of wetlands and the functions they provide is even more important. Protections should be increased,not weakened. (12, 14, 18, 22, 25, 35, 46, 48, 51, 52, 53, 55, 62, 63, 74, 76, 77, 81, 82, 85, 90, 91, 102, 107, 130, 131,138, 141, 143, 163, 177, 178, 180, 188, 193, 200, 205, 218, 223, 226, 232, 233, 243, 244, 248, 251, 253, 258, 261, 264,267, 269, 281, 291, 292, 294, 306, 307, 322, 323, 327, 329, 331, 334, 338, 339, 343, 362, 364, 369, 370, 372, 392, 395,399, 408, 414, 421, 426, 427, 430, 431, 432, 433, 445, 450 451, and 454)

60. COMMENT: Amending the FWPA Rules provides an opportunity to incorporate climate change into theregulatory process, as has been done with great success in other states like New York, which has a law requiring theNew York Department of Environmental Conservation to adopt sea-level rise predictions into regulation. For example,mitigation proposals are required to have a high probability of success, but it is impossible for a regulator to make thatdetermination without considering climate-related events known to be occurring in the short-term and to be likely toaccelerate in the long-term. (277)

61. COMMENT: Climate change is already affecting agriculture and is increasing the spread of insects and fungithat affect trees. Wetlands and other open space need to be protected as insurance against climate change. (137)

62. COMMENT: Wetlands are flood-prone, which leads to damage to homes and infrastructure built within andnear them. (340)

63. COMMENT: Protecting freshwater wetlands is especially important because of climate change and sea levelrise. The infiltration of saltwater into freshwater wetlands is inevitable, so freshwater wetlands will already be lost evenwithout these misguided new rules. (56 and 108)

64. COMMENT: Proposed amendments concerning development in and around wetlands will have importantimplications for floodplain management. The notice of proposal will encourage wetlands disturbance and weaken NewJersey's robust protection of wetlands and waters. While New Jersey's most high-profile flooding events result fromcoastal storm surge, freshwater wetlands perform indispensable floodplain management functions. (208)

RESPONSE TO COMMENTS 60 THROUGH 64: The adopted amendments will have no effect on flooding. TheDepartment recognizes that New Jersey has substantial and persistent flooding problems and that uncheckeddevelopment can exacerbate both local and regional flooding. The Department regulates development in wetlands underthe FWPA and in flood hazard areas and riparian zones under the FHACA Rules to ensure development proceeds in anenvironmentally sound manner to minimize these impacts. As explained in the Response to Comments 20 through 32,the adopted amendments do not reduce wetlands protections and will, therefore, not increase the effects of storms orflooding due to increased wetland loss. Furthermore, the impact of development proposed in the flood hazard area

49 N.J.R. 3849(a)

and/or riparian zone on flooding is assessed via a review of a flood hazard area permit under the FHACA Rules, whichare not substantially changed by the adopted amendments. The FHACA Rules recognize that the extent of floodingwithin the State can increase over time due to a variety of factors and that New Jersey's communities need to adapt tochanging conditions. The Department regulates, through the FHACA Rules, a 100-year design flood of allnon-delineated streams in accordance with N.J.S.A. 58:16A-55.2 and includes a 25 percent factor-of-safety to accountfor potential future increases in flood discharges. The Department also regulates flood hazard areas of certain streamsunder delineations adopted in accordance with N.J.S.A. 58:16A-52 and may, as appropriate, revise or otherwise updatethose delineations in the future.

The Department also recognizes that development and redevelopment in the State must adapt to changingconditions. The 2013 emergency amendments to the FHACA Rules ensure that the best available flood elevation data isused to determine the flood hazard area design flood elevation for a given site, including the Federal EmergencyManagement Agency's advisory flood maps and subsequently released preliminary maps for New Jersey's coast, whichinclude revised A- and V-zone limits (see 45 N.J.R. 360(a) and 1104(a)). Recent amendments to definitions andbuilding standards in the FHACA Rules to address discrepancies in elevation requirements, flood-proofing standards,and standards for construction in V zones and coastal A zones between the FHACA Rules and the UniformConstruction Code (UCC) ensure that the building requirements under the FHACA Rules are at least as stringent as theUCC standards in all circumstances (see 48 N.J.R. 1014(a) and 49 N.J.R. 2246(a)).

These flood-specific protections in the FHACA Rule are incorporated into the FWPA Rules in several ways. Inmany cases, the area regulated [page=3861] under the FWPA Rules and the area regulated under the FHACA Rulesoverlaps. When this occurs, the Department often reviews applications for both a freshwater wetlands permit and aflood hazard area permit, separately evaluating the proposed activity's effect on freshwater wetlands, transition areas,and/or open waters, as well as the effect on flooding and the riparian environment. In addition, the conditions that applyto all freshwater wetlands general permits-by-certification and general permit authorizations at N.J.A.C. 7:7A-5.7include the requirement that any activities authorized will not result in a violation of the Flood Hazard Area Control Actor the FHACA Rules (see N.J.A.C. 7:7A-5.7(b)8), which requires compliance with the provisions of the FHACA Rulesthat protect people and property from flooding, even when the Department is not directly reviewing the activity (forexample, if the activity is authorized under a permit-by-rule or general permit-by-certification in the FHACA Rules).

In addition to these flood protection measures contained in the FHACA Rules, the Department's Blue AcresProgram and the New Jersey Coastal Management Program both focus on flood protection by removing families fromharm's way while creating natural buffers against future severe weather events and returning flood carrying capacity tovital areas, and by ensuring that communities have consistent and comprehensive guidance to assess their vulnerabilityto coastal hazards and capacity for resilience.

65. COMMENT: Wetlands are important in filtering water from all of the combined sewer overflows in New Jersey(62)

RESPONSE: Wetlands are a promising component of the solution to combined sewer overflow (CSO) pollution. Acombined sewer system is one designed to carry sanitary sewage at all times that is also designed to collect andtransport stormwater from streets and other sources, thus serving a combined purpose. CSO refers to excess flow from acombined sewer system that is not conveyed to the domestic treatment works for treatment, but transmitted by pipe orother channel directly to waters of the State. The stringent standards in the FWPA Rules ensure that disturbance towetlands in any community are minimized and, in many cases, mitigated. The Department is currently working withCSO communities to reduce or eliminate combined systems and, in the interim, reduce the frequency and extent ofdischarges. The Division of Water Quality within the Department issued 21 CSO permits in 2015 to meet therequirements of the Clean Water Act and the National CSO Policy by reducing or eliminating the remaining CSOoutfalls in New Jersey. A major component of reducing CSO discharges is improved stormwater management. TheDivision provides many resources to advise municipalities on stormwater improvements and encourages "greeninfrastructure" wherever possible. See http://www.nj.gov/dep/dwq/cso.htm for more information on the Department's

49 N.J.R. 3849(a)

CSO program.

66. COMMENT: The proposed rules do not consider wetland losses resulting from impacts outside the regulatedarea. When a road is built, it can prevent water from flowing into a wetland, resulting in the wetland drying out. Cuttinga road or building below ground can also drain a wetland. (415)

RESPONSE: The FWPA provides the authority for the Department to regulate specified activities in freshwaterwetlands and in the transition areas to freshwater wetlands. In accordance with the FWPA at N.J.S.A. 13:9B-16, thewidth of transition areas is specified as "[n]o greater than 150 feet nor less than 75 feet for a freshwater wetland ofexceptional resource value" and "[n]o greater than 50 feet nor less than 25 feet for a freshwater wetland of intermediateresource value." The FWPA Rules implementing this statutory provision establish the transition areas at the maximumallowed by the Act; 150 feet for a freshwater wetland of exceptional resource value, and 50 feet for a freshwaterwetland of intermediate resource value (see N.J.A.C. 7:7A-3.3) with provision for allowance of transition areaaveraging specified at N.J.A.C. 7:7A-8.2 consistent with the Act at N.J.S.A. 13:9B-18. While the Department may, insome instances, review an entire project where only a portion of the project falls within regulated areas, the Departmentdoes not have the authority to review activities that occur entirely outside of its jurisdiction. When road construction,below ground development, or other activities occur within a freshwater wetland or transition area, the Department doesevaluate the potential impact on wetlands hydrology and regulates accordingly.

67. COMMENT: No consideration is given in the notice of proposal for cumulative impacts or cost avoidancescenarios. (173)

RESPONSE: The adopted rules maintain the prior rules' consideration of cumulative impacts and avoidance ofimpacts, both in determining what permitting options are available under the rules and in reviewing applications.

With reference to determination of what permitting options will be available, the rules continue to requireconsideration of cumulative impacts when considering potential amendments to the rules to incorporate new generalpermits and make that consideration equally applicable to general permits-by-certification. Particularly, the rulesprovide that the Department will only promulgate a general permit-by-certification or a general permit if, among otherthings, the Department determines that the regulated activity covered by the general permit-by-certification or generalpermit will cause only minimal impacts when performed separately and only minimal cumulative impacts (see N.J.A.C.7:7A-5.2(b)1).

When reviewing an application under the FWPA Rule, the Department considers all potential impacts of theproposed activity with the rules including several safeguards designed to ensure that permitting cannot be pursued in amanner that frustrates the consideration of cumulative impacts. While a general permit may be used more than once ona single site, N.J.A.C. 7:7A-5.4(a)1 requires that the total disturbance caused by all activities at all locations onsiteunder that general permit be summed to determine if the limits in the general permit are not exceeded. This requirementspecifically avoids a situation where multiple minor impacts under a general permit authorization cumulatively add upto a significant impact. This provision also prohibits the combination of general permits, or a general permit and ageneral permit-by-certification, for the same activity to avoid situations where the cumulative disturbance that wouldresult exceeds the disturbance limits for any one of the general permits. N.J.A.C. 7:7A-5.3(f) and 10.1(c) prohibit thesegmentation of a project by applying for combinations of individual permits and/or authorizations under generalpermits-by-certification or general permits, which would avoid an analysis of cumulative impacts. Cumulative impactsare also part of the analysis of individual permit applications through the requirement that an individual permit will onlybe issued if the regulated activity is in the public interest. Particularly, in determining whether an activity proposed in anindividual permit application is within the public interest, the Department specifically considers the functions andvalues provided by the freshwater wetlands to be affected and the probable individual and cumulative impacts of theregulated activity on public health and fish and wildlife (see N.J.A.C. 7:7A-10.2(b)12vii; previously codified atN.J.A.C. 7:7A-7.2(b)vii).

49 N.J.R. 3849(a)

Avoidance of impacts is required by the FWPA Rules to the maximum extent practicable. Where disturbance ofwetlands is allowed under the FWPA Rules, impacts must be mitigated either through the minimization of disturbanceor through restoration, creation, enhancement, or other mitigation alternatives under N.J.A.C. 7:7A-11. The strictdisturbance limits on general permit and general permit-by-certification activities limit the potential impacts, whileseveral general permits additionally require an applicant to demonstrate that there are no other more feasible locationsonsite that avoid impacts to wetlands. For the general permits that require mitigation, mitigation of impacts less than 0.1acre according to the requirements in N.J.A.C. 7:7A-11 is required, unless the applicant demonstrates that all activitieshave been designed to avoid and minimize impacts to wetlands.

To be issued an individual permit, an applicant must demonstrate that there are no practicable alternatives thatwould have a less adverse impact on the aquatic ecosystem or would not involve a freshwater wetland or State openwater and that the proposed regulated activity would not have other significant adverse environmental consequences.An alternative is considered practicable if it is available and capable of being carried out after taking into considerationcost, existing technology, and logistics in light of overall project purposes. In addition, an alternative is not excludedfrom consideration under this provision merely because it includes or requires an area not owned by the applicant thatcould reasonably have been or be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the[page=3862] proposed activity. Every individual permit application must include an alternatives analysis demonstratingcompliance with these provisions.

Consistency with FWPA and Federal Act

68. COMMENT: The Department should not adopt the proposed FWPA Rules. The proposed rules are not in thespirit of the Freshwater Wetland Protection Act and the Federal Clean Water Act. (8,14, 18, 53, 54, 56, 77, 85, 90, 91,102, 107, 143, 163, 177, 178, 191, 200, 205, 212, 226, 248, 251, 253, 258, 264, 267, 269, 291, 292, 307, 322, 331, 339,353, 364, 372, 421, 426, 432, and 450)

69. COMMENT: Proposed N.J.A.C. 7:7A-1.5 states that the FWPA Rules should be "liberally constructed toeffectuate the purposes of the act." The purpose of the FWPA is clearly stated in the statute, which says, "it shall be thepolicy of the State to preserve the purity and integrity of freshwater wetlands." The proposed rules do not implementthis goal. (14, 18, 21, 28, 50, 53, 54, 68, 71, 77, 80, 85, 90, 91, 98, 99, 100, 102, 107, 109A, 118, 119, 120, 125, 126,131, 143, 157, 163, 169, 177, 178, 194, 195, 196, 197, 200, 201, 205, 212, 216, 226, 235, 248, 251, 253, 254, 257, 258,264, 267, 268, 269, 291, 292, 293, 295, 307, 315, 322, 331, 339, 350, 351, 364, 371, 372, 390, 391, 400, 401, 421, 426,432, 443, and 450)

70. COMMENT: The goal of the FWPA Rules was to preserve the purity and integrity of freshwater wetlands. Theproposed revisions to these rules, in many instances, do not implement that goal. (8)

71. COMMENT: The proposed rules violate the FWPA. (5, 209, 359, 366, 394, and 460)

72. COMMENT: The proposed rules will have a significant adverse effect on the Department's ability to uphold theintent of the FWPA. (106)

73. COMMENT: The proposed rules violate existing laws. (110, 111, and 345)

74. COMMENT: The rules will destroy wetlands, increase development, threaten water quality, and violate theFWPA in many ways. (15, 22, 27, 29, 33, 37, 38, 39, 41, 55, 65, 67, 73, 76, 82, 92, 93, 97, 103, 122, 123, 124, 127, 133,137, 138, 142, 148, 165, 170, 171, 173, 183, 204, 206, 217, 219, 220, 229, 237, 238, 239, 241, 242, 244, 256, 265, 266,280, 282, 283, 287, 301, 312, 314, 321, 326, 329, 349, 374, 382, 383, 387, 407, 410, 435, 437, 442, 446, 448, 449, 456,and 461)

RESPONSE TO COMMENTS 68 THROUGH 74: As explained in the Response to Comments 20 through 39, theadopted FWPA Rules do not weaken wetland protections. The FWPA, at N.J.S.A. 13:9B-2, specifies that "it is in the

49 N.J.R. 3849(a)

public interest to establish a program for the systematic review of activities in and around freshwater wetland areasdesigned to provide predictability in the protection of freshwater wetlands" and "that it shall be the policy of the State topreserve the purity and integrity of freshwater wetlands from random, unnecessary or undesirable alteration ordisturbance." The adopted rules improve the efficiency and predictability of the freshwater wetlands permitting programby consolidating similar provisions, simplifying language, and harmonizing certain procedural provisions with theDepartment's other land use rules. The main goals of the amendments are to reduce unnecessary regulatory burden; addappropriate flexibility; provide better consistency with Federal, local, and other State requirements; and addressimplementation issues identified since the readoption with amendments of the rules in October 2008. In addition,several amendments were necessary to adopt to ensure consistency with statutory amendments to the FWPA and theStream Cleaning Act.

The FWPA Rules continue to contain stringent protections for freshwater wetlands and State open waters andadditionally incorporate protections for transition areas surrounding freshwater wetlands in order to protect wetlandsfrom the impacts of adjacent development. The protection of transition areas to the maximum width allowed by theFWPA not only complies with the State act, but exceeds protections provided by the Federal Clean Water Act, which donot include equivalent protections. The adopted amendments, while providing flexibility in some cases, will notfacilitate unnecessary or inappropriate development, and do not permit activities to occur in wetlands that were notpermitted under the prior rules. For these reasons, the adopted rules are not contrary to, but are entirely consistent withboth the explicit terms and the intent of the FWPA and the Clean Water Act.

75. COMMENT: The stated policy of the FWPA is "to preserve the purity and integrity of freshwater wetlands."The proposed rules at N.J.A.C. 7:7A-1.5 indicate that the chapter should be "liberally constructed to effectuate thepurposes of the Act," but the proposed rules do not implement the goal expressed in the Act. The rules should benarrowly constructed to ensure that New Jersey's wetlands are preserved and protected. (253 and 364)

RESPONSE: To the extent the commenters are suggesting that the rules should be drafted in a manner that attemptsto address every eventuality in a manner designed to ensure protection of the State's freshwater wetlands consistent withthe intent of the FWPA, the Department agrees. The liberal construction provision at N.J.AC. 7:7A-1.5 does not in anyway suggest otherwise. Instead, this provision specifically recognizes that there may be situations where application of aparticular rule provision to a specific factual situation may not result in a clear "thumbs up" or "thumbs down"determination. In such a situation, the provision makes clear that the requirements set forth in the rules are to be"liberally construed to effectuate the purposes of the Acts under which it was adopted." This provision reinforces theDepartment's intent to protect freshwater wetlands, transition areas, and State open waters in a way that is consistentwith the purposes of these enabling statutes.

76. COMMENT: The Department should strictly interpret the requirements of N.J.S.A. 13:9B-9b to truly avoidunnecessary impacts to wetlands and transition areas. Given the benefits of wetlands to the surrounding area, theDepartment should not grant permits for avoidable degradation of wetlands. (319)

RESPONSE: The FWPA Rules include many requirements that implement the FWPA goal of avoidingunnecessary impacts to wetlands and transition areas as stated in the Act at N.J.S.A. 13:9B-2. The FWPA Rulesincorporate the findings specified in N.J.S.A. 13:9B-9b at N.J.A.C. 7:7A-10.2(b) (previously codified at N.J.A.C.7:7A-7.2(b)) with an individual freshwater wetlands or open water fill permit to be issued only if those standards aresatisfied. Consistent with N.J.S.A. 13:9B-9b, among other requirements that must be met before an individual permitmay issue, the applicant is required to demonstrate that the proposed regulated activity has no practicable alternativethat would have a less adverse impact on the aquatic ecosystem or would not involve a freshwater wetland or State openwater, and which would not have other significant adverse environmental consequences (see N.J.A.C. 7:7A-10.2(b)1;previously codified at N.J.A.C. 7:7A-7.2(b)1). Transition area waivers, provided for in the FWPA at N.J.S.A. 13:9B-12(access waiver) and 13:9B-18 (all other transition area waivers), require that activities do not substantially impactadjacent wetlands and, depending on the type of waiver, may additionally require that alternative locations for theactivity be considered.

49 N.J.R. 3849(a)

The adopted rules implement requirements beyond the letter of the FWPA in order to effectuate its protectivefunctions. One example is the robust mitigation requirements at N.J.A.C. 7:7A-11. The FWPA, at N.J.S.A. 13:9B-13a,generally requires the Department to "require as a condition of a freshwater wetlands permit that all appropriatemeasures have been carried out to mitigate adverse environmental impacts, restore vegetation, habitats, and land andwater features, prevent sedimentation and erosion, minimize the area of freshwater wetland disturbance and insurecompliance with the Federal Act and implementing regulations." N.J.S.A. 13:9B-13b and c establish that theDepartment may require creation, restoration, or enhancement onsite or, if that is not feasible, creation, restoration,enhancement offsite, uplands preservation, or a monetary contribution, or, if those options are not feasible, a landdonation. The FWPA Rules expand upon these general requirements and general hierarchy in order to effectuate thepurpose of the FWPA, including requirements for choosing a suitable site, provisions elaborating on the mitigationhierarchy in the FWPA by, at N.J.A.C. 7:7A-11.9 and 11.10, requiring offsite mitigation to occur in the same watershedmanagement area as the disturbance, financial assurance requirements for creation, restoration, and enhancementactivities at N.J.A.C. 7:7A-11.17 through 11.21 to ensure mitigation is successfully completed, and clear success criteriafor each mitigation alternative. The requirements at N.J.A.C. 7:7A-11 go beyond the literal language of [page=3863]N.J.S.A. 13:9B-13 in order to accomplish Act's stated purpose of mitigating for adverse environmental impacts.

The Department considers the many protective provisions of the adopted rules an effective interpretation of thestated goals of the Legislature in enacting the FWPA.

77. COMMENT: The proposed rules violate both the FWPA and the Clean Water Act because they are not tied tothe Water Quality Certifications, such as the 401 certification. This means that a permittee can fill in a wetland withoutlooking at water quality impacts. (12, 13, 20, 22, 23, 35, 51, 52, 62, 63, 76, 85, 173, 174, 189, 202, 215, 218, 232, 233,237, 243, 244, 266, 294, 306, 324, 327, 329, 334, 343, 362, 377, 392, 395, 399, 408, 414, 427, 431, and 454)

78. COMMENT: Allowing developers to fill in wetlands without 401 certification is opposed. (130)

79. COMMENT: The proposed rules are not tied to water quality certificates, nor do they require an applicant tocertify to compliance with the Surface Water Quality Standards. Therefore, the rules allow applicants to discharge fillinto a wetland without assessing the water quality impacts, which is a violation of the Freshwater Wetlands ProtectionAct and the Clean Water Act. (240 and 415)

80. COMMENT: The proposed rules are deliberately not connected to the Surface Water Quality Standards. (104,144, and 361)

81. COMMENT: The rules need to consider the impact of development on water quality standards, such as those inthe FWPA and the Federal Clean Water Act. (354)

82. COMMENT: The proposed rules put water quality at risk by weakening protections set in the FWPA and theClean Water Act. (136)

83. COMMENT: Under Federal law, New Jersey's program may not be weaker or less protective than the Federalprogram. According to the Federal regulations at 33 CFR 320.4(d), "Applications for permits for activities which mayadversely affect the quality of waters of the United States will be evaluated for compliance with applicable effluentlimitations and water quality standards, during the construction and subsequent operation of the proposed activity." NewJersey's water quality standards have a similar provision at N.J.A.C. 7:9B-1.5(d). Yet, the proposed rules fail toreference and utilize New Jersey's water quality standards. The proposed rules cannot be less stringent or protective thanFederal law, yet they are. (319 and 320)

84. COMMENT: The proposed rules violate the law under which New Jersey assumed delegation of Section 404 ofthe Clean Water Act authority and have no factual or scientific justification. (59, 60, 161, and 179)

85. COMMENT: The notice of proposal unduly weakens wetlands protections essential for water supply and, in

49 N.J.R. 3849(a)

some cases, violates New Jersey's delegation powers under the Federal Clean Water Act. (84 and 222)

RESPONSE TO COMMENTS 77 THROUGH 85: A water quality certificate is required to be obtained by anyapplicant for a Federal license or permit under 33 U.S.C. § 1341 for any activity that may result in a discharge into thenavigable waters of the United States. The water quality certificate constitutes a finding by the state within which theproposed discharge is to occur that the discharge will comply with specified provisions of the State's water qualitystandards, which standards have been approved by USEPA, as well as comply with the Federal Clean Water Act. Withreference to discharges of dredged or fill material into the waters of the United States in New Jersey, as indicated atN.J.A.C. 7:7A-2.1(d), a permit issued under the FWPA Rules includes a finding by the Department that the applicablesections of the Federal Act have been met and constitutes a water quality certificate for discharges covered by theserules. For discharges of dredged or fill material that do not require a permit under the FWPA Rules, but do require awater quality certificate, depending upon the location of the proposed discharge, the standards and procedures containedin either the FWPA Rules or in the CZM Rules are utilized to determine whether the proposed activity qualifies for awater quality certificate. This process is fully compliant with both the Federal and State acts.

The assertion that the FWPA Rules do not reference or require compliance with water quality standards is notcorrect. Several of the standard requirements for all individual permits, recodified from N.J.A.C. 7:7A-7.2 to 10.2,specifically require compliance with State and Federal water quality standards for an activity to be authorized under anindividual permit. N.J.A.C. 7:7A-10.2(b)5 requires that an activity "will not cause or contribute to a violation of anyapplicable State water quality standard." N.J.A.C. 7:7A-10.2(b)6 requires that an activity "will not cause or contribute toa violation of any applicable toxic effluent standard or prohibition imposed pursuant to the Water Pollution ControlAct." N.J.A.C. 7:7A-10.2(b)7 requires that an activity "will not violate any requirement imposed by the United Statesgovernment to protect any marine sanctuary designated pursuant to the Marine Protection, Research and SanctuariesAct of 1972, 33 U.S.C. §§ 1401 et seq." N.J.A.C. 7:7A-10.2(b)8 requires that an activity "will not cause or contribute toa significant degradation, as defined at 40 CFR 230.10(c), of ground or surface waters." N.J.A.C. 7:7A-10.2(b)13requires that activities "will not involve a discharge of dredged material or a discharge of fill material, unless thematerial is clean, suitable material free from toxic pollutants in toxic amounts, which meets Department rules for use ofdredged or fill material." N.J.A.C. 7:7A-10.2(b)14 requires that activities "are consistent with the applicable approvedWater Quality Management Plan (208 Plan) adopted under the New Jersey Water Quality Planning Act, N.J.S.A.58:11A-1 et seq." as applicable, and N.J.A.C. 7:7A-10.2(b)15 requires any activity to be "part of a project that in itsentirety complies with the Stormwater Management rules at N.J.A.C. 7:8."

In accordance with N.J.A.C. 7:7A-5.2(b)1, activities authorized under general permits-by-certification and generalpermits have been evaluated by the Department and determined to have minimal environmental impact when performedindividually and cumulatively. Accordingly, these activities will not violate any water quality standards. Even so,several additional conditions protective of water quality apply to general permits-by-certification and general permits.N.J.A.C. 7:7A-5.7(b)2 requires that regulated activities authorized under a general permit-by-certification or generalpermit shall not occur in the proximity of a public water supply intake. N.J.A.C. 7:7A-5.7(b)6 requires that "anydischarge of dredged or fill material shall consist of clean, suitable material free from toxic pollutants (see 40 CFR 401)in toxic amounts, and shall comply with all applicable Department rules and specifications regarding use of dredged orfill material." In addition, the Department is required to add, under N.J.A.C. 7:7A-20.3(b)3, "any requirementsnecessary to comply with water quality standards established under applicable Federal or State law," and, underN.J.A.C. 7:7A-20.3(b)4, "requirements necessary to comply with any applicable toxic effluent standard or prohibitionunder section 307(a) of the Federal Act or applicable State or local law."

The requirements explained above, which have not been substantially changed by the adopted amendments,repeals, and new rules, ensure compliance with applicable State and Federal water quality requirements and maintainthe State's freshwater wetlands permitting program's stringency in accordance with the Clean Water Act.

86. COMMENT: Many regions of the State rely on groundwater for wells from low storage capacity aquifers thatare already under considerable stress. Wetlands play a critical role in the hydrological cycle by storing water from storm

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events and reducing the sediment being transported into the Delaware Rivers and Delaware Raritan Canal system.Increasing aquifer recharge and reducing runoff is critical to the future of these regions. (8)

87. COMMENT: The environmental repercussions of the proposed changes are very concerning. New Jersey'sstreams are shrinking, groundwater supplies are being depleted or degraded, and water deficits are looming. New Jerseycan ill afford further degradations to finite drinking water sources that must service more and more people. Wetlandsregulations should be strengthened; this notice of proposal weakens New Jersey's standards for wetlands. (179)

88. COMMENT: Many townships in New Jersey rely on clean and protected wetlands to maintain drinking waterwells. Hydrological studies indicate that some townships are using groundwater at a deficit compared to how quicklyaquifers are replenished. In consideration of a shrinking water supply, which is already threatened by naturallyoccurring arsenic and radium, any weakening of wetland protections leaves many at risk. (402)

[page=3864] 89. COMMENT: The proposed amendments have the potential to affect New Jersey's drinking watersupply. With the Statewide Water Supply Plan now available, the future of the State's drinking water supply is ofcritical importance. (410)

90. COMMENT: Good land use policy must address clean water issues. (173)

91. COMMENT: Wetlands reduce pollution and maintain water quality of drinking water sources. The proposedweakening of the FWPA Rules will not protect water supplies from pollution. (40, 49, 64, 108, 103, 292, and 300)

92. COMMENT: Please document how the proposed rules strengthen or weaken existing State and nationalprotections for water quality. (189)

RESPONSE TO COMMENTS 86 THROUGH 92: As explained in the Response to Comments 53 through 56, NewJersey's freshwater wetlands program has operated in place of the Federal wetlands permitting program in most of NewJersey since 1994. In accordance with the Department's assumption of the wetlands permitting program, the standardscontained in the Department's FWPA Rules must remain at least as stringent as the Federal wetlands permittingprogram. However, under the Clean Water Act, the Department may, and in many cases has, established standardspursuant to its authority under New Jersey law that exceed those contained in the Federal program. For example, theDepartment continues to regulate transition areas adjacent to wetlands to prevent nearby development from negativelyimpacting freshwater wetlands under the authority of the State FWPA while the Federal program does not regulatedevelopment in these areas.

While the adopted amendments improve the permitting procedures and in some cases add appropriate flexibility toexisting standards, no substantive changes have been made to the water quality protections in the FWPA Rules. TheFWPA Rules continue to require compliance with State and Federal water quality standards, as detailed in the Responseto Comments 77 through 85 above.

93. COMMENT: The results of the Integrated Reports demonstrate the failure of current regulations (including theFWPA Rules and other regulations) to protect and restore water quality as required by the Clean Water Act. Whatchanges are proposed to address this fact and prevent the destruction and degradation of wetlands? (431)

94. COMMENT: The Department needs to defend clean water and not weaken the FWPA Rules. The rules arenecessary to protect wildlife habitat from fragmentation; protect communities that are vulnerable to flooding; andprotect waterways from pollution, especially since there are virtually no bodies of water in New Jersey from which fishcan be harvested and safely eaten by all. (234)

95. COMMENT: Wetlands act as filters by removing pollutants from stormwater, which may include asbestos, oil,antifreeze, pesticides, and other chemicals. Because many of New Jersey's waters are not clean enough to meet waterquality standards, it is important to not reduce wetlands protections. The proposed rules, however, do reduce

49 N.J.R. 3849(a)

protections. (14, 18, 53, 54, 77, 85, 90, 91, 102, 107, 143, 163, 177, 178, 200, 205, 226, 248, 251, 253, 258, 264, 267,269, 291, 292, 307, 322, 331, 339, 364, 372, 421, 426, 432, and 450)

96. COMMENT: The proposed amendments are not in the best interest of New Jersey, and the Department shouldnot adopt them as proposed. They weaken the FWPA Rules, which is contrary to both the Clean Water Act and theFreshwater Wetlands Protection Act. The FWPA declared that freshwater wetlands protect and preserve drinking watersupplies by serving to purify surface water and groundwater resources, provide a natural means to flood and stormdamage protection and thereby prevent the loss of life and property through the absorption and storage of water duringhigh runoff periods in the reduction of flood costs, and provide essential habitat for State wildlife, fish, birds and,importantly, threatened and endangered species. The Federal Clean Water Act reinforces this. Yet, according to theintegrated water reports released every two years, the vast majority of New Jersey's waters are not meeting one or morewater quality standards. Also, flooding is increasing with climate change bringing more severe storm events. So, thegoal of the FWPA Rules should be to better protect wetlands to provide water quality and flood protection benefits, notto make it easier to impact wetlands. (320)

RESPONSE TO COMMENTS 93 THROUGH 96: The commenters appear to base their conclusion that "thecurrent rules fail to protect and restore water quality" on an assumption that most of the waters of the State are impaired.Section 303(d) of the Federal Clean Water Act (CWA) (33 U.S.C. § 1313(d)) requires states to biennially prepare andsubmit to the USEPA, a list of all waters of the state that currently do not meet, or are not expected to meet, applicablesurface water quality standards after the implementation of technology-based controls. The Department reports thisinformation in the New Jersey 303(d) List of Water Quality Limited Waters or "303(d) List." CWA Section 305(b)requires states to submit to the USEPA a biennial report on the quality of all state waters, including support ofdesignated uses. The Department presents this information in the New Jersey Integrated List of Waters, or "IntegratedList." These two lists, the 303(d) List and the Integrated List, along with strategies to maintain and improve waterquality and other pertinent information, comprise the New Jersey Integrated Water Quality Assessment Report(Integrated Report).

The success of the Department's water quality management programs is supported by the results of the waterquality trends analysis provided in the 2014 Integrated Report, which shows improving and stabilizing conditions overtime. According to the 2014 Integrated Report, water quality trend analyses conducted using data collected as far backas 1975 indicate that overall water quality has generally improved since the mid 1970's, particularly with respect to totalphosphorus and total nitrogen (nutrients); however, declining water quality trends for nitrate, total dissolved solids(TDS) and chlorides were also observed. Ammonia reduction measures implemented at waste treatment plants oxidizeammonia to form nitrate, resulting in increased nitrate concentrations over time. Runoff from urban and agriculturalareas, including runoff of salt used to control ice on roadways, are the likely cause of increased TDS and chlorideconcentrations over time. Biological trends analysis shows a correlation between biological impairment andanthropogenic factors, such as land use, total urban land, total upstream wastewater flow, increase in impervioussurface, and decrease in forests and wetlands in a stream's drainage basin. Biological data for fish communities alsoshowed a correlation between impairment and human activity, such as increased impervious cover, siltation, andincreased run-off from stormwater outfalls. The standards adopted in the FWPA Rules are intended, in part, to protectwaters and aquatic communities from these negative impacts.

While the 2014 Integrated Report found that only a small percentage of New Jersey's 958 subwatersheds fullysupport all applicable designated uses, the report also found that 55 percent of these subwatersheds fully support at leastone designated use. The 2014 Integrated Report instead shows that many subwatersheds have insufficient information toassess designated use support, especially the fish consumption and recreation use. In 2014, 64 percent of all 958subwatersheds had insufficient information to assess the fish consumption use and 35 percent had insufficientinformation to assess the recreation use. This is significant because, even if all other applicable designated uses werefully supported, if insufficient information existed to assess one applicable designated use, the subwatershed was notcounted as fully supporting all applicable designated uses. Accordingly, focus on such a statistic is misleading and doesnot provide an accurate assessment of the condition of the State's waters or compliance with any applicable regulatory

49 N.J.R. 3849(a)

or statutory mandate. It does not mean that fish cannot be harvested and safely eaten in these waters. In fact, many ofthe fish consumption advisories in effect in the 36 percent of waters that do not fully support the fish consumption useare limited to specific species and amounts of fish consumed by certain sensitive populations. The existence of a fishconsumption advisory does not mean no amount of any fish can be safely consumed in these waters. It should also benoted that most waters in the U.S. do not fully support the fish consumption use due to the presence of "legacy"pollutants in one or more species of fish that bioaccumulate such toxins in their fatty tissues. That does not mean thatthere are no bodies of water in the entire country from which fish can be harvested and safely eaten by all; only that fishconsumption advisories should be heeded in deciding how much and how frequently certain species of fish should beconsumed, especially by sensitive populations. (For more information on fish consumption advisories, [page=3865]please see the Department's "Fish Smart, Eat Smart NJ" website at http://www.nj.gov/dep/dsr/njmainfish.htm.)

While the Integrated Reports demonstrate that overall Statewide water quality has improved or remained stableover time, localized changes in land use can effectuate local water quality decline, which is why the Department iscontinuing its stringent protection of freshwater wetlands, State open waters, and transition areas in the adopted FWPARules. As explained in the Response to Comments 77 through 85, the adopted rules continue the many stringent waterquality protections from the existing rules to ensure regulated activities in or near wetlands do not negatively impact theState's water quality and, as detailed in the Response to Comments 20 through 32 do not weaken the protections in theFWPA Rules. In addition, recently adopted amendments to the FHACA Rules more stringently restrict development inriparian zones adjacent to streams, rivers, and other regulated waters, with particular focus on protecting Category Onewaters from the negative impacts of development (see 49 N.J.R. 2122(a)).

Additional information about water quality assessment is available on the Department's website athttp://www.state.nj.us/dep/wms/bears/assessment.htm.

97. COMMENT: The notice of proposal Summary sets out the following statement:

"In 1993, the Department entered into an assumption agreement with the USEPA to administer thepermit program established pursuant to Section 404 of the Federal Clean Water Act. The assumptionagreement obligates the State to maintain program compatibility, which means the State's freshwaterregulatory program must be as strict as the Section 303 Federal Program."

However, this statement is misleading. The Department's freshwater wetlands program cannot be any less protectivethan the Federal program but may be more stringent or protective. Further, the Memorandum of Agreement between theDepartment and the USEPA specifically provides that "nothing precludes the State from adopting or enforcingrequirements which are more stringent or from operating a program with greater scope than that required by 40 C.F.R.Parts 230 and 233." (319)

98. COMMENT: The Department has acknowledged that the State freshwater wetlands program is in many waysmore stringent than the Federal 404 Program. The Department stated that this stringency is mandated by the FWPA andis appropriate considering the development pressure in New Jersey, as well as the role of the State's wetlands in theAtlantic migratory flyway (see 33 N.J.R. 3045(a)). The FWPA Rules must retain this stringency and remain morestringent than the Federal program. (59, 114, 179, 236, 277, and 399)

RESPONSE TO COMMENTS 97 AND 98: The statement in the notice of proposal Summary referenced by thecommenter was intended to briefly explain the minimum requirements of the assumption agreement and was notintended to imply that maintaining a program as strict as the Federal program precluded the Department fromdeveloping a more stringent permitting program. Under the State's assumption of the freshwater wetlands permittingauthority from the USEPA, the State is mandated to maintain standards at least as stringent as the Federal permittingprogram. The commenter is correct that the State may adopt requirements more stringent than the Federal permittingprogram; as indicated in several other responses, the FWPA Rules include numerous instances where freshwaterwetland protections have been incorporated that exceed those contained in the Federal program. For example, while theFederal permitting program does not have the authority to regulate activities in transition areas around freshwater

49 N.J.R. 3849(a)

wetlands, the FWPA and its implementing rules contain robust requirements restricting activities within 50 or 150 feetof freshwater wetlands to prevent adjacent upland development from degrading freshwater wetlands.

Commenters correctly identify the critical role of New Jersey's wetlands in the Atlantic migratory flyway. TheFWPA Rules continue to be more stringent than the Federal permitting program. For example, the FWPA Rulesregulate activities in isolated wetlands (which often serve as important waterfowl habitat) while the USACE does nothave jurisdiction over isolated wetlands. As detailed in the notice of proposal Environmental Impact statement, theamendments, repeals, and new rules adopted at this time are anticipated to result in a positive environmental impact, byfacilitating compliance with the protective standards of the rules, encouraging environmentally beneficial activities, andensuring timely and successful mitigation projects.

Pipelines

99. COMMENT: The proposed rules are opposed because they will remove protections and allow pipelines to beconstructed through environmentally sensitive areas. Constructing pipelines through wetlands will destroy habitat,weaken mitigation efforts, allow surface waters to be polluted, and destroy the aesthetic appeal of wetlands. (105)

100. COMMENT: Do not adopt the proposed rules. The proposed amendments will weaken environmentalprotections by approving pipelines and increasing flooding and water pollution. (336 and 337)

101. COMMENT: The notice of proposal is opposed. Wetlands protect fresh water sources for human use and actas a "sponge" by absorbing flood waters that would otherwise flood communities all along a pipeline route. Destroyingwetlands will impact the entire State with increased flooding. (129)

102. COMMENT: The rules should focus on keeping water clean and not on facilitating unneeded pipelines. (104,144, and 361)

103. COMMENT: The proposed rules will remove important protections and allow construction of pipelinesthrough environmentally sensitive wetlands. (5, 104, 144, 151, and 361)

104. COMMENT: The FWPA Rules should not permit pipeline construction. (58)

105. COMMENT: The proposed rules allow for utility crossings and maintenance, which facilitate the constructionof utility lines and power lines, which in turn destroys wetland habitat. (13, 22, 23, 35, 51, 52, 63, 76, 85, 104, 144, 173,174, 189, 202, 232, 233, 237, 240, 243, 244, 266, 294, 306, 324, 327, 329, 334, 343, 361, 362, 377, 392, 395, 399, 408,414, 415, 427, 431, and 454)

106. COMMENT: The proposed rules make it easier to build pipelines. (6, 13, 15, 16, 19, 22, 23, 27, 29, 32, 33, 35,36, 37, 38, 39, 41, 45, 46, 55, 57, 59, 62, 63, 65, 67, 73, 74, 76, 78, 82, 83, 85, 92, 93, 97, 103, 122, 123, 124, 127, 133,136, 137, 138, 142, 148, 165, 167, 170, 171, 173, 174, 175, 183, 202, 204, 206, 212, 215, 217, 218, 219, 220, 229, 232,233, 237, 238, 239, 241, 242, 243, 244, 245, 249, 256, 260, 265, 266, 271, 274, 280, 282, 283, 287, 289, 294, 301, 306,312, 314, 316, 321, 324, 326, 327, 329, 332, 349, 360, 362, 374, 377, 380, 382, 383, 387, 392, 394, 395, 399, 406, 407,408, 410, 414, 427, 429, 431, 435, 437, 442, 446, 448, 449, 454, 456, 458, and 461)

107. COMMENT: The notice of proposal is so biased in favor of pipelines that it should not be considered foradoption. Leave the wetlands alone. (435)

108. COMMENT: The proposed rules will encourage the construction of new pipelines that will endanger wildlife,the environment, and New Jersey residents. (460)

109. COMMENT: People buy property containing wetlands and adjacent to wetlands with the knowledge that thoseareas cannot be developed. However, these important rules are proposed to be relaxed at a time when pipeline projects

49 N.J.R. 3849(a)

are proposed. Allowing pipelines to be built in wetlands area will lead to further water contamination, includingpotentially arsenic, which would require impacted people to install new filtration systems in their wells to address suchcontamination. These rules should not be amended. (419 and 420)

110. COMMENT: New Jersey cannot afford to weaken protections to facilitate pipelines, which have a record ofleaks, spills, and explosions. (3)

111. COMMENT: New Jersey leads the nation in the number of Superfund sites. This leads one to think that a toppriority for the Department would be to protect natural resources. Wetlands are more important than ever and must besafeguarded from pollution, especially from pipelines. (393)

112. COMMENT: New Jersey has successfully protected its water after a history of abuse, neglect, and pollution.However, the proposed rules would lower the current high standards to facilitate pipelines. (290)

RESPONSE TO COMMENTS 99 THROUGH 112: The adopted amendments, repeals, and new rules do notchange the regulation of utility line construction (including pipelines) in regulated areas. The [page=3866] Departmentrecognizes the potential environmental impact of constructing new utility lines through freshwater wetlands, transitionareas, or State open waters and is, therefore, maintaining the stringent standards for authorization under general permit 2for underground utility lines and for authorization under general permit 21 for above-ground utility lines. Theseconditions limit the amount of permanent disturbance to 0.5 acre and generally limit the width of disturbance to 20 feet.Mitigation is required for all permanent disturbance of freshwater wetlands and State open waters greater than 0.1 acre,and is required for permanent disturbance less than 0.1 acre unless the applicant demonstrates to the Department that allactivities have been designed to avoid and minimize impacts to wetlands. The remaining conditions in the generalpermits serve to minimize the scope of activities in regulated areas and direct activities to upland areas whereverpossible to avoid impacts to freshwater wetlands, transition areas, and State open waters. In addition, should theDepartment determine other conditions are necessary to effectuate the purposes of the FWPA and FWPA Rules, theDepartment can add additional conditions on a case-by-case basis in accordance with N.J.A.C. 7:7A-20.3. UnderN.J.A.C. 7:7A-20.3(b), the Department shall add "any requirements necessary to comply with water quality standardsestablished under applicable Federal or State law" and "requirements necessary to comply with any applicable toxiceffluent standard or prohibition under section 307(a) of the Federal Act or applicable State or local law," among otherconditions as necessary.

If a utility line project proposed within freshwater wetlands cannot meet the stringent standards of a general permit,it will be reviewed under an application for an individual permit. In this case, the applicant must demonstratecompliance with N.J.A.C. 7:7A-10.1 and 10.2, as well as the additional requirements for a non-water dependent activityat N.J.A.C. 7:7A-10.3 and, in some cases, the additional requirements at N.J.A.C. 7:7A-10.4. The substance of theserequirements is unchanged from the prior rules. These requirements apply to activities with potential impacts beyondthe minimal impacts authorized under general permits or general permits-by-certification, and require the applicant todemonstrate that the activity has no practicable alternative, does not result in adverse impacts to the ecosystem, wildlife,water quality, or historic resources, or violate other State and Federal requirements (see N.J.A.C. 7:7A-10.2(b)2 through10 and 15), and that the activity is in the public interest. In order to determine that an activity is in the public interest,the Department will consider the factors listed at N.J.A.C. 7:7A-10.4(b)12i through vii. In determining if an activity haspracticable alternatives, the Department will consider the factors listed at N.J.A.C. 7:7A-10.2(c), including if theactivity could instead be located on other property not owned by the applicant that reasonably have been or be obtained,utilized, expanded, or managed in a manner that would fulfill the basic purpose of the proposed activity while resultingin impacts to regulated areas being minimized or avoided. In accordance with N.J.A.C. 7:7A-10.3(b), non-waterdependent activities, which include utility lines, are also subject to the rebuttable presumption that there is a practicablealternative to locating a non-water dependent activity in wetlands or in a special aquatic site. Activities in exceptionalresource value wetlands or trout production waters are subject to additional requirements that further limit what canoccur in the most naturally valuable aquatic ecosystems of the State.

49 N.J.R. 3849(a)

Considering the stringent standards in the general permits that minimize the impacts of utility lines and the robustindividual permit standards for projects with more than minimal impact, the adopted rules do not serve to facilitateutility line projects. As explained above, the Department is not removing or changing any requirements for utility lineprojects.

113. COMMENT: The proposed rule change allows drilling under a stream or wetland, which threatens NewJersey's water supply and could cause mudslides. Thermal pollution from the resulting pipelines will damage streams.The notice of proposal should not be adopted. (154)

114. COMMENT: The rules allow certain activities because they do not consider horizontal directional drilling(HDD) to have any impact on water quality, while in fact this practice uses a lot of chemicals and drilling mud, whichcould impact water quality. This practice could collapse the stream or create a hole under the wetlands filled withchemicals and mud, which will kill all life and potentially pollute any waters downstream. In addition, the drillingprocess could fail and bring all the mud and chemicals to the surface. HDD causes siltation, erosion, and evenmudslides. Not considering HDD to have an impact on water quality means that the Department can more easilyapprove 401 Water Quality Certificates for pipelines. These changes will give the Department an excuse to approvemore pipeline projects. (104, 144, and 361)

115. COMMENT: The proposed rules will have serious negative consequences to New Jersey's wetlands becausethey allow horizontal directional drilling under streams and wetlands, which can result in siltation, erosion, andmudslides, and approve the construction of pipelines through environmentally sensitive wetlands (153)

116. COMMENT: By declaring that HDD does not have an impact on water quality, the Department does not needto consider its impact on Category One waters. (104, 144, and 361)

117. COMMENT: While no substantive amendments were proposed at this time, general permit 2 should berevised to acknowledge the growing body of evidence that HDD is not a consistently safe method to avoid impacts toregulated areas. Existing N.J.A.C. 7:7A-5.2(b) should be revised to include provisions requiring applicants to submitgeologic evaluations to determine the suitability of a proposed route for HDD and a contingency plan in case ofinadvertent release. Current provisions provide no mechanism to require relevant information concerning HDD, whichmay jeopardize threatened and endangered species and Category One waters. The current provisions are insufficientlyprotective under the FWPA. (277)

118. COMMENT: Drilling, including horizontal directional drilling, and blasting, should not be allowed in or nearwetlands or transition areas under any general permits and should never be permitted in exceptional resource valuewetlands or their associated transition areas. These activities alter surface water flow and groundwater and increaseleaching of both natural elements and manmade pollutants into wetlands and eventually into wellwater, posing anenvironmental and public health risk. (431)

RESPONSE TO COMMENTS 113 THROUGH 118: The Department regulates many utility line activities inrecognition that these activities may have an environmental impact. As explained in the Response to Comments 99through 112, the substantive requirements applicable to utility line activities are unchanged from the prior rules.

With reference to suggested amendment of general permit 2 and assertions that the Department does not haverequirements for directional drilling, some version of general permit 2 has been in the FWPA Rules since their originaladoption in 1989. Several amendments over the years have further refined the requirements of the permit and added therequirement to mitigate for permanent impacts. Should proposed directional drilling include elements that are requiredto obtain a permit under the FWPA Rules, all requirements of the general permit would be applicable to the proposeddirectional drilling project. In addition to the limitations within general permit 2 itself, the conditions that apply to allgeneral permits at N.J.A.C. 7:7A-5.7 already include added protection for water quality, threatened and endangeredspecies, and aquatic life. The Department, under N.J.A.C. 7:7A-20.3, can add any special conditions needed to ensure

49 N.J.R. 3849(a)

compliance with the requirements of the FWPA, FWPA Rules, or Federal Act. This includes, but is not limited to,specifications for silt fencing or other erosion and sediment control measures, timing restrictions to avoid impacts tothreatened and endangered species or fisheries resources, and any other special conditions to ensure that theconstruction and/or activity has a minimal environmental impact. Further, if under N.J.A.C. 7:7A-5.3(e), the generalpermit requirements and additional conditions cannot ensure that compliance with the FWPA Rules (including onlyminimal environmental impact), the Department can require an individual permit. Similarly, if special circumstancesmake an individual permit necessary to comply with the FWPA, the FWPA Rules, any permit or order issued thereto, orthe Federal Act, the Department will deny an application for authorization under general permit 2 and require anindividual permit. To obtain an individual permit, an activity must meet the stringent requirements at N.J.A.C. 7:7A-10,which include ecological and water quality protections and the requirement that the activity is in the public interest.

[page=3867] 119. COMMENT: Under the proposed rules, pipelines will not need individual permits, and willinstead be approved through a permit-by-rule, which allows project proponents to avoid looking at cumulative impacts.(104, 144, and 361)

RESPONSE: There are no permits-by-rule in the FWPA Rules. Non-exempt regulated activities may be authorizedunder general permits-by-certification, general permits, transition area waivers, or individual permits. As explained inthe Response to Comments 99 through 112, there are no general permits-by-certification that authorize utility lineactivities. Underground utility lines, including pipelines, may be authorized under a general permit (general permit 2),transition area waiver, or individual permit, which all require the submittal of an application to the Department fordirect staff review. During this review, the Department considers all potential impacts of the proposed activity. Generalpermits authorize those activities which, individually and cumulatively, are determined to have minimal impacts on theenvironment. While a general permit may be used more than once on a single site, N.J.A.C. 7:7A-5.4(a)1 requires thatthe total disturbance caused by all activities at all locations onsite under that general permit shall be summed in order toensure that the applicable disturbance limits of the general permit are not exceeded. This requirement specifically avoidsa situation where multiple minor impacts under a general permit authorization cumulatively add up to a significantimpact. Finally, N.J.A.C. 7:7A-5.3(f) and 10.1(c) prohibit the segmentation of a project by applying for combinations ofindividual permits and authorizations under general permits-by-certification or general permits, which would avoid ananalysis of cumulative impacts.

120. COMMENT: Allowing pipelines to run through multiple streams in New Jersey, especially in the Highlands,will put drinking water sources at risk. There is no replacing the waterways, forests, wildlife, and soils that will beaffected. (434)

RESPONSE: As explained in the Response to Comments 99 through 112, the provisions concerning utility linedevelopment have not changed from the prior rules. General permits authorize only activities with minimal impacts,while individual permits are issued only after demonstrating compliance with the robust standards at N.J.A.C.7:7A-10.2. As explained in the Response to Comments 77 through 85, the FWPA Rules contain a number ofrequirements to protect water quality. Activities that cross streams are likely to require a permit under the FHACARules, which contain protections for water quality, and riparian ecosystems while ensuring development does notexacerbate flooding. In addition, development in the area under the jurisdiction of the Highlands Water Protection andPlanning Rules is subject to additional standards under N.J.A.C. 7:38, to protect the unique and essential resources ofthe Highlands region.

121. COMMENT: The FWPA Rules should encourage renewable energy over fossil fuel infrastructure. (173, 174,and 270)

RESPONSE: The FWPA Rules do not encourage any type of development or energy infrastructure over any othertype. The Department evaluates applications for their compliance with all applicable requirements of the FWPA Rulesand its enabling statutes, including the size and location of disturbance and potential impacts to threatened andendangered species and water quality. It is beyond the scope of the FWPA Rules to promote one type of energy

49 N.J.R. 3849(a)

infrastructure over another. However, the Department's Bureau of Energy and Sustainability supports the Board ofPublic Utilities (BPU; the lead State agency for renewable energy efforts) in their initiatives to create a sustainable andenergy-efficient New Jersey. The Department and BPU have partnered in developing the New Jersey Energy MasterPlan (see http://nj.gov/emp/docs/pdf/New_Jersey_Energy_Master_Plan_Update.pdf). For more information on theState's clean energy initiatives, see http://www.njcleanenergy.com/.

N.J.A.C. 7:7A-1.3, Definitions

122. COMMENT: The proposed rules lack specificity of language, which, instead of streamlining the process,opens the rules to individual interpretations that will not accurately guide applicants. The lack of competent definitionsmakes the rules confusing, violations hard to enforce, and the potential for mitigation failures even more probable. (84)

RESPONSE: It is unclear where the commenter considers the adopted rule language to be unspecific. In theadopted amendments, repeals, and new rules, the Department has deleted or amended definitions to achieve consistencywith definitions found in the FHACA Rules and/or CZM Rules in order to clarify terms that are applied the same waythroughout all three chapters. In addition, the Department amended and added definitions relating to the permittingprocess to aide in the alignment of the land use rules and facilitate the readers' understanding of the adopted permittingprocedures. Definitions were also relocated from the section of mitigation-specific definitions to the general definitionsin the beginning of the chapter to facilitate understanding as those terms are used in several subchapters. Amendmentsand new definitions provide additional clarity to the mitigation-specific terminology at N.J.A.C. 7:7A-11.1 to facilitateunderstanding of mitigation requirements and processes. Without specific examples of which definitions are consideredto be confusing or lacking in specificity, the Department cannot determine if additional amendments are necessary inresponse to this comment.

123. COMMENT: The reference to the application checklist in the definition of "administratively complete" atN.J.A.C. 7:7A-1.3 should be deleted. Only the letter of interpretation (LOI) application materials listed in N.J.A.C.7:7A-16.3 should be required for administrative completeness. If the checklist is referenced in the rule, it should beadopted as part of the rule. (69)

RESPONSE: As indicated at N.J.A.C. 7:7A-16.2, application checklists identify all submissions required under therules to be part of an application, and also the appropriate level of detail and the format of the information required to besubmitted for the type of application covered by the checklist. Application checklists are available for each type ofapplication, including LOI applications referenced by the commenter.

The purpose of the checklists is to ensure that the submissions are sufficient to demonstrate the proposeddevelopment meets the requirements of the particular permit and to limit the amount of "back and forth" neededbetween an applicant and the Department to ensure the application can proceed through review as quickly andefficiently as possible. The submissions specified on the application checklists are those specified in the rules;application checklists do not add new or additional submission requirements. By way of example, as noted in N.J.A.C.7:7-16.2(a), where the rules require, as part of an application, the submittal of a site plan or photographs showingcertain types of information, the corresponding checklist will indicate the number of copies of the plan to be submitted,the scale and details of the information to be illustrated on the plan or drawing, and the number and orientation ofphotographs of the site. Checklists are available for download from the Department's website atwww.nj.gov/dep/landuse or by contacting the Department at the address set forth at N.J.A.C. 7:7-1.4.

In the case of an application for an LOI, N.J.A.C. 7:7A-16.3 specifies the required components of an LOIapplication. As indicated in the lead-in language at N.J.A.C. 7:7A-16.3(a) with reference to the list of materials requiredto be submitted for all LOI applications, and in the lead-in language at N.J.A.C. 7:7A-16.3(b) with reference to the listof additional materials that must be provided if the application is for a line verification LOI issued under N.J.A.C.7:7A-4.5, rather than expanding the types of information required, an application checklist for an LOI, consistent withthe checklists available for all other applications for Department approval under the FWPA Rules, identifies the

49 N.J.R. 3849(a)

appropriate level of detail and the format of the information required to be submitted for each category of materialspecified in the rules to ensure the application can proceed through review. In the case of an application checklist for anLOI, the checklist provides that information with reference to those materials required to be submitted as part of theapplication in accordance with N.J.A.C. 7:7A-16.3(a)1 through 5 for all applications and the additional materialsrequired at N.J.A.C. 7:7A-16.3(b)1 through 4 for a line verification LOI.

Accordingly, while the commenter is correct that the submission requirements for an LOI are those specified inN.J.A.C. 7:7A-16.3, as the application checklist referenced in that section includes identification of each of therequirements specified in the rules, as well as the level of detail and format necessary for the application to proceedthrough [page=3868] review, reference to the checklist in defining when an application is administratively complete isappropriate.

124. COMMENT: The existing definition of "architectural survey" is specific to an "intensive-level historicarchitectural survey." The Department should consider a broader definition that also includes a "reconnaissance-level"survey effort, which is a screening level effort that may be sufficient to determine that no historic properties exist or willbe affected in accordance with procedures established by the New Jersey Historic Preservation Office. (255)

RESPONSE: An architectural survey is only required to be submitted when the Department determines that aproposed project has a high probability of affecting properties that are listed, or are eligible for listing, on the NewJersey or National Register of Historic Places as determined in accordance with N.J.A.C. 7:7A-19.5(l)1 through 5.Projects exhibiting the characteristics listed at N.J.A.C. 7:7A-19.5(l), including the presence of known historic orarchaeological resources, the availability of information on historic resources in the area of the proposed project orproposed conduct of activities in areas that have historically been areas of elevated human activity or in a manneraffecting underground resources increases the likelihood of the presence of historic or archeological resources on thesite are deemed by the Department to have a high probability of the presence of historic and archeological resources andso require an intensive survey for the Department and the USEPA to evaluate any effects on such resources. The levelof detail in an architectural survey as defined at N.J.A.C. 7:7A-1.3 is appropriate for this circumstance. The results of"reconnaissance-level" surveys may be included within an application to demonstrate that the activity will not affecthistoric properties; however, an intensive level survey is required when the Department determines that there is a highprobability of affecting such a property.

125. COMMENT: The existing definition of "best management practices" includes an obsolete reference to the"Department's Technical Manual for Stream Encroachment." (255)

RESPONSE: The Department is changing this definition on adoption to reflect the title of the current TechnicalManual on the FHACA Rules.

126. COMMENT: The existing definition of "Category One water" should be amended to read "a water designatedas such in the Department's Surface Water Quality Standards at N.J.A.C. 7:9B," for consistency with the FHACA Rules'definition. In addition, the existing definition erroneously refers to N.J.A.C. 7:9B-1.15 instead of N.J.A.C. 7:9B-1.4, andto N.J.A.C. 7:9B-1.15(h) instead of N.J.A.C. 7:9B-1.15(c) through (i). It is also suggested that the existing definition of"FW1 waters" be limited to "waters designated as FW1 waters in the Department's Surface Water Quality Standards atN.J.A.C. 7:9B-1.15(j)." The additional detail, from "As of September 4, 2001" to the end of the definition, appearsredundant and contains an incorrect reference to N.J.A.C. 7:9B-1.15 when the relevant information is found at N.J.A.C.7:9B-1.4. (255)

RESPONSE: The Department did not propose amendments to the definitions of "Category One waters" and "FW1waters" as part of this rulemaking. However, with reference to the definition of "Category One waters," the definitionwas amended as part of the readoption of the Surface Water Quality Standards in 2009 to read as follows: " "CategoryOne waters" means waters designated as such in the Department's Surface Water Quality Standards at N.J.A.C. 7:9B."(see 41 N.J.R. 1565(a); 4735(a)). Accordingly, no change is needed. With reference to the definition of "FW1 waters,"

49 N.J.R. 3849(a)

the Department agrees that the informational cross-reference to the wording of the definition of the same term in theSurface Water Quality Standards as of September 4, 2001, is no longer accurate and replacement of this reference withan indication as to the wording of the definition in Surface Water Quality Standards at N.J.A.C. 7:9B as of the date ofadoption of these amendments is unnecessary and potentially confusing should the definition in the Surface WaterQuality Standards change at some point in the future. Accordingly, consistent with the existing definition of "FW2waters," the Department is changing the definition of "FW1 waters" on adoption to simply cross-reference the SurfaceWater Quality Standards at N.J.A.C. 7:9B.

127. COMMENT: The definition of dredging does not clearly differentiate "dredging" from "excavation," which isinconsistent with the CZM Rules. It is suggested that the definition of dredging in the FWPA Rules be amended toclarify that dredging is the removal of sediments below the ordinary high water mark or spring high water line of awaterway or waterbody. (255)

128. COMMENT: The definition for "excavation" should be consistent with the definitions of "excavation" in theFHACA and CZM Rules. The FHACA Rules state that excavation applies "whether the land surface is exposed orsubmerged," while the CZM Rules specify that excavation only applies landward of the spring high water line. TheFWPA Rules go beyond both definitions by adding the qualifier "resulting in a change in site elevation." (255)

RESPONSE TO COMMENTS 127 AND 128: While the Department has made efforts to align the FWPA Ruleswith the CZM Rules wherever possible, the use of the term "dredging" in the FWPA Rules does not lend itself to thesame definition as in the CZM Rules. The CZM Rules regulate tidally-influence areas, such that distinguishing betweenexcavation landward of the spring high water line and dredging below the spring high water line is appropriate.However, "dredging" is used in the FWPA Rules primarily in the context of lake dredging. The spring high water linedatum is not relevant in this context. For the same reasons, the definition of "excavation" in the CZM Rules is notappropriate to include in the FWPA Rules. The qualifier "resulting in a change in site elevation" is intended to refer toany disturbance of sediment that could affect the growth of wetlands vegetation or wetlands hydrology.

129. COMMENT: The definition of "fill" contains the qualifier "so as to change the ground elevation in relation tosurface water or groundwater level." "Ground elevation" should be clarified with respect to the term "site elevation"used in the definition of "excavation." (255)

RESPONSE: The definition of "fill" is intended to encompass any addition of material that could affect the growthof wetlands vegetation or wetlands hydrology. Wetlands hydrology, and, as a consequence, wetlands vegetation, can beinfluenced by surface water or groundwater, or both. "Ground elevation" in the definition of "fill" is intended to besynonymous with "site elevation" in the definition of "excavation."

130. COMMENT: There is currently no definition of "lawfully existing" in the FWPA Rules, but the term is usedseveral times in the chapter. The Department should provide a definition of the term similar to the definition in theFHACA Rules. (255)

RESPONSE: The use of "lawfully existing" in the FWPA Rules has not, in the Department's experience, causedconfusion for applicants. Additional detail is provided in the surrounding language to help applicants understand what ismeant by the term. For example, general permit 1, at N.J.A.C. 7:7A-7.1, authorizes normal property maintenance oflawfully existing features. The general permit specifically applies to maintenance of features that were lawfully existingprior to July 1, 1988. The definition in the FHACA Rules defines whether a feature is lawfully existing in part based onthe date it was constructed; to define the term in the FWPA Rules in this manner would be redundant with the adoptedrule language.

131. COMMENT: The current definition of "project" is unclear because it emphasizes exemptions. Consistentlanguage connecting the definition of "project" and "property as a whole" would more clearly define the scope of a"project." (277)

49 N.J.R. 3849(a)

132. COMMENT: In the definition of "project," the portion of the definition identified as paragraph 1.i isincorrectly shown as 1.1 in the existing rules. Additionally, it is unclear why the definition of "project" only applies totransition area exemptions. It is suggested that a general definition of project, similar to the FHACA Rules' definition(that is, "project" means all regulated activities occurring and proposed on a site, whether undertaken concurrently or inphases), be added and that the distinction between "project" and "site" be explained. (255)

RESPONSE TO COMMENTS 131 AND 132: The definition of "project," which is amended only to reflectchanges in codification of cross-referenced sections and to italicize the term "de minimis," was originally intended toclarify the transition area exemptions at previous N.J.A.C. 7:7A-2.8(f), which is recodified as a result of this adoption asN.J.A.C. 7:7A-2.4(f). However, the Department does recognize the desire for additional clarification and a more generaldefinition for "project" in the FWPA Rules and will consider developing such a [page=3869] definition in the future.The numbering in the definition of "project" is correct in the official New Jersey Administrative Code version of theFWPA Rules, but was incorrect in the courtesy copy provided on the Department's website. The Department hascorrected the error in the unofficial web version of the FWPA Rules.

As used in the FWPA Rules, a "project" refers to proposed regulated activities, while "site" refers to the location ofthe proposed activities and all contiguous land owned or controlled by the same entity. The meaning of these terms isclear when they are used in context throughout N.J.A.C. 7:7A.

133. COMMENT: The existing definition of "property as a whole" is cut off. The remainder of the final sentenceshould read "... investment or development plan. In determining the property as a whole in a particular case, theDepartment shall consider existing legal precedent regarding what constitutes "property as a whole" at the time of thedetermination," to match the CZM Rules. (255)

RESPONSE: The existing definition of "property as a whole" contains the language referenced by the commenter.The definition is correct in the official New Jersey Administrative Code version of the FWPA Rules. The courtesy copyon the Department's website did not contain the full definition; this has been corrected in the current courtesy copy onthe Department's website.

134. COMMENT: The Department should add definitions for "reconstruct" and "repair" consistent with thedefinitions in the FHACA Rules. (255)

RESPONSE: The definitions of "reconstruct" and "repair" are necessary in the FHACA Rules because they relateto whether an activity is a "substantial improvement" to a structure under that chapter, which affects eligibility forcertain permits and subjects the activity to additional requirements to meet current building requirements. The FWPARules do not use the terms for this purpose; it is, therefore, inappropriate to apply the same definitions. The plainlanguage of the terms is sufficiently clear for their use in the FWPA Rules.

135. COMMENT: The definition of "transition area" states that a transition area is adjacent to freshwater wetlands.However, recent guidance and regulation by the Department suggests that a regulated transition area includes all uplandarea within 50 or 150 feet of a wetland boundary, regardless of adjacency. For example, upland areas separated fromwetlands by a stream or other water body do not appear to meet the definition of "transition area" but are regulated assuch. The Department should clarify this definition or the general transition area provisions at N.J.A.C. 7:7A-2.5 toaddress this issue. (69)

RESPONSE: The presence of a stream or other water body within a transition area between the upland boundary ofthe transition area and the wetland boundary does not preclude the area from being a transition area. The term"adjacent" is used in the definition of "transition area" in the FWPA, and is further clarified in the substantive standardsestablishing transition area width. Under the FWPA at N.J.S.A. 13:9B-16a, a transition area serves as "an ecologicaltransition zone from uplands to freshwater wetlands which is an integral portion of the freshwater wetlands ecosystem,providing temporary refuge for freshwater wetlands fauna during high water episodes, critical habitat for animals

49 N.J.R. 3849(a)

dependent upon but not resident in freshwater wetlands, and slight variations of freshwater wetland boundaries overtime due to hydrologic or climatologic effects" and as "a sediment and storm water control zone to reduce the impactsof development upon freshwater wetlands and freshwater wetlands species." The Act further directs the Department toestablish the width of the transition area as no greater than 150 feet nor less than 75 feet for a freshwater wetland ofexceptional resource value and no greater than 50 feet nor less than 25 feet for a freshwater wetland of intermediateresource value, with no mention of adjusting or eliminating a transition area if it contains a water feature that physicallyseparates the upland transition. Land separated from a wetland by a stream or other feature that is within the widthsprescribed by the FWPA and the FWPA Rules also still performs the functions enumerated in the FWPA and isproperly regulated as a transition area. For example, water features next to wetlands are likely to be hydrologicallyconnected to the wetlands. The effects of impacts to the transition area, such as an increase in polluted stormwaterrunoff caused by destruction of vegetation, will likely effect the wetlands despite an intervening water feature. Asanother example, the function of transition areas as habitat for species dependent on, but not residing in, freshwaterwetlands, also is not affected by an intervening water feature; any impact to transition areas could jeopardize thisfunction. Because transition areas containing a water feature separating uplands from wetlands still perform many of thesame functions as transition areas that are immediately next to wetlands, consistent with the direction provided by theFWPA, the Department interprets the term "adjacent" used in the context of the definition of "transition area" to meannear or close to, and does not intend to imply that all parts of a transition area must be contiguous with the wetlandsboundary. The use of the term "adjacent" in this manner has not caused confusion in the Department's implementationof the rules; clarifying amendments are not necessary.

136. COMMENT: A reference to NJ GeoWeb (Tidelands Layer) would be helpful to add to the definition of "tidalwaters" for determining the location of the head of tide. (255)

RESPONSE: The Tidelands Layer available on NJ GeoWeb is intended for guidance purposes only and may notaccurately reflect the actual head of tide or location of the Tidelands claim line. It would be inappropriate to include anon-regulatory guidance tool in a regulatory definition.

137. COMMENT: The amendments to the definition of "utility line" are opposed. A tower transmittingelectromagnetic transmission is a utility line and should be so considered. A stormwater pipe is a utility line and shouldremain as a utility line. Such a pipe is artificially changing the status of a wetland, too, and is not natural. (327)

RESPONSE: The definition of "utility line" is amended to more closely align with the definition of the same termin the FHACA Rules. The adopted amendment serves to clarify the previously existing definition that specified that atower or pole that only transmits waves through the air is not a utility line. The amendment makes clear that thisexception also applies to towers or poles that only receive electromagnetic waves. This clarification is important indistinguishing activities that may be eligible for general permit 21 for an above-ground utility line from those that arenot eligible for this general permit. These activities are regulated under other provisions in the adopted FWPA Rules.Because towers that only transmit or receive electromagnetic waves are single, discrete structures, they are notappropriately considered utility lines under general permits 2 and 21 and must obtain an individual permit to beconstructed.

The Department is retaining in the adopted definition the indication that a utility line does not include a stormwaterpipe or a pipe that drains a wetland, which was included in the previous definition to clarify what activities areauthorized under general permits 2 and 21. Because these types of pipes are not considered to be utility lines, they donot qualify for these general permits. General permit 2, for underground utility lines, specifies requirements for pipeslaid through wetlands, transition areas, or State open waters to ensure that wetlands hydrology is not affected and toallow free passage of surface and ground water. General permit 21, for above-ground utility lines, requires activitiesunder this general permit to not interfere with the natural hydrological characteristics of the wetland, transition area, orState open water in which the project will take place. Diverting stormwater or draining a wetland by design alters thehydrology of an area, so these activities are not considered utility lines for the purposes of both the FWPA and FHACARules. Alterations to hydrology due to stormwater diversions or draining a wetland have greater potential environmental

49 N.J.R. 3849(a)

impacts that are not appropriately reviewed in the context of utility line general permits. Accordingly, any proposal toconduct such an activity in wetlands will only be reviewed under the more stringent individual permit process.

138. COMMENT: In the notice of proposal Summary, the Department describes amending the definition of "waterdependent development" to add examples, but does not list out the examples to be added. This seems like an attempt toconfuse the public and sneak through significant changes. The public needs a sound understanding of what is beingproposed; omitting the examples makes it difficult for the public to understand the reasoning behind the amendments.(327)

RESPONSE: The Department believes the commenter is referring to the changes made to the definition of "waterdependent activity." In the notice of proposal Summary, the Department states that changes are [page=3870] beingmade to clarify that uses or portions of uses that can function on sites not adjacent to the water are not considered waterdependent, regardless of the economic advantages that may be gained from a waterfront location, and that only portionsof activities that require direct access to the water are water dependent. The notice of proposal Summary is to be read inconjunction with the proposed rule text. The discussion of the proposed changes to the definition identified the additionof examples and the rule text contains those examples. Examples of water dependent uses include: docks, piers, marinaactivities requiring access to the water, such as commissioning and decommissioning new and used boats, boat repairsand short-term parking for boaters, storage for boats that are too large to be feasibly transported by car trailer (generallygreater than 24 feet), rack systems for boat storage, industries, such as fish processing plants and other commercialfishing operations, port activities requiring the loading and unloading of vessels, and water-oriented recreation.

139. COMMENT: Dams, bridges, culverts, pipes, stormwater outfalls, and stormwater pump stations that requiredirect access to a body of water should be added as examples to the definition of "water dependent activity." (255)

RESPONSE: The adopted definition provides examples of water dependent activities, but these are not intended tobe an exhaustive list of all activities that could possibly be considered water dependent. The examples provided in theadopted definition of "water dependent development" are all related to the use of the water body itself by humans,whether for navigation, recreation, or commerce. Whether any activity is water dependent depends on whether theactivity can or cannot physically function without direct access to the body of water along which it is proposed. TheDepartment will evaluate whether specific activities not listed in the definition are water dependent when reviewing apermit application.

140. COMMENT: Why is the definition of water quality certificate being changed? Water quality certificates are aFederal requirement, and other than the reference to the appropriate Federal regulations, this definition should not be inthe FWPA Rules, and the FWPA Rules have no authority over this definition. (415)

RESPONSE: As explained in the notice of proposal Summary, the Department amended the definition of "waterquality certificate" to align with the definition of the term in the CZM Rules without changing the meaning of the term.The definition has been expanded to include examples of Federal licenses and permits for which water qualitycertificates are issued. As provided by N.J.A.C. 7:7A-2.1(d) and explained in the Response to Comments 70 through 87,a permit issued under the FWPA Rules constitutes the water quality certificate required under the Federal Act at 33U.S.C. § 1341 for any activity covered by the chapter. If a discharge of dredged or fill material into waters of the UnitedStates does not require a permit under the FWPA Rules but does require a water quality certificate, the Department willuse the standards and procedures in N.J.A.C. 7:7A to determine whether to issue the water quality certificate, except forin the coastal zone in which case the standards in the CZM Rules at N.J.A.C. 7:7 will be used.

141. COMMENT: The proposed definition of "water quality certificate" creates confusion because it does notinclude permits issued under N.J.A.C. 7:7A in the examples of those activities requiring water quality certifications.(277)

RESPONSE: Permits issued under N.J.A.C. 7:7A do not require a separate water quality certificate. Rather, as

49 N.J.R. 3849(a)

stated in N.J.A.C. 7:7A-2.1(d) and explained in the Response to Comment 142, a permit issued under the FWPA Rulesincludes the analysis required by the Federal Act and itself constitutes the water quality certificate required under theFederal Act.

"Degraded wetlands"

142. COMMENT: Please clarify if the definition of "degraded wetlands" at N.J.A.C. 7:7A-1.3 encompasses theterm "ecological value." "Ecological value" is used throughout the proposed rules, but should be replaced with"degraded wetlands" since currently the determination of whether there is "little ecological value" is highly subjective.(140)

143. COMMENT: The change from "value" to "function" in the definition of "degraded wetlands" suggests that theterm "ecological value" in other parts of the rule are separate from this definition. Therefore, the Department shouldprovide a definition of "ecological value" and a methodology for determining and measuring the value of a wetland.(69)

RESPONSE TO COMMENT 142 AND 143: Ecological functions in part determine a wetland's ecological value."Ecological value" refers to the benefit to society provided by a wetland and is based on the functions those wetlandsprovide. As summarized by the USEPA in its 2002 fact sheet Functions and Values of Wetlands, "Wetland functionsinclude water quality improvement, floodwater storage, fish and wildlife habitat, aesthetics, and biological productivity.The value of a wetland is an estimate of the importance or worth of one or more of its functions to society. For example,a value can be determined by the revenue generated from the sale of fish that depend on the wetland, by the touristdollars associated with the wetland, or by public support for protecting fish and wildlife." The values provided by awetland are possible because of the underlying ecological functions.

In determining if a wetland is degraded for the purposes of the FWPA Rules (mainly, if general permit 26 forredevelopment can be used to authorize activities in the wetland, and in determining the cost to restore a wetland tocalculate a monetary contribution to the In-Lieu Fee Program), focusing on ecological functions is most appropriate andmost conducive to evaluation. Furthermore, the terms "degraded wetlands" and "ecological value" are clear in generalpermit 26 at N.J.A.C. 7:7A-7.26, which requires that "[t]he freshwater wetlands, transition areas, and/or State openwaters to be disturbed are significantly degraded by human disturbance or alteration and are of little ecological value."Including "ecological value" in the definition of "degraded wetlands" would be redundant in this context. For thesereasons, replacing the term "ecological value" with "degraded wetlands" will not provide additional clarity.

In other areas of the rule that refer to "ecological value," the term is to be interpreted as it was in the prior rule. Asstated above, the ecological value or values of a wetland are influenced by the ecological functions of that wetland. Adegraded wetland, with diminished ecological functions, will logically have diminished ecological value.

The Department describes, at N.J.A.C. 7:7A-11.2(a), how to demonstrate that a proposed mitigation optionprovides both ecological functions and ecological values at least equal to those provided by the disturbed or lostwetlands. This provision states, in part, "[i]n order to demonstrate equal ecological functions and values, the mitigatorshall provide current scientific literature concerning wetlands, aquatic resources, and mitigation; as well as survey theconditions on the site of disturbance and on the proposed mitigation area and provide written documentation regardingthe existing and proposed soil conditions, type and density of vegetation, any existing contamination or otherdegradation, sediment and pollution removal ability and flood storage capacity of the wetland resources, all proposedsoil erosion protection measures, and existing, as well as any anticipated, wildlife habitat conditions." Additionalguidance on determining ecological value is unnecessary and risks inappropriately restricting legitimate methodologies.

144. COMMENT: The Department should have a guidance document that outlines and recognizes the differentmethodologies for assessing whether wetlands are degraded. (140)

49 N.J.R. 3849(a)

RESPONSE: In accordance with N.J.A.C. 7:7A-1.3, "degraded wetlands" means a wetland in which there isimpaired surface water flow or groundwater hydrology, or excessive drainage; a wetland that has been partially filled orexcavated, contaminated with hazardous substances, or that has an ecological function substantially less than that ofundisturbed wetlands in the region. Determining if a wetland meets this definition involves the collection of factsconcerning the conditions existing at a particular site and not necessarily a formal assessment of the function or valuesprovided by the wetland. Therefore, it would be misleading to recommend a methodology for assessing wetlandsfunctions and values in this context when the applicant must spend time documenting on-site conditions to make thisdetermination.

[page=3871] "Temporary disturbance"

145. COMMENT: Large projects and projects that require temporary access roads or work platforms can havetemporary disturbances that last beyond six months. The definition of "temporary disturbance" should be modified tomore generally refer to "certain regulated activities" and to include the type of construction project as a factor thatwould cause an activity, by its very nature, to cause a temporary disturbance that persists for greater than six months.(69)

146. COMMENT: The proposed definition of "temporary disturbance" is ambiguous as it only referenceshazardous substance remediation or solid waste facility closure" as types of regulated activities that are intended to betemporary, but will exceed six months in duration because of the nature of the activity. There are potentially many typesof regulated activities that are intended to be temporary but will exceed six months. Additional examples should beprovided. (255)

RESPONSE TO COMMENT 145 AND 146: The adopted definition of "temporary disturbance" continues toinclude regulated activities that occupy, persist, and/or occur on a site for no more than six months, which is similar tothe prior definition. However, the adopted definition is expanded to include flexibility in the designation of an activityas a temporary disturbance for activities that are temporary, but that justifiably exceed six months in duration because ofthe nature of the activity. As evidenced by the two examples listed in the definition and the notice of proposal Summary(that is, hazardous substance remediation or solid waste facility closures) this flexibility is applied to environmentallybeneficial activities that by their very nature may result in disturbance that persists longer than six months, but after thecompletion of which the disturbed regulated area can be restored to its prior, or an improved, condition, such that thelonger persistence of the disturbance is ultimately justified. The Department intends the additional flexibility providedin the definition to be applied on a case-by-case basis and will not add additional examples or include the type ofconstruction project as a factor in making the determination of whether a disturbance is temporary.

147. COMMENT: The rule change that allows for "temporary disturbances" will weaken protections for wetlands.Temporary disturbance in wetlands does not exist. Destroying vegetative cover, soil, or anything in a wetland is nottemporary, but will have long-lasting effects on the wetland. (13, 20, 22, 23, 35, 51, 52, 63, 74, 76, 85, 131, 173, 174,189, 202, 218, 232, 233, 237, 240, 243, 244, 266, 294, 306, 324, 327, 329, 334, 343, 362, 377, 392, 395, 399, 408, 414,415, 427, 431, and 454)

148. COMMENT: Do not allow temporary disturbance in any wetlands. (168)

149. COMMENT: The proposed changes to the definition of "temporary disturbance" could result in significantadverse impacts to water quality. Only the most minimal hand-trimming of grasses in a wetland should be considered a"temporary disturbance." (84, 179, 222, and 402)

150. COMMENT: Amendments to the definition of "temporary disturbance" are opposed because theyinappropriately expand the scope of activities eligible to be considered "temporary." Wetlands are virtually alwaysdegraded by even minimal disturbance, whether by soil compaction, modification of hydrology, or introduction ofinvasive species. Only the most minor activities, such as hand-trimming of vegetation, should be considered temporary.

49 N.J.R. 3849(a)

While the examples provided in the proposed definition include site remediation projects, which in many cases may beappropriate for differential treatment, revising the definition to address one limited situation would result in significantadverse impacts in different scenarios that could fall within the ill-defined new parameters. The Department shouldeither leave the existing definition unchanged or revise the definition to specifically omit certain types of projects, suchas major site remediation projects, and continue to hold all others to the six-month limit. (160 and 277)

151. COMMENT: The notice of proposal does not take the cumulative impacts of temporary disturbances towetlands into account. (160 and 277)

152. COMMENT: Creating an open-ended definition for temporary disturbances is opposed. Scientific researchand studies show that there are no such thing as temporary disturbances to wetlands. Once the hydrology has beendamaged, the wetland has been permanently damaged. The Department's own wetlands research shows that therestoration of temporary impacts has a high rate of failure. Given the requirements of the FWPA, temporary impactscannot be allowed to continue. (320)

153. COMMENT: The new definition for temporary disturbance would allow an activity to remain in place foryears since no duration limit is provided. An upper limit on the timeframe for a temporary disturbance must be providedin the definition or the disturbance is not truly temporary. (415)

154. COMMENT: Recent amendments to other land use rules should not drive substantial amendments to theFWPA Rules. These changes are not universally applicable. For instance, the change to the definition of "temporarydisturbance" such that a disturbance can extend longer than six months is not applicable to a wetland. Temporaryimpacts to wetlands can spiral into permanent loss. Expanding the definition of "temporary disturbance" puts existingwetlands at risk. (376)

155. COMMENT: At proposed N.J.A.C. 7:7A-1.3, the Department is relaxing the six-month limit in the definitionof temporary disturbance. Further, the notice of proposal Summary only discusses restoration of the original topographyand vegetative cover, not the restoration of the hydrology. The Department's own wetlands research demonstrates thatthe restoration of wetlands fails, meaning that temporary impacts are, in reality, permanent impacts. Any activity thatmay have a permanent impact on a wetland, regardless of its duration, should not be considered temporary. This changewill result in the degradation of wetlands. (319 and 328)

156. COMMENT: Please explain why the definition of temporary disturbance is being expanded. (179)

RESPONSE TO COMMENTS 147 THROUGH 156: The changes relating to temporary disturbance will notweaken protections for wetlands. The FWPA Rules previously have allowed for temporary disturbances. The adoptedchanges align the definition with the CZM Rules at N.J.A.C. 7:7-17.1 and the FHACA Rules at N.J.A.C. 7:13-1.2 aspart of the Department's initiative to align the three land use permitting programs to the maximum extent allowed bytheir respective enabling statutes and, as explained in the Response to Comments145 and 146, allow the Departmentflexibility to facilitate certain beneficial activities that by their nature result in disturbance that may last longer than sixmonths, but is ultimately restored to a prior or, in many cases, improved condition. The Department believes it isappropriate to apply a consistent definition of "temporary disturbance" across the three land use rule chapters. Thedefinition of "temporary disturbance," as adopted, applies to regulated activities that occupy, persist, and/or occur on asite for no more than six months, which is similar to the prior definition. However, the adopted definition is expanded toinclude flexibility in the designation of an activity as a temporary disturbance for activities that are temporary, but thatexceed six months in duration because of the nature of the activity (for example, hazardous substance remediation orsolid waste facility closure). Disturbances that exceed six months in duration will only be considered "temporarydisturbance" if the disturbed areas are restored to their original topography, and all necessary measures are implementedto ensure that the original vegetative cover onsite is restored to its previous (or an improved) condition. With referenceto restoration of hydrology, as indicated in the definition of "restoration" at N.J.A.C. 7:7A-11.1, in the context oftemporary disturbances wetlands restoration means "[t]he reversal of a temporary disturbance and the reestablishment of

49 N.J.R. 3849(a)

the functions and values of the wetlands and/or State open water that was temporarily disturbed." This would includehydrologic functions. While the amended definition of temporary disturbance emphasizes that activities that persist formore than six months may be considered temporary provided topography and vegetation are restored, this is not meantto represent the entirety of requirements for restoration of temporary disturbance, which are established at N.J.A.C.7:7A-11.8, Mitigation for a temporary disturbance. The Department does not intend to allow very long-term projects tobe considered "temporary"; the general timeframe remains six months with flexibility afforded to projects on acase-by-case basis as outlined above and in the Response to Comments 145 and 146. If a disturbance is significant orpersistent enough, such that the area will not [page=3872] be able to be returned to pre-disturbance conditions, thedisturbance will not be considered temporary.

With respect to the success of restoration of wetlands that have been temporarily impacted, these wetlands can berestored to pre-existing conditions within a relatively short period of time and such restoration has a high likelihood ofsuccess. Indeed, N.J.A.C. 7:7A-11.2(a) requires all mitigation to fully compensate for any ecological loss. Until thisrequirement is met, the Department will not consider a mitigation obligation (including the obligation to restore atemporarily disturbed area) satisfied. The commenters did not indicate which Department publication concludes that therestoration of temporary impacts is not likely to succeed. To the extent that the commenters are referring to the resultsof the 2002 report "Creating Indicators of Wetland Status (quantity and quality): Freshwater Wetland Mitigation in NewJersey," prepared by Amy S. Greene Environmental Consultants, Inc., that report did not address restoration oftemporary impacts. This report only evaluated wetlands creation sites and concluded that, based on an evaluation of 90freshwater wetland mitigation sites in New Jersey between 1988 and 1999, wetland creation projects were likely to failmainly due to lack of appropriate monitoring and follow-up. Since that time, amendments to the FWPA Rules and CZMRules have addressed the issues that caused mitigation projects to fail, as explained further in the Response toComments 397 through 401. The 2002 report that the commenters are presumably referring to did not focus ontemporary impacts and made no finding that restoration of temporary impacts was likely to fail.

157. COMMENT: The proposed rules are too lax on temporary impacts. Applicants claim temporary impacts areminimal, but in practice these impacts are often permanent and always entail landscape degradation. Recent pipelineprojects have destroyed large areas with excessive rights-of-way, which are claimed as temporary disturbance.Amendments concerning temporary impacts are especially alarming since the proposed rules make it easier to permitpipelines and related infrastructure. (353)

RESPONSE: As explained in the Response to Comments 147 through 156, restoration of temporary disturbanceshas a high probability of success and must be performed in accordance with N.J.A.C. 7:7A-11.8. Until "the reversal of atemporary disturbance and the reestablishment of the functions and values of the wetlands and/or State open water thatwas temporarily disturbed" is achieved, the applicant's mitigation responsibility is not satisfied. The Department doesnot anticipate that the amendment to the definition of "temporary disturbance" will have any effect on proposed utilityline projects. As explained in the Response to Comments 99 through 112, the adopted rules do not change the regulationof utility line activities under the FWPA Rules from the prior rules.

158. COMMENT: At N.J.A.C. 7:7A-2.5(a), the proposed amendment reflects the fact that "HackensackMeadowlands Development Commission" is renamed "New Jersey Sports and Exposition Authority." N.J.A.C. 7:7 and7:13 both currently refer to "New Jersey Meadowlands Commission" and so should be updated as part of thisrulemaking. (255)

RESPONSE: The Department proposed to update the CZM Rules to replace all occurrences of "HackensackMeadowlands Development Commission" with "New Jersey Sports and Exposition Authority" in a notice of proposalpublished after the publication of the proposed amendments, repeals, and new rules adopted herein (see 49 N.J.R.2122(a)). N.J.A.C. 7:13-2.1(c)3 is changed on adoption to refer to the "Meadowlands District" rather than the"Hackensack Meadowlands District" and to clarify that the New Jersey Meadowlands Commission has been renamedthe "New Jersey Sports and Exposition Authority."

49 N.J.R. 3849(a)

Applicability and Jurisdiction

Regulated areas

Identifying freshwater wetlands and transition areas; freshwater wetlands resource value classification (N.J.A.C.7:7A-3)

159. COMMENT: The reference to the 1988 plant list in the definition of "hydrophyte" and at N.J.A.C. 7:7A-3.1(c)is obsolete. The 1988 plant list was not amended, but was replaced with the currently-maintained USACE list. (255)

RESPONSE: In 2006, USACE assumed the responsibility for administering national and state-specific lists ofwetlands plants, including the periodic update of those lists, from the U.S. Fish and Wildlife Service (USFWS). Asindicated on the USACE website, the 1988 list was revised in 1996, with webpages of the USFWS capturing those andother updates of the 1988 list transferred to the USACE website with administrative changes in 2006 (seehttp://wetland-plants.usace.army.mil/nwpl_static/index.html). The current National Wetlands Plant List is an extensionof the 1988 plant list. The Department and the regulated public understand the currently-published National WetlandsPlant List as incorporating amendments to the 1988 plant list, as does the USACE. Accordingly, there is no need tochange the reference to the list in the definition of "hydrophyte," which includes the 1988 list, as well as amendmentsthereto.

160. COMMENT: The proposed amendment at recodified N.J.A.C. 7:7A-3.2(c), to replace the reference to theDivision of Land Use Regulation's freshwater wetlands technical manual with a reference to the report "New Jersey'sLandscape Project" warrants further study because the Landscape Project materials do not contain information abouthydrology. Wildlife habitat mapping for land use planning is an important consideration but should not necessarily bethe sole determinant or even the preferential determinant of the capacity of urban landscapes to sustain freshwaterwetlands. Historical hydrology should be considered, especially in urban areas. (125)

RESPONSE: The amendment referred to by the commenter is only intended to apply to the Department's analysisof threatened and endangered species habitat when determining the resource value classification of a wetland.Department staff delineate or verify delineations of freshwater wetlands based on the three-parameter approach. An areamust have wetlands soils, wetlands vegetation, and wetlands hydrology in order to be considered a wetland and,therefore, subject to the requirements of the FWPA Rules. Once it has been determined that an area does meet thedefinition of a wetland, the Department makes a resource value classification. An area with documented or presentthreatened or endangered species is assigned an "exceptional" resource value classification and a 150-foot transitionarea surrounding the wetland. N.J.A.C. 7:7A-3.2 simply explains the Department's process for determining if an areawill be assigned an exception resource value classification based on threatened and endangered species data.

161. COMMENT: Please confirm that determining the classification of exceptional resource value wetlands basedon Landscape Project mapping or pursuant to proposed N.J.A.C. 7:7A-3.2(d) requires a finding that the species ofconcern is critically dependent upon the wetlands habitat for survival for the purpose of advancing the goal of achievingconsistency among regulatory programs, particularly the FHACA Rules, which require such a finding in the context ofestablishing the width of riparian zones. (140)

RESPONSE: Unlike the determination of a 150-foot riparian zone in the FHACA Rules, a classification ofexceptional resource value wetlands under N.J.A.C. 7:7A-3.2 does not require a finding that a species is criticallydependent upon the wetland habitat for survival. The FWPA, at N.J.S.A. 13:9B-7, directs the Department to classifywetlands as exceptional resource value wetlands when such wetlands "are present habitats for threatened or endangeredspecies, or those which are documented habitats for threatened or endangered species which remain suitable forbreeding, resting, or feeding by these species during the normal period these species would use the habitat." The FWPAcontains no qualifying statement that the species must be critically dependent on the wetlands in order for thisdetermination to be made. Requiring a finding that a species is critically dependent on particular wetlands to assign an

49 N.J.R. 3849(a)

exceptional resource value classification is, therefore, contrary to the FWPA and Department policy.

162. COMMENT: Further clarification of the term "proximate to a site" is needed at N.J.A.C. 7:7A-3.2(d) toexplain what the Department must demonstrate to prove that a site is suitable for a species and what a property ownermust demonstrate to prove that the site is not suitable for that species. (140)

[page=3873] RESPONSE: The term "proximate to a site" is intended to capture situations where an occurrence of aspecies is near enough to the site in question that the threatened or endangered species would be anticipated to utilizethe site as well. The Department will make the determination that the site might be suitable habitat based upon sitecharacteristics and known information about the identified species' habitat requirements and dispersal abilities. Suchinformation is available in the Department's "Protocols for the Classification of Wetlands as being of ExceptionalResource Value based on Documentation of State or Federal Endangered or Threatened Species," found athttp://nj.gov/dep/landuse/guidance.html. An applicant may rebut this presumption in the same way they would requestthat a documented habitat not result in a classification of exceptional resource value under N.J.A.C. 7:7A-3.2(e) basedupon the long-term loss of one or more habitat requirements of the specific documented threatened or endangeredspecies, including, but not limited to, wetlands size or overall habitat size, water quality, or vegetation density ordiversity.

163. COMMENT: N.J.A.C. 7:7A-3.2 should provide the opportunity for an applicant to submit site-specificinformation documenting that a threatened or endangered species no longer uses the site or to show via surveys thatthere is no use of the site. (262)

RESPONSE: Under N.J.A.C. 7:7A-3.2(b), an exceptional resource value wetland is classified as such based uponthreatened or endangered species considerations, if it is a present habitat for threatened or endangered species or is adocumented habitat for threatened or endangered species which remains suitable for breeding, resting, or feeding bythese species during the normal period these species would use the habitat. The presence on site or use of the site by thespecies in question at the time of the application is not necessary to determine that a site is threatened or endangeredspecies habitat. If an applicant can demonstrate that the habitat on the site does not remain suitable for breeding, resting,or feeding of the threatened or endangered species that has been associated with the site, the rules provide the applicantwith a means to present any information supporting that demonstration at N.J.A.C. 7:7A-3.2(e).

164. COMMENT: A minimum width of 150 feet for a transition area adjacent to a freshwater wetland ofexceptional resource value, classified as such based upon the use of the Landscape Project and other sources, issupported. (431)

RESPONSE: The Department acknowledges this comment in support of the rules.

165. COMMENT: Under the existing rules, when a roadway crosses through a transition area, the portion of thetransition area on the opposite side of the roadway from the wetland remains regulated as a transition area. However,this portion of the transition area is physically separated from the wetland and, therefore, does not necessarily functionas a buffer or ecotone for the wetland itself. It is suggested that the "truncated" portion of the transition area not beregulated or otherwise not be counted in the calculation of disturbance acreage because it may not provide a transitionarea function. The "truncated transition area" could be defined as an area that is separated from a regulated wetland by alawfully existing public roadway, railroad, or similar structure. (255)

RESPONSE: Transition areas may still perform protective functions when physically separated from a wetland.These areas may still serve as refuge for freshwater wetlands fauna during high water episodes or critical habitat foranimals dependent upon, but not resident in, freshwater wetlands depending on the species in question. For example,bird species that depend on wetlands may fly over a barrier like a roadway to seek refuge or nesting habitat in atransition area. Transition areas separated from the wetland by a roadway or railroad still serve as a sediment and stormwater control zone to reduce the impacts of development upon freshwater wetlands and freshwater wetlands species.

49 N.J.R. 3849(a)

While the separation of a transition area from a wetland by a roadway, railroad, or similar development is not an idealarrangement, the Department does not agree that the "truncated" portion of the transition area provides no function as abuffer for the wetlands.

N.J.A.C. 7:7A-4, Letters of Interpretation

166. COMMENT: Clarification is needed concerning the addition of "other" at recodified N.J.A.C. 7:7A-4.2(d).Does the addition imply that the provision now applies to land drained for any purpose that may have hydric soils, orwill it still only apply to areas drained for farming purposes? (255)

RESPONSE: Adopted N.J.A.C. 7:7A-4.2(d) applies to areas with hydric soils that have been drained, not limited tothose areas that have been drained for farming purposes. While areas with hydric soils that have been drained are mostcommonly associated with farming operations, other areas, such as golf courses, may have drainage structures presentthat affect an area with hydric soils. In all cases where an area with hydric soils has been drained, the Department willpresume that wetlands hydrology is present, absent compelling scientific information to the contrary. As was the caseprior to adoption of these amendments, an applicant can rebut the presumption of hydrology by removing or disablingthe drainage structures for one normal rainfall year, after which the Department will evaluate the area for the presenceor absence of wetlands in accordance with the Federal Manual.

167. COMMENT: The LOI issued by the Department should discuss whether any wetland features delineated on asite meet the rule definitions of "isolated," "ditch," "swale," and "stormwater management facility," in addition to theresource value classification. Current Department practice is to determine if any wetland features on the site meet theabove definitions during the subsequent review for a general permit application, which requires a second site inspection.The Department should add this determination to N.J.A.C. 7:7A-4.2(e), in the list of what an issued LOI will specify.(69)

RESPONSE: The adopted rules at N.J.A.C. 7:7A-16.3(b)3 provide an applicant for a line verification LOI with theopportunity to provide information supporting a request that the Department verify that a wetland is an isolated wetland;such a determination need not await the submittal of a general permit application. In regard to ditches, swales, anddetention facilities in uplands, in accordance with adopted N.J.A.C. 7:7A-3.2(f) all are classified as ordinary resourcevalue wetlands unless they discharge to FW-1 or FW-2 trout production waters or their tributaries, or they are present ordocumented habitat for threatened or endangered species. Beyond the resource value classification, there is little valuein distinguishing between these features. If a wetland is identified as ordinary resource value in the LOI, the recipient ofthe LOI can assume the wetland meets one of the criteria of N.J.A.C. 7:7A-3.2(f), that is, it is an isolated wetland lessthan 5,000 square feet that has one of several uses covering over 50 percent of the area within 50 feet of the wetlandboundary; a drainage ditch; a swale; or a detention facility created in uplands. The term "stormwater managementfacility" is defined at N.J.A.C. 7:7A-1.3 as "a facility which receives, stores, conveys or discharges stormwater runoffand is designed in accordance with applicable local, county and State regulations. These facilities may include retentionbasins, detention basins, infiltration structures, grassed swales, rip-rap channels and/or stormwater outfalls." TheDepartment believes that the definition adequately describes the types of facilities that fall under the term "stormwatermanagement facility," so as to make the classification of such features under an LOI unnecessary.

With reference to the suggested change potentially eliminating the need for the Department to conduct a second siteinspection, it is not current Department practice to make the above-described determination during a general permitreview, which would necessitate a second site inspection. If an LOI has already been issued, and a ditch, swale, ordetention facility is present on the site, Department staff have already noted the presence of these features on theirreview copy of the site plans that are part of the LOI file. The presence of any other stormwater management facilitywill also be noted. The prior site visit notes would be referred to during the general permit review; very rarely would asecond site visit be necessary for the purposes of defining these features. The LOI contains the most useful informationconcerning regulated areas on the site; in this case, the resource value classification combined with the definition of"stormwater management facility" described above clearly represent the regulated features on the site.

49 N.J.R. 3849(a)

168. COMMENT: The requirement, at N.J.A.C. 7:7A-4.2(h), to provide a survey after an LOI is issued seems toconflict with other rule provisions. (69)

169. COMMENT: Proposed N.J.A.C. 7:7A-4.2(h) requires the submission of a survey of the approved delineatedwetlands and/or State [page=3874] open waters boundary line after an LOI is issued. While this requirement isappropriate, who is going to ensure that the survey is submitted? Will this be the responsibility of Coastal and Land UseEnforcement? (415)

170. COMMENT: The proposed change to N.J.A.C. 7:7A-4.2(h) states that a survey must be provided to theDepartment "after the [Letter of Interpretation (LOI)] is issued." Is this proposed change intended to mean that a finalsurvey of the delineated wetlands boundary and/or State open water boundary is only required to be submitted after theLOI is issued and that a final survey submission is not required prior to the issuance of the final LOI letter by theDepartment? If the original survey, which is required to be submitted pursuant to N.J.A.C. 7:7A-16.3(a)4, is consistentwith the LOI letter, does another identical survey need to be submitted to the Department after the LOI is issued asproposed in the rule? (140)

RESPONSE TO COMMENTS 168 THROUGH 170: The primary intent of the proposed amendments to previousN.J.A.C. 7:7A-3.1(i) (adopted N.J.A.C. 7:7A-4.2(h)) was to remove application requirements in light of theconsolidation of application requirements in N.J.A.C. 7:7A-16 and to simplify the procedures addressed in thissubsection of the rules. In this vein, the proposed subsection was simplified to require an applicant to provide anupdated survey of flagged field points delineating a wetland boundary where the Department moves flags in the fieldduring its review of an LOI application to accurately depict the actual extent of wetlands on the site, with that updatedsurvey to be submitted after the LOI was issued. As indicated in the notice of proposal Summary, if there were nochanges to the survey submitted as part of the application in accordance with adopted N.J.A.C. 7:7A-16 as a result ofthe Department's review of the application, a new survey would not be required. However, upon further consideration,the Department has determined that the notice of proposal to not require that the updated survey be provided until afterthe LOI is issued could create inefficiencies in the LOI process by requiring the Department to reissue LOIs after thefinal survey is provided. Therefore, the Department is not adopting that proposed change, but is instead continuinglanguage that was part of previous N.J.A.C. 7:7A-3.1(i), which specifies the process to be followed if adjustments to theinitial survey are required as a result of the Department's review. As the initial survey referenced in the prior version ofthis subsection (previous N.J.A.C. 7:7A-3.1(i)) is now required to be submitted as part of the application in accordancewith adopted N.J.A.C. 7:7A-16.4(e), the Department is not continuing the portion of the previous subsection thatreferenced timing options for submission of the survey, but is instead including a cross-reference to the adoptedapplication requirement.

To respond to commenter 415's concern about the responsibility for ensuring a final survey is submitted, theDivision of Land Use Regulation project manager is responsible for ensuring all required materials, including a finalsurvey, are submitted to the Department. Under the rules as adopted, this submission must occur prior to theDepartment issuing the LOI.

171. COMMENT: If the Department wants a survey of the approved wetlands boundary as required in N.J.A.C.7:7A-4.2(h), more than 90 days should be provided to record the LOI survey at N.J.A.C. 7:7A-4.7. The processing ofadding metes and bounds and plan changes requested by the Department can take longer than 90 days. (69)

RESPONSE: The Department considers 90 calendar days to be sufficient time to complete all requirements. TheDepartment routinely requires plan changes and other revisions during the review of an application and often prescribesa timeframe shorter than 90 calendar days in which to provide the information. In the Department's experience, quickturnaround is not only possible but routine for these types of changes. Under the FHACA Rules, a metes and boundsdescription of flood hazard area and floodway boundaries is required to be recorded for a verification. The Departmenthas not seen issues with completing these requirements within the 90-calendar day timeframe.

49 N.J.R. 3849(a)

172. COMMENT: Proposed N.J.A.C. 7:7A-4.7(a) requires the submission of certain information to the Office ofthe County Clerk or the registrar of deeds and mortgages in which the site is located within 90 calendar days of theissuance of a delineation or verification LOI on a privately-owned lot or on a publicly owned lot other than aright-of-way. Who will ensure that this information is submitted? Will this be the responsibility of Coastal and LandUse Enforcement? What are the ramifications if this information is not submitted? This requirement appears as if it maygo unenforced and be unenforceable. (415)

RESPONSE: The project manager in the Division of Land Use Regulation who reviewed the LOI application isresponsible for ensuring the LOI is recorded. Failure to submit a survey could result in enforcement action inaccordance with N.J.A.C. 7:7A-22. The FHACA Rules require an issued verification to be recorded; like letters ofinterpretation, verifications do not authorize regulated activities and depict delineations of regulated areas. TheDepartment has not experienced significant compliance or enforcement issues concerning the recording requirement inthe FHACA Rules and does not anticipate significant issues with the comparable requirement in the FWPA Rules.

173. COMMENT: The Department should only require the issued LOI and the approved survey to be recorded onthe property deed, similar to the current recording requirements for other Division of Land Use Regulation permits andapproved plans. The LOI itself would include the items in N.J.A.C. 7:7A-4.7(a)1, 2, 4, and 5, while the approved planwould include the metes and bounds description required at N.J.A.C. 7:7A-4.7(a)3. (69)

RESPONSE: The information required allows prospective property owners to become aware of the regulated areason their property in a standard format. The recording requirements at N.J.A.C. 7:7A-4.7(a) parallel those required for averification in the FHACA Rules at N.J.A.C. 7:13-5.6(a). The goal of this rulemaking was to align the administrativeprocesses across the three land use chapters. Verifications are similar to LOIs in that both can delineate the extent ofregulated areas on a property but do not authorize regulated activities. The recording requirements for both should,therefore, be the same to present all information about areas regulated by the Department's land use regulations in auniform and easy to understand format. Furthermore, the metes and bounds description required to be recorded atN.J.A.C. 7:7A-4.7(a)3 is not always present on approved plans; recording the plans themselves would, therefore, notprovide the required information in every case.

174. COMMENT: In addition to including the specific filing requirements for the metes and bounds description ofthe wetland line and the LOI, as required at N.J.A.C. 7:7A-4.7(a)5 and (b), in the FWPA Rules, it would also bebeneficial to include them in the LOI letter that is issued by the Department. (140)

RESPONSE: The Department agrees that the metes and bounds description of wetlands boundaries is a value pieceof information and will consider including it as a standard component of LOIs in the future. Such descriptions cancurrently be attached to an issued LOI. However, the Department is moving towards fully electronic submissions and isin the process of building a platform to allow all applications to be received in a single electronic portal, including LOIapplications. As part of this process, the Department is exploring methods of communicating wetlands or otherregulated area boundaries, including GIS methods. While not currently part of the standard issued LOI (either throughthe conventional application process or adopted E-LOI process) the Department will consider the inclusion of the metesand bounds description of the wetlands boundary, or of a more accurate GIS representation of the wetlands boundary, inthe issued LOI in the future; however, the current contents of LOIs set forth in the adopted rules are the mostappropriate for the application and approval processes currently in place.

175. COMMENT: Can a contract purchaser, rather than the permit recipient, who may be the property owner, filethe recording of the metes and bounds description of the wetland line and the LOI, as required at N.J.A.C. 7:7A-4.7(a)5and (b)? (140)

RESPONSE: N.J.A.C. 7:7A-16.2(c) establishes who may submit an application under the FWPA Rules. A contractpurchaser designated by the current property owner who seeks a permit or LOI on their behalf is included in this listunder N.J.A.C. 7:7A-16.2(c)2. While a contract purchaser could apply for an LOI under this provision, N.J.A.C.

49 N.J.R. 3849(a)

7:7A-4.7(a) requires the "recipient of the delineation or verification" to record the required information. If a contractpurchaser is the recipient of the LOI, then they may record the required information. However, recordation would, in allinstances, be the right of the property owner [page=3875] who must consent to the application. The contract purchasershould negotiate the LOI recordation with the owner when it enters into the contact.

176. COMMENT: While the effort to create consistency across permitting programs is recognized, the requirementto record an LOI is inconsistent with the limited term of LOIs and will cause confusion for title report users viewing adocument that has expired. LOIs have a five-year duration, with the possibility of one five-year extension, because theDepartment recognizes that external forces can alter the conditions of a site. Transition area boundaries may also changeif a transition area averaging plan waiver is obtained for the site. Given these realities, an LOI may need to bere-recorded a number of times, leading to a burden for the applicant and confusion for title review. The procedure torecord a conservation restriction for transition area revisions is sufficient to effectuate the purposes of the FWPA. (262)

RESPONSE: The Department does not believe that the adopted recording requirements will cause confusion. Therequired information includes the approval and expiration date of the LOI in accordance with N.J.A.C. 7:7A-4.7(a)2.Should multiple LOIs be issued for a site, the most recent LOI will be obvious from this information. LOI-relatedinformation will need to be re-recorded a maximum of once every five years, assuming that a property owner applies fora new LOI every time the current LOI expires. Under adopted N.J.A.C. 7:7A-8.1, not every transition area waiver willrequire a conservation restriction, so this mechanism is not sufficient to inform prospective property owners ofregulated areas on the property. In addition, transition area boundaries may also change based on new information onthe presence of threatened or endangered species on, or proximate to, the property changing the resource valueclassification, or as a result of changes in the associated wetlands boundaries, both of which would occur regardless ofthe issuance of a transition area averaging plan waiver. For these reasons, the Department does not anticipate the LOIrecording requirements will cause confusion or pose a burden to an applicant and considers them necessary to properlyinform prospective purchasers of the property of the presence of regulated areas on the property and potential limits onthe use of the property.

177. COMMENT: A freshwater wetlands LOI is not directly comparable to a flood hazard area verification becausewetlands delineations are more likely to change and do not entail the life and property hazards or flood insurance issuesthat relate to flood hazard areas. If the goal of the requirement to record an LOI is intended to protect property owners,the Department should note that an LOI is among the top priorities of a prospective property purchaser, either obtainedfrom the seller or obtained by the purchaser in their due diligence review. Therefore, the requirement for an LOI to berecorded should be deleted. (262)

RESPONSE: Freshwater wetlands boundaries may also be dynamic, which is why LOIs are not valid in perpetuity.While the commenters' experience suggests that most prospective purchasers of a property are aware of the possibilityof wetlands existing on a property and of the need to obtain an LOI before substantially investing in that property, it isthe Department's experience that many prospective property owners are not aware of the potential for wetlands on aproperty or how wetlands may impact the activities they may wish to conduct on the property. The recordingrequirement ensures that any prospective property owners are on notice that the property contains wetlands and is,therefore, subject to all applicable requirements of the FWPA Rules.

Regulated Activities and Exemptions

N.J.A.C. 7:7A-2.4, Agricultural and Silvicultural Exemptions

Temporary farm structures; hoophouses and polyhouses

178. COMMENT: Hoophouses and polyhouses should never be permitted in wetlands. (327)

RESPONSE: The adopted changes relating to hoophouses and polyhouses are directly in response to P.L. 2014, c.

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89, which amended N.J.S.A. 13:9B-4a to exempt certain temporary farm structures from the wetland permit andtransition area requirements of the FWPA and are necessary to ensure that the FWPA Rules remain consistent with thestatute. The changes do not entirely exempt all hoophouses and polyhouses from regulation under the FWPA Rules.Instead, the amendments allow construction of temporary farm structures on farmed wetlands that were activelycultivated on or before July 1, 1988, and that are in active agricultural use at the time the structures are to be erected.The construction of these temporary farm structures, including hoophouses and polyhouses, will have a de minimisimpact on the environment, as they are not permanent developments and will occur in wetlands that have been activelydisturbed for farming for decades.

179. COMMENT: Although proposed N.J.A.C. 7:7A-2.4(c)6 reflects a recent amendment to the FWPA, thisstandard invites violation because hoophouses and polyhouses typically include permanent footings. Once constructed,these structures usually remain in place in perpetuity, yet applicants can claim they are not permanent to qualify forexemption. Will the Department's Bureau of Coastal and Land Use Enforcement be checking to ensure that thesestructures are removed each autumn? (415)

RESPONSE: The exemption at N.J.A.C. 7:7A-2.8(c)6 is limited to the installation of temporary farm structureswith only a dirt or fabric floor without foundations on land that has been in active agriculture use since July 1, 1988 orearlier. Hoophouses and polyhouses are examples of eligible structures. As specified in the definition of "hoophouse" or"polyhouse," such structures cannot have permanent footings. There is no specific timeframe in which a farmer mayinstall or maintain a hoophouse or polyhouse, or other temporary farm structure, such as a run-in shed or pole barn,within an established and ongoing farming operation, and, therefore, no exact date on which the period of temporarydisturbance would expire. The construction of a structure that includes permanent footings or a foundation requires apermit. Failure to obtain a permit for this activity is subject to enforcement action. No particular time of year isspecified to install hoophouses, polyhouses, or similar temporary farm structures, so the Bureau of Coastal and LandUse Enforcement staff will not regularly be inspecting established, ongoing farming operations each fall to ensuretemporary farm structures are removed. However, Enforcement staff will continue to respond to and investigate anynotification of a potential violation.

Normal Maintenance of Cranberry Bogs and Blueberry Fields and Renewal or Rehabilitation of Cranberry Bogs

180. COMMENT: Changes to implement A1958/S1848 concerning exemptions for certain cranberry and blueberryagricultural activities are supported. The prior rule specified that if a commercial crop had not been harvested from abog or field for five years that the land would be considered "abandoned" without regard for any ongoing activities,such as maintenance or replanting. This provision ignored the nature of cranberry and blueberry crops, where replantingcan take at least five, and more commonly eight years before a true "commercial harvest." The proposed rule removesthe unreasonable five-year window and provides that farming activity is enough to keep the land in active agriculture.This change will help ensure that these historic and culturally important crops remain viable to grow in New Jersey. Theproposed changes clearly articulate the legislative intent of A1958/S1848. (87)

181. COMMENT: The extensive efforts to make the FWPA Rules consistent with recent amendments to the FWPAat N.J.S.A. 13:9B-4 are recognized. These essential amendments are generally supported. (86)

RESPONSE TO COMMENTS 180 AND 181: The Department acknowledges these comments in support of therules.

182. COMMENT: The example provided in N.J.A.C. 7:7A-2.4(c)1ii that states "the construction of ditches withinthe confines of an established cranberry bog is an exempt activity. However, the construction of ditches in wetlands orwaters located outside of the established cranberry bog requires a permit," should be deleted or modified for clarity. Thestatement that "any discharge of material into wetlands or waters, excavation of wetlands, or draining of wetlands orwaters, that are not in established use for such agricultural and silvicultural wetlands crop production requires a permit"is supported, but the cranberry bog example that follows implies a change in regulation. The cranberry bog example

49 N.J.R. 3849(a)

seems to imply that a permit will be required for any discharges, excavation, or drainage activities in wetlands that arein established use for wetlands crop production but not located within the confines of an established cranberry bogitself, such as [page=3876] reservoirs, dams, and upstream and downstream water control facilities. Such a result wouldincrease regulatory burden and costs on long-established cranberry farming operations, which does not seem to be theDepartment's intent. There is nothing in the notice of proposal Summary or impact statements to suggest that theDepartment considered these potentially devastating effects on cranberry growers. The final two sentences of N.J.A.C.7:7A-2.4(c)1ii should be deleted or else modified to reference the "area of established agricultural or silvicultural use"instead of cranberry bogs. (86)

183. COMMENT: While the proposed amendments are overly restrictive concerning activities outside a blueberryfield or cranberry bog, but within the same farm complex, the rules are supported, provided the corrections suggested bythe American Cranberry Growers Association are implemented. (87)

RESPONSE TO COMMENTS 182 AND 183: The example in N.J.A.C. 7:7A-2.4(c)1ii was intended to illustrate anexample of a new ditch in wetlands that are not part of established, ongoing crop production activities that would not beconsidered "minor drainage" under N.J.A.C. 7:7A-2.4(c)2v (for example, drainage associated with the conversion of awetland to an upland or one wetland use to another) and would, therefore, require a permit despite proximity to anestablished, ongoing crop production activity. The example is not intended to imply that activities exempt from therequirement to obtain a permit under the prior rules are no longer exempt. As stated at N.J.A.C. 7:7-2.4(c)1ii, thedischarge of material for the purpose of installing ditching or other such water control facilities incidental to planting,cultivating, protecting, or harvesting of rice, cranberries, or other wetland crop species, where the farming activities andthe discharge occur in wetlands and waters that are in established use for such agricultural and silvicultural wetlandscrop production is considered "minor drainage" and does not require a permit. The cranberry bog example is onlyintended to provide an easily-recognizable visualization of how these provisions may manifest in farming operations,and is not intended to establish any new requirement or regulation. The Department is clarifying the example atN.J.A.C. 7:7A-2.4(c)1ii on adoption to refer to new ditches.

184. COMMENT: Proposed N.J.A.C. 7:7A-2.4(c)3iv is overly broad and lacking the clarifying statement that theprovision is referring to dams within the confines of cranberry bogs in established use. As proposed, this regulationcould be read to inappropriately allow the addition of dams/dikes on parts of the farm external to the active cranberrybog that are not already under agricultural manipulation to be exempted. (277)

RESPONSE: N.J.A.C. 7:7A-2.4(c)3i through iv specifies activities that are exempt from the requirement to obtain apermit only when part of an established, ongoing farming, ranching, or silviculture operation, on properties that havereceived or are eligible for a farmland assessment under the New Jersey Farmland Assessment Act, N.J.S.A. 54:4-23.1et seq. (see N.J.A.C. 7:7A-2.4(c)). As defined at N.J.A.C. 7:7A-1.3, an "established, ongoing farming, ranching, orsilviculture operation" is limited to activities on areas subject to a farming, ranching, or silviculture use as of June 30,1988, which use has been pursued continuously since June 30, 1988. Activities listed at N.J.A.C. 7:7A-2.4(c)3 on landthat has not been in active agricultural use are not exempt from the requirement to obtain a permit. In accordance withN.J.A.C. 7:7A-2.4(b)3 (which was recodified from N.J.A.C. 7:7A-2.8(b)3 with no change in text), exemptions in thissection only apply to the portion of the property that meets all the requirements for the exemption. The followingexample is provided, "For example, if half of a 20-acre property has been actively farmed since June 30, 1988 and halfhas not, the half that has been actively farmed would be considered to be part of an established, ongoing farmingoperation and would therefore be eligible for the farming exemption. The remainder would not be eligible for thefarming exemption." To the commenter's concerns, this provision ensures that new dams or dikes cannot be installed inan area that is not already actively farmed without applying for a receiving a permit from the Department.

185. COMMENT: Do proposed N.J.A.C. 7:7A-2.4(c)2 and 3 allow for the removal of trees? Because theDepartment is proposing to delete the requirement that a crop be produced to demonstrate that an agricultural operationis ongoing, a cranberry bog could be abandoned for 50 years before being "repaired" through the removal of allvegetation. Cranberry bogs attract wildlife species, such as tree frogs. When a bog is abandoned for several years, it

49 N.J.R. 3849(a)

reverts to natural forested wetlands, which should not be converted back to a cranberry bog. (415)

RESPONSE: The activities listed at N.J.A.C. 7:7A-2.4(c)2 and 3 are only exempt from the requirement to obtain apermit under the FWPA when they are "part of an established, ongoing farming, ranching, or silviculture operation, onproperties which that have received or are eligible for a farmland assessment under the New Jersey FarmlandAssessment Act, N.J.S.A. 54:4-23.1 et seq." (See N.J.A.C. 7:7A-2.4(c)). In accordance with N.J.A.C. 7:7A-1.3, whilethe amended rules no longer require that a crop be harvested within the last five years for a cranberry bog to beconsidered "ongoing," the bog will only be considered an ongoing operation if "any of the activities listed at N.J.A.C.7:7A-2.4(c)2 and 3 have occurred within the prior five years." Accordingly, activities subject to the FWPA Rules on abog that has not maintained in any manner for over five years, including those on which no activity has been conductedfor 50 years, as in the commenter's example, could not be conducted without a permit.

Minor Drainage Related to Wetland Crops

186. COMMENT: At proposed N.J.A.C. 7:7A-2.4(c), the definition of "minor drainage" has been broadened suchthat the construction of new canals, ditches, dikes, and other structures meets that definition and may not require apermit. The Department's assertion that the meaning of "minor drainage" within the existing FWPA Rules contradictsthe meaning of the term as defined in 40 CFR 232 is misleading. The definition within the FWPA Rules is currentlymore restrictive than the Federal definition, which leads to more protections for wetlands in New Jersey. New Jersey'swetlands program should not be weakened to match the less stringent Federal regulations. (376)

187. COMMENT: Amendments to the definition of "minor drainage" and provisions concerning the construction ofcanals, ditches, dikes, and other water control projects create the potential to exacerbate drainage and flooding issues forwaters connected to agricultural or silvicultural crop areas. Rather than delete the requirement that ditches and watercontrol features do not alter the bottom elevation of any watercourse because it is "unclear," the Department shouldinstead clarify the requirement. Altering the bottom elevations of watercourses in established agricultural areas createspotential for flooding outside the boundaries of the operation. (208)

RESPONSE TO COMMENTS 186 AND 187: The prior exemption language concerning new ditches andalterations to the bottom elevations of watercourses did not come from the FWPA and did not accurately reflect thescope of the exemption for minor drainage activities. The FWPA exempts "minor drainage" with no limitation onaltering the bottom elevation of a watercourse. The adopted language does not weaken the wetlands protections in theFWPA Rules and will not exacerbate flooding. The adopted exemption for minor drainage at N.J.A.C. 7:7A-2.4(c)1continues to apply only to activities in areas that are part of an established, ongoing farming, ranching, or silvicultureoperation, on properties that have received or are eligible for a farmland assessment under the New Jersey FarmlandAssessment Act, N.J.S.A. 54:4-23.1 et seq. Drainage of or affecting areas outside of an established farming orsilvicultural operation is not exempt from the requirement to obtain a freshwater wetlands or open water fill permit, ortransition area waiver. In addition, drainage activities associated with the immediate or gradual conversion of a wetlandto a non-wetland, or conversion from one wetland use to another, are not considered "minor drainage" and require apermit under the adopted rules.

Exemptions for Silviculture Activities

188. COMMENT: Amendments concerning forestry are opposed. Any logging operations should be subject topublic input. The State Forester is subject to political pressure to allow actions that the public may not find acceptableand should not be allowed unfettered authority. Logging can cause erosion, changes in the climate in the logged area,flooding, and changes to the character of surrounding neighborhoods. The public pays for preservation of open spacethrough tax dollars, but then those areas of open space become subject to logging operations to allow others to profit.

[page=3877] Silviculture is not logging; the proposed amendments are, therefore, opposed. What is being referredto as "stewardship" is exploiting natural resources for profit. Best management practices (BMPs) for forestry should be

49 N.J.R. 3849(a)

for the good of all of New Jersey, not just those with political power or those who can profit. Replacing the term"harvesting" with "silviculture" is an effort to mislead the public; the word "logging" should be used because that iswhat will occur. (327)

RESPONSE: The FWPA and its implementing rules, including the provisions that pertain to forestry, are designedto protect New Jersey's freshwater wetlands. They do not authorize landowners to carry out logging operations thatwould degrade freshwater wetlands.

As noted by the commenter, silviculture is not logging. Silviculture is the art and science of sustainably managingwoodlands and forests, so that they both meet the diverse needs and values of current landowners and society, and areconserved for future generations. The harvesting of trees and forest products can be an aspect of silviculture, but only ifconducted in a sustainable manner and only as part of an overall program of management that ensures the sustainabilityof the forest.

The previous rules provided, at prior N.J.A.C. 7:7A-2.4(b)4, that the normal harvesting of forest products,including the clear cutting of a non-cultivated, wooded wetland area, must be part of a forest management planreviewed and approved by the State Forester or the activities would not qualify for the exemptions specified in N.J.A.C.7:7A-2.4(c) and (d). The replacement of "harvesting" with "silviculture" at N.J.A.C. 7:7A-2.4(b)4 and (d) and at 2.6(c)has been included in the amendments to it make clear that a broader array of silvicultural activities can qualify forexemption from the permitting requirements in the FWPA Rules, not just harvesting. However, to qualify for exemptionunder N.J.A.C. 7:7A-2.4(c) or (d), all silviculture activities, including harvesting of non-cultivated, wooded wetlandareas, continue to be required to be set forth in a forest management plan reviewed and approved by the State Foresterthat addresses wetlands. To clarify what must be found in order for such a forest management plan to be determined to"address wetlands," the rule has been amended to specify that only a plan protecting wetland resources through BMPswill be found to be sufficient to qualify the activity for exemption. BMPs are those practices that are protective ofwetlands. The New Jersey Forestry and Wetlands Best Management Practices Manual may be accessed at:http://www.state.nj.us/dep/parksandforests/forest/nj_bmp_manual1995.pdf.

189. COMMENT: Proposed amendments to silviculture exemptions offer weaker requirements. The rulemakingbroadens the scope of the exemption to "normal silviculture activities," which may include road construction or otherappurtenant activities. (208)

RESPONSE: The amendments to the silviculture exemption provisions serve to appropriately clarify the breadth ofthe exemption to include activities not related to the harvest of forest products, such as stewardship activities. Activitiesnecessary to achieve the harvest of forest products, such as temporary road construction, were exempt under priorN.J.A.C. 7:7A-2.8(d). The amended exemption, which clarifies that only activities that are part of a forest managementplan that "address wetlands" through the application of BMPs will qualify for exemption, is intended to be inclusive ofenvironmentally beneficial stewardship activities, as well as harvesting activities. The adopted amendments do notweaken wetland protections.

190. COMMENT: The rulemaking weakens the existing rules by replacing the requirement that a forestmanagement plan "addresses wetlands" with the requirement that a plan "conforms to best management practices."Relying on forestry BMPs is not sufficient for management of impacts to wetlands. Without explicitly addressingwetlands, impacts may not be fully quantified or mitigated. This creates uncertainty and decreases accountability withregard to possible wetland and floodplain impacts of forestry activities, including sedimentation, erosion, and inhibitedwetland function. (208)

191. COMMENT: At proposed N.J.A.C. 7:7A-2.4(b)4, the Department is proposing to delete "addresses wetlands"from the requirement at existing N.J.A.C. 7:7A-2.8. Merely having a forest management plan does not guarantee thatthe plan adequately addresses and protects wetlands and adjacent transition areas. The Department should retain therequirement to address wetlands to make clear that only those silviculture activities undertaken under a forest

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management plan that incorporates wetlands protections qualify for a permit exemption. (319)

RESPONSE TO COMMENTS 190 AND 191: The Department replaced "addresses wetlands" with "conforms toBest Management Practices (BMPs)" to more clearly define the nexus between forest management plans and therequirements of the FWPA Rules. While the first sentence of N.J.A.C. 7:7A-2.4(b)4 is amended to clarify that the forestmanagement plan must incorporate BMPs in order to be considered sufficient for the activity to be considered to qualifyfor exemption, the rule continues to make clear that any plan must address wetlands to be considered sufficient toqualify for exemption. The BMPs referred to minimize impacts to wetlands as a result of forest management activities.The State Forester reviews forest management plans and will not approve a plan in wetlands that does not address howimpacts to wetlands will be minimized. The State Forest Service's woodland management plan checklist directsapplicants to address the wetlands requirements in the FWPA Rules in order to receive State Forester approval of aWoodland Management Plan and directs applicants to the New Jersey Forestry and Wetlands Best ManagementPractices Manual, 1995, which identifies BMPs to minimize impacts to wetlands and flood plains. The BMP manualcan be found at: http://www.state.nj.us/dep/parksandforests/forest/nj_bmp_manual1995.pdf.

Presumption of Hydrology

192. COMMENT: Amendments concerning the presumption of wetlands hydrology in areas with hydric soils thathave been drained for farming purposes are opposed. First, one year is not a significant amount of time to determine ifan area contains wetlands or not, as drought conditions can often persist beyond one year. Changing to a one year periodis ineffectual. Second, relying on "sound professional judgement" is flawed as professionals can be paid to provide ananalysis favorable to the person paying. Many different experts should be consulted to ensure an unbiased conclusion.(327)

193. COMMENT: The change to recodified N.J.A.C. 7:7A-4.2(d) to reduce the applicant's burden of proof to showthat a wetland's hydrology has been effectively altered, such that it is no longer a wetland is concerning. The proposedamendments introduce ambiguity to the process where the existing rule is clear. If these circumstances are as rare as thenotice of proposal Summary indicates, this change is not necessary from a regulatory standpoint, could be misapplied incases with unique hydrology, and shifts the burden of proof from the applicant to the Department. (376 and 277)

194. COMMENT: The proposed changes to N.J.A.C. 7:7A-4.2 allowing applicants to rely on models rather thandirect monitoring for one year to ascertain changes to wetland status are less restrictive than allowed by the Clean WaterAct and, thus, inconsistent with the Department's mandate to satisfy the minimum Federal standards. (84, 179, 222, and402)

195. COMMENT: The 1989 Manual directs the user to rely on "sound professional judgement" when interpretingfield data and observations. However, identification of wetland hydrology is difficult. The proposed amendments atN.J.A.C. 7:7-2.4(b)5 and 4.2(d) would require the Department to rely on predictions and extrapolations rather thangiving the Department the opportunity to review site-specific field data and make observations, as is currently required.Moreover, the inclusion of the phrase "compelling scientific information" is meaningless in the absence of directreference to appropriate sections of the Federal Manual or the relevant Regional Supplement to the Corps of EngineersWetland Delineation Manual. The current Federal Standard set forth in the Regional Supplements states, "[o]n siteswhere the hydrology has been manipulated by man (e.g., with ditches, subsurface drains, dams, levees, water diversions,land grading) or where natural events (e.g., downcutting of streams) have altered conditions such that hydrologyindicators may be missing or misleading, direct monitoring of surface and groundwater may be needed to determine thepresence or absence of wetland hydrology." This indicates that direct monitoring should be the first step in the processto determine whether the hydrology of an area with hydric soils has been modified, such that the area is no longer awetland. Allowing any less would be less restrictive than the Clean Water Act allows and, therefore, inconsistent withthe [page=3878] Department's mandate to satisfy the minimum Federal standard. The proposed language for exemptionalso expands the availability of the potential exemption by clarifying that the site could have been drained for purposesother than farming and makes no exception to state that areas drained for the purpose of avoiding regulations will be

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subject to enforcement action. (277)

RESPONSE TO COMMENTS 192 THROUGH 195: The 1989 Federal Manual, which the FWPA and the FWPARules require the Department to use to identify and delineate wetlands, provides for the presumption of wetlandshydrology when hydric soils are present in an area with altered hydrology, regardless of the presence or absence ofother hydrologic indicators. In contrast, the USACE manual and supplements do not provide for the presumption ofhydrology. The prior rules, as well as the adopted rules, allow for the rebuttal of the presumption of wetlands hydrologyby disabling draining structures for one normal rainfall year and observing resulting hydrological conditions. The priorrules, as well as the adopted rules, specifically require the disabling of drainage structures and subsequent observationto occur during a normal rainfall year to acknowledge that prolonged drought conditions could prevent the observationof wetlands hydrology on a site that, under normal rainfall conditions, would have wetlands hydrology.

The adopted amendment to specify that the presumption of hydrology is limited to situations where there is anabsence of compelling scientific information has the effect of expanding the options for rebutting the presumption ofhydrology. While it is correct that an applicant could conceivably submit information that is less than factual in an effortto obtain a favorable decision, Department staff are not required to accept information without question. With referenceto the information that may be required to satisfy the "compelling scientific evidence" standard, the adopted rules do notindicate that modeling submitted by an applicant would be sufficient to overcome the usual presumption of wetlandshydrology (and, therefore, eliminate the need for the disabling of drainage structures and yearlong monitoringprescribed to rebut the presumption of hydrology). Instead, as indicated in the notice of proposal Summary, thedetermination would necessarily involve case-by-case analysis. The adopted rules allow the Department to consider anyinformation submitted to determine if it is "compelling scientific evidence" that would preclude the requirement todisable drainage structures. However, as further indicated in the notice of proposal Summary, when faced with anassertion that, despite the presence of hydric soils, wetlands hydrology is not present, Department staff will supplementany information submitted by the applicant with site investigations and careful review of all available data to determinewhether that assertion is correct. Department staff are experienced in implementing the FWPA Rules, are trained inidentifying and delineating wetlands, and always conduct site inspections to verify the information submitted in an LOIapplication. While there is a possibility that applicants may try to take advantage of the amended provision, theDepartment will carefully consider the information provided to ensure it is based on sound science. Furthermore,knowingly submitting false or inaccurate information is cause for the cancellation of a Land Use application andenforcement action.

196. COMMENT: Changing regulations just because a farmer or rancher has changed the use of the land on atemporary basis or because drought or climate conditions have resulted in an area that does not meet the definition of awetland is opposed. Temporary use of a dry wetland does not change its characterization as a wetland and such landsshould not be exempt from the requirements of the FWPA Rules. (327)

RESPONSE: The Department delineates wetlands pursuant to the 1989 Federal Manual, which requires threeparameters to be present in order to classify an area as a wetland: wetlands hydrology, hydrophytic vegetation, andhydric soils. Farm fields are disturbed areas where human activities have obscured one or more parameters. The FederalManual provides a procedure for delineating these disturbed areas. The adopted amendment at N.J.A.C. 7:7A-4.2(d)allows the Department to determine that an area has no wetlands hydrology based on scientific evidence other thanobservations after disabling drainage structures. This amendment is not intended to result in areas temporarily altered orareas not exhibiting wetlands hydrology due to natural drought conditions being incorrectly identified as uplands. Inaddition, the Federal Manual, in establishing the requirements to meet the hydrology criterion, states that "[a]n area haswetland hydrology when saturated to the surface or inundated at some point in time during an average rainfall year ..."A prolonged drought, therefore, will not lead the Department to determine that an area that would otherwise displaywetlands hydrology is not a wetland solely due to drier-than-normal conditions.

197. COMMENT: Agricultural land (prior converted crop land) that was being farmed as of July 1, 1988 (when theFWPA became effective) should not be regulated or considered as a wetland since the land did not meet the

49 N.J.R. 3849(a)

three-parameter approach (that is, hydrology, soils, and vegetation) enumerated in the 1989 Federal Manual. In fact, theManual specifically states that, "In cases where recent human activities have ... [modified an area's hydrology], it maybe necessary to determine the date of the alteration or conversion for legal purposes." If the activity occurred prior to theeffective date of regulation or other jurisdiction, it may not be necessary to make a wetland determination for regulatorypurposes. (262)

RESPONSE: Agricultural land regulated under the FWPA Rules continues to meet the definition of a wetlandunder the 1989 Manual. If an area with hydric soils has been drained for farming, there is a rebuttable presumption thatthe area has wetlands hydrology, despite the presence of drainage tiles or other water control features. If the applicantpresents compelling scientific evidence confirmed by the Department, or the result of disabling drainage structures forone normal rainfall year indicates that wetlands hydrology is not present, the agricultural land in question will not beregulated as a wetland under N.J.A.C. 7:7A.

Forms of FWPA Rules Approval

N.J.A.C. 7:7A-5, General Provisions for General Permits-By-Certification and General Permits

General

198. COMMENT: At 40 CFR 233.21(b), the Clean Water Act provides that general permits may only be adoptedand implemented if they have a de minimis impact on the environment, which must be scientifically grounded throughstudy analysis. However, nothing in the proposed rules suggests or demonstrates which scientific analyses or studies theDepartment has relied upon. The rules allow multiple general permits for a single project, but there is no scientificanalysis to show that this will have a de minimis impact. The Department presumes that it will, which is not inaccordance with the law. For example, the Department claims that the deletion of existing N.J.A.C. 7:7A-4.4(a)3, whichprohibits disturbance exceeding a half acre under general permit 6 from being combined with any other general permit,is not necessary to protect freshwater wetlands or open waters, but has not provided any analyses, studies, orpeer-reviewed studies to support that position. Such a blanket statement is contrary to the law. (320)

RESPONSE: The adopted general permits, which do not substantively differ from the general permits in the priorrules, have previously been determined to have only minimal (that is, de minimis) impacts when performed separatelyand only minimal cumulative adverse impacts in accordance with prior N.J.A.C. 7:7A-4.1(b) (recodified at N.J.A.C.7:7A-5.2(b)); this determination was previously approved by the USEPA and was again reviewed and approved by theUSEPA, which relies on its experience nationwide, prior to the Department proposing the adopted amendments. TheDepartment's process for adopting and issuing authorizations under general permits and general permits-by-certificationis as stringent as the USACE's process for adopting and issuing Nationwide Permits as part of the Federal wetlandspermitting program.

The adopted rules, as in the prior rules, allow the combination of multiple general permits on the same site fordifferent activities provided the limits of each general permit are observed and, for most activities, the total disturbanceon the site does not exceed one acre. Except for the combination of general permits 6 and 6A, two different generalpermits cannot be combined for a single activity to prevent the use of multiple general permits from exceeding thetightly defined disturbance limits of each general permit. Finally, a general permit may be used more than once on asingle site, but the cumulative disturbance cannot exceed the disturbance limit defined in the general permit. SeeN.J.A.C. 7:7A-5.4 [page=3879] for more information and examples of the limits applicable to the use of more than onegeneral permit on a site.

In regards to the amendments concerning the use of general permit 6, the respective limits on each general permit,the conditions of each general permit, the conditions that apply to all general permits, and the ability to add additionalconditions as necessary all ensure that the use of general permit 6 in combination with other general permits has only aminimal impact on freshwater wetlands, rendering the half-acre limit when combining general permit 6 with another

49 N.J.R. 3849(a)

general permit unnecessary to effectuate the purposes of the FWPA. The prior rules allowed general permit 6 to becombined with general permit 6A for up to one acre of disturbance. In issuing authorizations under general permits 6and 6A, the Department has not observed more than minimal environmental impact from authorized activities.

Standards for Issuance, By Rulemaking, of General Permits-By-Certification and General Permits (N.J.A.C. 7:7A-5.2)

199. COMMENT: The deletion of the phrase "after conducting an environmental analysis" at N.J.A.C.7:7A-5.2(b)1 is concerning because it reduces scientific input. Scientific input is needed from all stakeholders. (84, 179,222, and 402)

200. COMMENT: Removing the phrase "after environmental analysis" from recodified N.J.A.C. 7:7A-5.2(b)1 callsinto question the basis upon which the Department determines that regulated activities will cause only minimal adverseimpacts. The notice of proposal Summary asks the public to ignore the change because the rulemaking process includesan analysis of environmental impacts, but the Department does not provide specific standards or records that must bedeveloped to assess impacts. Since the Department contends that the rulemaking process includes environment analysis,there is no reason to delete the phrase. (277)

RESPONSE TO COMMENTS 199 AND 200: In accordance with adopted N.J.A.C. 7:7A-5.2(a), generalpermits-by-certification and general permits are promulgated through rulemaking in accordance with the AdministrativeProcedure Act (APA), N.J.S.A. 52:14B-1 et seq. In accordance with the mandates of the APA, the notice of proposalSummary includes a discussion of anticipated effects and the reasoning behind proposed amendments and/or new rules.In addition, the Department includes in its rule proposals an environmental impact statement, in which the Departmentfurther analyzes anticipated impacts, both positive and negative, from proposed rule amendments and/or new rules. Therulemaking process under the APA includes an opportunity for input, both from stakeholders interested in submittingscientific input, and from any other interested person or entity. All comments and any submitted information received isconsidered by the Department before any change is adopted and the Department responds in the adoption document torelevant comments timely received explaining the outcome of its consideration of the input received. Both therulemaking process and USEPA review of the Department's analysis ensures that the promulgation of generalpermits-by-certification and general permits includes an environmental analysis supporting the Department'sdetermination that the activities allowed to be conducted under the general permit-by-certification or the general permitwill cause only minimal separate and cumulative impacts.

Use of an Authorization Pursuant to a General Permit-By-Certification or a General Permit to Conduct RegulatedActivities (N.J.A.C. 7:7A-5.3)

201. COMMENT: Preventing public participation in applications for general permits and generalpermits-by-certification by not holding public hearings is unacceptable. Hearings that elicit stakeholder input areessential to prevent environmental destruction and to safeguard the public's natural resources. (84, 179, 222, and 402)

202. COMMENT: Prohibiting public hearings on applications for authorization under promulgated generalpermits-by-certification or general permits silences stakeholders by precluding them from providing information athearings that would demonstrate that a proposed project would cause significant environmental damage. Manycircumstances could lead a project authorized under one of these permits to cause environmental damage, includingunchecked applicant errors in design, data, or analysis, to an applicant's misunderstanding of an ecosystem. Removingthe public's ability to directly engage with the Department at a public hearing would allow such mistakes to gounchecked by overburdened agency staff and unduly limit the public's ability to communicate concerns. (277)

RESPONSE TO COMMENTS 201 AND 202: The prior rules did not provide for a public hearing to be held on anapplication for an authorization under a promulgated general permit. Prior N.J.A.C. 7:7A-12.4 only provided for publichearings on applications for individual permits and transition area waivers. The scope of applications on which ahearing may be held is not changed in this rulemaking. The process to hold a hearing (now referred to as a fact-finding

49 N.J.R. 3849(a)

meeting) has been amended to streamline the process, but the result remains that an in-person public meeting will onlybe held concerning applications for individual permits and transition area waivers. Consistent with the rulemakingprovisions of the APA, the public will be able to submit written comments on any proposed changes to the rulesgoverning general permits and general permits-by-certification, and the Department will have the flexibility to hold apublic hearing on the rulemaking in the appropriate circumstance.

All applications for authorization under general permits-by-certification and general permits require public noticeto be provided in accordance with N.J.A.C. 7:7A-17 (except for an application for an authorization under general permit15 for mosquito control activities, which is subject to separate public notice requirements contained in the generalpermit itself). Documentation of public notice must be provided to the Department at the time of the application, eitherby uploading a document to the online permitting portal for a general permit-by-certification application or by includingthe documentation in the paper application for a general permit authorization. The public notice provisions at N.J.A.C.7:7A-17, as well as the public comment period on every LOI and permit application per N.J.A.C. 7:7A-19.6, ensuremeaningful input prior to Department determination on a general permit application and help ensure that activitiesconducted under either a general permit-by-certification or a general permit are not conducted in violation of the permitor based upon any misunderstanding or other error by the person conducting the activity. Should what appears to beinappropriate activities be observed, the Department should be notified at 1-877-WARN-DEP (1-877-927-6337).

Use of More than One General Permit or General Permit-By-Certification on a Single Site (N.J.A.C. 7:7A-5.4)

203. COMMENT: It is unclear why a general permit-by-certification does not include an access transition areawaiver if one is needed to access the regulated activity. (255)

204. COMMENT: Why can no general permit-by-certification be combined with any type of transition areawaiver? (255)

RESPONSE TO COMMENTS 203 AND 204: The general permit-by-certification authorization process does notinvolve Department review of the jurisdictional boundaries on each site where activities are proposed. Therefore,activities authorized under these permits are subject to strict total disturbance limits. Any transition area disturbancenecessary to complete the activity must fall within the overall disturbance limit set forth in the permit. If the activitycannot be completed under these conditions, the applicant will need to apply for an authorization under a generalpermit, which will include an access transition area waiver.

205. COMMENT: Why can a general permit not be combined with a special activity transition area waiver forstormwater management? (255)

RESPONSE: The special activity transition area waiver for stormwater management authorizes stormwatermanagement facilities, such as stormwater management basins, where there is no feasible onsite location for the facility.No adopted general permits at N.J.A.C. 7:7A-7 authorize the construction of a stormwater management facility.Therefore, it is not appropriate to reference special activity transition area waivers for stormwater management in thelist of transition area waivers that may be combined with a general permit for a single activity on the same site.

206. COMMENT: At recodified N.J.A.C. 7:7A-5.4(a)2, please specify whether the "total combined area" includesboth permanent and temporary modifications on the site. (255)

[page=3880] RESPONSE: "Total combined area of wetlands, State open waters, and transition areas disturbed ormodified" referenced at N.J.A.C. 7:7A-5.4(a)2 includes the disturbance limits applicable to the respective generalpermits to be combined. For most general permits, the area of disturbance to be considered under N.J.A.C. 7:7A-5.4(a)2includes both temporary and permanent disturbance. However, some general permits only prescribe a strict disturbancelimit for permanent disturbance and direct the applicant to minimize temporary disturbance (for example, general permit2 at N.J.A.C. 7:7A-7.2). The total combined disturbance includes all disturbance that would be counted toward each

49 N.J.R. 3849(a)

general permit's disturbance limit, which depends on the general permits themselves.

207. COMMENT: The amendments to allow the combination of a general permit with a transition area averagingplan or with a special activity waiver for redevelopment for a single activity are supported. (262)


208. COMMENT: The proposed amendments to N.J.A.C. 7:7A-5.4(a)1 are supported as they allow applicants tocombine a general permit and certain transition area waivers. However, the proposed language, "shall not authorize thecombination of a general permit or general permit-by-certification with a transition area waiver for a single activity,"should be amended to more clearly state which of the listed transition area waivers can be used in combination withgeneral permits and general permits-by-certification. As proposed, it is unclear whether the restriction prohibiting suchcombination applies only to the combination of general permits and transition area waivers or if it also applies to thecombination of general permits and transition area waiver averaging plans and the combination of general permits andtransition area waivers for access. N.J.A.C. 7:7A-5.4(a)1 is also not entirely consistent with N.J.A.C. 7:7A-8.1(h),which also allows a transition area waiver for access to be used with a general permit and seems to allow thecombination of a transition area waiver and a general permit, provided the general permit limits are not expandedbeyond those allowed. (140)

RESPONSE: Proposed N.J.A.C. 7:7A-5.4(a)1, included amendment to identify the forms of transition area waiverthat the Department may authorize in combination with a general permit or general permit-by-certification. As indicatedin the notice of proposal, the general rule is that the Department will not authorize the combination of a general permitor a general permit-by-certification with a transition area for a single activity. However, as indicated in the proposedlanguage, there are three exceptions to the general prohibition against Department authorization of combining a generalpermit or general permit-by-certification with a transition area waiver for a single activity. Those three exceptions arecombination of a transition area waiver averaging plan with a general permit, combination of a special activity transitionarea waiver for linear development with a general permit, and combination of a special activity waiver forredevelopment with a general permit. With the exception of those three combinations, as indicated by the commenter,the rules indicate that "the Department shall not authorize the combination of a general permit or generalpermit-by-certification with a transition area waiver for a single activity." Accordingly, the Department will notauthorize the combination of a general permit with other types of transition area waivers, and no transition area waivercan be combined with a general permit-by-certification for the same activity.

With respect to access transition area waivers, as specified in both adopted N.J.A.C. 7:7A-5.3(d), with reference toauthorizations under a general permit, and in the general provisions applicable to transition area waivers at adoptedN.J.A.C. 7:7A-8.1(a)5, each general permit authorization includes a limited transition area waiver to allow access to theauthorized activity, provided the conditions specified at N.J.A.C. 7:7A-8.1(a)5i and ii are complied with. The area of thelimited access transition area waiver is not counted in calculating the amount of disturbance allowed under the generalpermit authorization (that is, the area covered by the access waiver is in addition to that allowed under the applicablegeneral permit authorization). As pointed out by the commenter, this transition area waiver that is included in all generalpermit authorizations is specifically mentioned in adopted N.J.A.C. 7:7A-8.1(h), but is not separately listed in N.J.A.C.7:7A-5.4(a)1.

While the rules already specifically provide an access transition area waiver as part of all general permits, making itunnecessary for the Department to authorize the combination of this form of waiver in combination with a generalpermit, the Department agrees that not listing this form of waiver as one that can provide for an area of disturbance inaddition to the area allowed by the general permit authorization in N.J.A.C. 7:7A-5.4(a)1 could be confusing.Accordingly, the Department is changing N.J.A.C. 7:7A-5.4(a)1 on adoption to make clear that this provision is notintended to eliminate the allowance of an access waiver without specific Department authorization as part of all generalpermits as provided at N.J.A.C. 7:7A-5.3(d), and referenced in N.J.A.C. 7:7A-8.1. Similarly, N.J.A.C. 7:7A-8.1(a)5qualifies the prohibition on combining transition area waivers and general permits for the same activity with the phrase,

49 N.J.R. 3849(a)

"if the combined effect of the transition area waiver and general permit authorization would be to expand the generalpermit activity beyond the limits set forth in the general permit." However, in proposing to include the statementconcerning combination of transition area waivers and general permits in N.J.A.C. 7:7A-5.4(a)1 in addition to itspresence at N.J.A.C. 7:7A-8.1(a)5, that qualifying phrase was omitted, which has evidently led to some confusion andlack of clarity. On adoption, the Department is including the language, "if the combined effect of the transition areawaiver and general permit authorization would be to expand the general permit activity beyond the limits set forth in thegeneral permit," at N.J.A.C. 7:7A-5.4(a)1 to align with N.J.A.C. 7:7A-8.1(h). These two rules both describe therequirements for combining a general permit authorization and transition area waiver; the change on adoption does notchange any rule requirement (as the language as amended at N.J.A.C. 7:7A-5.4(a)1 was already proposed at N.J.A.C.7:7A-8.1(h)) but simply aligns the language to facilitate readers' understanding.

209. COMMENT: The amendment to recodified N.J.A.C. 7:7A-5.4(a)2iv to exempt the use of general permit 17 onland dedicated for conservation and/or recreation purposes from the one-acre combined disturbance limit is supportedbecause it is favorable for certain local government projects. (255)


210. COMMENT: The proposed deletion of N.J.A.C. 7:7A-5.4(a)3, which inexplicably did not allow a generalpermit 6 that exceeded a half-acre to be combined with any general permit authorization except for a general permit 6A,is supported. (140)


211. COMMENT: At recodified N.J.A.C. 7:7A-5.4, the Department is proposing to delete the prohibition ondisturbance exceeding 0.5 acres under general permit 6 from being combined with any other general permit, in whichcase total disturbance is limited to one acre. The notice of proposal Summary states that the "Department hasdetermined that this limit on general permit 6 is not necessary to protect freshwater wetlands and State open waters" butno data or analysis is provided to support this determination. Absent any justification, the Department has failed to showthat this change will satisfy its obligations to protect resources under the FWPA. This example highlights theimportance of maintaining the phrase "after conducting an environmental analysis" in the rules for promulgating ageneral permit because it lays bare the absence of any such analysis. (277)

212. COMMENT: At proposed N.J.A.C. 7:7A-5.4, increasing the amount of disturbance allowed from a half-acreto one acre without any scientific basis or explanation is unacceptable. (84, 179, 222, and 402)

RESPONSE TO COMMENTS 211 AND 212: The FWPA at N.J.S.A. 13:9B-23b requires the Department topermit up to one acre of impacts to a wetland that is not a surface water tributary system discharging into an inland lakeor pond, or a river or stream. The Department has considered the potential impacts of allowing of the use of generalpermit 6 to authorize one activity to be combined with the use of any other general permit to authorize a separateactivity for up to one acre of disturbance, rather than the 0.5-acre cap under the prior rules. The Department hasconcluded that the limits and conditions of each [page=3881] general permit at N.J.A.C. 7:7A-7, the conditions thatapply to all general permits at N.J.A.C. 7:7A-5.7, the conditions that apply to all permits at N.J.A.C. 7:7A-20.2, and theability to add additional conditions as necessary in accordance with N.J.A.C. 7:7A-20.3 all ensure that the use ofgeneral permit 6 in combination with other general permits has only a minimal impact on freshwater wetlands when thetotal disturbance of freshwater wetlands, transition areas, and State open waters is limited to one total acre, renderingthe half-acre limit when using general permit 6 and another general permit on the same site to authorize differentactivities unnecessary to effectuate the purposes of the FWPA. In accordance with N.J.A.C. 7:7A-5.4(a)1, generalpermit 6 can still only be combined with general permit 6A for a single activity, ensuring that the use of more than onegeneral permit on the site does not inappropriately expand the disturbance authorized under general permit 6 beyondthat which has only minimal environmental impacts. Furthermore, the prior rules allowed general permit 6 to becombined with general permit 6A for up to one acre of disturbance. In issuing authorizations under general permits 6

49 N.J.R. 3849(a)

and 6A, the Department has not observed more than minimal environmental impact from activities authorized under acombination of these two permits.

Duration of an Authorization under a General Permit-By-Certification (N.J.A.C. 7:7A-5.5)

213. COMMENT: The justification for limiting authorizations under general permits-by-certification to a one-timeduration of five years is equally appropriate for authorizations under general permits. The rationale set out for generalpermits-by-certification not having a five-year extension is that they are "intended to authorize discrete, simple activitieswith very minimal environmental impacts that should be able to be completed within the five-year duration of theauthorization." The Department offers authorizations under general permits with minimal review and no public hearingswith the justification that such projects "will cause minimal individual and cumulative environmental impacts," so suchprojects should also be able to be completed within five years. The only explanation for treating the two permit typesdifferently is that the Department is aware of the potential destruction that could result from applicant error in theautomated general permit-by-certification process. (277)

RESPONSE: The Department does not authorize activities under a general permit after only "minimal review";while it is generally simpler to demonstrate compliance with the strictly defined requirements of a general permit,Department staff review all applications for completeness and compliance with applicable rules and, in many cases,conduct a site inspection to verify site conditions before issuing a permit. While there are no public hearings forindividual uses of a general permit, there is a 30-day public comment period following the publication of notice of eachapplication in the DEP Bulletin and public notice must be provided to local agencies and property owners in accordancewith N.J.A.C. 7:7A-17. Adopted general permit-by-certification 8 authorizes a strictly circumscribed subset of activitiesauthorized under general permit 8, while general permit-by-certification 24 provides a faster medium for authorizing therepair or modification of a failing septic system, an activity with environmental benefit and which is in the applicant'sand the public's best interest to complete expeditiously. Applying for, and receiving, a general permit-by-certificationauthorization through the Department's online permitting portal creates a complete, enforceable record of the activity.

While general permit-by-certification activities are very narrowly defined, some general permits offer alternativesin the configuration of an activity (for example, whether an addition is attached or detached from an existing houseunder general permit 8) that requires direct staff review. While many of these activities can, and are, completed withinfive years, the Department allows for one five-year extension where the activity and the site conditions are not changedto accommodate circumstances where that is not the case. For example, general permit 8 allows an addition to belocated up to 100 feet away from a lawfully existing dwelling. A detached addition may require additional local reviewconcerning required setbacks and use of the addition, which could delay the construction of the dwelling, such thatcompletion of construction will not occur within the five-year term of the State permit authorization. In these cases, anextension may be appropriate.

Conditions Applicable to an Authorization Pursuant to a General Permit-By-Certification or General Permit (N.J.A.C.7:7A-5.7)

214. COMMENT: The proposed rules allow general permits with conditions. General permits are supposed to havede minimus impact, and should not need conditions. Having conditions allows applicants to get around the law. (13, 20,23, 32, 35, 46, 50, 51, 62, 63, 76, 85, 143, 173, 174, 189, 202, 215, 218, 232, 233, 237, 243, 244, 266, 294, 306, 324,327, 329, 334, 343, 362, 377, 392, 395, 399, 408, 414, 427, 431, and 454)

215. COMMENT: The impact of building on wetlands should be enforced without allowing special conditions.(354)

216. COMMENT: Allowing general permit authorizations to be issued with conditions facilitates the constructionof pipelines through and under wetlands. (50, 51, and 189)

49 N.J.R. 3849(a)

217. COMMENT: The changes to general permits in the proposed rules violate the FWPA. These permits aresupposed to have a de minimis impact; however, the proposed rules permit impacts that are more than de minimis byallowing conditions to be added to general permits. Conditions represent an attempt to circumvent the law. The rulesalso allow multiple general permits to be obtained for a single project with no cap on the number that may be approved.A single pipeline could cross 40 wetlands, and each crossing would receive a general permit. The cumulative andsecondary impacts of all of the crossings will not be considered under such a scenario. (240 and 415)

RESPONSE TO COMMENTS 214 THROUGH 217: In some cases, conditions may be placed on a general permitin addition to the requirements and conditions promulgated in the general permit itself. These additional conditions donot replace the requirements and conditions in the adopted general permits, but instead allow the Department to upholdall applicable requirements of the FWPA in cases where the requirements of the general permit itself do not fullyaddress all issues. The placement of additional conditions on a specific permit ensures that all general permits areconducted in accordance with the requirements of the FWPA Rules. The ability to add conditions comes directly fromthe FWPA. Specifically, N.J.S.A. 13:9B-5 states that, "[t]he Department may, on the basis of findings with respect to aspecific application, modify a general permit issued pursuant to this section by adding special conditions." The ability toadd special conditions does not allow for more than de minimis impacts; rather, the ability to add special conditionsensures that general permits will only authorize activities with de minimis impacts even in uncommon situations notdirectly addressed by the requirements in the promulgated general permits.

The FWPA Rules do not permit multiple general permit authorizations to be used to segment a project. While theFWPA Rules do allow for the use of multiple different general permits on one site, the rules at N.J.A.C. 7:7A-5.4(a)1 donot allow one general permit to be used in multiple locations on the same site, if doing so would exceed the limits setforth in the general permit. Underground utility line activities under general permit 2 need to comply, as a whole, withthe limits set forth in N.J.A.C. 7:7A-7.2. If the project as a whole, including all wetlands crossings or impacts, does notmeet the limits set forth in the general permit, the applicant would need to seek an individual permit. The individualpermit application would likewise need to address wetland and State open water impacts from the entire project, as theentire right-of-way or proposed area of disturbance is considered a single site (see N.J.A.C. 7:7A-10.1(c) and thedefinition of "site" at N.J.A.C. 7:7A-1.3).

218. COMMENT: An applicant for a general permit-by-certification will not have the resources or knowledge todetermine if they are in compliance with the standards as required at proposed N.J.A.C. 7:7A-5.7(a). Will theDepartment take enforcement action if a project approved under a general permit-by-certification is not in compliance?(415)

RESPONSE: The Department does not agree that applicants will be unable to determine compliance with thestandards at N.J.A.C. 7:7A-5.7(a), that is, with the conditions listed in the general permit-by-[page=3882] certificationitself, the standard conditions that apply to all general permits-by-certification and all general permits, the conditionsthat apply to all permits at N.J.A.C. 7:7A-20.2, and the limits on the use of multiple general permit-by-certification orgeneral permits. The rules identify specific requirements that must be met in order for an activity to qualify for theparticular general permit-by-certification and require that the applicant certify that those requirements have been met.The applicant must certify that their activity meets the disturbance and other limits in the generalpermit-by-certification, and also certify compliance with applicable conditions from N.J.A.C. 7:7A-5.7(b). Theconditions that apply to all permits at N.J.A.C. 7:7A-20.2, as well as all requirements to which the applicant certifiescompliance, are included in the authorization issued upon completion of the general permit-by-certification application.The certification process requires the applicant to certify to the truth and accuracy of any information provided in theapplication. To the extent an applicant is not able to determine compliance with the requirements applicable to thegeneral permit-by-certification on their own, it is the applicant's responsibility to retain qualified professionals to assistin the application to ensure only complete and accurate information is submitted. If it is subsequently determined thatactivities are conducted that are not in compliance with the authorization under the general permit-by-certification, theDepartment will take appropriate enforcement action.

49 N.J.R. 3849(a)

In addition to the certifications discussed above, the online permitting system requires the submission ofinformation and documentation to ensure activities proposed are compliant with the requirements for the generalpermit-by-certification. In the case of general permit-by-certification 8, submitting the total disturbance proposed toconstruct an addition allows the online permitting system to check all issued permits in the New Jersey EnvironmentalManagement System (NJEMS) to ensure that the proposed addition does not exceed the 750-square foot cumulativearea allowed for an addition under general permit 8 and general permit-by-certification 8. The online permitting systemchecks the amount of disturbance proposed by the applicant when applying for either general permit-by-certification toensure that the amount of disturbance proposed in conjunction with past disturbance authorized onsite does not exceedcumulative area impact limits. Once a general permit-by-certification is issued, a complete record of the activity iscreated and logged into NJEMS, which ensures that future activities under general permits-by-certification or generalpermits will comply with the limits on the use of multiple general permits at N.J.A.C. 7:7A-5.4 (as referenced atN.J.A.C. 7:7A-5.7(a)). In addition, under general permit-by-certification 24, the applicant must obtain a letter from theboard of health with jurisdiction over the septic system that is the subject of the application stating that the activitiesproposed are authorized under, and in compliance with, the Department's Standards for Individual Subsurface SewageDisposal Systems at N.J.A.C. 7:9A, are not caused by an expansion of the facility the septic system serves or a changein use, and that there is no suitable alternative location on the site. This letter must be uploaded to the online permittingsystem prior to receiving authorization under general permit-by-certification 24. General permits-by-certification alsolimit the total area of disturbance in freshwater wetlands, transition areas, as well as non-regulated areas, to ensure thatinappropriate disturbance does not occur because of inaccurate wetlands delineation or transition area identification.Further, applicants undertaking activities authorized under a general permit-by-certification must provide the publicnotice of the proposed activity, which is the same as a general permit or individual permit. Therefore, local governmententities and landowners proximate to the development will be aware of the activities, can provide comments to theDepartment, and can inform the Department of any suspected noncompliance.

The Department believes that the above-described requirements and processes ensure applicants for a generalpermit-by-certification understand the requirements of the authorization and will be able to perform the authorizedactivities in accordance with the FWPA Rules. Should a permittee perform activities in violation of an issuedauthorization under a general permit-by-certification or any provision of the FWPA Rules, the Department can bringenforcement action in accordance with N.J.A.C. 7:7A-22 to remedy the violation.

219. COMMENT: A grammatical change at proposed N.J.A.C. 7:7A-5.7(b)5 is incorrect. The proposed change is,"Any permit for an activity which may adversely [affect] effect a property listed or eligible for listing on the New Jerseyor National Register of Historic Places shall contain conditions to ensure that any impact to the property is minimized tothe maximum extent practicable and any unavoidable impact is mitigated." The correct word is "affect." (415)

RESPONSE: As noted by the commenter, while an earlier reference in N.J.A.C. 7:7A-5.7(b)5 to compensating foran "adverse affect" was correctly amended to replace the word "affect" with "effect," in the sentence referenced by thecommenter the notice of proposal incorrectly included a similar change. Accordingly, the Department is not adoptingthis change.

220. COMMENT: The proposed amendments to N.J.A.C. 7:7A-5.7(b)8, which ensure consistency with theFHACA Rules in that the Department proposes to eliminate monitoring for the presence of acid-producing deposits inall excavations, are supported. (140)


221. COMMENT: The case-by-case determination at proposed N.J.A.C. 7:7A-5.7(b)15 is contrary to the NewJersey Supreme Court case law that precludes the Department from not issuing a general permit 6 for vernal ponds. SeeIn re Freshwater Wetlands Act Rules, 180 NJ 478 (2004). (140)

RESPONSE: The adopted addition clarifies Department authority under the FWPA and its rules. In the cited

49 N.J.R. 3849(a)

decision, In Re Freshwater Wetlands Act Rules, 180 NJ 478 (2004), the New Jersey Supreme Court ruled that theDepartment exceeded its statutory authority under the FWPA by adopting a blanket prohibition on the use of generalpermits in vernal habitats. However, while finding that such a blanket prohibition would not comply with general permit6 as described in the FWPA at N.J.S.A. 13:9B-23.b, the Court also acknowledged the Department's authority pursuantto N.J.S.A. 13:9B-23.d to modify or rescind a statutory general permit. The Court noted that "Pursuant to N.J.S.A.13:9B-23.d, DEP may modify or rescind a general permit only upon proper findings on a case-by-case basis." In ReFreshwater Wetlands Act Rules at 180 NJ 493. The adopted rule amendment merely informs applicants that, while noactivities in vernal habitats will be authorized by the Department under other general permits, or under a generalpermit-by-certification, activities may be authorized under general permits 1, 6, 6A, or 16 following an individualizedreview of the specific site and proposed activities for compliance with the chapter and other applicable laws. TheDepartment is effectuating the purposes of the FWPA on an "individual basis," as it does in all decisions on applicationsfor general permit authorizations, transition area waivers, and individual permits.

222. COMMENT: Proposed N.J.A.C. 7:7A-5.7(b)15 allows activities under general permits 1, 6, 6A, and 16 to takeplace in vernal habitats and associated transition areas, subject to a case-by-case review. This continues a problematicrule. While the inclusion of general permit 16 and, to a lesser extent, general permit 1 is understandable, continuing toallow activities under general permits 6 and 6A in and near vernal habitats (when the purpose of those permits is toeliminate regulated resources) continues to endanger populations dependent on those habitats without the extensivereview required under an individual permit application. Although the rule provides for a case-by-case review by theThreatened and Endangered Species Unit of the Division of Land Use Regulation, the nature of this decision making isunclear. In the absence of some level of detail regarding how the case-by-case determination is to be made by theDepartment, general permits 6 and 6A should be excluded. The individual permit process is the best option for activitiesproposed in vernal habitats because it mandates an alternatives analysis that would seek to avoid and minimize impactsto the resource. (277)

223. COMMENT: Vernal pools must be protected for amphibians, turtles, and wetland plants and birds. (340)

224. COMMENT: Vernal pools are uniquely beautiful, serve as habitat for species that cannot breed in any othertype of habitat, and provide greater ecological services than their small size would suggest. [page=3883] Vernal poolsare irreplaceable and any damage or destruction diminishes the value of open space in New Jersey. (359)

RESPONSE TO COMMENTS 222 THROUGH 224: The Department prohibits the use of a general permit toauthorize activities in or adjacent to a vernal habitat, except for general permits 1, 6, 6A, and 16. As referenced in theResponse to Comment 221, the New Jersey Supreme Court's decision in In re Freshwater Wetlands Act Rules, 180 NJ493 (2004) specifically overturned a previous rule altogether prohibiting the use of general permits 6 in or adjacent to avernal habitat, relying upon N.J.S.A. 13:9B-23.b. The Court ruled that any Department modification or rescission of ageneral permit issued pursuant to N.J.S.A. 13:9B-23.b may only occur on the basis of a case-by-case analysis of anindividual application. Accordingly, the case-by-case analysis reflected in N.J.A.C. 7:7A-5.7(b)15 of activitiesassociated with general permit 6 reflects the Department's appreciation of the significance of vernal habitat and desire toprotect it from inappropriate impacts to the maximum extent possible while complying with the Court's interpretation ofthe FWPA statutory language.

With reference to one commenter's assertion that the purpose of general permits 6 and 6A is to eliminate regulatedresources, neither these two general permits nor any other general permit or general permit-by-certification can be usedfor the sole purpose of eliminating a regulated resource. Instead, as indicated at N.J.A.C. 7:7A-5.7(b)1, the rulesspecifically require that all activities performed under a general permit-by-certification or general permit must beassociated with a proposed project and make clear that in no case will the Department "authorize activities under ageneral permit-by-certification or general permit for the purpose of eliminating a natural resource in order to avoidregulation." Activities under general permits 6 and 6A are not excepted from this requirement; the Department will notauthorize the use of these permits for the sole purpose of eliminating a natural resource, such as a vernal habitat.

49 N.J.R. 3849(a)

Regarding the other general permits whose use is not automatically prohibited in or near vernal habitats, theactivities authorized are either very minor or are environmentally beneficial. General permit 1 authorizes activities tocarry out the repair, rehabilitation, replacement, maintenance, or reconstruction of a previously authorized, currentlyserviceable feature. The type of activities that qualify for this general permit are very minor activities that do notwarrant the intensity of review required by an individual permit application and which may, in appropriate cases, beable to proceed in or near a vernal habitat without significantly affecting the vernal habitat or vernal species. Generalpermit 16 authorizes activities necessary to implement a plan for the creation, restoration, or enhancement of habitat andwater quality functions and values of wetlands. Activities under this permit in or adjacent to vernal habitats may have apositive environmental impact on the habitat; the Department does not seek to discourage environmentally beneficialprojects and, so, does not automatically prohibit the use of this general permit in or near vernal habitats.

For the reasons above, activities under one of the four listed general permits are reviewed by the Department on acase-by-case basis. N.J.A.C. 7:7A-5.7(b)15, as adopted, specifically points to N.J.A.C. 7:7A-5.3(e) for the criteria theDepartment will use to determine if an activity in a vernal habitat or in a transition area adjacent to a vernal habitatshould be reviewed under an individual permit application rather than a general permit application. In accordance withN.J.A.C. 7:7A-5.3(e), the Department will require an individual permit application when "additional permit conditionsadded under N.J.A.C. 7:7A-20.3 would not be sufficient to ensure compliance with this chapter and other applicablelaws" or when "special circumstances make an individual permit necessary to ensure compliance with the FreshwaterWetlands Protection Act, this chapter, any permit or order issued pursuant thereto, or the Federal Act."

225. COMMENT: N.J.A.C. 7:7A-5.7(b)15 refers to the "transition area adjacent to a vernal habitat." TheLandscape Project generally assigns a 300-meter/1,000-foot circular buffer around a vernal habitat, with the actualvernal pool presumed to be at the center of the circular buffer. The buffer assigned by the Landscape Project is not aregulatory buffer under the terms of N.J.A.C. 7:7A, which provides a 150-foot maximum transition area for a wetlandof exceptional resource value. This ambiguity between N.J.A.C. 7:7A and the Landscape Project concerning vernalhabitat and transition areas/buffers should be clarified, where applicable, throughout the rules. (255)

RESPONSE: N.J.A.C. 7:7A-3.3 clearly establishes how to identify the location and width of a transition area underthe FWPA Rules. In N.J.A.C. 7:7A-5.7(b)15, the Department purposefully used the defined term "transition area"instead of buffer to refer to the area regulated under this chapter (the FWPA Rules) and not any other buffer identifiedby other sources. Under N.J.A.C. 7:7A-3.3(d), the only possible widths of a transition area are 150 feet for a transitionarea adjacent to an exceptional resource value wetland and 50 feet for a transition area adjacent to an intermediateresource value wetland.

Pursuant to the definition of "vernal habitat" at N.J.A.C. 7:7A-1.3, an area regulated as a vernal habitat under theFWPA Rules is a wetland that meets all of four specified criteria. First, the wetland must occur in or contain a confinedbasin depression without a permanent flowing outlet. Second, the wetland must feature evidence of breeding by one ormore species of fauna adapted to reproduce in ephemeral aquatic conditions, which are identified in N.J.A.C. 7:7A,Appendix 1. Third, the wetland must maintain ponded water for at least two continuous months between March andSeptember of a normal rainfall year. Finally, the wetland must be free of reproducing fish populations throughout theyear, or dry up at some time during a normal rainfall year. Nowhere in this definition does the Department reference theLandscape Project as a representation of the location of a vernal habitat or the applicable transition area to a vernalhabitat.

The Department believes that it is sufficiently clear that references to transition areas throughout the FWPA Rules,including the reference to transition areas to vernal wetlands referenced in N.J.A.C. 7:7A-5.7(b)15, are to the transitionareas established in the FWPA and implemented in the FWPA Rules at N.J.A.C. 7:7A-3.3 and not to any transition areaor buffer established in some other context.

226. COMMENT: Recodified N.J.A.C. 7:7A-5.7(f) appears to delete the existing prohibition against proceedingwith activities under general permits prior to obtaining written approvals, or subject to permit-specific notice and

49 N.J.R. 3849(a)

application requirements. The deleted language must remain to allow the Department to verify that all conditions andrequirements of each general permit have been met. (277)

RESPONSE: The deleted provision, prior N.J.A.C. 7:7A-4.3(f), states that no activity under a general permit isauthorized without a written approval to highlight the exceptions. That is, activities under general permits 1, 24, and 25may in some cases proceed before a written authorization is provided. The substance of the prior subsection wasrelocated to N.J.A.C. 7:7A-19.1(f) to consolidate and clarify the application review requirements for all permits in newSubchapter 19. Adopted N.J.A.C. 7:7A-19.1(f) states:

"(f) If a person submits an application and does not receive a response from the Department within the deadlinesimposed in this subchapter, the person shall not be entitled to assume that the application is approved, except ifthe application is for authorization of the following activities and complies with the applicable general permit:

1. Ongoing maintenance of an off-stream stormwater management facility created in uplands, including awetland constructed in uplands for stormwater management purposes, under general permit 1;

2. Repair of a malfunctioning individual subsurface sewage disposal system under general permit 24, or generalpermit-by-certification 24; or

3. Minor channel or stream cleaning activities under general permit 25."

Adopted N.J.A.C. 7:7A-5.3(b) states that "an activity that meets the requirements of a general permit may beconducted when the person proposing to conduct the activity receives authorization from the Department in accordancewith N.J.A.C. 7:7A-19" (emphasis added). In addition, adopted N.J.A.C. 7:7A-2.1(a) generally states that no regulatedactivities can occur without a permit or authorization from the Department, and conducting regulated activities withoutprior Department approval is identified as a "non-minor" violation at N.J.A.C. 7:7A-22.10, Table 22.10, which meansthat there is no grace period in which the violator may avoid a penalty by remedying the violation.

[page=3884] N.J.A.C. 7:7A-9, Individual Freshwater Wetlands and Open Water Fill Permits

Duration of an Individual Permit (N.J.A.C. 7:7A-9.2)

227. COMMENT: The proposed rules will make it easier for large projects, such as quarries, pipelines, highways,and other damaging projects to receive permits. Given the sensitivity of wetlands and their importance to the ecosystem,this policy is opposed. (104, 144, 153, and 361)

228. COMMENT: The notice of proposal extends the duration of individual permits for pipeline projects to 10years without providing any justification. This change appears to violate the Federal Clean Water Act, whichestablished a time limit of five years for these permits. (7, 34, 58, 72, 84, 96, 113, 150, 152, 155, 156, 164, 179, 184,186, 203, 211, 214, 222, 245, 247, 250, 270, 278, 279, 313, 317, 323, 333, 357, 367, 378, 387, 398, 402, 419, 420, and436)

229. COMMENT: The proposed rules allow for large projects such as quarries, pipelines, highways, and otherdamaging projects. They allow permits to last for 10 years, which under the law should only be five years beforerenewal. (12,13, 20, 22, 23, 32, 35, 46, 51, 52, 62, 63, 76, 74, 85, 173, 174, 179 189, 202, 215, 218, 232, 233, 237, 243,244, 266, 294, 306, 324, 327, 334, 343, 362, 377, 392, 395, 399, 408, 414, 427, 431, and 454)

230. COMMENT: The FWPA does not give the Department the authority to issue 10-year permits, which areparticularly inappropriate for pipelines, quarries, highways and other large, damaging projects. Does the Federalprogram allow road permits to extend for 10 years? The provision at N.J.A.C. 7:7A-9.2(b) will result in a State programthat is less stringent than the Federal program. (240, 376, and 415)

49 N.J.R. 3849(a)

231. COMMENT: Individual permits should only be valid for five years as circumstances can change significantlyin that amount of time. For example, threatened and endangered species could enter the area, new areas may bedesignated as historic, or the surface water classification or fisheries classification may be modified. After five years,the Department should require an application for a permit extension to ensure that any such changes have beenconsidered. (415)

232. COMMENT: Permit durations should be shorter than five years and should not be extended. (72)

233. COMMENT: At proposed N.J.A.C. 7:7A-9.2(b), a 10-year term is provided for an individual permit "for alinear activity or project that is greater than 10 miles in length, a flood control project, or a quarry or mining operation."Ten-year permits are a violation of the Federal Clean Water Act (CWA). Under the CWA, a state's authority to issuepermits is limited to permits "for fixed terms not exceeding five years (33 U.S.C. 1344(h)(1)(A)(ii)." Under Federal law,the FWPA Rules cannot be less protective than the Federal requirements, and this 10-year permit is impermissible underthe memorandum of understanding with the EPA. (59, 60, 114 161, 277, 319, 320, and 328)

234. COMMENT: In the notice of proposal Summary, the Department asserts that "[b]ased on its observations thatsite conditions generally did not change significantly over time where activities were approved under freshwaterindividual permits that were subsequently extended by the Permit Extension Acts of 2008, 2010, and 2012, theDepartment has determined that providing for one five-year extension for most individual permits ... while notundermining protections against adverse impacts to wetlands and State open water functionality." However, theDepartment has provided no reference to an actual analysis of these sites. Further, the Department has not provided anyreference to the number of permits that were extended under the Permit Extension Acts that involved wetlands or to thescientific studies that were performed to determine that there were no changes in the sites. Please provide references toall permits that were extended for which the Department has studied the impacts of the extensions on freshwaterwetlands and provide references to all scientific literature that the Department relied upon to determine that there wereno impacts. (319 and 328)

RESPONSE TO COMMENTS 227 THROUGH 234: The FWPA Rules have for many years provided for thepotential extension of a five-year permit duration upon application to the Department, with the total term of theextended permit limited 10 years. The Department had proposed to allow some permits to be valid for up to 10 yearswithout the need for application for extension at N.J.A.C. 7:7A-9.2(b) in an effort to align the permitting processes ofthe FWPA, CZM, and FHACA Rules, where possible, to streamline permitting while maintaining existing stringentprotection of the environment. Upon further consideration, and in response to public comment summarized above, theDepartment is not adopting proposed N.J.A.C. 7:7A-9.2(b). The unique ecology of freshwater wetlands necessitates anadditional review, through the application for an extension, after five years. Activities may extend beyond five yearsfollowing the review and approval of an extension request in accordance with N.J.A.C. 7:7A-20.4, with a maximumterm, including the duration of the original permit and the extension, of 10 years, as in the prior rules.

Conditions Applicable to an Individual Permit (N.J.A.C. 7:7A-9.3)

235. COMMENT: At N.J.A.C. 7:7A-9.3(a)1, the phrase "the conditions set forth in the individual permit itself" ismisleading. The statement suggests that that there is a specific list of individual permits (IPs) and that each has specificconditions associated with it, similar to general permits-by-certification, general permits, or transition area waivers, butthis is not the case. This statement also seems to conflict with N.J.A.C. 7:7A-9.3(b). The "conditions set forth in theindividual permit itself" would be the same as the "conditions established in a specific individual permit as required on acase-by-case basis" (255)

RESPONSE: The "conditions set forth in the individual permit itself" are conditions concerning compliance withN.J.A.C. 7:7A-10. The "conditions established in a specific individual permit" are those included in accordance withN.J.A.C. 7:7A-20.3, which the Department applies on a case-by-case basis to ensure compliance with all applicablerequirements of the Federal Act, the Freshwater Wetlands Protection Act, the Water Pollution Control Act, this chapter,

49 N.J.R. 3849(a)

and other applicable rules or regulations, which may go beyond those requirements in N.J.A.C. 7:7A-10.

N.J.A.C. 7:7A-14, Emergency Authorizations

236. COMMENT: Who is responsible for following up on emergency authorizations, and how are they tracked forcompliance? After a significant weather event, there may be a large number of emergency authorization requests andapprovals, and while most may be appropriate, violations could occur without proper follow-up. (415)

237. COMMENT: Please amend proposed N.J.A.C. 7:7A-14.3(b) to clarify who (that is, the Department) isresponsible for publishing and mailing notice of the issuance of an emergency permit. (255)

RESPONSE TO COMMENTS 236 AND 237: The Department is responsible for following up on emergencyauthorizations. The Department does this by logging emergency authorizations into the New Jersey EnvironmentalManagement System (NJEMS) just like any other authorization or permit. In accordance with N.J.A.C. 7:7A-14.3(f),the person to whom an emergency authorization is issued must submit a complete permit application for the activitiesconducted under the emergency authorization within 90 days after the Department's verbal decision on an applicationfor an emergency authorization, or another timeframe established by the Department. The applicable timeframe islogged into NJEMS. The assigned project manager will receive the subsequent application and confirm that activitieswere conducted appropriately and, under N.J.A.C. 7:7A-14.3(j), require design changes, restoration, and/or stabilizationmeasures as necessary to ensure the requirements of the FWPA Rules are met to the maximum extent practicable. UnderN.J.A.C. 7:7A-14.3(k), the Department can modify or terminate an emergency authorization at any time, whennecessary, to protect public health, safety, and welfare, and/or the environment. Under N.J.A.C. 7:7A-14.3(l),conducting any activities not authorized under the emergency authorization or subsequent permit constitutes a violationsubject to enforcement action under N.J.A.C. 7:7A-22.

The Federal Act, the Federal rules at 40 CFR 124.10 and 124.11, and the FWPA, all referenced in N.J.A.C.7:7A-14.3(b), do not require an applicant to provide notice of the issuance of an emergency authorization and indicatethat it is the Department who will publish and mail the notice required by N.J.A.C. 7:7A-14.3(b). No clarifyingamendments are required.

[page=3885] Permit Process

N.J.A.C. 7:7A-15, Pre-Application Conferences

238. COMMENT: While acknowledging that any discussion or guidance offered by the Department at apre-application conference shall not constitute a commitment by the Department to approve or deny an application, doesthe Department retain discretion to make decisions on rule interpretations that applicants can then rely upon regardingspecific issues that are raised in the pre-application process, assuming that the permit application is consistent with thatpresented at the pre-application meeting? Basic principles of equity, good faith, and fair dealing dictate that theDepartment has such discretion consistent with procedural due process considerations. (140)

RESPONSE: The pre-application conference is intended to be an informal forum where the Department andpotential applicant can frankly discuss the positives and negatives of a proposed application, and what may need tochange in a formal application for Department approval. As formal detailed plans are not required for a pre-applicationconference, because any material submitted by the potential applicant does not undergo complete and thoroughDepartment review to confirm its accuracy and relevance, and because a project is likely to change between the time itis conceptually presented at a pre-application conference and when it is proposed for approval in a permit application, itwould be inappropriate for the Department to be bound by guidance provided in this context.

N.J.A.C. 7:7A-16, Application Requirements

49 N.J.R. 3849(a)

Purpose and Scope; General Application Requirements (N.J.A.C. 7:7A-16.1 and 16.2)

239. COMMENT: The Department should end the practice of allowing an applicant to seek an LOI concurrentlywith an application for an individual permit or general permit authorization. This practice allows for over-investment indesigning projects for sites that are ultimately unsuitable. Applicants must provide information concerning the totalacreage of regulated areas on the site and the acreage of those areas that are proposed to be disturbed, but without anLOI, this information is the applicant's best guess. All analyses and calculations based on approximated acreages orincorrectly assumed resource value classifications are subject to revision. Establishing the resource value, location, andextent of on-site wetlands and regulated areas prior to full project design is also necessary to allow for the fullest extentof public input and the direction of projects towards environmentally sustainable locations. (277)

240. COMMENT: The Department should not allow an LOI application to be submitted contemporaneously withan individual permit application. (179)

RESPONSE TO COMMENTS 239 AND 240: As indicated by the commenters, submission of an LOI applicationand permit application concurrently is an option available to an applicant. Where an applicant is concerned thatwetlands impacts may significantly affect a desired project, the applicant may submit an LOI application to seekDepartment determination as to the areas affected prior to any permit application or any investment in design of aproject, thereby eliminating any potential for over-design of a project that will ultimately be determined to not becompliant with the rules. Further, even where an applicant chooses to seek an LOI and permit approval concurrently, inmost cases before investing in project design on properties containing wetlands or transition areas, applicants seek theinput of appropriately qualified professionals to determine the extent of wetlands and/or wetlands transition areas on theproperty in question. While it is true that there are occasions where the Department's review of submitted plans and siteconditions results in the need for project designs to be adjusted because of an applicant's inaccurate determination of theextent of the wetlands and corresponding transition area or the classification of the wetlands, the Department believesthat the rules provide sufficient mechanisms to reduce or eliminate the possibility of unrealistic designs being pursued,making concerns about applicant over-design of projects insufficient to warrant elimination of the option to seek an LOIand permit concurrently.

When applying for an LOI concurrently with a permit or authorization, an applicant must provide all of theinformation that would have been included in a standalone verification or delineation LOI application. Allowing thecombination of these two applications creates a more efficient permitting process; the extent of wetlands, transitionareas, and State open waters on a site are determined immediately before the review of impacts to those areas. Manypermit applications require a site inspection, while all LOIs require a site inspection; combining both applicationsallows the Department to determine the extent of regulated areas on the site and then evaluate the impacts of theproposed activity in one site inspection.

Allowing an applicant to apply for an LOI and a permit at the same time does not affect the ability of the public toprovide input on a proposed project. All permit and LOI applications require public notice in accordance with N.J.A.C.7:7A-17 (with the exception of general permit 15, which has separate public notice requirements in the permit itself).This notice includes sending a complete application to the municipal clerk of each municipality in which the proposedproject is located, as well as providing notice of the application to other governmental entities with jurisdiction over themunicipality and county in which the proposed activity is to occur, and to property owners within 200 feet of the site ofthe proposed activity (see N.J.A.C. 7:7A-17.3). N.J.A.C. 7:7A-19.1 requires any revisions to an application (such asthose necessary to revise plans, project designs, or analyses of impacts in response to the Department's determination ofthe extent and resource value classification of wetlands on the site) to be sent to the municipal clerk of eachmunicipality in which the site is located and requires the applicant to provide notice explaining the revisions to anyperson listed at N.J.A.C. 7:7A-17.3(b) whom the Department determines would likely be affected by the revisedapplication.

241. COMMENT: The phrase "only requiring essential materials and information" at N.J.A.C. 7:7A-16.1

49 N.J.R. 3849(a)

concerning permit modifications is too vague and only serves to weaken the rules. (84, 179, 222, and 402)

242. COMMENT: Proposed N.J.A.C. 7:7A-16.1 would require less information to be submitted by applicantsseeking minor and major modifications and extensions, by "only requiring essential materials and information." Thischange, and the entire rulemaking, should not be adopted. (277)

RESPONSE TO COMMENTS 241 AND 242: The phrase "only requiring essential materials and information"does not appear in the rule text at N.J.A.C 7:7A-16.1. This phrase was used in the notice of proposal Summary to makethe distinction between the prior rules' requirements and the adopted rules. The actual requirements for extensions areset forth at N.J.A.C. 7:7A-20.4, which requires the information necessary for the Department to determine that anextension is appropriate, rather than the prior requirement to provide the same information and materials required in aninitial permit application. Because an applicant for an extension already has a recent permit application on file with theDepartment, only the information necessary to determine that the site or activities have not changed is required to besubmitted. For example, a reproduction of the site plans submitted as part of the permit application is unnecessary forthe review of an extension request because the Department already has the site plan on file. In order to be approved foran extension, the site and activity cannot have changed; a site plan submitted as part of an extension would, therefore,be identical to the plans already on file with the Department and, thus, not an essential material to review.

As explained in the notice of proposal Summary, the general application requirements apply to permitmodifications, in addition to the modification-specific application requirements at N.J.A.C. 7:7A-20.7. The adoptedapplication requirements simplify applications where appropriate to improve the efficiency of the permitting process forapplicants and Department staff and reduce redundant paperwork, while continuing to provide the Department with theinformation necessary for it to determine if the modification or extension application complies with the FWPA Rules.

243. COMMENT: Clarification is needed at N.J.A.C. 7:7A-16.2(c) as to who may submit as an applicant. That is,may a contract purchaser submit on behalf of the applicant? (140)

[page=3886] RESPONSE: A contract purchaser may submit an application for activities on a property they do notcurrently own provided the current property owner gives written consent on the application form or, in the case of ageneral permit-by-certification, by signing the property owner's certification form available on the Department's websiteand submitting a scan of that certification through the permitting portal.

244. COMMENT: The rulemaking may expand who may apply for a permit. While an applicant is a person whohas the "legal authority to perform the activities," the rules should clarify at proposed N.J.A.C. 7:7A-16.2(c)4 that thisdoes not mean that the applicant has the legal right to the property. Specifically, the issuance of a Federal EnergyRegulatory Commission Certificate of Public Convenience and Necessity alone does not provide the applicant any legalright to the property. The holder of the certificate must file an eminent domain action in court and be awarded aneasement. Without an award of access/easement from a court, the applicant has no right to the property. (319 and 328)

RESPONSE: Prior N.J.A.C. 7:7A-10.1(d) stated, "An application shall be submitted by the owner of the site whichis the subject of the application, or by a person who has the legal authority to perform the activities proposed in theapplication on the site, and to carry out all requirements of this chapter. Others may assist the owner in preparing anapplication, and may submit reports or other information in accordance with N.J.A.C. 7:7A-10.9." Therefore, adoptedN.J.A.C. 7:7A-16.4(c)4 does not expand who may submit an application under this chapter and is instead intended toencompass generally any person who has legal authority to perform activities under the chapter not otherwise capturedspecifically by N.J.A.C. 7:7A-16.2(c)1, 2, and 3.

The adopted rules do not inappropriately imply property rights where none exist. N.J.A.C. 7:7A-20.2(c) specificallystates, as a condition of all permits, that issuance of a permit does not convey any property rights or any exclusiveprivilege. This condition is included in every permit or authorization issued by the Department. The clarificationproposed by the commenter within the application requirements at N.J.A.C. 7:7A-16.2(c)4 is unnecessary in light of this

49 N.J.R. 3849(a)

standard condition.

Additional Application Requirements for an LOI (N.J.A.C. 7:7A-16.3)

245. COMMENT: While the existing rules require any survey submitted under the rules to be performed by a NewJersey licensed surveyor, proposed N.J.A.C. 7:7A-16.2(h) creates an exception if "the proposed regulated activity orproject is one for which no survey, topography, or calculations are necessary to determine the requirements of thischapter are met, in which case the applicant may elect to prepare his or her own site plan." This exception is ill-definedand contains no objective criteria or standards. It will obliterate the rule. The Department must continue to requirescientifically defensible data and analysis to be submitted. This provision essentially leaves whether an application is incompliance with the requirements of the FWPA Rules to the discretion of private developers. If the Department isseeking to exempt some applications for specific project categories from the requirement to use licensed professionals,those should be clearly specified. (277)

246. COMMENT: The notice of proposal includes an exception to the existing requirement that surveys beperformed by licensed professionals. There should be no ill-defined exceptions that nullify the regulations. (179)

RESPONSE TO COMMENTS 245 AND 246: Certain applications for very minor projects do not requireinformation that necessitates the services of a licensed surveyor. For example, a general permit-by-certification does notrequire the submittal of a survey to demonstrate compliance with the chapter because these permits limit disturbance ofboth regulated and non-regulated areas and do not contain required setbacks from property lines or other features. Inanother example, applications for presence/absence LOIs for an entire site do not require a survey because the issuedLOI only establishes if there are any wetlands, transition areas, and State open waters on the site and not the exactlocation or extent of those regulated areas.

All other applications require a survey or site plan prepared by a licensed professional, as elaborated within themore specific requirements in N.J.A.C. 7:7A-16.3 through 16.10. The general statement at N.J.A.C. 7:7A-16.2(h) is notintended to supersede these specific requirements for applications that require surveys or site plans prepared by licensedsurveyors or professional engineers. If an application which, under the specific application requirements describedabove, requires a survey or site plan prepared by a professional is submitted without a professionally-prepared survey orplan, the application will be determined administratively incomplete and returned to the applicant without furtherDepartment review. The Department will not use incomplete or inappropriate information to review and decide on apermit. This requirement, therefore, does not weaken the FWPA Rules.

247. COMMENT: The survey requirements for an LOI should be included at N.J.A.C. 7:7A-16.3(a)4. The readershould not need to turn to a separate set of Department regulations to determine what is required for a survey plan. (69)

RESPONSE: The survey and documentation requirements at N.J.A.C. 7:36 apply to other surveys in the State ofNew Jersey, such as surveys prepared on behalf of local governments and non-profits as part of Green Acres landacquisitions, not only surveys prepared for the purposes of an application for an LOI. Accordingly, these standards arefamiliar to many surveyors. The Department believes that it is much more efficient and practical for surveyors drafting asurvey to cross-reference those known standards rather than repeat verbatim the requirements in the FWPA Rules. Toavoid a situation where the FWPA Rules contain requirements at odds with N.J.A.C. 7:36 should that chapter beamended, the Department will continue to cite N.J.A.C. 7:36 Appendix 2 for survey requirements. As indicated atN.J.A.C. 7:7A-16.3(a)4, the requirements applicable to an LOI application will be listed on the appropriate applicationchecklist.

248. COMMENT: The term "top of bank," which is referenced at N.J.A.C. 7:7A-16.3(b)1 for the delineation ofState open waters, may cause confusion when delineating both the State open waters limit and the top of bank for aregulated water under the FHACA Rules since the same terminology is used in those rules. A definition of "top of bank"should be included at N.J.A.C. 7:7A-1.3 of the FWPA Rules to ensure consistency in practical application between the

49 N.J.R. 3849(a)

FWPA Rules and FHACA Rules. (69 and 140)

RESPONSE: A definition of "top of bank" is not appropriate to include in the FWPA Rules. In general, the top ofbank for the purposes of the FWPA Rules will be the upper limit of the bank of the State open water, which is typicallycharacterized by an observable change or break in the slope of the land. Similarly, when there is no clearly observabletop of bank, the centerline of the watercourse is used. The definition of "State open waters" includes all waters of theState, with a number of types of waters listed as not typically considered State open waters. The definition provides thatfinal determination as to whether the water is considered to be a "State open water" in the case of a particularwatercourse falling within one of the listed types of water will be made by the Department on a case-by-case basis.

The term "top of bank" of a State open water is only used in limited contexts within the FWPA Rules and has notproven to create any confusion. As indicated above, case-by-case guidance from the Department is necessary todetermine if many watercourses or water bodies are considered to be State open waters for the purposes of the FWPARules. Should there be any question as to the appropriate top of bank for those or any other waters, guidance is availablefrom Department staff. The definition of "State open waters" at N.J.A.C. 7:7A-1.3 and case-by-case guidance fromDepartment staff to address unusual features are sufficient for applicants to delineate State open waters under N.J.A.C.7:7A-16.3(b)1.

249. COMMENT: The addition of the option to request Department verification that a wetland is an isolatedwetland as part of the LOI process at N.J.A.C. 7:7A-16.3(b)3 is supported. (255)


Additional Application Requirements for an E-LOI (N.J.A.C. 7:7A-16.4)

250. COMMENT: The electronic Letter of Interpretation process is supported. (69)


[page=3887] 251. COMMENT: Encouraging the electronic filing of permit and LOI applications is a positive stepforward. The Department should require the electronic submission of site plans, both GIS shape files and PDF copies,so that this information is available to the public electronically. This increases transparency and reduces impacts to theOPRA office. (320)

252. COMMENT: The Department's electronic filing requirements at N.J.A.C. 7:7A-16.4(e) are supported. Alldocuments, including surveys, should be filed electronically, so that the Department can more efficiently provide copiesof documents to the public when requested. The Department should also provide a portal for the public to access thefiled documents, so that the public can more quickly review files and engage in the public consultation process. Thisalso will reduce the burden on the Department's resources in responding to Open Public Records Act (OPRA) requests.(319 and 328)

RESPONSE TO COMMENTS 251 AND 252: The Department acknowledges these comments in support of theE-LOI process. The Department is actively engaged in expanding the electronic submission system for land use permitapplications. Until further electronic availability of records is achieved, in order to provide transparency and increaseaccess, the rules currently require applicants to send complete applications and any significant revisions to themunicipal clerk in each municipality in which the site is located to allow members of the public to review theapplication. Failure to provide documentation of public notice, including the submission of the complete application tothe municipal clerk, will result in the Department declaring an application administratively incomplete and returning theapplication. In addition, pending applications are available for public review in the Department's office in Trentonduring normal business hours. The Department also publishes in the DEP Bulletin notice of receipt of eachadministratively complete application, the status of the application during review, and the decision to approve or denythe application. These notice processes ensure that the public has the opportunity to review and provide comments on

49 N.J.R. 3849(a)

application within the confines of existing permit review systems and processes.

253. COMMENT: At N.J.A.C. 7:7A-16.4(d)3, which fields are required for the GIS shapefiles? (140)

RESPONSE: The Department has developed a series of webpages to walk applicants through all aspects of theE-LOI process, beginning at http://www.nj.gov/dep/landuse/eservices/loi00.html, which readers can navigate throughby clicking on links labeled "next" or choosing specific areas of interest from the sidebar on the left side of thewebpage. Specific guidance for uploading shapefiles is provided at http://www.nj.gov/dep/landuse/eservices/cs00.htmland subsequently linked pages.

The fields required for GIS shapefiles depend on the type of application. The E-LOI service supports the submittalof Presence/Absence, Footprint of Disturbance, Line Delineation, and Line Verification LOI applications. Each of thesetypes of LOI application has differing requirements for the types of mapped features that need to be submitted as featureshapefiles. The feature shapefiles are: Site, Footprint of Disturbance, Wetlands, and Transition Areas. All LOI typesrequire a site shapefile. A Footprint of Disturbance LOI also requires a Footprint of Disturbance shapefile indicating thelocation(s) onsite that are subject to the LOI application. Line verification LOIs may require a Wetlands shapefileand/or a Transition Area shapefile depending on what features are present on the site. The linked guidance materialsinclude shapefile templates for each feature shapefile type to facilitate the preparation of shapefiles for E-LOIapplications.

Any additional questions not addressed by this response or in the linked guidance materials can be directed toTechnical Support Center staff via the contact form at http://www.nj.gov/dep/landuse/contact.html or by telephone at(609) 777-0454.

254. COMMENT: N.J.A.C. 7:7A-16.4(b)5 requires a number of certifications. However, a completed and signedapplication form should provide all of the necessary certifications for submitting electronically. (69)

RESPONSE: An applicant for an E-LOI is not required to submit a completed and signed application form. Rather,the online application system requires the submission of information required by the land use application form andrequires the applicant to enter a PIN to certify compliance with certain requirements. The required information andcertifications are similar to those required on a paper application form, but are provided to the portal in a differentformat than a signed paper application form.

Additional Requirements Specific to an Application for an Individual Permit (N.J.A.C. 7:7A-16.9)

255. COMMENT: The proposed rules specify that an alternatives analysis be included in an environmental reportbut do not define "alternatives analysis" or require an applicant to apply the 404(b)1 Guidelines at 40 CFR Part 230when conducting an alternatives analysis. These guidelines are the minimum standard of the Federal permit programand should, therefore, be clearly identified and defined in the FWPA Rules. There should also be clear languageindicating that the alternatives analysis required in the environmental report is that triggered by the existing rules andthat the analysis must be prepared in accordance with the requirements in existing N.J.A.C. 7:7A-7.2. (179 and 277)

RESPONSE: N.J.A.C. 7:7A-16.9(b)4v requires an alternatives analysis as part of an environmental report,specifically requiring an analysis "that allows the Department to evaluate whether the requirements at N.J.A.C.7:7A-10.2 are met." This statement provides the clear language linking the application requirements to the substantiveindividual permit requirements at N.J.A.C. 7:7A-10.2, which was recodified with minor changes from N.J.A.C.7:7A-7.2. Immediately following the directive to provide an alternatives analysis, N.J.A.C. 7:7A-16.9(b)4v(1) and (2)establish what information must be provided in the alternatives analysis for the Department to review compliance withN.J.A.C. 7:7A-10.2. The adopted requirements clearly establish the requirements for an alternatives analysis. Therequirements for an alternatives analysis in the FWPA Rules meet the applicable Federal standards.

49 N.J.R. 3849(a)

N.J.A.C. 7:7A-17, Requirements for an Applicant to Provide Public Notice of an Application

Contents and Recipients of Public Notice of an Application (N.J.A.C. 7:7A-17.3)

256. COMMENT: The current standard to notify property owners within 200 feet is no longer acceptable.Increasingly common and significant storm events cause stormwater impacts of development to be experienced wellbeyond 200 feet from the site of development. The rules should require all owners of real property within 1,000 feet ofthe project location to be notified of proposed activities via paper notice. N.J.S.A. "55S-12.B" requires 1,000 feet notice.(346)

RESPONSE: The public notice standards adopted in the FWPA Rules are intended to match those in the FHACARules and CZM Rules. The Department has determined that the adopted requirement to notify property owners within200 feet of the site of a regulated activity (or, for certain activities, within 200 feet of a proposed above-groundstructure) and other adopted public notice requirements provide adequate notice and opportunity for comment onindividual applications for authorizations and letters of interpretation under the FWPA Rules. The Department was notable to determine from the provided citation which requirement the commenter asserts mandates that notice be providedto property owners within 1,000 feet of a development activity.

257. COMMENT: Proposed N.J.A.C. 7:7A-17.3(c), which allows a broader range of applications to qualify foralternative public notice to property owners only within 200 feet of any proposed above-ground structure, in addition tonewspaper notice, is supported. (255)


258. COMMENT: N.J.A.C. 7:7A-17.3(b), (c), and (d) appear to contain a circular reference that may requireclarification of the public notice requirements for individual permits listed in N.J.A.C. 7:7A-17.3(b)6. (255)

RESPONSE: It is unclear what references in the cited paragraph of the rules are considered to be circular. N.J.A.C.7:7A-17.3(b) requires notice to entities and individuals identified at paragraphs (b)1 through 6. In addition to thegovernmental entities and representatives identified in paragraphs (b)1 through 5, the rules, at N.J.A.C. 7:7A-17.3(b)6,require [page=3888] that notice be provided to owners of real property in the vicinity of the regulated activity proposedin the application. Particularly, N.J.A.C. 7:7A-17.3(b)6 specifies that notice must be provided to all owners of realproperty within 200 feet of the site of the proposed activity, unless the regulated activity is one identified in N.J.A.C.7:7A-17.3(c). If the proposed regulated activity is one subject to N.J.A.C. 7:7A-17.3(c), N.J.A.C. 7:7A-17.3(b)6 directsapplicants for a regulated activity listed at N.J.A.C. 7:7A-17.3(c) to provide notice to property owners in the mannerdescribed at subsection (c), rather than that contained at paragraph (b)6. N.J.A.C. 7:7A-17.3(c) identifies the fivecategories of regulated activities or projects that are subject to the alternate notice process to nearby property owners forregulated activities or projects subject to that subsection, and specifies what that process entails (as described in theSummary of Agency-Initiated Changes, the Department is correcting a cross-reference in the notice of proposal ofN.J.A.C. 7:7A-17.3(b)6 to the types of activities that are subject to the notice requirements of N.J.A.C. 7:7A-17.3(c),which incorrectly identified the list as being provided at N.J.A.C. 7:7A-17.3(c)1 through 4 to instead reference N.J.A.C.7:7A-17.3(c)1 through 5). Finally, N.J.A.C. 7:7A-17.3(d) specifies notice requirements, in addition to those specified inN.J.A.C. 7:7A-17.3(b), as applicable to all applications listed in N.J.A.C. 7:7A-17.1(a) if the application is for anindividual permit. These additional notice requirements for individual permit applications recognize that, because of themore significant potential impacts involved in proposed regulated activities requiring an individual permit, it isappropriate to additionally require notice to the public through newspaper notice to ensure that the notice reaches alarger area.

Finally, it is noted that the public notice requirements contained in the adopted rules have been aligned with similarrequirements in the CZM and FHACA Rules to streamline the permitting process. The Department has not observedany confusion in the application of these requirements under the other two rule chapters.

49 N.J.R. 3849(a)

259. COMMENT: Although a seemingly innocuous procedural change in the proposed rules, the alterations to thepublic notice requirements may lead to unintended environmental impacts by creating loopholes for some lineardevelopment projects. For example, notice is not required to be mailed to neighbors within 200 feet of the property forlinear projects that do not include aboveground structures. Many projects that pose risk to neighboring properties, suchas pipelines, have few or no aboveground structures along their routes. Maintaining the existing public noticerequirement is essential for public participation and awareness. (376)

260. COMMENT: Large-scale pipeline infrastructure proposals threaten wetlands and water quality in generalthroughout the State. Because of the scale and magnitude of the adverse impacts that can result from these massivedevelopments, the Department should not change the notification requirements for such a project from notifying allresidents within 200 feet of the project for individual permit applications to notifying only those residents within 200feet of any proposed aboveground structure associated with the project. Linear projects requiring individual permitsmay result in negative impacts to property values, as well as the environment even if the structure is below ground.Therefore, property owners adjacent to below-ground structures should not be excluded from receipt of individualnotices. Limiting public notice for pipelines shifts the burden from the applicant to landowners who will need toconstantly scan newspapers to determine whether projects that may directly impact their ability to enjoy their propertyhave been proposed or are being reviewed by the Department. (160)

261. COMMENT: The notification procedures at N.J.A.C. 7:7A-17.3(c) are unacceptable as they allow majorprojects, like pipelines, to avoid providing notice to the actual property owners and neighboring property owners of thesites where the line is to be installed. With the current state of newspapers, very few reach the number of people thatwould require notification of a large linear project. Newspaper notice should be required in addition to individualnotice, as required by the FWPA. (415)

262. COMMENT: At N.J.A.C. 7:7A-17.3(c), this rulemaking eliminates an applicant's obligation to provide noticeto property owners for several types of projects, including pipelines longer than one-half mile. To enhance publictransparency, notice of the permit application should be provided to property owners when the construction of a pipelineis proposed on their property or in such proximity that the property may be impacted from the construction, allowingthem the opportunity to comment. The notice of proposal could leave impacted homeowners in the dark until such timeas the project actually begins construction. (319)

263. COMMENT: Public notice should be provided to all stakeholders within 200 feet of a proposed lineardevelopment regardless of whether infrastructure is above or below ground. Anything less is unacceptable and blatantlydisregards property owners' rights. (84, 222, and 402)

264. COMMENT: For individual permit applications for linear projects, public notice must be provided to allstakeholders within 200 feet regardless of whether infrastructure is above or below ground. Anything less shows anunacceptable disregard for property owners at risk for significant losses, whether real estate, aesthetic, or worse. (179)

265. COMMENT: The change to allow notification of linear projects only to residents within 200 feet of anabove-ground structure is opposed. Linear projects can greatly modify property values and can have significantenvironmental impacts. The process serves to avoid landowner input rather than encourage comments from adjacentproperty owners. (277)

RESPONSE TO COMMENTS 259 THROUGH 265: The adopted public notice requirements serve to align thepublic notice requirements in the FWPA Rules with those in the CZM and FHACA Rules. The amendments are notintended to reduce public input.

The prior rules, at N.J.A.C. 7:7A-10.8(f), provided that notice of proposed linear development greater than one-halfmile long that did not require an individual permit may satisfy notice requirements to land owners near the proposeddisturbance by sending notice to owners of land within 200 feet of any proposed above ground structure (with limited

49 N.J.R. 3849(a)

exceptions for things such as suspended conveyance lines or small utility support structures, such as telephone poles)and publishing notice in the newspaper of record for each municipality within the proposed site is located and in aregional newspaper for the affected area. The adopted rules continue to require these forms of notice for applications forlinear development greater than 0.5 miles long and apply these notice requirements to several other types ofdevelopment, provided the regulated activity or project does not require an individual permit. The public noticerequirements specified at N.J.A.C. 7:7A-17.3(c) are also not applicable to an application for approval of a mitigationproposal to create, enhance, or restore wetlands, State open waters, and/or transition areas that is not submitted as partof a permit application.

Large linear projects have a broader audience of interested parties and are often of regional concern, which makesnewspaper notice in a newspaper in general circulation in the municipality or municipalities in which the project will belocated the most appropriate means of public notice. In addition, the Department publishes notice throughout its reviewof an application in the DEP Bulletin. Notice is provided to a number of county or municipal entities, and an entire copyof the application must be submitted to the municipal clerk in each municipality where the project is proposed.Requiring newspaper notice encourages community review of projects that may be of interest to the entire community,rather than just individual property owners within 200 feet of the proposed regulated activity.

It is important to note, however, that adopted N.J.A.C. 7:7A-17.3(c) does not apply to applications for individualpermits or mitigation proposals not submitted as part of a permit application. Consistent with the FWPA at N.J.S.A.13B:9B-9a(2), applicants for individual permits must provide notice to all property owners within 200 feet of the site ofthe proposed regulated activity.

With reference to the suggestion that notice of the permit application should be provided to property owners whenthe construction of a pipeline is proposed on their property, in order to submit an application, the applicant must havepermission or legal authority to perform the regulated activities on the properties subject to the application (see N.J.A.C.7:7A-16.1(c)). Property owners will already be aware of a planned application for activities on their property before it isreviewed by the Department. Neighboring property owners will be notified in [page=3889] accordance with N.J.A.C.7:7A-17, either by direct mailed notice or through newspaper notice.

266. COMMENT: N.J.A.C. 7:7A-17.3(e)iii sets out the requirements for the contents of public notice, includingthat the notice must inform the recipient that comments are due within 15 days of receipt of the notice. This isinsufficient time for the public, especially if the Department or municipality requires the filing of an OPRA request toobtain a copy of the application or if an interested third party wishes to hire experts to review it. The Department shouldallow for at least 60 days unless a public hearing is held. Increasing the time for the public to provide comments willalso be consistent with N.J.A.C. 7:7A-19.1(g)1i, which allows a request for a public hearing to be filed within 30 daysof the notice. It has been the Department's practice to allow written comments for an additional period of time after theclose of a public hearing. Extending the public comment period to a reasonable timeframe will increase transparencyand allow the public to adequately review the application, hire experts, and provide meaningful comments. (319)

RESPONSE: While the form public notice letter directs recipients to submit information to the Department within15 days of receipt of the letter, N.J.A.C. 7:7A-19.6(c) establishes a 30-day comment period following the publication ofnotice of an administratively complete application in the DEP Bulletin. The form notice letter directs submission ofcomments within 15 days to account for lag time in mail delivery and encourage submission of timely comments. TheDepartment will accept comments on applications for 30 calendar days following the publication of notice in the DEPBulletin.

267. COMMENT: Notification of applications in the DEP Bulletin is not sufficient. The public must be able toeasily find notices online. (346)

RESPONSE: The Department used the DEP Bulletin to provide notification of the receipt of complete applicationsand the status of applications under the previous FWPA Rules, and similarly utilizes the DEP Bulletin to notify the

49 N.J.R. 3849(a)

public of coastal permit and flood hazard area permit applications. The DEP Bulletin is published on the Department'swebsite twice each month and contains a list of construction permit applications recently filed or acted upon by theDepartment, including applications for permits under the FWPA Rules. The DEP Bulletin is accessible from theDepartment's website at http://www.nj.gov/dep/ by clicking the "DEP Bulletin" link under the "Information Tools"section of the navigation bar on the left-hand side of the main page. The direct link to the DEP Bulletin page is:http://www.nj.gov/dep/bulletin/index.html. From this page, current and previous issues of the Bulletin can be viewed,downloaded, and searched. This page also provides the publication dates of future issues of the Bulletin.

COMMENT: The public needs to be given the opportunity to weigh in on proposed projects. (270)

RESPONSE: The robust public notice requirements at N.J.A.C. 7:7A-17 require applicants seeking anauthorization under a general permit-by-certification, an authorization under a general permit, a Letter of Interpretation,a transition area waiver, an individual permit, or a major technical modification, to provide public notice of anapplication to several municipal and county entities and adjacent property owners, and in some cases notice to thecommunity through publication of newspaper notice. The Department additionally provides notice throughout theapplication process through the DEP Bulletin. N.J.A.C. 7:7A-19.6 provides for a 30-day public comment period onevery application following publication of notice of each administratively complete application in the DEP Bulletin.

N.J.A.C. 7:7A-18, Application Fees

268. COMMENT: It is appreciated that the Department is not proposing to increase application fees. (140)


269. COMMENT: With the current condition of the State's budget, the Department should not be waiving fees forany applications. (415)

RESPONSE: It is unclear what fees are being referred to by the commenter. The adopted amendments, repeals, andnew rules do not include any provisions about waiving fees. Applications for authorization under general permits 16,17, and 24 do not require an application fee in the adopted rules as in the prior rules because they authorize activitiesthat are environmentally beneficial or, in the case of general permit 17, have a public benefit and encourageappreciation of nature. Because general permit-by-certification 24 authorizes the same activities as general permit 24,which have an environmental benefit, no fee is charged for an authorization under general permit-by-certification 24.

270. COMMENT: While the fact that the rulemaking does not include any fee increases is supported, theDepartment is requested to add a fee cap for Letters of Interpretation, similar to how application fees for WaterfrontDevelopment permits in the CZM Rules are capped at $ 30,000. (262)

RESPONSE: Presence/absence, footprint of disturbance, and delineation LOIs all require a flat fee of $ 1,000. Lineverifications require a fee of $ 1,000 plus $ 100.00 per acre of the site. Presence/absence LOIs only require theDepartment to confirm the presence or absence of wetlands anywhere on the site. Footprint of disturbance anddelineation LOIs only involve discrete portions of a site not to exceed one acre. Line verification LOIs, however,identify the boundaries of any freshwater wetlands, transition areas, and/or State open waters on an entire site, and theresource value classification of any freshwater wetlands on the site. This type of LOI creates significant work on thepart of Department staff that only increases with the size of the site. As opposed to the other LOI types, Departmentstaff time and resources scales directly with the size of the site (which is not limited by the rules) when reviewing a lineverification LOI. The Department believes it is appropriate to continue the current fee structure for letters ofinterpretation.

N.J.A.C. 7:7A-19, Application Review

49 N.J.R. 3849(a)

General

271. COMMENT: The establishment of specific timeframes to accomplish different LOIs and permit actions issupported. (69)


272. COMMENT: The proposed rules do not make it clear that the Department must do an independent study ofdata, studies, and conclusions submitted by applicants and their consultants in order to determine compliance with theFWPA. The Department cannot defer to, or rely upon, applicants. (179 and 277)

RESPONSE: The Department does not believe it is necessary to include such a clarification in the adopted rules.Department staff review all submitted materials for accuracy and compliance with all applicable provisions of N.J.A.C.7:7A and, in many cases, conduct site inspections to verify site conditions or other information submitted as part of anapplication. The Department may also hold a fact-finding meeting on applications for a transition area waiver orindividual permit to gather more information before deciding to approve or deny a permit application. The rules makeclear that it is the Department, not the applicant, that determines whether any application or permittee action under anissued permit complies with the rules; further reiteration that that is the case is unnecessary.

273. COMMENT: Please clarify that applicants do not have to file an OPRA request to obtain comments submittedby third parties to the Department during the application review process. (140)

RESPONSE: The Department will not require applicants to file an OPRA request to obtain comments on theapplicants' own applications. An OPRA request is required to obtain comments submitted on an application notsubmitted by the one requesting the comments.

General Application Review Provisions (N.J.A.C. 7:7A-19.1)

274. COMMENT: Proposed N.J.A.C. 7:7A-19.1(f) retains the stipulation from existing N.J.A.C. 7:7A-12.1(f), thatan applicant is not entitled to assume that an application is approved if they do not receive a response from theDepartment within the deadlines imposed in this subchapter (which is in contrast to the parallel sections of the CZMand FHACA Rules). This point is restated in N.J.A.C. 7:7A-19.7(d). In such a situation, what recourse does an applicanthave? (255)

RESPONSE: While permits issued under the CZM and FHACA Rules are subject to the timeframes of theConstruction Permits Law, [page=3890] N.J.S.A. 13:1D-29 et seq., permits under the FWPA Rules are not. While theadopted rules reflect that the Department will make a decision to approve or deny a permit application within the same90-day timeframe, the Department recognizes that the unique and complex ecology of freshwater wetlands, as well asrequirements to consult with the USEPA on some permit applications, and the practical constraints on delineating orverifying freshwater wetlands boundaries that may preclude issuance of an LOI pending a seasonally dependent siteinspection, may at times preclude a 90-day review. The Legislature also recognized this fact when not applying therequirements of N.J.S.A. 13:1D-29 et seq., to permit decisions under the FWPA Rules. While all efforts are made toensure a timely permit review, if application-specific conditions preclude a 90-day review, the applicant must wait tobegin regulated activities until a permit decision has been made. Application review times can be minimized bysubmitting complete applications that demonstrate compliance with all applicable requirements of the FWPA andproviding timely responses to requests for additional information.

275. COMMENT: Please clarify the purpose of N.J.A.C. 7:7A-19.1(c)1, which is unclear given that there is nodeemer clause pertaining to the Department's review and approval of applications. (140)

RESPONSE: While the commenter is correct that, with the exception of applications for authorization undergeneral permits 1, 24, and 25, which provide that an application shall be deemed approved if the Department does not

49 N.J.R. 3849(a)

act to require further review and/or approve or deny the application within the review deadline, applications under theFWPA Rules cannot be deemed approved without a written authorization or issuance of a permit from the Department,the Department believes that, as part of its effort to align similar requirements and processes in the FWPA Rules, CZMRules, and FHACA Rules to streamline the permitting process, the rules should reflect that the Department will makeevery effort to follow the process put in place under the other rules, including making decisions within a 90-daytimeframe from the application being deemed complete for review. The Department included the consent to extensionprovision at N.J.A.C. 7:7A-19.1(c)1, as well as the related provision referencing the possibility of extension of the90-calendar day target decision deadline at N.J.A.C. 7:7A-19.7(c), to reflect that the Department intends to processpermit applications under the three rules in the same manner and with the same goal from a timing perspective.However, as expressly indicated at N.J.A.C. 7:7A-19.7(d), should it not be possible to meet that goal with reference toan application under the FWPA Rules, the rules make clear that no regulated activity may proceed without Departmentapproval.

276. COMMENT: Since there is no N.J.A.C. 7:13-19.7(c) in the FHACA Rules as published on the Department'swebsite, should the provision at N.J.A.C. 7:7A-19.1(c)1 refer to N.J.A.C. 7:7A-19.7(b)? (140)

RESPONSE: The commenter is correct that the notice of proposal included a typographical error, which resulted inthe reference being to the FHACA Rules, N.J.A.C. 7:13, when the reference was intended to be to the FWPA Rules,N.J.A.C. 7:7A. However, while there is no N.J.A.C. 7:7A-19.7(c) in the FHACA Rules, that is the correct referencewithin the FWPA Rules. This citation is corrected on adoption.

277. COMMENT: There are no standards provided for the Department to determine when a revised application sosubstantially differs from the original application that the public notice process must be repeated. There should berestrictions on what kind of information applicants can submit on a rolling basis without officially declaring anapplication "revised." (277)

RESPONSE: Under N.J.A.C. 7:7A-19.1(c), any revisions to an application during the review period must be sent tothe municipal clerk of each municipality in which the site is located and an applicant must provide notice of the changesto any recipients of the original public notice whom the Department determines would likely be affected by the revisedapplication. There is no determination that differentiates between information and an "official" revision.

278. COMMENT: Applications should not be received on a rolling basis. (84, 179, 222, and 402)

RESPONSE: By receipt of applications on a rolling basis, the Department assumes the commenters are referring toaccepting and reviewing applications when they are submitted, rather than designating specific dates or deadlines for theacceptance of applications. The acceptance of applications on a "rolling" basis is not a new procedure and has alwaysbeen the Department's process for reviewing proposed activities in freshwater wetlands, transition areas, and State openwaters. It is necessary to receive applications on a rolling basis to ensure a manageable workload for Department staffand best serve the regulated public. Designating a specific period in which the Department will accept applications eachyear would inconvenience applicants and overwhelm the current staffing levels of the Department during the reviewperiod. In such an arrangement, the target 90-day permit review timeframe would be virtually impossible to observe.

279. COMMENT: Public review for an application should only begin after the Department deems the applicationcomplete for review under the statute. (84, 179, 222, and 402)

280.COMMENT: While it is appropriate to have a clear definition of "complete for review" to define when theDepartment will begin to review an application to determine if the proposed project could meet the requirements of theFWPA, determining an application is "complete for review" should be the trigger for the beginning of the public'sreview and the comment period. It is unreasonable to allow the public comment period to begin prior to having anapplication that the Department itself deems "reviewable." Publishing notice of each administratively completeapplication only exacerbates the current issue of the comment period closing before the public can review a complete

49 N.J.R. 3849(a)

application. (277)

RESPONSE TO COMMENT 279 AND 280: While the FWPA Rules prescribe a standard 30-day comment periodstarting from the publication of an administratively complete application in the DEP Bulletin, N.J.A.C. 7:7A-19.6(d)specifies that the Department may exercise its discretion by accepting comments after the close of the 30-day commentperiod. Where a significant revision is made to an application after notice of the administratively complete applicationhas been published in the DEP Bulletin, that would be taken into consideration by the Department in determiningwhether to accept comments that would otherwise be considered late in accordance with N.J.A.C. 7:7A-19.6(d). Inaddition, N.J.A.C. 7:7A-19.1 requires any revisions to an application to be sent to the municipal clerk of eachmunicipality in which the site is located and requires the applicant to provide notice explaining the revisions to anyperson listed at N.J.A.C. 7:7A-17.3(b) whom the Department determines would likely be affected by the revisedapplication.

281. COMMENT: While replacing the extensive and cumbersome requirements for a public hearing on anapplication with the provision that interested persons may request a "fact-finding meeting" is supported, the Departmentshould provide, in N.J.A.C. 7:7A-19.1(g), a basic procedure that the Department will follow in scheduling andconducting fact-finding meetings, and an explanation of how the outcome of such meetings may affect applicants. (255)

282. COMMENT: The Department is proposing to transform the public hearing process into a fact-finding meetingin violation of the Clean Water Act. Under the Act, the public hearing process requires the Department to provide aforum for the "exchange of views," which is more expansive than allowing the public to provide facts. The Departmentshould not be restricting this exchange of views as proposed. (319 and 328)

283. COMMENT: "Fact-finding meetings" are meant to exclude the public from the Department decision-making.All meetings that are held by the Department should be open to the public. In addition, while the Department states thatdocuments of interest are available for review, getting these documents can take years. (346)

284. COMMENT: The proposed rules allow the Department to hold fact-finding meetings instead of publichearings. Public hearings are defined in the existing rules at N.J.A.C. 7:7A-1.4 (proposed N.J.A.C. 7:7A-1.3) andregulated as per the New Jersey Administrative Code. Fact-finding meetings, however, are not defined or described inthe notice of proposal. Therefore, it is unclear whether these meetings will reach the public involvement standard set bypublic hearings, which are [page=3891] essential to capture the opinions and concerns of New Jersey residents.Removing this well-established practice poses a serious threat to the transparency and accountability of the Department.(160 and 376)

285. COMMENT: Does the Department have jurisdiction to replace the USEPA hearing with a fact-findingmeeting? (160)

286. COMMENT: The proposed rule changes should be withdrawn. The Department should not act in haste andenact changes, including providing for rushed reviews and discouraging meaningful public input, that will jeopardizeenvironmental security, especially without fully evaluating the potential consequences of the host of pipeline proposalsthat threaten wetlands, streams, and groundwater, which are all integral components to the State's drinking watersystem. Pipeline projects carry a lot of risk, and strong regulatory review, including peer review, is essential topreventing environmental damage from pipelines. Abbreviating public hearings to undefined fact-finding meetingsraises questions about the quality of public involvement that is an essential part of a robust project review. Citizensmight feel disenfranchised without the ability to provide meaningful comments from the beginning of any permit reviewprocess, especially one as potentially harmful to them as a pipeline proposal. (84)

287. COMMENT: When performing a Google search for the proposed changes to this rule, the only referenceappeared on a consultant's website. It will be even more difficult for the public to find out about relatively privatefact-finding meetings as opposed to public hearings. (179)

49 N.J.R. 3849(a)

RESPONSE TO COMMENTS 281 THROUGH 287: As indicated in the notice of proposal Summary, fact-findingmeetings will serve the same basic purpose as what was provided by public hearings under the prior rules; they willprovide a forum for the exchange of information and ideas related to the issue(s) to be addressed at the meeting. Thefactors considered in determining whether a fact-finding meeting will be held remain essentially the same as the factorsconsidered in determining if a public hearing should be held under the prior rules. Specifically, prior N.J.A.C.7:7A-12.4(b) and adopted N.J.A.C. 7:7A-19.1(g)1 both specify that a public hearing/fact-finding meeting is notnecessary for the Department to issue or deny an individual permit or transition area waiver, but that a publichearing/fact-finding meeting will be held if the Department determines that there is a significant degree of publicinterest in the application, as manifested by written requests for a public hearing/fact-finding meeting within the 30 dayhearing/meeting request period (considering whether the issues raised in the requests are relevant to the review of theapplication), or a public hearing/fact-finding meeting is requested by the USEPA. Further, the prior rules provided that apublic hearing will be held if the Department determines that the public interest would be served by holding a hearing.The adopted rules similarly factor in public interest by providing that a meeting will occur if the Departmentdetermines, based upon either public comment received or its own review of the scope and potential environmentalimpact of the proposed project, that additional information is necessary for the evaluation of the potential impacts of theproposed project, which can only be obtained through a fact-finding meeting. Finally, the timing within which afact-finding meeting may be requested is the same 30-day period provided for request of a public hearing under theprior rules. Accordingly, it is not anticipated that the change from public hearings to fact-finding meetings will have asignificant impact on the number or content of the meetings held under the adopted rules as compared to the prior rules.

As indicated in the notice of proposal Summary, fact-finding meetings will serve the same purpose as the priorpublic hearings, but will accomplish that purpose through a simpler and more efficient process. The Department willinvite the public to attend, will note comments received and consider them in the review of the application. Rather thanrequire the applicant to mail notice of the public hearing and publish a display advertisement, the Department willnotify the public of the planned meeting through its website, which may reach a wider segment of the public. Placingthe responsibility for notifying the public with the Department rather than applicants ensures a more streamlined processfor both the applicant and the Department while providing for the same or better opportunity for the public to speak onan application. The fact-finding meeting also provides a less formal setting for the Department to consider publiccomments than a public hearing, as Department staff can ask commenters clarifying questions to ensure that theyunderstand the issues and concerns raised. There is also no court reporter required for a fact-finding meeting, saving theapplicant and the Department resources. The Department's notes of what was discussed at the fact-finding meeting, aswell as any written comments received on the application, will be kept in the application file maintained by theDepartment. The previous provisions regarding timing and other requirements for public hearings were deleted to allowmore flexibility for holding fact-finding meetings.

The adopted changes align the permit review processes of the FWPA Rules with those of the CZM Rules andFHACA Rules and are not intended to exclude the public from the permitting process. In addition to holdingfact-finding meetings, where appropriate, the Department will also accept written comments from the public on anyapplication for at least 30 days following the publication of the notice of the application in the DEP Bulletin. Tofacilitate public review of applications, applicants are required to send a complete copy of the application to themunicipal clerk of each municipality in which the proposed project is located, and applications are made available forpublic review in the Department's Trenton office. Between holding fact-finding meetings, where appropriate, andaccepting written public comments, the Department believes that the public continues to have the opportunity to providemeaningful comment and information concerning applications received under the FWPA Rules.

Completeness Review (N.J.A.C. 7:7A-19.2)

288. COMMENT: Proposed N.J.A.C. 7:7A-19.2(a) through (g) are concerning because they reduce oversight of theregulated community. Determination of "completeness" of an application should only be provided to a completeapplication and not automatically after 20 days. (125)

49 N.J.R. 3849(a)

RESPONSE: The adopted completeness procedures are intended to align the permitting process in the FWPA Ruleswith that in the CZM and FHACA Rules to the extent the enabling statutes allow. The prior rules, at N.J.A.C.7:7A-12.1(a), established a 20-working-day period to determine administrative completeness. The adopted rules, atN.J.A.C. 7:7A-19.2(b), continue the 20-working-day review period specified in prior N.J.A.C. 7:7A-12.1(a), amendingthe prior subsection to clarify when the 20-working-day period begins. The 20-working-day timeframe foradministrative completeness is designed to catch major issues, such as a lack of site plans or an application for thewrong type of permit, early in the process to allow the Department and the applicant to avoid wasted time andresources.

While the completeness procedures in the FWPA Rules reflect the Department intention to conduct its applicationreview within the timeframes provided by the rules, N.J.A.C. 7:7A-19.7(d) makes clear that, even if an application iscomplete for review, in no case will an applicant be able to take any action without final Department approval (similarto prior N.J.A.C. 7:7A-12.1(f), which provides that non-response by the Department shall not be considered Departmentapproval of the application). Accordingly, the adopted procedure does not reduce oversight but ensures timely review ofthe administrative aspects of an application to streamline the permitting process and allow applicants timely notice ofmissing components of an application. However, the Department retains ultimate authority to determine whether aproposed regulated activity complies with the FWPA Rules and will only authorize those projects that do comply withthe rules.

289. COMMENT: The rulemaking cuts the review period for an individual permit in half, from 180 days to 90days, which may not be sufficient to conduct a thorough analysis. The Department should not rush review of complexwetland development projects that could threaten New Jersey's irreplaceable water resources. (7, 34, 58, 72, 84, 96, 113,150, 152, 155, 156, 158, 160, 164, 179, 184, 186, 203, 211, 214, 222, 245, 247, 250, 270, 277, 278, 279, 313, 317, 323,333, 357, 367, 368, 378, 398, 402 419, 420, 436, and 453)

290. COMMENT: The proposed amendments to shorten the application review timeframe fail to recognize thatmuch of the delay in environmental permitting review is due to an applicant's failure to submit a complete application.The rulemaking states that if the [page=3892] Department fails to respond in a timely manner, the application will bedeemed complete for review by default, which will lead to the Department having to reject more applications for theirfailure to demonstrate that the legal standards of the Freshwater Wetlands Protection Act and the Clean Water Act havebeen met. The burden of proving avoidance and minimization, as well as the burden of overcoming the presumption thatthere are better ways to construct pipelines that do not threaten New Jersey's water resources should belong to theapplicant. A rule should not be passed that will pressure the Department to expedite a review. (160)

291. COMMENT: While the timeframe reductions for review and approvals will be helpful to applicants, theDepartment must have enough staff to implement all requirements and avoid approvals based on limited staff time andnot on environmental protection, fairness, and consistency with the Clean Water Act. The purpose of the Clean WaterAct is not to expedite wetlands destruction and water quality degradation, but to protect water quality. Strict time limitscircumvent Federal laws to the permanent detriment of environmental and human health. (431)

RESPONSE TO COMMENTS 289 THROUGH 291: The adopted review time aligns the permitting procedures inthe FWPA Rules with those in the FHACA and CZM Rules to the extent the enabling statutes allow and does notviolate the Clean Water Act. In most cases, an application submitted under the FWPA Rules can be reviewed within thesame 90-day timeframe as other types of permit applications. Department staff routinely complete freshwater wetlandspermit reviews within a 90-day review period when those applications are submitted concurrently with a flood hazard orcoastal permit application. Accordingly, the Department does not anticipate difficulty or pressure to expedite a reviewbecause of standardizing the review period. However, while the FHACA and CZM Rules allow an applicant to presumethat an application is approved if the Department does not provide a written approval or denial within the 90-day reviewperiod, the FWPA Rules do not (see N.J.A.C. 7:7A-19.7(d)). The FWPA does not provide for this presumption inrecognition of the unique and complex ecology of freshwater wetlands. In the rare cases that a 90-day review period isnot sufficient, Department staff may take longer to review an application without the application being automatically

49 N.J.R. 3849(a)

approved.

292. COMMENT: The rules should clarify that an application cannot be deemed administratively complete withouta full environmental report, including the alternatives analysis, as the existing rules do. The proposed rules do notclearly state whether an application without an alternatives analysis would be administratively complete or whether thecategory of administrative completeness has been reduced to a "check the box" application sheet. (277)

RESPONSE: The Department assumes the commenter is referring to the requirement at prior N.J.A.C.7:7A-10.6(b) that an alternatives analysis be reflected on the application checklist for an individual freshwater wetlandsor open water fill permit as a required component of an individual permit application. The adopted rules continue therequirement to submit an alternatives analysis at N.J.A.C. 7:7A-16.9(b)4v with the alternatives analysis being part ofthe environmental report required to be submitted as part of all applications for an individual permit. As a requiredcomponent of an individual permit application, the environmental report, including the alternatives analysis, will belisted on the individual permit checklist. In accordance with the definition of the term at N.J.A.C. 7:7A-1.3,"administratively complete" means that every item required on the application checklist for a letter of interpretation orpermit being sought is included in the application. By including the environmental report on the checklist for anindividual permit application, the Department will continue to require an alternatives analysis for an application to beconsidered administratively complete. Once an application is deemed administratively complete, the Department willreview the application for technical completeness.

293. COMMENT: The rulemaking extending an applicant's time to provide necessary information for technicalreview from 30 days to 90 days allows applicants to submit poor, incomplete applications while providing anunreasonable grace period to correct their mistakes. (179 and 277)

RESPONSE: The adopted rules do not provide a blanket 90-day period for additional information to be submittedwhen an application is technically incomplete. N.J.A.C. 7:7A-19.2(b) provides that, when an application isadministratively complete but technically incomplete, the Department will "issue notification to the applicant in writingthat the application is technically incomplete. This notification shall specify the additional information required and thedeadline by which the information must be submitted." N.J.A.C. 7:7A-19.2(e) establishes 90 days as the deadline forproviding additional information if an alternate deadline is not specified in the Department's request. The time to submitadditional information on a technically incomplete application is ultimately up to the Department project manager'sdiscretion depending on the type and amount of information required and other extenuating circumstances. Forexample, if additional information on the soils on the site is necessary, but the ground is frozen, this may be reflected inthe timeframe established by the Department to submit the additional information. If the required additional informationis simple to produce, the Department may establish a timeframe shorter than 90 days.

294. COMMENT: The proposed rules weaken environmental protection by constricting the Department's time toreview applications and increasing applicants' ability to submit incomplete applications for ill-conceived projects andthen claim "hardship" as they invest additional time and resources on potentially damaging projects. (179 and 277)

RESPONSE: Nowhere in the adopted rules does the Department consider an applicant's own failure to provide acomplete application a hardship. Under N.J.A.C. 7:7A-19.2(e), failure to timely submit additional information requestedby the Department is cause for the Department to cancel an application unless an applicant demonstrates good cause forthe delay. Good cause may include a delay in obtaining requested information on soils because the ground is frozen,making samples difficult to obtain, or personal extenuating circumstances on the part of the applicant. Good cause doesnot include an applicant's inadequate planning or research into a site. Furthermore, the 90-day review timeframe doesnot begin before an application is complete for review. An application declared technically incomplete is not "on theclock" until all necessary information is submitted to the Department. When all required information is provided, theDepartment will then declare the application complete for review as of the date the additional information was received(see N.J.A.C. 7:7A-19.2(b) and (c)). In cases where the Department does not act within the 20-working-day timeframeto determine completeness, an application may be deemed "complete for review" but, as explained in the Response to

49 N.J.R. 3849(a)

Comment 288, even if an application is complete for review, in no case will an applicant be able to take any actionwithout final Department approval. However, the Department strives to make completeness determinations within the20-working-day timeframe (as is the case in the CZM and FHACA Rules) to ensure incomplete applications are notdeclared "complete for review."

Department Review and Decision for Authorization for Maintenance of a Stormwater Management Facility underGeneral Permit 1 and Repair of a Malfunctioning Individual Subsurface Sewage Disposal System under General Permit24 (N.J.A.C. 7:7A-19.3)

295. COMMENT: N.J.A.C. 7:7A-19.3(a)1 and (b) seem to conflict and should be clarified. Under N.J.A.C.7:7A-19.3(a)1, the Department determines the application is administratively and technically complete and declares theapplication complete for review. Why is the decision-making process described under N.J.A.C. 7:7A-19.3(b) prefacedwith "If the application is administratively complete ...," if under N.J.A.C. 7:7A-19.3(a)1, a higher-level declaration hasalready been made? In addition, later in the paragraph, the statement "If the Department does not so notify the applicant..." is not logical since a declaration (that is, notification) of completeness has already been provided under N.J.A.C.7:7A-19.3(a)1. (255)

RESPONSE: The completeness review under N.J.A.C. 7:7A-19.3(a) may result in one of two determinations; eitherthe application is both administratively and technically complete (the finding under paragraph (a)1 referenced by thecommenter) or the application is not administratively and technically complete. As indicated in N.J.A.C. [page=3893]7:7A-19.3(a)2, if the Department notifies the applicant of deficiencies prior to the expiration of the 20-day completenessreview period, the subsequent 30-day review period provided to determine if the proposed activity has been authorizeddoes not begin to run. The introductory clause of N.J.A.C. 7:7A-19.3(b) cited by the commenter reading "if theapplication is administratively complete" only serves to make clear that the 30-day timeframe to decide to approve ordeny an application applies only to an application that is complete, whether by determination by the Department or bydefault via the Department's lack of notification to the contrary.

In accordance with N.J.A.C. 7:7A-19.3(b), in contrast to other applications under the FWPA Rules, which are notdeemed approved if the Department is unable to reach a permit determination within the time specified in the rules (seeN.J.A.C. 7:7A-19.7(d)), an application for authorization under general permit 1 or general permit 24 is deemedapproved if the Department does not act within the specified time to either deny the application or advise the applicantthat the activities may be authorized, but require a full application review in accordance with N.J.A.C. 7:7A-19.2. Thelater statement "If the Department does not so notify the applicant" in N.J.A.C. 7:7A-19.3(b) refers to the notificationreferences in the previous sentence of that subsection; that is, the notification that the activities are not authorized undergeneral permit 1 or general permit 24, or that the activities may be authorized but require a full application review underN.J.A.C. 7:7A-19.2, not the notification of the completeness or incompleteness of the application at N.J.A.C.7:7A-19.3(a).

Cancellation of an Application (N.J.A.C. 7:7A-19.8)

296. COMMENT: The proposed rules fail to clarify the standards for when the Department will accept a "goodcause" explanation to the criteria for cancelling an application. The Department should clarify that the failure to obtainauthorization to do the work subject to the permit is not good cause, nor is the failure to survey and collect data. (277)

RESPONSE: The Department has not listed what may constitute "good cause" to avoid implying that good causeonly includes one of a few examples and to avoid implying that circumstances that constitute good cause for a delay inproviding information in one instance will always be considered good cause for delay in all instances. This provision isintended to provide common sense flexibility for unforeseen circumstances beyond the applicant's control.

N.J.A.C. 7:7A-20, Permit and Waiver Conditions; Modification, Transfer, Suspension, and Termination ofAuthorizations and Permits

49 N.J.R. 3849(a)

Conditions that Apply to all Permits (N.J.A.C. 7:7A-20.2)

297. COMMENT: The list of conditions for permits is incomplete. All conditions specified in the FWPA should belisted, including the following: (1) Will not cause or contribute to a violation of any applicable State water qualitystandard; (2) Will not cause or contribute to a violation of any applicable toxic effluent standard or prohibition imposedpursuant to the "Water Pollution Control Act," P.L. 1977, c. 74 (N.J.S.A. 58:10A-1 et seq.); (3) Will not violate anyrequirement imposed by the United States government to protect any marine sanctuary designated pursuant to the"Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. §§ 1401 et seq.); and (4) Will not cause orcontribute to a significant degradation of ground or surface waters. (415)

RESPONSE: The conditions that apply to all permits are conditions that apply to the activities and permittee afterthe permit is issued. The requirements listed by the commenter are included in the requirements that must be satisfied inorder for an application to qualify for an individual permit at N.J.A.C. 7:7A-10.2. Furthermore, under N.J.A.C.7:7A-20.3(b)2, 3, and 4, each permit issued by the Department shall include provisions ensuring that the regulatedactivity will be conducted in compliance with the findings and/or environmental guidelines issued under section404(b)(1) of the Federal Act at 40 CFR Part 230, the Freshwater Wetlands Protection Act, and this chapter, includingconditions to ensure that the regulated activity shall be conducted in a manner that minimizes adverse impacts upon thephysical, chemical, and biological integrity of the waters of the United States and/or waters of the State, such asrequirements for restoration or mitigation; any requirements necessary to comply with water quality standardsestablished under applicable Federal or State law; and requirements necessary to comply with any applicable toxiceffluent standard or prohibition under section 307(a) of the Federal Act or applicable State or local law. Under N.J.A.C.7:7A-2.2(b), the discharge of dredged or fill material into State open waters is regulated under the FWPA Rules (or, ifin a non-delegable State open water subject to the Waterfront Development Law, regulated under the CZM Rules). Ifthe discharge of dredged or fill material is permitted under the FWPA Rules, the Department has already made thedetermination that the activity complies with the laws listed by the commenter prior to issuing the permit. Further, if anapplicable water quality standard or toxic effluent standard is promulgated after a permit is issued, N.J.A.C.7:7A-20.3(b)3 and 4 require the Department to modify the applicable permit to ensure compliance with such standards.

Extension of an Authorization under a General Permit, a Transition Area Waiver, and an Individual Permit (N.J.A.C.7:7A-20.4)

298. COMMENT: Permits should be required to be renewed more frequently to allow for inspection of any damagecaused by a project. (354)

RESPONSE: In accordance with N.J.A.C. 7:7A-20.2(c)27, the Department's Bureau of Coastal and Land UseEnforcement must be notified at least three days prior to a permittee commencing regulated activities under the FWPARules. This notification ensures that the Department is aware that activities are occurring and allows staff to inspect thesite and activities being conducted to evaluate compliance with the permit or authorization. In addition to theDepartment receiving notice of the commencement of activities, the rules at N.J.A.C. 7:7A-20.2(c)5 require a permitteeto prevent, minimize, or correct any adverse impact on the environment resulting from activities conducted pursuant tothe permit, or from noncompliance with the permit, while N.J.A.C. 7:7A-20.5(c)6 requires a permittee to inform theDepartment of any unanticipated adverse effects on the environment not described in the application or in the conditionsof the permit. N.J.A.C. 7:7A-20.2(c)7 requires a permittee to immediately notify the Department of any noncompliancethat may endanger public health, safety, and welfare, or the environment. Additional protective conditions may beadded to a permit in accordance with N.J.A.C. 7:7A-20.3. Failure to comply with any of the above-listed permitconditions will subject the applicant to enforcement action under N.J.A.C. 7:7A-22. These requirements provide theDepartment with sufficient opportunity to inspect a site and remain aware of what is occurring under the permit orauthorization without the need for more frequent permit renewals.

299. COMMENT: The Department is proposing to remove the requirement that permittees requesting extensions of

49 N.J.R. 3849(a)

general permit authorizations and transition area waivers demonstrate that the rules governing the activities have notbeen amended without any data or studies to support the change. This rulemaking defies logic, because if the rulesgoverning the activities have been amended, they would be amended upon a finding that the rules were not sufficientlyprotective of resources. (277)

300. COMMENT: When requesting a five-year permit extension, the applicant should continue to have to bear theburden of demonstrating that the rules governing the regulated activity have not changed. (84, 179, 222, and 402)

RESPONSE TO COMMENTS 299 AND 300: Rule amendments may be adopted for a wide variety of reasons, andare not always in response to a finding that the prior rules were not sufficiently protective of resources. For example, theamendments, repeals, and new rules adopted herein are primarily focused on aligning the administrative requirements inthe FWPA Rules with those in the CZM and FHACA Rules and creating consistent structure and organization acrossthe three chapters. None of the changes adopted were in response to a finding that the prior rules were not sufficientlyprotective. The adopted amendments at N.J.A.C. 7:7A-20.4 align the extension request process in the FWPA Rules withthat of the CZM and FHACA Rules to create consistency across the land use rules and to better accommodate situationsin which areas regulated by more than one rule chapter overlap. While the rules continue to require the applicant tomake the demonstration referenced [page=3894] by the commenter in an application for extension of an individualpermit, because of the types of activities governed by general permit authorization and transition area waivers andexisting strict standards applicable to these approvals, which ensure that authorized activities have only minimalimpacts, such a showing is not necessary in this context. Particularly, in accordance with N.J.A.C. 7:7A-5.2, generalpermits will only be promulgated if the Department determines that the regulated activities will cause only minimaladverse environmental impacts when performed separately, will have only minimal cumulative adverse impacts on theenvironment, and will cause only minor impacts on freshwater wetlands and State open waters. Because of the limitedimpact allowed for an activity to qualify for these types of authorization, the Department has determined that apreviously authorized activity should be allowed to continue under an extension for one additional five-year periodprovided it is demonstrated that the regulated activity has not changed from that originally authorized by theDepartment and there has been no significant change in the overall condition of the site. In contrast, because thepotential impacts of individual permit activities are greater and activities/projects more complex, the rules, at N.J.A.C.7:7A-20.4(b)4, continue to require applicants to demonstrate that the rules in this chapter governing the regulatedactivities authorized under the permit for which an extension is sought have not been amended such that the activitiesdo not meet the rules as amended. This is required because the potential environmental impacts of not holdingindividual permit activities to a new standard are potentially severe.

301. COMMENT: The existing rules provide for five-year extensions on some permits, provided the permitteeproves there was no significant change in: the project and activities; the rules governing the site; and the site conditions,including wetlands boundary and resource classification. This rulemaking simply states that the Department hasdetermined, via its experience, that a five-year extension is appropriate for most permits based on its observation thatsite conditions generally did not change significantly over time where activities were approved under freshwaterwetlands individual permits that were subsequently extended. The Department's assertion that no harm will result fromproviding extensions for most permits does not appear to be based on any data, analyses, or studies. It is also unclearfrom the notice of proposal whether public notice must be provided for an extension. It appears that public notice willnot be required for an extension; if this is the intent, the change should not be adopted to allow meaningful publiccomment on extension applications. (277)

RESPONSE: The demonstrations that must be made by the person requesting an extension, and confirmed by theDepartment, ensure that approving a five-year extension will not have an adverse environmental impact. TheDepartment made a finding, by approving the original application, that the regulated activities complied with allapplicable provisions of the FWPA Rules and the FWPA. If the site conditions and regulated activities have notchanged from the time the Department approved the application, extending the term of the permit is not likely to haveeffects that are different from those originally evaluated by the Department. Public notice is not required for anextension. Public notice was provided as part of the original permit application. For the Department to approve an

49 N.J.R. 3849(a)

extension request, the activity and site need to have remained the same as those identified in the individual permit.

302. COMMENT: The proposed duration of an authorization under a general permit is concerning. The term of ageneral permit is defined as five years, with the possibility for one five-year extension, without a required site conditionreview. The proposed change to remove the requirement for site condition review would allow for a 10-year generalpermit in freshwater wetlands, which would compromise the ability of communities to develop comprehensive land usepolicies that include consideration of cumulative environmental impacts of development while flexibly addressingcommunity-related goals such as environmental justice, safety, meeting Federal stormwater (MS4) requirements,economic development, and improved air quality. (125)

RESPONSE: It is unclear what provision is interpreted as removing the need for review of site conditions before apermit or authorization may be extended. The extension provisions at N.J.A.C. 7:7A-20.4(b) reorganize thedemonstrations previously codified at N.J.A.C. 7:7A-14.6(b) that must be made by the permittee in order to receive anextension. N.J.A.C. 7:7A-20.4(b)2 requires the person requesting the extension to demonstrate "that there has been nosignificant change in the overall condition of the site." This requirement replaces the requirement at prior N.J.A.C.7:7A-14.6(b)2iii that the permittee demonstrate "that there has been no significant change in ... the conditions on thesite, including the wetlands boundary and resource classification." As stated in the notice of proposal Summary at 49N.J.R. 866, the proposed extension requirements now codified at N.J.A.C. 7:7A-20.4(b)2 "reorganize and clarify theexisting requirements at N.J.A.C. 7:7A-14.6(b)2, 2i, 2ii, and 2iii." While the examples of site conditions that must beaddressed by the applicant were not continued in the rule text because the wetlands boundary and resource classificationare only part of what must be addressed, the demonstration required under N.J.A.C. 7:7A-20.4(b)2 continues to includesite conditions such as the wetlands boundary and resource classification. To reinforce the continuation of thisrequirement, the Department is changing N.J.A.C. 7:7A-20.4(b)2 on adoption to clarify that the "overall condition of thesite" referenced there continues to include, among other things, the wetlands boundary and resource value classification,consistent with prior N.J.A.C. 7:7A-14.6(b)2iii.

303. COMMENT: The proposed amendments at N.J.A.C. 7:7A-20.4 appear to be a positive change in that theyallow some flexibility for an extension when it is determined that the "overall condition of the site" has not changed, incontrast to the existing rules that provide that there be no changes to the conditions on the site, including wetlands andresource value. However, the Department needs to clarify how it will determine that the "overall condition" has notchanged. (140)

RESPONSE: Consistent with prior N.J.A.C. 7:7A-14.6(b)2iii, which included as examples of "conditions of thesite" that must be addressed by an applicant for an extension of a permit or authorization the wetlands boundary andresource classification, the "overall condition of the site" in N.J.A.C. 7:7A-20.4(b)2iii is intended to include among thesite conditions that must be addressed in an applicant's demonstration of no significant change in wetlands boundariesand resource value classification. Wetlands boundary and resource classification information is critical in theDepartment's review of any application, but other changes in conditions on the site can also be important in determiningif the analysis that originally concluded the regulated activity complied with the rules is still applicable and theregulated activity continues to qualify for the previously granted permit or authorization. Other site conditions that mayneed to be addressed include changes in vegetation or changes in a State open water's designation under the SurfaceWater Quality Standards. Ultimately, the conditions that need to be evaluated depend on the characteristics of aparticular site. Accordingly, an all-inclusive list of site condition factors that must be analyzed in each case is notpossible.

The change in language reflected in N.J.A.C. 7:7A-20.4(b)2iii is intended only to align the requirements of theFWPA Rules with the CZM and FHACA Rules; it neither expands nor reduces the demonstration that must be made byan applicant for an extension. As discussed in the Response to Comment 302, the Department's analysis of thedemonstration provided by an applicant for an extension will be the same under the adopted rules as it was under theprior rules. Both under prior N.J.A.C. 7:7A-14.6(b)2 and adopted N.J.A.C. 7:7A-20.4(b)2, the applicant mustdemonstrate to the Department's satisfaction that there has been no significant change in conditions on the site or the

49 N.J.R. 3849(a)

overall condition of the site; the prior rules did not limit the potential for an extension being approved to only wherethere has been no change in any site condition.

As indicated in the Response to Comment 302, the Department is changing N.J.A.C. 7:7A-20.4(b)2 on adoption tomake clear that the demonstration regarding changes in the condition of the site that must be made for an extension of apermit or authorization to be granted continues to include the wetlands boundary and classification of any wetlandsimpacted by the regulated activity.

304. COMMENT: The current rules require an applicant to apply for an extension 60 or 30 days prior to theexpiration of an individual permit or general permit authorization, while the proposed rules allow activities under apermit to continue past the original expiration date pending a decision on an extension. The proposed change allowspermittees to [page=3895] extend the term of their permits by default, while the Clean Water Act assumption provisionslimit permit terms to five years. For activities to continue pending an extension decision, the applicant should berequired to demonstrate hardship circumstances outside of the applicant's control that made it impossible for theapplicant to know an extension would be necessary and that rendered the applicant unable to timely apply for anextension rather than adopt a global change to address what should only be very rare circumstances. (277)

RESPONSE: The proposed amendments concerning permit durations and extension requests were intended to alignthe permitting process in the FWPA with the processes in the FHACA Rules and CZM Rules where appropriate.However, upon further consideration, the Department has determined that review and approval of any extension ofregulated activities past the original permit term under the FWPA Rules should occur prior to the expiration of theoriginal approval with regulated activities to cease upon expiration of the original permit or authorization if anextension has not yet been granted. Accordingly, the Department is not adopting the proposed amendment that wouldhave allowed regulated activities to continue during Department review past the original expiration date and the ruleswill continue to require requests for extension to be filed far enough in advance of the expiration date to allowDepartment review to be complete before expiration of the original approval, consistent with the rules prior to thisadoption.

Transfer of an Emergency Authorization, Authorization under a General Permit, or an Individual Permit (N.J.A.C.7:7A-20.5)

305. COMMENT: The automatic permit transfer amendments at N.J.A.C. 7:7A-20.5(a), which are consistent withthe CZM and FHACA Rules, are supported. (140 and 255)


Modification of an Authorization under a General Permit, a Transition Area Waiver, or an Individual Permit (N.J.A.C.7:7A-20.6)

306. COMMENT: The proposed amendments to N.J.A.C. 7:7A-20.6(c) and (d) are supported as they allow forproject design changes to be considered as minor technical modifications. (140)

RESPONSE: The Department acknowledges this comment in support of the rules. With reference to N.J.A.C.7:7A-20.6(c), the Department notes that administrative modifications allowed under that subsection are only those thatdo not alter the design or layout of the project or affect the wetland limits. Specific minor technical modifications thatmay result in a change in the design or layout of a project are allowed under N.J.A.C. 7:7A-20.6(d). Similar toadministrative modifications under N.J.A.C. 7:7A-20.6(c), qualifying minor technical modifications are limited to thosethat do not create additional wetland impacts.

307. COMMENT: The changes to the types of permit modifications are confusing and may substantially weakenwetlands protections. The requirements for administrative modifications do not contain critical language requiring the

49 N.J.R. 3849(a)

applicant to document or certify that such changes do not materially affect the project's design or impacts. For example,the rule allows applicants to request an administrative modification based on new data that would make the permit moreaccurately reflect the site, extent of regulated areas, and/or permitted activities, but fails to state that if such dataincreases impacts over those of the original permit, it cannot be considered an administrative modification. (277)

RESPONSE: The types of permit modifications provided for in the rules are intended to establish procedures fordifferent types of modifications that reflect the relative significance of the modification, which affects the amount ofinformation that must be submitted to the Department in support of the request for approval of the modification andwhether public notice of the modification is necessary. Concerning administrative modifications, N.J.A.C. 7:7A-20.6(c)specifies that an administrative modification is a change that "does not alter the design or layout of the project or affectthe wetland limits." The example provided by the commenter of a permit where new data results in an increase in theamount of disturbance over the original permit would, therefore, not be considered an administrative modification.

308. COMMENT: The proposed rule removes the existing requirement for minor technical modifications thatchanges to materials or construction techniques must be required by another permitting agency to qualify in thiscategory. (277)

RESPONSE: Whether changes to construction techniques or materials (that, as required by N.J.A.C. 7:7A-20.6(d),do not result in new or additional impacts to the wetland or transition area) are required by another permitting agency ornot has no effect on the relative significance of the modification or the potential environmental impact of the change inthe proposed regulated activity. The adopted rules, therefore, do not require consideration of whether changes tomaterials or construction techniques are required by another permitting agency when reviewing a request for a minortechnical modification.

309. COMMENT: The proposed minor technical modification category includes changes in the size, shape, orlocation of the regulated activities or project provided the total area of disturbance does not increase. This amendmentdoes not take into account the type of wetland being disturbed, which can result in conflicts with other sections of therules. For example, general permit 2 does not count impacts to emergent wetlands as permanent disturbance, but wouldconsider impacts to forested wetlands permanent disturbance. To avoid such conflicts, project changes in this categoryshould be vetted by the public under notice and comment provisions. Unfortunately, administrative and minor technicalmodifications are excluded from public notice requirements. (277)

RESPONSE: The situation identified by the commenter does not cause any conflicts in implementing the rules. The"total area of disturbance" includes both permanent and temporary disturbance. While general permit 2 establishes a0.5-acre limit for permanent disturbance (which does not include temporary impacts to emergent wetlands that do notalter the character of the existing wetland), it also requires minimization of temporary disturbance. N.J.A.C.7:7A-20.6(d) defines a minor technical modification as "a change in the design or layout of a project, including anyassociated change to an approved site plan or other document, that the applicant demonstrates does not result in new oradditional impacts to the wetland or transition area." While increases in temporary disturbance do not affect the "totaldisturbance" calculated for assessing compliance with the requirements of general permit 2, the applicant mustdemonstrate that a minor technical modification does not result in new or additional impacts, which are not limited onlyto permanent disturbance. Under N.J.A.C. 7:7A-20.6(c), an administrative modification includes changes that do notalter the design or layout of a project at all.

Because, by definition, administrative and minor technical modifications do not increase the environmental impactof a proposed activity, the Department will not impose the time and expense of additional public notice on an applicant.

310. COMMENT: While there is a separate provision establishing that the Department will determine if a proposedmodification in any of the three categories will have significant adverse environmental effects and require a new permitapplication, there is no requirement for the applicant to provide the Department with such analysis with respect toadministrative modifications and no public notice and comment period for the applicant's analysis for a minor technical

49 N.J.R. 3849(a)

modification. There is no language limiting the use in each category of modification to direct applicants to only applyfor an administrative modification if the changes are environmentally immaterial. The proposed rule, therefore, seems torelax the existing standard requiring public notice for projects that will result in any additional wetlands impacts overthose of the original permit to a standard in which notice will only be required for projects that will "significantlyincrease the environmental impact of the regulated activities." (277)

RESPONSE: The adopted requirements for each type of permit modification define what types of changes can bemade under each type of modification. The requirements for all types of modifications at N.J.A.C. 7:7A-20.7(b), (c),and (d) require information commensurate with the relative significance of the modification. Each type of modificationrequires a submittal of a description of the proposed change which, in a complete application, should adequatelydemonstrate that the requirements of the modification type are met. If an applicant applies for the inappropriate type ofmodification, the Department will reject the application and advise the applicant of the correct modification type.

[page=3896] The adopted rules do not relax standards for public notice. The prior rules, at N.J.A.C. 7:7A-10.7, didnot require public notice for a minor modification. In the adopted rules, the types of modifications categorized as"minor" in the prior rules are split into administrative modifications, minor technical modifications, and permittransfers, which continue to not require public notice. The prior rules required public notice of applications for majormodifications. The adopted rules, at N.J.A.C. 7:7A-20.7(d)2, require public notice for major technical modifications,which are similar to major modifications under the prior rules. Additionally, in accordance with N.J.A.C. 7:7A-20.6(f),if changes proposed in a modification application "significantly increase the environmental impact of the regulatedactivities," the Department will reject the application and require the applicant to submit a new permit application,which is subject to all applicable public notice requirements at N.J.A.C. 7:7A-17.

N.J.A.C. 7:7A-21, Requests for Adjudicatory Hearings

Procedure to Request an Adjudicatory Hearing; Decision on the Request (N.J.A.C. 7:7A-21.1)

311. COMMENT: The time period to request an adjudicatory hearing is not sufficient for the public to adequatelyrespond. (346)

RESPONSE: The 30-day time period in which a person may submit an adjudicatory hearing request is the same asthe time period to request an adjudicatory hearing on enumerated Department decisions under the prior rules at N.J.A.C.7:7A-1.7(d), and in equivalent provisions within the CZM Rules and FHACA Rules. In conjunction with the publicnotice and opportunity for review and comment provided during the permit application review process, the Departmentbelieves that this timeframe allows adequate opportunity to request an adjudicatory hearing on a permit decision.

312. COMMENT: The proposed amendments at N.J.A.C. 7:7A-21.1(a) that require third-party objectors to sendevidence of a hearing request to the permittee are supported. The Department should implement further amendmentsconsistent with this provision to require third parties who submit comments to the Department during the applicationreview process to also copy the applicant. (140)

RESPONSE: Comments received on an application during the review process will be provided to the applicant bythe Department upon the applicant's request. The Department encourages comment on permit applications to ensuredecisions made are informed by all available input. The Department believes that communication between theDepartment and applicant in cases where the applicant wishes to obtain a copy of all filed comments is preferable torequiring that commenters on all applications submit copies of comments directly to the permit applicant.

313. COMMENT: At N.J.A.C. 7:7A-21.1(f), the Department should make its decision regarding third-party hearingrequests within 30 days to comply with the Administrative Procedure Act and Uniform Administrative Procedure Rules.Similarly, the Department should have a 30-day timeframe to act upon an appeal request pursuant to N.J.A.C.7:7A-21.1(f). (140)

49 N.J.R. 3849(a)

RESPONSE: The Department makes every effort to make determinations as to whether requests for adjudicatoryhearings are considered contested cases that satisfy all applicable requirements, both where the requester is thepermittee and where a person other than the permittee (that is, a third party) has requested a hearing. However, asrecognized by the Office of Administrative Law's Uniform Administrative Procedure Rules, the determination as towhether a matter qualifies as a contested case can vary in difficulty, and it is sometimes necessary to consult with theAttorney General's office (see N.J.A.C. 1:1-4.1(b)). This is particularly true in the context of third-party hearingrequests. The APA prohibits State agencies from promulgating rules granting administrative hearings to third parties onpermit decisions unless specifically authorized to do so by Federal law or State statute allowing third-party appeals (seeN.J.S.A. 52:14B-3.1b through 3.3), with a "third party" defined as any person who is not a permit applicant, a Stateagency, or "a person who has a particularized property interest sufficient to require a hearing on constitutional orstatutory grounds" (N.J.S.A. 52:14B-3.2). With such variability, incorporating a 30-day limit is not appropriate.

Effect of Request for Hearing on Operation of Permit or Authorization (N.J.A.C. 7:7A-21.3)

314. COMMENT: The rules proposed concerning the effect of a request for an adjudicatory hearing should includea Department response deadline and a defined decision standard. (179)

315. COMMENT: Proposed N.J.A.C. 7:7A-21.3 should incorporate a deadline for the Department to determinewhether it will issue a stay of a permit when an adjudicatory hearing has been requested by a person other than theapplicant. Additionally, the rules should incorporate a definition of the good cause standard by which the Departmentwill determine whether it will grant such a stay. (179 and 277)

RESPONSE TO COMMENTS 314 AND 315: For the same reasons that commitment to a specific timeframewithin which to grant or deny an adjudicatory hearing is difficult (see the Response to Comment 313), commitment to aspecific time frame within which to decide on a stay request is equally difficult. As indicated in the Response toComment 313, in the context of a request for an adjudicatory hearing by a person other than the permittee, many caseswill involve seeking input for the Attorney General's office. Accordingly, while the Department will make every effortto make determinations both on whether a contested case exists and on whether a stay should or should not be in placewhile a challenge proceeds, it is not able to commit to a timeframe within which those determinations will be made inevery case.

With regard to what constitutes "good cause" to impose a stay, the Department makes this determination on acase-by-case basis. Good cause includes consideration of whether the stay is necessary to avoid an imminent threat ofirreparable harm to public health, safety, or the environment. Similar to an application for injunctive relief in SuperiorCourt, the Department's decision would also consider the ultimate likelihood of success of the challenge.

Permit Standards

N.J.A.C. 7:7A-6 General Permits-By-Certification

316. COMMENT: The addition of two new general permits-by-certification is supported. (69)


317. COMMENT: The proposed rules allow for general permits-by-certification, where a developer can certify thatthe project meets applicable standards or rules without any oversight. This is a violation of the FWPA. (12,13, 15, 20,22, 23, 27, 29, 32, 33, 50, 51, 55, 35, 37, 38, 39, 41, 46, 55, 62, 63, 65, 67, 73, 74, 76, 85, 92, 93, 97, 103, 122, 123,124, 127, 131, 133, 136, 137, 138, 142, 143, 148, 165, 170, 171, 173, 174, 183, 189, 202, 204, 206, 215, 217, 218, 219,220, 229, 232, 233, 237, 238, 239, 240, 241, 242, 243, 244, 256, 265, 266, 280, 282, 283, 294, 301, 306, 312, 314, 321,324, 326, 327, 329, 334, 343, 349, 354, 362, 374, 377, 382, 383, 387, 392, 395, 399, 407, 408, 410, 414, 415, 427, 431,435, 437, 442, 446, 448, 449, 454, 456, and 461)

49 N.J.R. 3849(a)

318. COMMENT: General permits-by-certification allow developers to build without looking at impacts properly.(12, 13, 15, 22, 23, 27, 29, 32, 33, 50, 51, 35, 37, 38, 39, 41, 46, 55, 62, 63, 65, 67, 73, 76, 85, 92, 93, 97, 103, 122, 123,124, 127, 133, 137, 138, 142, 148, 165, 170, 171, 173, 174, 183, 189, 202, 204, 206, 215, 217, 218, 219, 220, 229, 232,233, 237, 238, 239, 241, 242, 243, 244, 256, 265, 266, 280, 282, 283, 287, 294, 301, 306, 312, 314, 321, 324, 326, 327,329, 334, 343, 349, 362, 374, 377, 382, 383, 387, 392, 395, 399, 407, 408, 410, 414, 427, 431, 435, 437, 442, 446, 448,449, 454, 456, and 461)

319. COMMENT: Compliance should not be self-certifiable. An applicant's self-certification that there will be noharmful impacts to wetlands does not ensure adequate protection. The Department needs to utilize sound environmentalanalysis. (84, 130, 131, 147, 149, 222, and 402)

320. COMMENT: Allowing self-reporting of compliance with no oversight is opposed. The Department should notmake it easier for applicants to get around the rules. There is already little oversight over projects, which has led tomassive stream and wetland violations. (353)

321. COMMENT: Even though the Administrative Procedure Act may allow for general permits-by-certification,the FWPA only provides for general permits, individual permits, letters of interpretation, and [page=3897] transitionarea waivers. The Department has no authority to create a new type of approval under the statute. (415)

322. COMMENT: The Department is proposing new general permits-by-certification, as well as the expansion ofcertain general permits, which violates the Clean Water Act. A general permit, permit-by-rule, or, in this case, a generalpermit-by-certification may only be issued for those activities that are de minimis, individually and cumulatively. TheDepartment has not demonstrated that these activities will have de minimis impacts. To demonstrate that an activity isde minimis, the analysis must consider "a range of factors relating to the impact of discharges on aquatic ecosystems andthe humans who use them, and must then document the environmental effects of the activities authorized by the permitin a decision document." See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engrs, 833 F.3d 1274 (11th Cir.2016), citing 40 CFR Part 230 (2014). The USEPA regulations at 40 CFR 230.11 (2014) require an evaluation of theimpacts of the proposed general permits, etc. "on the physical, chemical, and biological components of the aquaticenvironment." The proposed rules do not provide any evaluation of the impacts to the physical, chemical, or biologicalcomponents of the aquatic habitat. Please provide references to all of the expanded permits for which the Departmenthas studied the impacts to the wetlands or transition areas and the details regarding the studies and their results. Also,please provide references to all scientific literature that the Department relied on to determine that these permits wouldhave no impact. (319, 320, and 328)

RESPONSE TO COMMENTS 316 THROUGH 322: The two adopted general permits-by-certification authorize astrictly limited subset of activities authorized under general permits in the prior rules. The FWPA at N.J.S.A.13:9B-23.c authorizes the Department to adopt general permits for certain activities that the Department determines willcause only minimal adverse environmental impacts when performed separately, will have only minimal cumulativeadverse impacts on the environment, will cause only minor impacts on freshwater wetlands, will conform with theFWPA, and will not violate any provisions of the Federal Act. One such activity identified at N.J.S.A. 13:9B-23.c(3) is"[a]ppurtenant improvements or additions to residential dwellings lawfully existing prior to the effective date ofP.L.1987, c.156 (C.13:9B-1 et seq.), provided that the improvements or additions require less than a cumulative surfacearea of 750 square feet of fill and will not result in new alterations to a freshwater wetland outside of the fill area." Theadopted general permit-by-certification 8 meets these requirements. The Department is also authorized by the FWPA atN.J.S.A. 13:9B-23.c(5) to adopt general permits for "[a]ctivities, as determined by the department, which will have nosignificant adverse environmental impact on freshwater wetlands, provided that the issuance of a general permit for anysuch activities is consistent with the provisions of the Federal Act and has been approved by the United StatesEnvironmental Protection Agency." This provision authorizes general permit-by-certification 24 for repair ormodification of a malfunctioning septic system.

The adopted general permits-by-certification provide an alternate application process for authorization of activities

49 N.J.R. 3849(a)

that could have already been authorized by the general permits in the prior rules. Particularly, activities authorized undergeneral permit-by-certification 8 were previously authorized under general permit 8 (previously codified at N.J.A.C.7:7A-5.8, now codified at N.J.A.C. 7:7A-7.8) and activities authorized under general permit-by-certification 24 werepreviously authorized under general permit 25 (previously codified at N.J.A.C. 7:7A-5.25, now general permit 24,codified at N.J.A.C. 7:7A-7.24). The Department has previously determined that the adopted general permits have deminimis impact individually and cumulatively (see 19 N.J.R. 2330(a) and 20 N.J.R. 1235(a), regarding general permitand 8 N.J.R. 338(a) and 24 N.J.R. 975(b), regarding general permit 24).

As indicated by the commenters, the FWPA Rules must be as stringent as the Federal rules for activities inwetlands; the adopted rules continue to be as stringent, and, in many cases, more stringent than the Federal wetlandspermitting program by strictly limiting general permit activities in size and scope and by requiring a permit for mostactivities in transition areas. General permit-by-certification 24 is identical to prior general permit 25 for the repair of amalfunctioning septic system. An elaborate scientific analysis is not needed to demonstrate that replacing a failingseptic system has minimal environmental impact when compared to the alternative of leaving an existingmalfunctioning septic system in or near wetlands. The replacement or repair of a septic system leads to greaterprotection of wetlands and aquatic resources by stopping a source of pollution. The environmental benefit accomplishedby stopping the impacts to water quality that result from septic system malfunctions through the activities authorizedunder this general permit-by-certification far exceed any impacts to wetlands. This activity also typically takes place intransition areas, which are beyond the jurisdiction of the Clean Water Act. To the extent that applicants can avoidplacing septic systems in wetlands, they will do so, because placing a septic system in uplands is more cost-effectiveand requires less maintenance. Prior general permit 25 and adopted general permit 24 have been approved by theUSEPA.

General permit-by-certification 8 is a tightly limited subset of activities under prior and adopted general permit 8,which the Department was directed to adopt by the FWPA if a finding was made that such activities will have minimaladverse environmental impact, and which has already been approved by the USEPA. General permit-by-certification 8further limits the activities authorized by general permit 8 by only approving an addition to a previously existingresidential dwelling and requiring the addition to be attached to the existing dwelling. In addition, both generalpermits-by-certification set forth disturbance limits applicable to the entire site, whether the area is within wetlands, atransition area, or not within a regulated area, to prevent unintended impacts to regulated areas in excess of that allowedunder the permits.

When developing the general permits-by-certification, the Department reviewed years of permit applications forauthorizations under the existing general permits to determine which activities had the least potential for environmentalimpact and were most frequently applied for to determine the best choices to streamline the process for activities withvery minor impacts that would have the greatest benefit to staff and applicants in time saved on applications. The twoactivities now authorized under general permits-by-certification 8 and 24 were determined to be activities that alwaysqualified for the applicable general permits when limited to the standards incorporated in the generalpermits-by-certification because the impact of these activities on any of the functions and values of wetlands is veryminor. In the majority of permits reviewed, the activities were proposed in transition areas. Further, applications forgeneral permit 24 (prior general permit 25) were often made during the closing on the sale of a home and were urgent,both in the context of the need to complete the sale of the home and in the need to stop the malfunctioning septic systemfrom harming the environment. The construction of an addition under general permit 8, when connected to a legallyexisting dwelling, took place in areas already disturbed (for example, maintained lawn area or a patio), and wasdetermined by the Threatened and Endangered Species Unit in the Division of Land Use Regulation to not pose anythreat or have a potential impact on threatened and endangered species or species habitat. This determination could notbe made without further review for the construction of an addition to a legally existing home that is not attached to theexisting dwelling, and so the scope of the general permit-by-certification was appropriately limited to only thoseactivities that do not have the potential to impact threatened and endangered species.

It is unclear what is meant by "expanded permits." The adopted general permits at recodified N.J.A.C. 7:7A-7 have

49 N.J.R. 3849(a)

not been amended to expand the size or scope of regulated activities authorized under each permit. The Department'sprevious analyses, in the rule proposals and adoptions in which the general permits were first proposed and adopted inthe FWPA Rules, address the individual and cumulative impacts of the use of these permits on the aquatic environment.If the commenter is referring to amendments concerning the use of general permits 6 and 6A, those concerns areaddressed in the Response to Comments 211 and 212.

The Department's electronic permitting portal requires the submission of complete and accurate informationconcerning a proposed project, in accordance with N.J.A.C. 7:7A-16.6. The portal performs a number of validations toensure that the proposed activities comply with all applicable requirements. For example, for generalpermit-by-certification 8, the system will check for any previously approved [page=3898] disturbance to ensure that thecumulative footprint of disturbance to construct an addition does not exceed 750 feet. If the proposed disturbance wouldexceed the required limit individually or in combination with previously issued permits, the applicant cannot proceedwith the application. When an applicant successfully demonstrates compliance with the FWPA Rules and provides allrequired information, the permit generated contains the conditions that apply to all general permits-by-certification andgeneral permits at N.J.A.C. 7:7A-5.7 and the conditions that apply to all permits at N.J.A.C. 7:7A-20.2. One suchrequirement is the requirement to notify the Bureau of Coastal and Land Use Compliance and Enforcement in writing atleast three working days prior to the commencement of regulated activities. This notification informs the Departmentthat regulated activities will soon commence and enables staff to inspect the site before the activities commence and/orwhile activities are occurring to ensure compliance.

Because applicants are required to certify to the terms and conditions of the permit, creating a complete record ofthe applicant's knowledge and acceptance of the requirements, any violation of the permit may be subject toenforcement action. Submitting false information in a permit application is also cause for enforcement action. Thecombination of the online permitting portal's capabilities, the Department's ability to inspect a site prior to anydisturbance, and the Department's enforcement authority all encourage compliance with all applicable requirements.Should a permittee provide false information or violate any condition of the issued permit, the enforcement provisionsat N.J.A.C. 7:7A-22 ensure that the violation will be remedied.

Finally, the USEPA has reviewed and approved the adopted general permits-by-certification in accordance with theassumption agreement between the State and the USEPA.

323. COMMENT: Proposed N.J.A.C. 7:7A-5.3(e) specifies when the Department must deny an application forauthorization under a general permit, but there are not standards offered for when the Department must or could deny anapplication for authorization under a general permit-by-certification. This confirms that an applicant may apply for ageneral permit-by-certification by merely certifying the accuracy of its opinion that the proposed project falls within thelimits of the permit and will receive the permit upon submitting the application. This process limits the ability of theDepartment to stop inappropriate projects before they're constructed and only allows public review in the aftermath ofany environmental destruction, which is an unacceptable result. (277)

324. COMMENT: Merely requiring an applicant to declare that their project meets the requirements of the FWPARules to receive an instant general permit-by-certification and failing to specify circumstances under which thesepermits must be denied prevents the Department from exercising any oversight and deprives the public of anyopportunity to review applications until after any damage to wetlands has already occurred. Applicants should not beallowed to self-certify compliance with a law that the Department is responsible for interpreting and enforcing. (179)

RESPONSE TO COMMENTS 323 AND 324: An application for a general permit-by-certification is effectively"denied" by the online permitting system when the information submitted by the applicant does not conform to therequirements of the permit or when required uploads are not submitted. Rather than issue a written denial, the applicantsimply cannot proceed to the end of the online permitting process and does not receive an authorization. Proceedingwith regulated activities without receiving an authorization from the Department is cause for enforcement action underN.J.A.C. 7:7A-22. Applicants for general permits-by-certification are required to publish public notice in accordance

49 N.J.R. 3849(a)

with N.J.A.C. 7:7A-17, which is published prior to submitting an application. In addition, in accordance with N.J.A.C.7:7A-20.2(c)27, the permittee must notify the Bureau of Coastal and Land Use Compliance and Enforcement in writingat least three working days prior to the commencement of regulated activities.

As specified at N.J.A.C. 7:7A-5.2, both general permits and general permits-by-certification authorize activitiesthat have minimal environmental impact both individually and cumulatively. In the case of generalpermit-by-certification 8, the permit authorizes only a tightly limited subset of activities authorized under existinggeneral permit 8, which in the Department's experience are never denied based on potential environmental impacts. Inthe case of general permit-by-certification 24, the permit offers another avenue for the activities authorized undergeneral permit 24 that have an environmental benefit, are approved by local health departments, and are entitled to"automatic approval" under general permit 24 if the Department does not notify the applicant of a permit decisionwithin 30 days.

325. COMMENT: The FWPA was adopted because the USACE's nationwide permits allowed self-certification andwere resulting in widespread abuse and filling of wetlands. However, the USACE has since abandoned most nationwidepermits that do not require an application, notification, and approval. Therefore, the State program will become lessstringent than the Federal program if the Department adopts general permits-by-certification. (415)

RESPONSE: The adopted general permits-by-certification require an application, public notice, and result in awritten authorization from the Department. As explained in the Response to Comments 316 through 322, the adoptedgeneral permits-by-certification authorize only very minor activities with minimal individual and cumulative impacts.The adopted nationwide permits do not involve public notice and, in general, authorize a much broader size and scopeof activities than the general permits-by-certification. The validations performed through the electronic permittingportal, the requirement to certify that the activities will comply with each of a number of conditions and requirements,the creation of a complete and enforceable record of the activity and certifications, and the Department's enforcementpowers all encourage compliance with all applicable requirements. The USEPA has reviewed the generalpermits-by-certification and determined that New Jersey's freshwater wetlands permitting program remains at least asstringent as the Federal program.

326. COMMENT: The Department has not established analysis or criteria under which additional "instant" permitsmay be proposed. While the two proposed general permits-by-certification appear innocuous, they set a dangerousprecedent for allowing applicants to self-certify compliance with a law that the Department is charged with interpretingand enforcing. This type of permit eliminates the chance for the Department to verify the accuracy of an applicant'sdetermination of compliance and the chance to intervene where particular details of a project site might require moreintensive review and analysis. (277)

RESPONSE: N.J.A.C. 7:7A-5.2(b) describes the conditions necessary for the Department to promulgate a generalpermit or general permit-by-certification. This type of permit will only be adopted for activities strictly limited in sizeand scope to ensure that the activity will have no more than minimal environmental impact. As explained in theResponse to Comments 316 through 322, the validations inherent in the online permitting system verify the submittedinformation and the proposed activity's compliance with applicable requirements. In addition, N.J.A.C. 7:7A-20.2(c)27(a standard condition that applies to all permits, including general permits-by-certification) requires a permittee tosubmit written notification to the Bureau of Coastal and Land Use Compliance and Enforcement at least three workingdays prior to the commencement of regulated activities, which puts the Department on notice that activities willcommence and allows for the inspection of activities to assess compliance with the requirements of the permit.

327. COMMENT: An applicant who obtains a general permit-by-certification is unlikely to be aware of the need toseek any other necessary approvals from the Department as required at proposed N.J.A.C. 7:7A-5.3(i). These generalpermits-by-certification undermine the recent revisions to the FHACA Rules that are meant to provide addedprotections for Category One waters. (415)

49 N.J.R. 3849(a)

RESPONSE: The conditions that apply to all permits at N.J.A.C. 7:7A-20.2(c)1 through 27 apply to generalpermits-by-certification and are included in the written approval provided to the permittee upon approval of anapplication for an authorization under a general permit-by-certification. N.J.A.C. 7:7A-20.2(c)3 reiterates therequirement that "the permittee shall obtain all applicable Federal, State, and local approvals prior to commencement ofregulated activities authorized under a permit." Therefore, if the project requires an approval under the FHACA Rulesand is within a 300-foot riparian zone (that is, within 300 feet of a Category One water and all upstream tributaries tothe Category [page=3899] One water within the same HUC-14), all the regulatory protections for Category One watersunder the FHACA Rules will be in effect and must be complied with by the permittee. If the recipient of anauthorization under a general permit-by-certification ignores the requirement specifically referenced in the authorizationreceived, the Department will take appropriate enforcement action against that person; just as it would against anyoneconducting an activity regulated under any of the Department's rules without the appropriate approval.

328. COMMENT: The provision that accepts pipeline developers' word that they have complied with standards isopposed because the Department cannot rely on a developers' assurance of compliance. Do not facilitate new pipelines;there are enough pipelines but wetlands are being lost. (146)

329. COMMENT: Please explain how environmental impacts may be affected by the proposed amendmentsconcerning general permits-by-certification, especially as related to pipeline development. (189)

RESPONSE TO COMMENTS 328 AND 329: The Department did not propose a general permit-by-certificationfor utility line activities. The only activities that may be authorized under a general permit-by-certification are anaddition to a single-family home of 750 square feet (cumulatively) or less and the repair, replacement, or modificationof a malfunctioning individual subsurface sewage disposal system. Both of the adopted general permits-by-certificationauthorize strictly limited subsets of previously existing general permits and, therefore, will not cause any additionalenvironmental impacts as compared to the prior rules. Under the adopted rules, regulated utility line activities can onlybe authorized under a general permit or an individual permit, both of which are reviewed directly by Department staffprior to the issuance or denial of a permit.

General Permit-By-Certification 8-Construction of an Addition to a Lawfully Existing Residential Dwelling (N.J.A.C.7:7A-6.1)

330. COMMENT: General permit-by-certification 8 for the construction of an addition to an existing residentialdwelling violates the FWPA. The statute specifies that such activities may be covered by general permits but that suchpermits require Departmental review and approval. (415)

RESPONSE: Adopted general permit-by-certification 8 authorizes a strictly limited subset of general permit 8activities. N.J.S.A. 13:9B-23.c authorizes the Department to adopt general permits for "[a]ppurtenant improvements oradditions to residential dwellings lawfully existing prior to the effective date of P.L.1987, c.156 (C.13:9B-1 et seq.),provided that the improvements or additions require less than a cumulative surface area of 750 square feet of fill andwill not result in new alterations to a freshwater wetland outside of the fill area." The adopted generalpermit-by-certification offers an alternative means to apply for an authorization and meet the requirements for a limitedsubset of these activities and, therefore, does not violate the FWPA. The FWPA requires applicants to provide writtennotice to the Department prior to commencing an activity under a general permit and prescribes 30 days for theDepartment to determine if an individual permit is required, rather than a general permit, but the FWPA is silent on howthe Department should review general permit applications. The online permitting portal does not allow an applicant toproceed if the size or scope of the proposed activity precludes the use of the general permit-by-certification, effectivelyproviding notice that the general permit-by-certification is not the appropriate type of approval for the activity. Asexplained in the Response to Comments 316 through 322, the online permitting system validates information submittedby applicants to ensure the activities proposed meet the requirements of the general permit-by-certification. In thisfashion, the Department reviews the proposed minimal disturbance of wetlands specifically authorized under N.J.S.A.13:9B-23.c(3).

49 N.J.R. 3849(a)

331.COMMENT: The square footage limits at N.J.A.C. 7:7A-6.1(a)4 seem to be intended to address a smalladdition at a property that does not have an LOI and is helpful as a simplified process. However, please clarify whydisturbance in non-regulated areas are also counted towards the square footage limits, as the Department does not haveregulatory authority over such areas. (140)

RESPONSE: Because general permits-by-certification do not require an LOI, the Department has determined that itis appropriate to apply the disturbance limit to disturbance of all areas, including those outside of freshwater wetlandsand transition areas. An applicant who applies for a general permit-by-certification may not have the expertise todetermine the extent of a wetland or transition area and Department staff do not directly review submitted materialsbefore an authorization is issued. To ensure that excessive impacts to regulated areas do not occur, the Department hasdetermined it is appropriate to apply a flat, 750-square foot total limit of disturbance. If a greater amount of total sitedisturbance is required, including disturbance outside of regulated areas not included in the calculation of freshwaterwetlands or transition area disturbance, such that the total disturbance exceeds 750 square feet, but the disturbance infreshwater wetlands or transition areas does not exceed 750 square feet, cumulatively, then the applicant is free to applyfor an authorization under general permit 8 and an LOI.

N.J.A.C. 7:7A-7, General Permits

General

332. COMMENT: The replacement of individual permits with general permits is concerning. (179)

RESPONSE: The Department did not propose any new general permits, and did not propose any general permits toreplace activities previously authorized under individual permits.

333. COMMENT: The Department should clarify or define what would be considered "scrub shrub," as used ingeneral permits 2 and 21 and at N.J.A.C. 7:7A-15.12, Contents of a mitigation proposal, and what would be considered"emergent wetlands" as used in general permits 2 and 13. N.J.A.C. 7:7A-1.3 only defines "palustrine wetlands." (140)

RESPONSE: "Emergent" wetlands refer to wetlands dominated by herbaceous vegetation, such as grasses, sedges,and rushes. "Palustrine emergent" is defined at N.J.A.C. 7:7A-1.3 as "a wetlands vegetation pattern in which persistentand non-persistent grasses, rushes, sedges, forbs and other herbaceous or grass-like plants are the dominant vegetation.""Scrub shrub" refers to wetlands dominated by woody vegetation not primarily composed of mature trees, including trueshrubs and young trees.

General Permit 2-Underground Utility Lines (N.J.A.C. 7:7A-7.2)

334. COMMENT: The proposed rule weakens the general permits in the FWPA Rules to be as weak as the generalpermits in the FHACA Rules, including general permit 2, which makes it easier to build pipelines through wetlands.(12,13, 15, 22, 23, 35, 51, 52, 63, 76, 85, 104, 144, 189, 202, 218, 232, 233, 237, 240, 243, 244, 266, 294, 306, 324,327, 329, 334, 343, 361, 362, 377, 387, 392, 395, 399, 408, 414, 415, 427, 431, and 454)

335. COMMENT: Rules that allow lax general permits will enable the construction of potentially toxic pipelinesthrough and under wetlands, which endangers water supplies on which many New Jerseyans rely. (93)

336. COMMENT: New general permits that allow pipelines are an unacceptable threat to aquifers and may threatenpublic health. (103)

RESPONSE TO COMMENTS 334 THROUGH 336: It is unclear what changes the commenters believe weakenthe general permits. As explained in the notice of proposal Summary, the vast majority of changes to general permitsserve to reorganize existing provisions and clarify requirements without changing the substance of those requirements.A minor change to the procedure for submitting a mitigation proposal for impacts authorized under a general permit is

49 N.J.R. 3849(a)

adopted that does not weaken the substantive requirements of the general permits; for general permits that requiremitigation, the time to submit a mitigation proposal has changed from 120 days prior to commencing activities to 90days prior to commencing activities to standardize review times of applications. Provisions for the timing of mitigationhave also been removed, since this information is also included in the mitigation subchapter, now codified as N.J.A.C.7:7A-11.

The organizational changes to the FWPA Rules were meant to standardize how information is presented betweenthe FWPA Rules and FHACA Rules, with no effect on the substantive requirements of the general permits.Amendments to FWPA general permit 25, for minor [page=3900] channel or stream cleaning for local governmentagencies, while aligning the general permit with the similar general permit in the FHACA Rules, were necessary to beconsistent with statutory amendments to the Stream Cleaning Act by P.L. 2015, c. 210.

The adopted rules do not include substantive changes to general permit 2. The amendments to general permit 2 onlyreorganize the requirements of the permit to facilitate understanding and make minor changes to the provisions relatedto mitigation, including requiring a mitigation proposal within 90 days of commencing activities rather than 120 daysand removing reference to the timing of mitigation. The mitigation changes are not unique to general permit 2 but areadopted in all general permits in the chapter. The adopted amendments do not change any of the substantiverequirements of general permit 2 that have been in place since its adoption. Therefore, the amendments do not changethe relative ease or difficulty with which an applicant may construct a utility line in an area regulated under the FWPARules.

337. COMMENT: Proposed N.J.A.C. 7:7A-7.2(a)1 is internally inconsistent. The provision claims that "Anythingthat changes the character of the existing wetland, even if only to a different wetland type, is permanent disturbance"but then allows that the "installation of a utility line in scrub shrub or emergent wetlands shall not be consideredpermanent disturbance." The installation of a utility line in scrub shrub and emergent wetlands changes the character ofthe wetlands to a disturbed, maintained system that is often full of invasive species. Therefore, this activity represents apermanent disturbance, and the applicable statement should either be deleted or revised to say that it shall be considereda permanent disturbance. This appears to be an attempt to facilitate destructive gas pipeline projects that destroy NewJersey's wetlands. (415)

338.COMMENT: The Department is proposing to amend recodified N.J.A.C. 7:7A-7.2 to state that installation ofutility lines in scrub-shrub or emergent wetlands shall not be considered permanent disturbance. Disturbance in theseareas should require mitigation, like other disturbances. (125)

RESPONSE TO COMMENTS 337 AND 338: There is no change in the regulation of utility line construction inregulated areas from the prior rules; the provision discussed by the commenters, including the indication thatinstallation of a utility line in scrub shrub or emergent wetlands is not considered to be permanent disturbance for thepurpose of that section, was previously codified as part of general permit 2 at previous N.J.A.C. 7:7A-5.2(c)1.

The Department recognizes the potential environmental impact of constructing new utility lines through freshwaterwetlands, transition areas, or State open waters and is, therefore, maintaining the stringent standards that werepreviously applicable to authorization under general permit 2 for underground utility lines. With reference to N.J.A.C.7:7A-7.2(a)1, this provision continues to limit permanent above-ground disturbance associated with installation of anunderground utility line. The 0.5-acre maximum permanent disturbance allowed, in conjunction with other restrictionsapplicable to this general permit, ensures that only minor impacts qualify for the general permit and that any impactallowed is the minimum necessary to complete the installation in compliance with any other applicable law, includingOSHA safety standards. N.J.A.C. 7:7A-7.2(a)1 makes clear that activities that result in permanent changes to thecharacter of the impacted wetland, such as maintaining clearing over the installed underground utility line, areconsidered permanent disturbance. The Department does not consider the installation of a utility line to alter thecharacter of a wetland when the area can be restored to preexisting conditions. However, when the area cannot berestored to preexisting conditions, the Department will consider the utility line installation permanent disturbance and

49 N.J.R. 3849(a)

require mitigation in accordance with N.J.A.C. 7:7A-11. For example, due to safety requirements, forested wetlandscannot be maintained within the utility right-of-way. In this case, because preexisting conditions cannot be restored,mitigation for permanent impacts to forested wetlands will be required. The adopted amendments reorganized therequirements of the general permit without affecting their substance.

339. COMMENT: At proposed N.J.A.C. 7:7A-7.2(a)4, how will the Department know that the temporary area is"the minimum size necessary for compliance with applicable law?" Is there a chart or other information that wouldenable both the Department and the public to determine what the minimum should be? (415)

RESPONSE: The "minimum size necessary for compliance with applicable law" depends on a number of variablesthat differ from site-to-site and project-to-project. The law or laws applicable to a project are a function of the type ofutility, the location of the proposed project, and the entity responsible for the project. For example, electric utility linesare subject to the Board of Public Utility regulatory requirements at N.J.A.C. 14:5 (including N.J.A.C. 14:5-9, Electricutility line vegetation management), while water and wastewater lines must comply with N.J.A.C. 14:9. AdditionalFederal requirements and local ordinances, as well as additional Department regulations effectuating laws other than theFWPA may also apply. The type of utility, size, location, and site-specific considerations, such as topography andgeology also influence what size of disturbance is necessary to install the utility.

340. COMMENT: Land Use Management should not defer to the Department's Municipal Finance andConstruction Element to determine which activities should and should not occur in the State's wetlands under proposedN.J.A.C. 7:7A-7.2(a)6. Manholes and siphons for sewer lines do not belong in wetlands because they can interfere withhydrology. Therefore, the Municipal Finance and Construction Element should revise its regulations to ensure thatmanholes and siphons for sewer lines are prohibited in wetlands. (415)

RESPONSE: The Municipal Finance and Construction Element retains jurisdiction over locating manholes andsiphons in consideration of site constraints. Between the Municipal Finance and Construction Element's regulations andprofessional judgement, and the Department's review and direction to minimize impacts to freshwater wetlands, thereview process under general permit 2 ensures that impacts are minimized, such that hydrology is not significantlyaffected.

341. COMMENT: The proposed increase in allowances for permanent disturbance under general permit 2 to 0.5acre and 20 feet wide is excessive, especially in areas with few remaining freshwater wetlands. (125)

RESPONSE: The disturbance limit of 0.5 acre and maximum permanently maintained clearing of 20 feet wide doesnot represent an increase from the prior rules. Prior N.J.A.C. 7:7A-5.2(c)1 and 2 contained identical limits. These limitsrepresent the maximum permanent disturbance permittable through an authorization under general permit 2. Theadditional requirements in the general permit that result in minimized disturbance, the conditions that apply to allgeneral permits, conditions that apply to all permits, and ability to establish additional permit conditions all furtherminimize the impacts associated with activities authorized under general permit 2. Finally, N.J.A.C. 7:7A-7.2(e)requires mitigation for all permanent loss and/or disturbance of 0.1 acres or greater of freshwater wetlands or State openwaters, and for permanent impacts of less than 0.1 acres unless the applicant demonstrates that the activities have beendesigned to avoid and minimize impacts to wetlands.

General Permit 3-Discharge of Return Water (N.J.A.C. 7:7A-7.3)

342. COMMENT: General permit 3 should prohibit the discharge of drilling fluid or other tainted pipeline or utilityproject fluid into wetlands without treatment and monitoring to ensure that even short-term discharges meet surface andgroundwater standards. (431)

RESPONSE: General permit 3 authorizes the discharge of return water from an upland, contained, dredged materialmanagement area into State open waters, and placement of a pipe above ground for the discharge through freshwater

49 N.J.R. 3849(a)

wetlands and/or transition areas. The activities listed as authorized under general permit 3 do not include pipeline orutility projects, drilling to install underground utility lines, or discharge of drilling fluid.

General Permit 4-Hazardous Site Investigation and Cleanup (N.J.A.C. 7:7A-7.4)

343. COMMENT: The clarification that a licensed site remediation professional should guide decision making oninvestigation and cleanup sites provided in recodified N.J.A.C. 7:7A-7.4 is supported. (69)

344. COMMENT: The inclusion of licensed site remediation professionals in general permit 4 is supported. (262)

[page=3901] RESPONSE TO COMMENTS 343 AND 344: The Department acknowledges these comments insupport of the rules.

345. COMMENT: While the Department generally shows appropriate recognition for the established Licensed SiteRemediation Program in this rulemaking, there are some limiting provisions in the context of contaminated sites thatmay have the effect of discouraging and, thus, delaying or preventing remediation from occurring, such as at proposedN.J.A.C. 7:7A-7.4 for general permit 4. How would an applicant demonstrate the proposed plan causes minimumfeasible disturbance? Also, how would the cost be determined in the analysis? Regarding the requirement to mitigate inaccordance with N.J.A.C. 7:7A-11.12(b), would restoration of wetlands be considered as sufficient mitigation, and willthat be determined on a case-by-case basis? (140)

RESPONSE: N.J.A.C. 7:7A-7.4(a)1i and ii describes how the applicant or a licensed site remediation professionalmust demonstrate that the disturbance is the minimum necessary for compliance with the Technical Requirements forSite Remediation, N.J.A.C. 7:26E, and the Administrative Requirements for the Remediation of Contaminated Sitesrules, N.J.A.C. 7:26C. Specifically, the demonstration must include an exploration of all feasible alternative remediationmethods acceptable under N.J.A.C. 7:26E and 7:26C, and the identification of any remediation methods that wouldresult in less area of freshwater wetlands, State open waters, and transition areas disturbance, with an explanation forwhy these remediation methods were not chosen. The applicant should explain how the proposed disturbance is theminimum necessary to accomplish the goals of the remediation and why proposed disturbance is not excessive toaddress the remediation of the property. Cost can be included in the discussion of why alternative methods were notchosen, but the applicant must justify why the proposed amount of disturbance is appropriate to accomplish theremediation. Staff reviewing applications under this general permit consult with Site Remediation Program staff toevaluate the proposed methods and proposed amount of disturbance. The Department does not anticipate that theadopted general permit will discourage, delay, or prevent remediation activities. The prior rules contained therequirement that disturbance shall be the minimum that is necessary for compliance with the Department's TechnicalRequirements for Site Remediation, N.J.A.C. 7:26E. The adopted general permit only serves to recognize the role oflicensed site remediation professionals in the remediation process and clarify how an applicant must demonstrate thatdisturbance is the minimum feasible to comply with applicable remediation requirements.

N.J.A.C. 7:7A-7.4(a)2 requires mitigation in accordance with all applicable requirements of N.J.A.C. 7:7A-11. If adisturbance meets the definition of a temporary disturbance, mitigation is required in accordance with N.J.A.C.7:7A-11.8. Mitigation for permanent disturbances must be provided in accordance with the hierarchy at N.J.A.C.7:7A-11.9 (for a smaller disturbance) or 11.10 (for a larger disturbance), and all applicable general and mitigationalternative-specific requirements in the subchapter.

General Permit 6-Non-Tributary Wetlands and General Permit 6A- Transition Areas Adjacent to Non-TributaryWetlands (N.J.A.C. 7:7A-7.6 and 6A)

346. COMMENT: The notice of proposal Summary states that general permit 6 cannot be used solely for thepurpose of eliminating a natural resource to avoid future regulation, but this stipulation is difficult to prove and wouldnot likely occur in reality. (376)

49 N.J.R. 3849(a)

RESPONSE: As the commenter indicates, this situation is not likely to occur. In practice, this requirement meansthat the Department would not authorize the destruction of wetlands under a general permit 6 without any associateddevelopment or regulated activity that requires such disturbance. The previous rules prohibited this type activity for allgeneral permits at prior N.J.A.C. 7:7A-4.3(b)1. The adopted rules expand the prohibition to additionally apply to allgeneral permits-by-certification at N.J.A.C. 7:7A-5.7(b)1.

347. COMMENT: Exceptions provided under general permits 6 and 6A are opposed because they fail to protectvernal habitats of less than one acre and their associated transition areas. General permits 6 and 6A fail to protect smallwetlands, leading to a "death by a thousand cuts" over decades as wetlands shrink due to direct loss, development, andaltered hydrology. (431)

RESPONSE: As explained in the Response to Comments 222, 223, and 224, the Department reviews applicationsfor authorization under general permits 6 and 6A in relation to vernal pools on a case-by-case basis to determine if thepresence of a vernal habitat means that the application should be reviewed under the more detailed individual permitprocess.

The FWPA directs the Department to issue a general permit for an activity in a freshwater wetland that is not asurface water tributary system discharging into an inland lake or pond, or a river or stream, and which would not resultin the loss or substantial modification of more than one acre of freshwater wetland, provided that this activity will nottake place in a freshwater wetland of exceptional resource value or a USEPA priority wetland (see N.J.S.A. 13:9B-23b).General permit 6 fulfills this mandate. In addition, general permit 6 does not authorize activities within a State openwater that is a special aquatic site, or a State open water that is larger than one acre. General permit 6A does notauthorize activities in a transition area adjacent to an exceptional resource value wetland or USEPA priority wetlands.The requirement for activities to occur in or adjacent to isolated wetlands ensures that activities do not affect otherfreshwater wetland or State open water ecosystems, keeping the impacts localized to the small area of the activitiesauthorized under the permit(s).

While the use of general permit 6 may in some cases eliminate a wetland smaller than one acre, mitigation isrequired for all permanent disturbance over 0.1 acre. Mitigation is required at minimum at a 1:1 ratio, and, in mostcases, at a 2:1 or greater ratio, to prevent the long-term loss of wetlands described by the commenter. Mitigation isrequired for disturbance less than 0.1 acre, unless the applicant demonstrates that the activities have been designed toavoid and minimize impacts to wetlands, by configuring the activity so that most or all disturbance is contained in theuplands on the site, and that the wetlands are avoided to the greatest extent possible.

General Permit 8-House Additions (N.J.A.C. 7:7A-7.8)

348. COMMENT: The Department cannot change the language of general permit 8 because it is contained in theFWPA. (415)

RESPONSE: The FWPA directs the Department to issue a general permit for "Appurtenant improvements oradditions to residential dwellings lawfully existing prior to the effective date of P.L.1987, c.156 (C.13:9B-1 et seq.),provided that the improvements or additions require less than a cumulative surface area of 750 square feet of fill andwill not result in new alterations to a freshwater wetland outside of the fill area." (see N.J.S.A. 13:9B-23.c(3)) Theactivity addressed by this portion of the FWPA is continued in adopted general permit 8, with several additionalprotective requirements incorporated to ensure, as required by the FWPA, that the activities covered by the generalpermit "will cause only minimal adverse environmental impacts when performed separately, will have only minimalcumulative adverse impacts on the environment, will cause only minor impacts on freshwater wetlands, will be inconformance with the purposes of P.L.1987, c.156 (C.13:9B-1 et seq.), and will not violate any provision of the FederalAct." (N.J.S.A. 13:9B-23) The adopted rules do not change the requirements of this general permit; rather, theDepartment has reorganized the general permit to be consistent with the structure of the other general permits and toenhance clarity. The changes serve to clarify that the limit of fill and/or disturbance allowed by this general permit is

49 N.J.R. 3849(a)

750 square feet or less both for additions or appurtenant structures to an existing residential dwelling, and for anincrease in the footprint of a previously lawfully existing dwelling that is being replaced within five years of thedestruction of that dwelling. These changes are consistent with the FWPA.

General Permit 11-Outfalls and Intake Structures (N.J.A.C. 7:7A-7.11)

349. COMMENT: The proposed rules should not allow stormwater to be discharged directly into or immediatelyabove a wetland. This causes scouring, which could lead to the silting in of the wetland, particularly in southern NewJersey where there are sandy soils, destroying vegetation and the wetland's ecological functions. (415)

[page=3902] RESPONSE: General permit 11 cannot be used to allow construction of an outfall that will result in ascouring condition in a wetland or transition area. Specifically, N.J.A.C. 7:7A-7.11(e) requires all activities undergeneral permit 11 to comply with the specifications and requirements in the Standards for Soil Erosion and SedimentControl in New Jersey at N.J.A.C. 2:90. These standards require stormwater to be discharged so as not to cause erosion.Compliance with these standards ensures that the discharge of stormwater from an outfall does not cause scour and,therefore, does not cause siltation of land that may be around or adjacent to wetlands. For an outfall to be authorizedunder an individual permit, it must meet the robust standards at N.J.A.C. 7:7A-10.2, including the requirement that thereis no practicable alternative for the outfall, including its redesign, that would have a lesser impact on the aquaticecosystem or avoid freshwater wetlands and State open waters. Additionally, all permits issued under the FWPA Rulesare conditioned on obtaining any required approvals from the Soil Conservation District having jurisdiction over thesite, which ensures that activities will not cause erosion, scour, or siltation.

General Permit 13-Lake Dredging (N.J.A.C. 7:7A-7.13)

350. COMMENT: Why is there a reference to a general permit-by-certification at proposed N.J.A.C. 7:7A-7.13(f)?This permit is not included in the list of general permits-by-certification at N.J.A.C. 7:7A-5, nor should it be as generalpermits-by-certification are illegal under the FWPA. (415)

RESPONSE: N.J.A.C. 7:7A-7.13(f) refers to N.J.A.C. 7:7A-5.7, the heading of which is "Conditions applicable toan authorization pursuant to a general permit-by-certification or a general permit" (emphasis added), in order to pointthe reader to the standard conditions that apply to all general permits and general permits-by-certification. The referenceis particularly significant for this general permit because, in addition to other conditions that must be met by all generalpermits and general permits-by-certification, N.J.A.C. 7:7A-5.7(b)10 requires a permittee to use an acceptable disposalsite, outside of areas regulated under the FWPA Rules, to place dredged or excavated materials. The reference togeneral-permits-by-certification is only made as part of the full heading of the applicable section to allow readers toeasily reference back to the standard conditions listed in N.J.A.C. 7:7A-5.7. See the Response to Comments 316through 322 for an explanation of the Department's authority to issue general permits-by-certification.

General Permit 16-Creation, Restoration, and Enhancement of Habitat and Water Quality Functions and Values(N.J.A.C. 7:7A-7.16)

351. COMMENT: General permit 16 is supported because the activities it authorizes improve environmentalquality. (431)


352. COMMENT: Authorizing activities under general permit 16 that are approved by a charitable conservancy isopposed. Some charities seek to degrade open space through logging to benefit one species while many more speciesare harmed. These activities are approved in secret, with meetings only publicized a few days in advance to circumventpublic participation.

49 N.J.R. 3849(a)

Some of New Jersey's nonprofit groups have become for-profit groups subsidized by taxpayers. In order to supporttheir high lobbying and administrative staffs, they have become corrupt. The Department should not be permitted tomake deals with certain friendly nonprofits to log public land for profit. The Department must be halted from approvingany more environmentally destructive plans without complete public involvement. (346)

RESPONSE: General permit 16 authorizes activities necessary to implement a plan for the creation, restoration, orenhancement of habitat and water quality functions and values of wetlands. Activities under this general permit must bepart of a plan approved by certain government agencies or a charitable conservancy or required by a government agencyunder a mitigation plan. However, activities associated with these plans are not automatically approved with noopportunity for public involvement. Applications for general permits must include documentation that public notice wasprovided in accordance with N.J.A.C. 7:7A-17, and the application is reviewed in accordance with N.J.A.C. 7:7A-19,including publication of notice in the DEP Bulletin and acceptance of public comments on the application. In addition,general permit 16 contains conditions at N.J.A.C. 7:7A-7.16(b)2 through 6 and (c), such as the requirement for theproject to improve the values and functions of the ecosystem and the requirement to minimize disturbance of freshwaterwetlands, transition areas, and/or State open waters, that ensure activities authorized under this general permit do notdegrade or destroy the State's wetland ecosystems.

353. COMMENT: Recodified N.J.A.C. 7:7A-7.16(a) provides an extensive list of potential wetland improvementactivities. It is suggested that the Department add "the installation and maintenance of temporary and permanent soilerosion and sediment control features" to this list. (255)

RESPONSE: N.J.A.C. 7:7A-7.16(a) provides examples of activities that will clearly contribute to the creation,restoration, and enhancement of habitat and water quality functions and values, but is not an exhaustive list of allactivities that may be authorized. If the installation of soil erosion and sediment control features is necessary toimplement a creation, restoration, or enhancement plan and is approved or required by one of the entities listed atN.J.A.C. 7:7A-7.16(b), it may be authorized under general permit 16.

354. COMMENT: Proposed N.J.A.C. 7:7A-7.16(b)1ii(1) does not make sense as written. All of the activitiesdescribed under general permit 16 are regulated activities and may also need an approval under the FHACA Rules ifthey involve structures in a channel or flood hazard area. Unless the activities are the subject of the permit that issubmitted, they would be occurring in a regulated area without a permit. (415)

RESPONSE: N.J.A.C. 7:7A-7.16(b)1ii(1) is intended to convey that the Department will not require a separatepermit under the FWPA Rules for a mitigation plan required under the FWPA Rules. This provision does not relieve anapplicant from complying with the requirement applicable to all permits at N.J.A.C. 7:7A-20.2(c)3 that the permitteeobtain all applicable Federal, State, and local approvals. This requirement makes clear that nothing in the FWPA Rulesexcuses activities taking place in areas regulated under other statutory or regulatory schemes, including the FHACARules, from obtaining any additional approvals necessary under those other programs or authorities.

355. COMMENT: It is suggested that N.J.A.C. 7:7A-7.16(b)1ii be amended to include a clarification to specify thatthe Department does not require the submittal of a separate application for an authorization or permit "to implement ormonitor the mitigation itself." (255)

RESPONSE: Adopted N.J.A.C. 7:7A-7.16(b)1ii(1) states, "Pursuant to N.J.A.C. 7:7A-11, a mitigation plansubmitted to the Department to satisfy the requirements and/or conditions of a permit does not require the submittal of aseparate application for an authorization or permit." Accordingly, the rules already make clear that mitigation requiredunder the FWPA Rules and approved by the Department under N.J.A.C. 7:7A-11 does not require a separateauthorization or permit to be implemented or monitored. However, mitigation required by the USACE or under adifferent Department authority, such as the FHACA Rules, may require additional approval under N.J.A.C. 7:7A-7.16for activities in freshwater wetlands, transition areas, and State open waters.

49 N.J.R. 3849(a)

356. COMMENT: The proposed rule weakens protections for wetlands by allowing the conversion of wetlands toopen waters, which clearly destroys the wetland. There are plenty of ponds and open water already. Wetlands, however,are scarce and should not be converted. (12,13, 22, 23, 35, 63, 76, 85, 173, 174, 189, 202, 218, 232 233, 237, 243, 244,266, 294, 306, 324, 327, 329, 334, 343, 362, 363, 377, 392, 395, 399, 408, 414, 427, 431, and 454)

357. COMMENT: The rules should not allow wetlands to be converted into open waters, which destroys thewetland. When would such a conversion be appropriate or environmentally beneficial? Open waters and ponds areplentiful while wetlands are scarce. The same effect occurs when a wetland is turned into a stormwater detention basin,which should also not be permitted. The goal of the FWPA is to protect wetlands, so allowing them to be converted is aviolation of the act. (51, 52, 240, and 415)

358. COMMENT: The rulemaking favors the creation of open water, which is already the fastest-growing wetlandtype, while other wetlands types are experiencing unacceptable losses. (353)

[page=3903] RESPONSE TO COMMENTS 356 THROUGH 358: The commenters seem to be referring to therequirements for authorization under general permit 16, which allows the Department to approve the conversion ofwetlands to State open waters or transition area, conversion of State open waters to wetlands or transition area, or theconversion of transition area to freshwater wetlands or State open waters. The adopted provision remains unchangedfrom the previous rules. Conversion from one regulated feature to a different regulated feature is acceptable only whenthe Department determines that doing so is environmentally beneficial (see N.J.A.C. 7:7A-7.16(b)3 and 6). If a proposalto convert a wetland into a State open water would not be environmentally beneficial, not only would the Departmentnot approve the activity, the proposed activity would no longer be eligible for a general permit 16. In accordance withN.J.A.C. 7:7A-7.16(b), any activities authorized under general permit 16 must comply with the conditions at N.J.A.C.7:7A-5.7 and 20.3, be approved by a specific government agency or charitable conservancy, or required by agovernment agency under a mitigation plan. Additionally, the proposed project must be consistent with the goals of theFWPA, improve the values and functions of the ecosystem, have a reasonable likelihood of success, disturb theminimum amount of freshwater wetlands, transition areas, and/or State open waters necessary, and not reduce the totalcombined acreage of regulated area(s) on the site. In addition, as specified by N.J.A.C. 7:7A-7.16(c), the Departmentwill not authorize activities under general permit 16, unless the sole purpose of the activity is habitat creation,restoration, or enhancement. This provision specifically prohibits the construction of a stormwater management basinfrom being approved under general permit 16.

359. COMMENT: N.J.A.C. 7:7A-7.16(b)6 should require wetlands, transition areas, or State open waters thatresulted from a conversion of one type of regulated area to another (for example, the conversion of a transition area to awetland) to be protected under a conservation restriction. Without the protection of a conservation restriction, there willnot be reasonable protections for areas converted to wetlands as the wetlands could be converted to open water ortransition areas in the future. Also, as the transition area is modified, it may be significantly thinner in spots. Thus,permanently protecting the modified transition area "is necessary to more carefully control the activities that arepermitted to occur since the remaining transition area is the minimum necessary to protect the adjacent wetland from thepermitted development activities (39 N.J.R. 3587(a))." (319 and 328)

360. COMMENT: The proposed change to not require an applicant for an authorization under general permit 16 torecord a conservation restriction on the property subject to the permit is opposed. The Department justifies this changeby comparing it to a similar amendment made to a coastal general permit in 2013. However, the two permits areinherently different and the change is not appropriate for general permit 16 in the FWPA Rules. (277)

RESPONSE TO COMMENTS 359 AND 360: Areas converted to wetlands under general permit 16 are protectedunder all of the requirements of N.J.A.C. 7:7A and the FWPA. In many instances, the types of activities for which thisgeneral permit is authorized are voluntary projects for the sole purpose of increasing the ecological benefits of a site.Furthermore, these activities in many cases take place on land owned by a government agency or charitableconservancy, whose mission involves protecting wetlands and other environmental resources. Additional restriction of a

49 N.J.R. 3849(a)

property by requiring the recording of a conservation restriction only discourages environmentally beneficial activitiesunder this general permit without a clear environmental benefit. In cases where activities under this permit satisfy amitigation obligation from a Federal agency or other Department rule (such as riparian zone mitigation), therequirements for the mitigation itself ensure that future activities do not negatively impact any created, restored, orenhanced wetlands, transition area, or State open water. The use of this permit would not result in a thinning of atransition area such that the adjacent wetlands would be at risk. If a transition area is impacted by activities under thispermit, it is because the Department has determined it is environmentally beneficial. In most cases, this would be theresult of a conversion of transition areas to freshwater wetlands, which would create a new transition area around thecreated wetlands of 50 or 150 feet from the new wetlands boundary.

Coastal general permit 24 is not so different from FWPA Rules general permit 16 as to preclude comparison. Theremoval of the conservation restriction requirement from coastal general permit 24 was discussed in the notice ofproposal Summary to illustrate that past Department rulemaking made similar amendments based on similarconsiderations. Both general permits authorize similar environmentally beneficial activities, albeit often in differentareas of the State, and both permits have been amended to remove the conservation restriction requirement in order toencourage voluntary activities to create, restore, or enhance ecosystem functions and values.

361. COMMENT: It is unclear whether habitat restoration, creation, or enhancement projects using WetlandMitigation Council funding are required to record a conservation restriction. Because these projects use funds collectedfor compensatory mitigation, a conservation restriction should be required. Similarly, projects funded by State orFederal grants should be protected long-term through a conservation restriction. (277)

RESPONSE: N.J.A.C. 7:7A-11.22(b), which has been continued from prior N.J.A.C. 7:7A-15.20(b) with minorchanges, continues to establish that "[i]f the Council transfers funds or land, the Council shall first execute and record aconservation restriction that meets all applicable requirements at N.J.A.C. 7:7A-12, and that ensures that the funds orland will be used only for mitigation and freshwater wetlands conservation." While this requirement is not restatedwithin general permit 16, any project authorized under general permit 16 that uses land or funds transferred from theWetlands Mitigation Council will be subject to the conservation restriction requirement. Requirements specific to Stateor Federal grant-funded projects are more appropriately established within grant agreements and not in the body offreshwater wetlands general permit 16.

General Permit 17-Trails and Boardwalks (N.J.A.C. 7:7A-7.17)

362. COMMENT: The Department states in the notice of proposal Summary that the Department intends to alignthe rules governing the permitting process of all three land use permitting programs (freshwater wetlands, coastal, andflood hazard) and claims that, when the notice of proposal is adopted, the rules governing the process for obtaining apermit will be standardized across all three chapters of land use rules as much as possible and will be organized in auniform order and format. Taking this intended goal of alignment into account, amendments to general permits in theFWPA Rules and FHACA Rules are required. Specifically, FWPA general permit 17 for trails and boardwalks andFHACA general permit 12 for footbridges and general permit 13 for trails and boardwalks, while authorizing similaractivities, contain contradictory restrictions on said activities. FWPA general permit 17 does not allow the use of anymotorized vehicles, while FHACA general permits 12 and 13 permit the use of certain motorized vehicles. FWPAgeneral permit 17 restricts the width of a trail to six feet but allows an unspecified wider width upon a demonstration ofneed by the applicant related to the Barrier Free Subcode of the Uniform Construction Code. FHACA general permits12 and 13 also limit the width of a trail or bridge to six feet while allowing a wider width based on the requirements ofthe Barrier Free Subcode, but both include a maximum width of 10 feet. These contradictory requirements could resultin an applicant needing to apply for an individual permit under the FWPA while being eligible for a general permitunder the FHACA Rules, or vice versa. This result is contrary to the stated intent of the notice of proposal, seemsunjustified, and would result in a waste of Department and applicant resources. In addition, many owners and operatorsof trails, boardwalks, and bridges are required to maintain and police them, as well as provide alternative means oftransport in emergency situations and for disabled persons. In order to meet these obligations, trail/boardwalk and

49 N.J.R. 3849(a)

bridge owners must be able to utilize motorized vehicles for limited purposes and should be permitted to under theFWPA general permit. Furthermore, electric-based motorized vehicles and transports should be encouraged whereverpossible to foster sustainability and reduce noise and greenhouse gas pollution.

In light of this issue, revisions should be made to allow trails or boardwalks to accommodate "electric motorizedsingle user methods of [page=3904] transportation, and lightweight motorized vehicles, including golf carts andmaintenance carts utilized for security, maintenance, and transport of individuals requiring mobility assistance" to beconstructed under FWPA general permit 17, with the restriction that "except when utilized for security, maintenance, orfor transportation of individuals requiring mobility assistance, general permit 17 does not authorize the use of golf cartsor all-terrain vehicles." FHACA general permit 12 and 13 should be similarly amended to explicitly state that thefootbridge or trail/boardwalk can be used to carry electric motorized single user methods of transportation, maintenancecarts, or all-terrain vehicles utilized for security, maintenance and transport of individuals requiring mobility assistance.The 10-foot limit on width where an applicant demonstrates that a bridge or trail/boardwalk must be wider than six feetto comply with State and Federal barrier free access requirements should be deleted for consistency with FWPA generalpermit 17. These amendments will provide applicants with certainty and predictability and are in line with theDepartment's stated goal to align the three land use permitting rules. (355)

RESPONSE: The adopted rules serve to align the administrative processes for obtaining a permit under the FWPARules with those processes in the CZM and FHACA Rules. However, the Department agrees that the general permitsfor trails and boardwalks across the three rules are not entirely aligned in their requirements. On July 17, 2017, theDepartment published a rule proposal that includes amendments and new rules to align how trails, boardwalks, andpaths are regulated under the three land use rule chapters. See 49 N.J.R. 2122(a). These amendments clearly distinguishbetween very low-impact trails and boardwalks, and multi-use paths by including new general permits in the CZMRules and FHACA Rules, and amending existing permits in the FHACA Rules and FWPA Rules. FWPA general permit17A was proposed to be amended to allow the construction of multiple-use paths for use by "light vehicles," such asgolf carts, to align the requirements with those of existing FHACA general permit 13. Width requirements were alsoproposed to be aligned between the land use rules by specifying a maximum width of six feet for trails and boardwalks,and a maximum width of 10 feet for multiple use paths without requiring an applicant to demonstrate the need tocomply with the Barrier Free Subcode of the Uniform Construction Code. However, the comments received on the July17, 2017 notice of proposal indicate that the Department may need to conduct additional stakeholder sessions to furtherrefine the proposed permits to ensure that regulation of trails, boardwalks, and multiple-use paths is consistent acrossthe three rule chapters as appropriate, is protective of environmentally sensitive areas, but also does not hinder efforts toconnect trail networks and provide the public access to nature. In sum, the Department recognizes the issues raised bythe commenter and is actively working to solve them.

363. COMMENT: General permit 17 is supported because trails and boardwalks, when implemented in a way thatprotects wetlands from potential impacts of recreation, enhance recreation while also supporting education andappreciation of wetlands. (431)


General Permit 20-Bank Stabilization (N.J.A.C. 7:7A-7.20)

364.COMMENT: It is not appropriate for Land Use Management to defer to the Department's Bureau ofEnvironmental Analysis, Restoration, and Standards at proposed N.J.A.C. 7:7A-7.20(a)2ii(1). The Department's goalshould be to achieve the project that is best for the environment. The Bureau of Environmental Analysis, Restoration,and Standards may provide funding, but may not have the expertise to ensure that a project will be environmentallybeneficial or successful and should, therefore, revise its program to ensure that the projects it intends to fund meet allrequirements of the FWPA Rules. Providing money for a project without establishing good restoration standards almostguarantees its failure. (415)

49 N.J.R. 3849(a)

RESPONSE: The Department is not proposing to change any of the standards under general permit 20. Rather, theDepartment, at N.J.A.C. 7:7A-7.20(a)2iii(1), is updating what was previously codified at N.J.A.C. 7:7A-5.20(c)3i toaccurately reflect the current name of the bureau within the Department that is involved in funding bank stabilization.As stated in the notice of proposal Summary (see 49 N.J.R. 2122(a)), the Division of Watershed Management no longerexists within the Department. To reflect the Department's current organization, the Department is replacing the outdatedreference with a reference to the Bureau of Environmental Analysis, Restoration, and Standards, which is the currentbureau within the Department that may fund bank stabilization activities. The Bureau of Environmental Analysis,Restoration, and Standards administers a competitive grant program to fund projects that address impaired waters on theState's 303d list. Under this general permit, if the Bureau of Environmental Analysis, Restoration, and Standards isproviding funding to the project, the applicant would be allowed a larger linear footprint to undertake the bankstabilization activity in order to facilitate projects designed to improve water quality in New Jersey.

General Permit 22-Expansion of Cranberry Growing Operations in the Pinelands (N.J.A.C. 7:7A-7.22)

365. COMMENT: General permit 22 is illegal and should be repealed because it does not provide appropriatelimitations on impacts and the mitigation requirement is not consistent with State and Federal regulations. The NaturalLands Trust declined to accept Pinelands Development Credits (PDCs) because the permit was inappropriate. (415)

RESPONSE: General permit 22 is not illegal and is consistent with State and Federal regulations. This generalpermit was first established on October 4, 1999 (see 31 N.J.R. 2964(a)). Since then, the general permit was amended onApril 3, 2000, and again on September 4, 2001. The changes adopted under the current rulemaking are minor and reflectrevisions to ensure consistency in structure of the general permit with other permits and to update citations. It is notclear if the commenter is referring to a specific permit action that involved the Natural Lands Trust; however, PDCs areapproved by the New Jersey Pinelands Commission. Any permittee authorized under general permit 22 does not havean obligation to work with or meet any requirements of the Natural Lands Trust.

General Permit 25-Minor Channel or Stream Cleaning for Local Government Agencies (N.J.A.C. 7:7A-7.25)

366. COMMENT: The proposed rules weaken protections by allowing for stream cleaning activities in transitionareas even if the activities end up destroying wetlands. (13, 15, 22, 23, 35, 51, 52, 85, 63, 76, 173, 174, 189, 202, 218,232, 233, 237, 240, 243, 244, 266, 294, 306, 324, 327, 329, 334, 343, 362, 377, 392, 395, 399, 408, 414, 415, 427, 431,and 454)

367. COMMENT: The proposed rules eliminate the current 500-foot limit to stream clearing and desnagging withina municipality under general permit 25. However, clearing and desnagging can have substantial impacts on habitat,benthic resources, and water quality, especially when taking settlement and silt into account. Removing this limitreduces the Department's authority to prevent impacts, such as sediment and contaminant resuspension and habitatdamage. (376)

RESPONSE TO COMMENTS 366 AND 367: The adopted changes to general permit 25 are consistent with thelegislative changes to the Stream Cleaning Act by P.L. 2015, c. 210, which amended N.J.S.A. 58:16A-67 effectiveJanuary 11, 2016, and with flood hazard area general permit 1 at N.J.A.C. 7:13-9.1 (see 47 N.J.R. 1041 (a); 48 N.J.R.1067(a)). This general permit authorizes a county, municipality, or a designated agency thereof, to conduct activities infreshwater wetlands and transition areas within their jurisdiction necessary to desnag a channel or stream and/or removeaccumulated sediment, debris, and garbage that are obstructing flow in the channel or stream. As provided in the act atN.J.S.A. 58:16A-67.b(4), where such activities are undertaken by a municipality or county (or a designated agency ofeither) wholly within the jurisdiction of one municipality, they are authorized under this general permit. However,consistent with the act at N.J.S.A. 58:16A-67.b(4)(b), where the activity is to be undertaken by a county or itsdesignated agency and the project is located within more than one municipality, the adopted rules continue to providethat the activity may only qualify for authorization under this general permit if the channel reach is less than 500 feet inlength (see N.J.A.C. 7:7A-7.25(a)6ii).

49 N.J.R. 3849(a)

[page=3905] Impacts to transition areas are necessary to allow for access to the stream in order for the regulatedactivity to be undertaken. However, the FWPA Rules include a variety of restrictions and requirements designed toensure that activities authorized by this general permit result in only de minimis impacts to wetlands and theenvironment in general. For example, N.J.A.C. 7:7A-7.25(a)4 requires stream cleaning activities to be conducted fromonly one bank where possible, which minimizes impacts to vegetation in wetlands and transition areas adjacent to thestream, therefore, minimizing the risk of bank erosion. N.J.A.C. 7:7A-7.25(a)5 requires permittees to avoid the use ofheavy machinery in the stream channel, which further minimizes sediment resuspension. Additionally, like all othergeneral permits that authorize activities that may introduce sediment into a stream, activities under general permit 25must comply with the timing restrictions in Table 5.7 in accordance with N.J.A.C. 7:7A-5.7(c) to protect fisheryresources and/or spawning fish populations. The protective requirements in general permit 25 and the conditions thatapply to all general permits ensure that stream cleaning activities have only minimal impacts on freshwater wetlands,transition areas, State open waters, and the aquatic environment.

368. COMMENT: Proposed N.J.A.C. 7:7A-7.25(d) states, "[t]his general permit does not authorize activities thatalter the natural banks of the stream. Such modification may in some cases be authorized under general permit 20."When would altering the natural banks of a stream be allowed under a permit for stream bank stabilization? Natural andartificial materials might be used for structural integrity but should not alter the natural banks of the stream. Thisprovision should be deleted. (415)

RESPONSE: Some bank stabilization activities that could be authorized under general permit 20 may alter thenatural banks of a stream in the sense that the bank may be armored with riprap. Further, as indicated at N.J.A.C.7:7A-7.20(e)4iii (previously codified at N.J.A.C. 7:7A-5.20(e)3), activities could be authorized under general permit 20that include replacement of material to restore an eroded shoreline or streambank as part of a bank stabilization if theapplicant demonstrates to the Department's satisfaction that modification of the existing bank by replacing thepreviously eroded material would be environmentally beneficial. The Department believes that cross-reference to thepotential for such activities to qualify for general permit 20 at N.J.A.C. 7:7A-7.25(d) is appropriate. While, as indicatedabove, some bank stabilization projects may include placement of hard materials along the natural stream bank, as inprevious N.J.A.C. 7:7A-5.20(a), adopted N.J.A.C. 7:7A-7.20(a) makes clear that general permit 20 does not authorizechannelization, which is a much more intensive modification to the natural banks of a stream.

369. COMMENT: In general permit 25, the Department is proposing to replace the provision that the generalpermit does not authorize removal of material below the natural bottom of the water with the requirement that materialremoval does not alter the natural bed and banks of the water. Consequently, the requirement that activities only disturba channel or bed of the water (not banks) except for access is deleted. This change facilitates modifications to thefloodplain and may spur unforeseen flood risk. (208)

RESPONSE: The intent of the statutory provisions at N.J.S.A. 58:16A-67 regarding stream cleaning activities is tobe protective of streams corridors and at the same time allow for cleaning of debris to relieve or prevent flooding. Therequirements incorporated into general permit 25 at N.J.A.C. 7:7A-7.25 are intended to allow achievement of this goalin a manner that ensures that regulated activities authorized by the general permit do not have more than a minimalimpact on resources protected by the FWPA Rules. The requirement referenced by the commenter that activities notalter the natural bed and banks of the water is more protective than the previous requirement that material not beremoved below the natural bottom of the water. Prohibiting the alteration of the natural bed of a water encompasses theprior requirement that activities not include removal of material below the natural bottom of the water and ensures thenatural contours of the channel or stream are preserved, which will reduce the risk of erosion of the bank andsedimentation of the water body and better preserve stream ecology. The requirement that the banks of the water are notaltered is more restrictive than the requirement that activities only disturb the bed of a water except as needed foraccess. Requiring that the natural bed and bank of a water are not altered ensures the restoration of natural conditionsfollowing the completion of stream cleaning activities.

The main intent of amendments to general permit 25 was to align the requirements of this freshwater wetlands

49 N.J.R. 3849(a)

general permit with flood hazard general permit 1 at N.J.A.C. 7:13-9.1 in order to streamline the permitting of county ormunicipal stream cleaning activities. The changes made continue to maintain or strengthen the appropriate protectionspresent in the prior rules.

N.J.A.C. 7:7A-8, Transition Area Waivers

General Comments

370. COMMENT: The proposed rules weaken protections by allowing permittees to "play games" with buffers andtransition areas. A waiver can be issued to get past disturbance limits. (13, 15, 22, 23, 35, 63, 74, 76, 85, 173, 174, 189,202, 218, 232, 233, 237, 243, 244, 266, 294, 306, 324, 327, 329, 334, 343, 362, 377, 392, 395, 399, 408, 414, 427, 431,and 454)

371. COMMENT: The proposed rules allow transition area waivers, which effectively circumvents the disturbancelimits, negating the function of wetland buffers. (51, 52, 240, and 415)

RESPONSE TO COMMENTS 370 AND 371: The Department issues transition area waivers to authorize regulatedactivities within the transition areas adjacent to freshwater wetlands. The ability of the Department to issue a transitionarea waiver comes from the FWPA at N.J.S.A. 13:9B-18, which states "[t]he department shall grant a transition areawaiver reducing the size of a transition area to not less than the minimum distance ... provided that (1) the proposedactivity would have no substantial impact on the adjacent freshwater wetland or (2) the waiver is necessary to avoid asubstantial hardship to the applicant caused by circumstances peculiar to the property." The adopted amendmentsremain consistent with the intent of the FWPA. The ability of an applicant to apply for a transition area waiver is not anew provision and is consistent with the FWPA. As explained further in the Response to Comments 372 through 376,the adopted amendments provide appropriate flexibility while maintaining stringent transition area protections.

372. COMMENT: Today's transition areas are tomorrow's floodplains. The proposed regulatory flexibility fordevelopment in transition areas (including changes to permit duration and the duration of an emergency permit) increasethe possibility of increasing disturbances to transition areas, potentially exposing more areas and structures to currentand future flood hazards. (208)

373. COMMENT: The diminution of transition area protections is concerning. Transition areas are a criticalcomponent of freshwater wetlands ecosystems as they provide temporary refuge for freshwater wetlands fauna duringhigh water episodes, as well as critical habitat for animals dependent upon, but not resident in, freshwater wetlands.They also accommodate variations in freshwater wetland boundaries over time. In northern and central New Jersey,including Hunterdon and Mercer counties, upland transition areas protect an often expansive and complex mosaic offragile wetlands along streams that drain the many long ridges. Transition areas are important zones that not onlyprotect down-gradient streams and wetlands but also protect associated and sometimes uncommon or rare naturalcommunities within upland transition areas. The animal and plant communities rely upon the nearby water and residualmoisture. (179)

374. COMMENT: Decreasing protections for transition areas and buffers will endanger wildlife and encouragedevelopment encroachment. (84, 222, and 402)

375. COMMENT: Please explain special activity and transition area waivers and why they are being expanded.(179)

376. COMMENT: Explain how the changes to transition area waivers protect wetlands and wildlife habitat. (189)

RESPONSE TO COMMENTS 372 THROUGH 376: Transition areas waivers are a type of authorization thatallows for a modification of a transition area. The Department issues transition area waivers to authorize regulatedactivities within the transition areas adjacent to freshwater wetlands. There are five types of transition area waivers,

49 N.J.R. 3849(a)

each with their own set of requirements. These include: averaging plan, [page=3906] special activity, hardship, generalpermit, and access transition area waivers. Special activity transition area waivers authorize regulated activities intransition areas associated with stormwater management, linear development, redevelopment, or activities that, ifproposed in a freshwater wetland, would meet the standards for an individual permit. These waivers are only issuedwhen the activities will not result in a substantial impact on the adjacent freshwater wetlands, and the proposed projectwill minimize impacts to the freshwater wetland and transition area. For stormwater management and lineardevelopment special activity waivers, the Department requires applicants to demonstrate that there is no feasiblealternative onsite location that is outside of the transition area or freshwater wetlands. A redevelopment special activitywaiver is only issued when the area of proposed activity is significantly disturbed, so that it is not fully functioning as atransition area at the time of application. The substantive requirements for the various types of special activity waiverare not changing in this rulemaking, nor are the duration provisions for any transition area waiver. While theDepartment had proposed to increase the duration of certain individual permits to 10 years at N.J.A.C. 7:7A-9.2(b),transition area waivers have a five-year duration with the possibility of one five-year extension in accordance withN.J.A.C. 7:7A-8.5, and would not have been affected by the proposed change in permit duration. As indicated in theResponse to Comments 227 through 234, the Department has not adopted the change to the permit duration.

The Department is adopting the amendment at N.J.A.C. 7:7A-5.4(a)1 that allows certain types of transition areawaivers to be combined with a general permit to authorize total disturbance greater than the general permit disturbancelimit. While combination of a general permit and a transition area waiver was not allowed under the prior rules, therequirement that waivers are only issued when the proposed regulated activities will not result in a substantial impact onthe adjacent freshwater wetlands, in conjunction with the requirement that the proposed project minimize impacts to thefreshwater wetland and transition area, ensures that any impact resulting from the combination of general permits andtransition area waivers is minimal.

General Provisions for Transition Area Waivers (N.J.A.C. 7:7A-8.1)

377. COMMENT: The Department's failure to include impacts to transition areas from access through the transitionarea to the area of the activity when calculating the size of disturbance in determining general permit compliance atN.J.A.C. 7:7A-8.1(a)5 is inappropriate. Given the integral nature of transition areas to the health of a wetland,neglecting to quantify the impacts to these areas may, in fact, turn a de minimis impact into one that will significantlydegrade the wetland. What studies has the Department reviewed or undertaken to determine that excluding the transitionarea will not have an individual or cumulative impact on the viability or health of an impacted wetland? Has theDepartment undertaken any examination of the long-term health of wetlands with impacted transition areas? (319 and328)

378. COMMENT: The amendment providing that disturbance authorized under an access transition area waiverwill not be counted in calculating the amount of disturbance under a permit or mitigation proposal, should bewithdrawn. (277)

RESPONSE TO COMMENTS 377 AND 378: Access transition area waivers were issued under the prior rules andare directly required by the FWPA at N.J.S.A. 13:9B-12, which provides that "if a freshwater wetland permit isapproved and issued pursuant to the provisions of this act the department shall waive or modify the requirement for atransition area to the extent required to provide access to the site of the approved regulated activity." As explained in thenotice of proposal Summary, the strictly limited types of activities authorized by an access transition area waiver resultin only minor and often times temporary impacts to transition areas and, thus, are not counted in the overall amount ofdisturbance of the regulated activity. The very limited scope of activities authorized under an access transition areawaiver are described at N.J.A.C. 7:7A-8.1(a)5i and ii. Activities are only authorized under this type of waiver when theactivities are in that portion of the transition area bordering on that portion of the freshwater wetland in which theauthorized activity is to take place and are necessary to accomplish the activity permitted in the adjacent freshwaterwetlands. Transition area disturbance beyond the scope of these requirements must be authorized under a separatetransition area waiver. Finally, in accordance with N.J.A.C. 7:7A-8.1(b), the Department may add additional conditions

49 N.J.R. 3849(a)

to any transition area waiver, including a waiver for access, as necessary, to ensure that an activity does not result in asubstantial impact on the adjacent wetlands, and does not impair the purposes and functions of transition areas.

379. COMMENT: The amendment to N.J.A.C. 7:7A-8.1(a)5ii to specify that access transition area waivers allowregulated activities for future use of a regulated activity authorized under a general permit is supported. (255)

RESPONSE: The Department acknowledges this comment in support of the rule.

380. COMMENT: Proposed N.J.A.C. 7:7A-8.1(b)4 and (e), which provide that if the Department determines on acase-by-case basis that a conservation restriction is necessary as a condition of a transition area waiver, only theremaining transition area and not the adjacent wetland will be subject to the conservation restriction, are supported.(140)


381. COMMENT: The amendments to proposed N.J.A.C. 7:7A-8.1(e) and 8.2(f) are illogical and should bedeleted. The FWPA allows transition area waivers assuming that the entire transition area maintains its values andfunctions after modification. The Department cannot separate the altered portion of the transition area from the whole,since the altered piece will not function independently. The entire transition area must be protected after a waiver isgranted. Also, there is no transition area without an adjacent wetland, so it does not make sense to require the protectionof an isolated piece of the area. This is akin to obtaining homeowner's insurance for an addition to a house but not forthe original house. (415)

382. COMMENT: The Department should not delete the provision at N.J.A.C. 7:7A-8.1(e) requiring an applicantto deed restrict not only a modified transition area but also the adjacent wetland. In the 2008 rule proposal, theDepartment determined that, since transition areas protect the integrity of wetlands, upon a modification of thattransition area, it is important for the health of the wetland to permanently protect not only the transition area but theadjacent wetland. As the FWPA provides at N.J.S.A. 13:9B-16(a)(1), transition areas act as "an ecological transitionzone ... which is an integral portion of the wetland ecosystem." (319 and 328)

383. COMMENT: The proposed amendments to transition area waiver provisions will make the placement of aconservation restriction on modified transition areas either optional or only required on the expanded portion of abuffer. This would leave the remaining transition area subject to future modifications, which would further reduce theirability to buffer wetlands from secondary impacts of development. The proposed changes are inconsistent with theFWPA's mandate to protect transition areas for their important role in wetlands ecosystems. Without transition areas,wetlands can be gradually destroyed or degraded by adjacent activities, which is a common occurrence under theFederal 404 program (which does not regulated transition areas). The proposed change to allow an applicant to place aconservation restriction only on the expanded modified buffer has not been, and cannot be, supported by scientificrationale to demonstrate that the change would continue to protect these vital regulated areas. (277)

384. COMMENT: The Department has experienced many cases where transition areas have been subject toencroachment by homeowners even when marked with monuments and deed restricted. The transition area subject todeed restriction under the rulemaking may only be narrow slivers of land as little as one foot wide to no more than 25feet wide, which makes the long-term protection of these small but sensitive areas unlikely without protecting the entiremodified transition area and wetlands. (277)

RESPONSE TO COMMENTS 381 THROUGH 384: A conservation restriction is required in all cases for theexpanded portion of a transition area under a transition area averaging plan waiver because the compensation area islocated outside of the Department's usual jurisdiction under the FWPA Rules. Protection of all other remainingtransition areas and the adjacent wetlands may be accomplished through [page=3907] the protective requirements of theFWPA Rules, or, if necessary, through requiring a conservation restriction to be recorded on the remaining portion of atransition area in accordance with N.J.A.C. 7:7A-8.1(e). The conservation restriction provisions in the prior rules were

49 N.J.R. 3849(a)

always an optional condition that could be placed by the Department as necessary, and not a default requirement for alltransition area waivers. In accordance with the FWPA and N.J.A.C. 7:7A-8.1(b), the Department will not issue atransition area waiver that would result in a substantial impact on the adjacent wetlands, or that would impair thepurposes and functions of transition areas listed at N.J.A.C. 7:7A-3.3.

385. COMMENT: Proposed N.J.A.C. 7:7A-8.1(b)3, which clarifies that only the modified transition area must bemarked, is supported. However, clarification is needed at N.J.A.C. 7:7A-8.1(b)3i as to whether planting of vegetationand/or signage with markers are acceptable to mark a transition area boundary, especially in the residential context, ashas been accepted in the past if there is little danger of encroachment into regulated areas. The notice of proposalSummary confirms that the FWPA does not regulate people entering and walking in a wetland or transition area, yet thereferences in the rule to fencing appear to be intended to do just that. Signage and alternative markers adequately alertthe public to the existence of regulated areas and are more cost-effective than fencing, which imposes an unnecessarycost burden on development and on the end-user, the purchaser of a developed parcel. (140)

RESPONSE: As established in N.J.A.C. 7:7A-8.1(b)3, the Department will determine the appropriate transitionarea markers in consideration of a number of factors, including the type of project proposed, wildlife that may bepresent, and the likelihood for people to disturb the transition area and/or wetland. Markers must be permanent and mustclearly delineate the boundary of the transition area to prevent unauthorized and inappropriate disturbance to themodified transition area and adjacent wetlands. While it is anticipated that in many cases the required permanentmarking will be accomplished using concrete monuments or other similar features, as indicated in the rule text, theremay be situations where the Department determines that the appropriate delineation of the transition area should beaccomplished by fencing to prevent disturbance of the transition area and/or wetland. The appropriateness of anyparticular type of marker will be determined by the Department on a case-by-case basis during the review of anapplication for a transition area waiver. Please also note that "modified transition area" referred to in the generalprovisions for transition area waivers at N.J.A.C. 7:7A-8.1(b)3 may refer to the entirety of a transition area withinwhich disturbance occurs in addition to any compensation area associated with a transition area averaging plan waiver,if applicable. The term "modified transition area" is intended to capture the transition area that will be changed in someway (disturbed, reduced, or added) as a result of the regulated activities, and is not synonymous with the "averagingcompensation area" associated with averaging plan waivers under N.J.A.C. 7:7A-8.2.

386. COMMENT: Proposed N.J.A.C. 7:7A-8.1(b)3 no longer limits the options for marking a modified transitionarea waiver to permanent fencing. However, this provision leaves all decision-making on type, number, and spacing ofmarkers to the Department, which prevents the applicant from knowing the cost of compliance. The Department shouldallow applicants to propose protective markers in submitted permit plans. (255)

RESPONSE: Applicants are welcome to propose markers in their application and are encouraged to demonstratewhy the proposed markers are appropriate in consideration of the type of project proposed, wildlife that may be present,and the likelihood for people to disturb the transition area and/or wetland. As applicants begin to plan and budget forproposed activities, they are welcome to contact the Department to request a pre-application conference in accordancewith N.J.A.C. 7:7A-15. However, the final decision of whether to require that a transition area be marked, and the typeof marker required in order to ensure that transition areas and/or wetlands are adequately protected from inappropriatedisturbance, continue to be made by the Department during a review of an application for a transition area waiver.

387. COMMENT: Can it be assumed that the requirement to mark a modified transition area will not apply to anaccess transition area waiver, since the proposed rules allow an access transition area waiver to authorize disturbancenecessary for future use of the regulated activity authorized on the site? (255)

RESPONSE: The condition that a modified transition area be permanently marked applies to all transition areawaivers as necessary to ensure that an activity does not result in a substantial impact on the adjacent wetlands, and doesnot impair the purposes and functions of transition areas. The Department will determine the appropriateness of thiscondition independently for each application.

49 N.J.R. 3849(a)

Transition Area Averaging Plan Waiver (N.J.A.C. 7:7A-8.2)

388. COMMENT: In N.J.A.C. 7:7A-8.2(c)1, the Department should clarify that the required setback for a structure,impervious surface, or stormwater management facility, includes only the footprint of the feature and excludes anyassociated land grading or other disturbance required for construction. (69)

RESPONSE: The listed features may include a graded area that is part of the structural support of the developmentor construction; for example, some road construction can include grading that is a necessary support component of theroad construction. The Department agrees that there are some cases where grading is not part of the structure or featureand is necessary to connect topography on the site. In those cases, the grading would not be included in the requiredsetback. However, in cases like the road example above where the grading is an integral component of the construction,the grading would be included in the required setback. In sum, when grading is an integral part of the structure,impervious surface, or stormwater management facility, such as an embankment needed to stabilize a road, the gradingmust be set back more than 20 feet from freshwater wetlands for the Department to be able to make the finding that theactivity will not result in a substantial impact on the adjacent freshwater wetlands and issue a transition area averagingplan waiver. Grading not integral to the functioning of the structure, such as minor grading to topographically connectthe site in the vicinity of the structure, impervious surface, or stormwater management facility, occurring within 20 feetof freshwater wetlands does not automatically result in the determination that there will be a substantial impact onfreshwater wetlands under N.J.A.C. 7:7A-8.2(c), and, therefore, may be approvable under a transition averaging planwaiver.

389. COMMENT: The proposed amendments to N.J.A.C. 7:7A-8.2(f), where the conservation restriction for atransition area waiver averaging plan waiver must only restrict future activities in the averaging compensation areainstead of restricting activities in all remaining wetlands and transition areas, are supported. (69, 140, and 262)

RESPONSE: The Department acknowledges this comment in support of the rules. However, please be advised thatthe Department may require the recordation of a conservation restriction for both the reduced and expanded transitionarea under a transition averaging plan, or for other transition area waivers, on a case-by-case basis in accordance withN.J.A.C. 7:7A-8.1(e), as explained in the Response to Comments 381 through 384. The adopted rules require aconservation restriction in all cases for the compensation area of a transition area averaging plan under N.J.A.C.7:7A-8.2(f), but do not preclude the Department from requiring a conservation restriction be recorded to protectremaining transition area when issuing other types of transition area waivers or in addition to the compensation area.

390. COMMENT: Please clarify if a property owner may rely on an averaged transition area that has been recordedin a conservation restriction, even if the contract purchaser abandons the project, past the five-year limit of the transitionarea waiver approval. Similarly, if a project is not complete but a conservation restriction has been filed, please clarifywhether the property owner or successor in interest can continue to rely on the recorded, averaged transition area. (140)

RESPONSE: If no regulated activities have occurred and the transition area waiver has expired, the regulatedtransition area is that which would exist under the rules in relation to the wetlands on, or adjacent to, the site in theabsence of a transition area waiver, which is specified at N.J.A.C. 7:7A-3.3. If regulated activities have commenced(and, therefore, a portion of the transition area has been or is being [page=3908] disturbed or destroyed, necessitatingthe designation of a compensation area) and the transition area averaging waiver has not expired, the "averaged"transition area remains in effect. If the property owner or successor in interest seeks to continue activities beyond theexpiration date of the transition area waiver, an extension in accordance with N.J.A.C. 7:7A-20.4 must be obtained.

391. COMMENT: Does proposed N.J.A.C. 7:7A-8.2(b)1i apply to a distance that exceeds 10 feet? It is unclearwhether the intent was to prohibit a transition area waiver if there is a very small area of a proposed project where theslope is over 25 percent (one 10-foot interval for example). Also, please clarify what an applicant would be required todemonstrate. (140)

49 N.J.R. 3849(a)

RESPONSE: The explanation of how to determine slope is the same as in the prior rules and has simply beenrecodified from prior N.J.A.C. 7:7A-6.4(g). N.J.A.C. 7:7A-8.2(b)1i applies to any distance of transition area; theprovision directs the applicant to calculate the slope by measuring in 10-foot intervals. The slope of a distance greaterthan 10 feet would be determined by calculating the slope for multiple 10-foot intervals. If any portion of the transitionarea contains a slope greater than 25 percent, N.J.A.C. 7:7A-8.2(b)1 would not be satisfied and a transition area waiverwould not be issued unless the applicant was able to demonstrate through scientific documentation that the proposedactivity would have no substantial impact on the adjacent wetlands in accordance with N.J.A.C. 7:7A-8.1(d). N.J.A.C.7:7A-8.1(d) provides that the Department will issue a transition area waiver in this case and in other cases where theapplicant has rebutted the presumption that the activity will have a substantial impact on adjacent wetlands underN.J.A.C. 7:7A-8.2 by demonstrating that the activity would qualify for an individual permit under the FWPA Rules.Therefore, the applicant must demonstrate compliance with all applicable requirements in N.J.A.C. 7:7A-10,Requirements for all individual freshwater wetlands and open water fill permits. N.J.A.C. 7:7A-8.2(b)1 does not allowthe slope to be averaged across the length of the transition area.

Special Activity Transition Area Waiver (N.J.A.C. 7:7A-8.3)

392. COMMENT: The example of a lawn should not be deleted from N.J.A.C. 7:7A-8.3(f)1 because it should notbe any easier to obtain a transition area waiver to place a structure or make some other permanent change to a lawn thanto any other natural transition area. Because a lawn is vegetated, it provides some function as a transition area-certainlymore than a paved area. Although a lawn may not provide habitat, it assists with stormwater abatement and waterquality protection, absent any chemical lawn treatments. (415)

RESPONSE: The example of a lawn was deleted to avoid confusion because there are some cases where a lawn orlawn-like area may be considered significantly disturbed. For example, an intensively maintained grass field used forsports games and surrounded by a track may be considered a lawn by some readers but is not likely to be functioning asa transition area at the time of application. A lawn adjacent to a single-family home, however, is likely to maintain sometransition area functions.

N.J.A.C. 7:7A-10, Requirements for all Individual Freshwater Wetlands and Open Water Fill Permits

393. COMMENT: The proposed rules state: "An applicant shall not segment a project or its impacts by applyingfor general permit authorization for one portion of the project and applying for an individual permit for another portionof the project. Similarly, an applicant shall not segment a project or its impacts by separately applying for individualpermits for different portions of the same project on the same site." This is one of two sections of the rules that utilizethe phrase, "on the same site." This phrase seems to allow for the improper segmentation of projects like pipelines. Thetext appears to differentiate between project and site. There is no need to stipulate "on the same site" if this standard ismeant to apply to the entire project. (415)

394. COMMENT: The proposed rules allow applicants to avoid considering cumulative impacts by allowingprojects to be segmented with multiple general permits and individual permits for each wetland impact instead of theentire project. (104, 144, and 361)

395. COMMENT: The addition of the phrase "on the same site" at proposed N.J.A.C. 7:7A-10.1(c) does not add tothe clarity of the section and could be interpreted to mean that multiple individual permits for a project can be obtainedfor projects spanning multiple sites. The proposed addition should not be adopted to avoid misinterpretations that couldlead to environmental destruction. (277)

RESPONSE TO COMMENTS 393 THROUGH 395: The FWPA Rules do not permit multiple general permitauthorizations and/or multiple individual permits to be used to segment a project. Under N.J.A.C. 7:7A-10.1(c), anapplication needs to address wetland and State open water impacts from the entire proposed project or combination ofregulated activities, as the entire right-of-way or proposed area of disturbance is considered a single site. Segmentation

49 N.J.R. 3849(a)

of a project by applying for multiple general permits and/or individual permits separately is explicitly prohibited byadopted N.J.A.C. 7:7A-5.4(a)1 and 10.1(c). The proposed addition of "on the same site" at N.J.A.C. 7:7A-10.1(c) wasintended to clarify the requirement with no change in meaning, as described in the notice of proposal Summary at 49N.J.R. 877. However, based on the comments above, the Department agrees that addition of this phrase could bemisinterpreted in the future to arguably allow one project to be broken into multiple sites with permits obtainable foreach individual site, contrary to the Department's intent. Therefore, the proposed addition of "on the same site" is notbeing adopted.

Mitigation

General Support

396. COMMENT: The proposed success criteria that require that the permittee demonstrate that the wetlandcommunity comprised of the planted vegetation or targeted hydrophytes as detailed in the approved mitigation plan hasachieved, or is on track to achieve, the desired wetland community, is supported. (335)


General Opposition

397. COMMENT: Mitigation is a fraud and does not work. (346)

398. COMMENT: Mitigation has been an overwhelming failure with abysmal success rates, resulting in the loss ofmyriad wetlands and wetland-dependent habitats over the last few decades. The rules should be made more stringent inacknowledgement of the fact that the failed science of mitigation has resulted in water quality degradation. (160)

399. COMMENT: The expansion of mitigation under the proposed rules is strongly opposed. Mitigation isquestionable at best as wetlands take centuries to form and, thus, cannot be replaced by new plantings and excavationsthat do not provide the same values and functions as natural sites. For this reason, mitigation should never beout-of-kind. For example, the rules allow for the destruction of a healthy cedar swamp in exchange for the planting ofsalt grass. This is not an equal match of functions and values. In contaminated areas, Spartina requires an oxygen typeof environment whereas Phragmites does not. The rules also allow for wetlands to be replaced with uplands, whichagain, are not equal in terms of functions and values. (240 and 415)

400. COMMENT: Mitigation is continually expanded, but avoidance should be the first priority. The FWPA Rulesshould contain requirements for avoidance and for analyzing alternatives for minimization as a routine element of thepermit process rather than falling back on mitigation. (179)

401. COMMENT: The flora, fauna, and fresh water in existing wetlands are irreplaceable. In projects wherewetlands are filled in one area and replaced with manmade wetlands elsewhere, the manmade wetlands were not thesame as the natural wetlands. (299)

RESPONSE TO COMMENTS 397 THROUGH 401: Mitigation is a nationally recognized means to fullycompensate for any ecological loss associated with a permit. The Department agrees that, where possible, avoidance ofimpacts to wetlands is preferable. Accordingly, both general and individual permits are structured to avoid andminimize disturbance, prior to providing mitigation. Once an applicant has received a permit, mitigation, if required, isa condition of that permit. In accordance with N.J.A.C. 7:7A-11.2(a), generally mitigation must be in-[page=3909] kindand shall fully compensate for any ecological loss. While in-kind mitigation is generally required, the rules do allow theDepartment to consider a proposal for out-of-kind mitigation. However, as specified in N.J.A.C. 7:7A-11.2(a), theDepartment will only approve out-of-kind mitigation if it is satisfied that the mitigator has demonstrated through currentscientific literature that the mitigation meets the goals and objectives of this subchapter and would result in equal

49 N.J.R. 3849(a)

ecological functions and values; in no case would the Department approve mitigation that did not meet that standard.The rules specify the types of information a mitigator must supply to support such a demonstration. While theDepartment agrees that there are instances where out-of-kind mitigation would not fully compensate for all ecologicalloss from a permitted activity, there are many instances where out-of-kind mitigation can provide equal, or even greaterecological functions and values than those impacted by the permitted activity. For example, if a permittee impacts aPhragmites-dominated wetland and proposes to compensate for that disturbance with a forested wetland mitigationproject, the Department would allow for this out-of-kind mitigation as the functions and values of a forested wetland aregreater than the functions and values of a Phragmites-dominated wetland system.

The Department considers its mitigation program to be a successful one. Through implementation of the rules,which require a robust monitoring regime for all mitigation projects, the Department ensures that every mitigation sitemeets the Department mitigation success criteria. Only after a final monitoring report is reviewed and determined tohave met established success criteria does the Department issue a final letter to acknowledge that mitigation iscomplete. These standards ensure that the Department's mitigation program remains successful. One example of theDepartment's success is its mitigation banking program. The State has 20 approved mitigation banks. While theseapproved mitigation banks are all in different stages of mitigation monitoring, all are on track to meet their respectiveperformance standards.

402. COMMENT: Each acre of wetlands absorbs up to a million gallons of water and filters out pollutants thatendanger New Jersey's water supply. However, wetlands will be endangered if the proposed rules are adopted becausethe proposed rules reduce the responsibility of developers for wetlands restoration after construction. Instead ofinspections to confirm restoration works, the Department will rely on the developer's word. (171)

RESPONSE: The Department is not reducing the responsibility of developers for wetlands restoration. All therequirements under the previous rules have been maintained under this rulemaking. In addition, the Department hasnever relied upon a developer's word to confirm that the required mitigation has been successfully completed. Instead,all approved mitigation plans require the submission of a construction completion report, which includes as-built plans,as well as a yearly submission of monitoring reports in accordance with N.J.A.C. 7:7A-11.12(e), (f), and (h). In additionto the submission of these reports, the Department conducts regular inspections of mitigation sites to ensure compliancewith both the permit conditions and the approved mitigation plan. In accordance with N.J.A.C. 7:7A-11.12(i), theDepartment will make a declaration that the mitigation is successful based on the mitigator's demonstrations of successin accordance with N.J.A.C. 7:7A-11.12(h).

N.J.A.C. 7:7A-11.1Mitigation Definitions

403. COMMENT: Please define and reference a list of invasive species in New Jersey as this term is referenced inthe mitigation provisions proposed. (335)

404. COMMENT: There is no definition of "invasive plant species" in the FWPA Rules, although the term is usedseveral times. The Department should provide a definition consistent with the definitions in the FHACA and CZMRules. (255)

RESPONSE TO COMMENTS 403 AND 404: While, the Department strived to administratively align the FWW,CZM, and FHA rules, it appears that this definition was inadvertently missed. However, invasive species are thosespecies that are not native to New Jersey. These species could negatively affect wetland species and alter the ecology ofNew Jersey's wetland ecosystem. New Jersey has an Invasive Species Council that provides information on invasivespecies of New Jersey. Fact sheets for many of New Jersey's common invasive species can be found at:http://www.nj.gov/dep/njisc/docs/Final%20NJ%20Strategic%20Management%20Plan%20for%20Invasive%20Species%2011.09.pdf.

405. COMMENT: Please define "growing season" as referenced in the proposed mitigation provisions. (335)

49 N.J.R. 3849(a)

406. COMMENT: What is the first full growing season? If planting is performed in April, the first growing seasonextends from May through October. Therefore, plants that were placed in the ground in April 2017 can be monitored forthe first full growing season in October 2017, but that will not be a complete year of monitoring. Is the intent to waitone full year before monitoring begins? (415)

RESPONSE TO COMMENTS 405 AND 406: "Growing season," as it relates to monitoring mitigation sites,generally means a period of time from early spring to fall when plants are actively growing. Where construction of amitigation site is completed early in the growing season, including planting, the first year of monitoring would end atthe conclusion of the growing season that same year. Therefore, in some cases, monitoring of the mitigation site couldbegin in the same calendar year as the completion of construction. However, if construction of the mitigation site iscompleted at a later point in the growing season, for example in the fall, the first year of monitoring would not takeplace until the following growing season. The intent of mitigation monitoring is to ensure that a full growing season isincluded in the first year of monitoring, it does not mean that an applicant must wait one full year before monitoringbegins or that a full calendar year of monitoring is necessarily required.

N.J.A.C. 7:7A-11.2, General Provisions

407. COMMENT: N.J.A.C. 7:7A-11.2(b) provides that a mitigation proposal may be submitted as part of a permitapplication for concurrent review, but that presupposes that the applicant will be granted approval to impact the wetlandarea for which they have applied for a permit. This provision should be deleted. Mitigation is not supposed to be aconsideration for permit approval, so it is inappropriate to provide a mitigation proposal at the time of application sincethe amount of mitigation that will be required and the specific impacts that must be mitigated will not be known. (415)

RESPONSE: The applicant submitting a mitigation plan at the time of permit application submits the proposedmitigation plan with the understanding that it is based upon their anticipation of what will be required, which may ormay not match with the Department's analysis. Should the Department determine that mitigation in excess of thatincluded in the proposed mitigation plan is required, the applicant would be required to amend the submitted plan tofully compensate for the wetland functions and values impacted.

The allowance for mitigation to be submitted as part of a permit application, does not presuppose that the applicantwill be granted approval to impact the wetland area for which they have applied for a permit. Rather, it allows forefficient and effective review by the Department, as the Department can issue mitigation specific conditions if and whenthe permit is issued. In addition, it allows for more meaningful public notice to the people of New Jersey because thepublic will be notified of the impacts and the mitigation to compensate for those impacts at the same time. Public noticeof a permit application and a proposed mitigation project at the same time means that interested stakeholders cancomment on all aspects of the project at the same time. Submission of a mitigation proposal after the issuance of apermit requires additional public notice specifically for the mitigation proposal and a possible disconnect between theregulated activity requiring the permit and the mitigation for any interested stakeholders.

408. COMMENT: N.J.A.C. 7:7A-11.2(c) should be deleted because there are no productivity models that providemitigation ratios. Furthermore, the rules do not provide any criteria for the Department to use to determine if such amodel actually demonstrates that a smaller mitigation area will result in replacement wetland resources of equalecological value. This section is too vague and, therefore, invites deal-making and unequal treatment under the rules andmakes it impossible for the public to know if wetlands are actually being protected. (415)

[page=3910] 409. COMMENT: The proposed rules at N.J.A.C. 7:7A-11.2(c) allow mitigation to be approved at a1:1 ratio. The existing 2:1 ratio was established because creating wetlands is not easy, and fails half of the time. Inaddition, man-made wetlands are never able to achieve the functions of the natural ecosystem that was disturbed ordestroyed, making it important for the mitigation to encompass more area than was disturbed. If an applicant isapproved for a 1:1 ratio, there is no margin of error and no opportunity to fully compensate for lost ecological function.Furthermore, if the mitigation fails or partially fails, then the State and its resources have been diminished. Additionally,

49 N.J.R. 3849(a)

the proposed rules require the applicant to only produce a model to justify a reduced mitigation ratio. Models are subjectto failure, creating another uncertainty, which leads to mitigation that, at best, only results in equal ecological functionand, more likely, results in reduced ecological function. The 2:1 mitigation ratio should not be reduced. (388)

410. COMMENT: The Department is permitting an applicant to reduce their required mitigation at proposedN.J.A.C. 7:7A-11.2(c) if they demonstrate through models or studies that a smaller amount of mitigation provides equalecological benefit. However, there does not appear to be a provision that requires the applicant to demonstrate that themodels were correct by monitoring the actual mitigation site. There should be a requirement for a demonstration that thesmaller mitigation site did, in fact, provide the same ecological benefits over the long-term as the full acreage wouldhave provided. If equal ecological benefit is not provided, the applicant should be required to provide additionalmitigation to provide the anticipated ecological benefit. (319)

RESPONSE TO COMMENTS 408 THROUGH 410: All mitigation approved by the Department is required tofully compensate for the entirety of an ecological loss. As indicated in the notice of proposal Summary and specified inthe rule text at N.J.A.C. 7:7A-11.2(c), to support a demonstration of equal ecological value, a mitigator must satisfyN.J.A.C. 7:7A-11.2(a) by providing current scientific literature, surveying the conditions on the site of the disturbanceand mitigation area, documenting the existing conditions on the site and the proposed conditions on the mitigation area,and detailing how the mitigation proposal will replace the ecological values of the wetland resources lost or disturbedshould the mitigator propose a mitigation area that is smaller than the full acreage required under this subchapter. TheDepartment requires the use of productivity models or similar studies to demonstrate that a smaller area will provideequivalent ecological functions and values to that of the area of disturbance. These models are not meant to provide aratio, only to provide justification of the ecological values of the site. Once the mitigation site has been constructed, theresponsible party must demonstrate to the Department through its required monitoring regime (generally five years),that the mitigation site is meeting the goals and requirements of the approved permit and mitigation plan. It is throughthe implementation of this monitoring that the Department is able to ensure that the smaller mitigation sites aresuccessful. If a mitigation project does not meet the success criteria established in N.J.A.C. 7:7A-11.12(h), theDepartment will require corrective action and can determine the appropriate corrective actions that the mitigator shallimplement, including regrading or replanting the mitigation site, relocation of the mitigation to another more suitablesite, and/or extending the monitoring period as necessary to ensure the success of the mitigation.

411. COMMENT: There appears to be a language discrepancy in the notice of proposal regarding mitigation. Atone point, the rules clearly state that mitigation shall never be at less than a 1:1 ratio, but in the next section, the rulessay that mitigation may be at less than 1:1. (415)

RESPONSE: A mitigator is responsible to provide an area of mitigation in accordance with this subchapter, unlessthe mitigator demonstrates that a smaller area of mitigation will result in a replacement of wetland functions of equalecological values to those lost or disturbed. However, in no case shall the Department approve a mitigation ratio of lessthan 1:1 as stated at N.J.A.C. 7:7A-11.2(c). For example, if a permittee proposes wetland creation, the mitigation ratiopursuant to this subchapter is 2:1. However the permittee does have the option, at N.J.A.C. 7:7A-11.12(b)1, through theuse of a productivity model, to demonstrate that a lesser ratio would still provide equal functions and values. In thisexample, a permittee could attempt to document that a ratio of 1.5:1 is appropriate. However, a request to reduce theratio to 0.5:1 is inappropriate as it fails to meet the requirements at N.J.A.C. 7:7A-11.2(c). While under N.J.A.C.7:7A-11.2(d), mitigation will not be required when the Department determines impacts are de minimis, where theDepartment determines that mitigation is required, a ratio of at least 1:1 is always required in accordance with N.J.A.C.7:7A-11.2(c).

412. COMMENT: N.J.A.C. 7:7A-11.2(d) should be deleted because it violates the FWPA, which does not allowmitigation for an individual permit to be waived because the impact is de minimis. Further, there is no definition for deminimis, which will lead to deal-making and unequal treatment under the rules. (415)

413. COMMENT: The proposed changes at N.J.A.C. 7:7A-11.2(d) are inconsistent with the mitigation objectives

49 N.J.R. 3849(a)

of the FWPA. Mitigation must be required at least at a 1:1 ratio. (84, 179, 222, and 402)

414. COMMENT: The provision allowing mitigation requirements to be waived under an individual permit, if theDepartment determines the impacts to freshwater resources are de minimis, is opposed. Each impact to a freshwaterwetland reduces its natural ability to provide ecological functions in the area and downstream. This amendment couldlead to progressive developments under individual permits which all assume de minimis impacts, with nocomprehensive and cumulative impact analysis of the combined impact of those losses on the area or watershed.Seemingly de minimis impacts can add up to a much greater impact. The proposed amendment will allow the continueddeterioration of the State's resources. (388)

415. COMMENT: The proposed provision specifying that mitigation is not required for a de minimis impact wherethe applicant demonstrates avoidance and minimization of impacts is opposed because it lacks specificity. In theimmediately preceding section, the rules provide that mitigation shall never be approved at a ratio less than 1:1, whichwould preclude the above-described provision. In the case of a shortfall like in the example provided in the notice ofproposal Summary, the applicant should be directed to purchase a portion of a credit from a bank or make an in-lieu feecontribution. Because this section applies to individual permits, impacts cannot be considered minimal. This provisionis inconsistent with the FWPA and the objectives of the mitigation rules. (277)

RESPONSE TO COMMENTS 412 THROUGH 415: The FWPA provides standards that must be met beforeregulated activities can be allowed that have adverse impacts to freshwater wetlands and provides the Department with asuite of tools to achieve the required protection. N.J.S.A. 13:9B-13.b provides that "the department shall require as acondition of a freshwater wetlands permit that all appropriate measures have been carried out to mitigate adverseenvironmental impacts, restore vegetation, habitats and land and water features, prevent sedimentation and erosion,minimize the area of freshwater wetland disturbance and insure compliance with the Federal Act and implementingregulations." The Act does not specify the amount of impact that requires compensatory mitigation nor does it mandatethat all individual permits require mitigation. Instead, in that same section, the Act provides that the Department "may"require creation, enhancement or restoration of an area of freshwater wetlands of equal ecological value for what will belost. Through the alternatives analyses required under an individual permit, the Department requires that an applicantdemonstrate that impacts to the freshwater wetlands associated with a proposed project have been minimized. Ininstances where an applicant has demonstrated that the impacts are unavoidable and minimized, and the Department isable to determine that appropriate measures have been taken by the applicant to alleviate impacts, including impacts tovegetation, habitat, and land and water features, and that the proposed activity complies with the requirements of theserules and with the FWPA and the Federal Act, then compensatory mitigation need not be required in instances wherethe impacts are very small. The Department provided an example in the notice of proposal Summary (see 49 N.J.R.879) of a situation in which mitigation for impacts would not be required. In that example, the impacts associated withthe replacement of an existing bridge resulted in 0.50 acres of impacts to freshwater wetlands associated with theinstallation of new pilings. However, through the removal of the old bridge and pilings, 0.498 acres of wetlands wererestored, leaving 0.002 [page=3911] acres of unmitigated wetland impacts. In this situation, the Department coulddetermine that the remaining 0.002 acres of disturbance is de minimus and, therefore, not require mitigation for thatimpact.

416. COMMENT: New N.J.A.C. 7:7A-11.2(d) establishes that mitigation for an individual permit is not requiredwhere the Department determines that environmental impacts to the freshwater resources are de minimis and where theapplicant demonstrates avoidance and minimization of impacts. While this is supported, the Department did not providea definition or criteria for determining what impacts are de minimis, and only provided an example of a de minimisimpact in the notice of proposal Summary. The Department is requested to provide a definition and criteria or examplesfor determining de minimis impacts in the rule. (255)

RESPONSE: The Department acknowledges the commenter's support of this provision. The Department does notbelieve that a definition of de minimis is necessary as the term is meant to be understood in its commonly understoodmeaning; a de minimis impact is one that is lacking significance or importance and is so minor as to merit disregard.

49 N.J.R. 3849(a)

417. COMMENT: The proposed rules allow a permittee with multiple sites to aggregate their mitigationobligations into one mitigation site. There is no requirement that the mitigation site be within the same HUC-14 or eventhe same watershed management area as the majority of the sites of disturbance. As it is ecologically beneficial for themitigation to occur closer to the site of disturbance, this provision will not result in the enhancement of water quality,the reduction in flooding, or the maintenance of habitat for flora and fauna. (319)

418. COMMENT: The provision to allow multiple site disturbances to be rolled into one mitigation raises concernsthat the mitigation in this scenario could occur outside of the impacted watershed. If a large corporation has impactsthroughout the State, but only one mitigation site is selected to mitigate all of the impacted sites, then the naturalresources and communities in many of the impacted areas will be diminished with no ecological compensation. (388)

RESPONSE TO COMMENTS 417 AND 418: The potential for a single permittee to aggregate mitigation formultiple disturbances to a single mitigation project referenced by the commenters, previously codified at N.J.A.C.7:7A-15.2(k), was added to the Freshwater Wetlands rules in October 2008 (See 39 N.J.R. 3587(a)) and is continued inthe adopted rules at N.J.A.C. 7:7A-11.2(l) with minor wording changes that do not alter what may be authorized or thelimitations applicable to this allowance. This subsection prevents the need for multiple small mitigation sites in severalwatersheds. The alternative of requiring that multiple small projects be performed at numerous sites is not desirablesince mitigation is often more successful ecologically and more cost effective when aggregated. As indicated in therules at N.J.A.C. 7:7A-11.2(a), all mitigation required under the FWPA Rules must fully compensate for any ecologicalloss. As aggregation of mitigation requirements to one project can only occur with Department approval and mustcomply with the hierarchies at N.J.A.C. 7:7A-11.9 or 10, as part of its review of a request to aggregate mitigationrequirements the Department will ensure that the proposed mitigation site provides equal functions and values to theimpact areas and fully meets that requirements set forth under this subchapter.

419. COMMENT: Proposed N.J.A.C. 7:7A-11.12(c) replaces the 2:1 mitigation ratio for any restoration or creationactivities at existing N.J.A.C. 7:7A-15.8 with a 1:1 ratio. A report published by the Department in 2002, stated thatapproximately 0.45 acres of wetlands were established for each acre of mitigation proposed. A 1:1 mitigationrequirement would then result in a 65 percent reduction in wetlands, which does not achieve the Federal goal of no netloss. Preserving the 2:1 mitigation ratio increases the probability that the State could achieve this goal. (376)

420. COMMENT: Under N.J.A.C. 7:7A-11.12(b) the Department is proposing a reduction in the 2:1 mitigationrequirement to a 1:1 mitigation requirement. This amendment is not consistent with the intent of the FWPA, which setno net loss/net gain goals. (125)

RESPONSE TO COMMENTS 419 AND 420: The Department has not changed the standard 2:1 ratio of creationto loss for wetlands creation or restoration. Instead, at N.J.A.C. 7:7A-11.12(b) the Department is continuing the 2:1ratio, but providing that, in limited cases, a ratio less than 2:1 may be approved. Particularly, N.J.A.C. 7:7A-11.12(b)states that "if creation or restoration is the mitigation alternative, wetlands shall be created or restored at a creation orrestoration to lost or disturbed ratio of 2:1, unless the applicant demonstrates ... that creation of restoration at a ratio ofless than 2:1 will provide equal ecological functions and values." The rules specify the types of information required tobe provided to support a request to provide less than a 2:1 ratio and make clear that in no case will the Departmentapprove any reduction unless the information provided demonstrates to the Department's satisfaction that the proposedmitigation will result in a project that provides equal ecological functions and values. The amendment recognizes thatthere are a range of wetlands types, and that, in particular cases, it may be possible to achieve the required ecologicalfunctions and values without strictly requiring the 2:1 ratio be provided. In some cases, the amendment may even allowthe Department the ability to approve a project at the lower ratio that provides better than the required offset. Forexample, if impacts to an invasive-species dominated emergent wetland are mitigated at a 1:1 ratio through restorationof forested wetlands that would reconnect fragmented wildlife habitat, the functions and values provided, even at a 1:1ratio, may exceed those lost as a result of the original disturbance.

The limited potential for approval of a reduction in the required ratio of creation or restoration to lost or disturbed

49 N.J.R. 3849(a)

below 2:1, with the proviso that in no case will the reduction result in a ratio of less than 1:1, provided the resultingproject results in at least equal functions and values as those impacted by the activity that created the need formitigation, is consistent with both the FWPA and the Federal Act.

Timing of Mitigation (N.J.A.C. 7:7A-11.3)

421. COMMENT: Proposed N.J.A.C. 7:7A-11.3(a)1 inappropriately deletes the statement "except that no regulatedactivities shall occur before the Department has approved a mitigation proposal." This language should remain sincewetland enhancement requires work in regulated areas. In addition, many mitigation proposals are not well conceivedand should not be initiated prior to Department approval. (277)

RESPONSE: Mitigation may not commence until the mitigation proposal has been approved by the Department.The requirement cited by the commenter making clear that no regulated activities may occur prior to Departmentapproval of a mitigation proposal, which was previously codified at N.J.A.C. 7:7A-15.3(a)1, has been relocated toN.J.A.C. 7:7A-11.2(g) which states, "[m]itigation shall not commence until the Department has approved a mitigationproposal through one of the approvals listed at (e) above." Therefore, continuation of the statement "except that noregulated activities shall occur before the Department has approved a mitigation proposal" in adopted N.J.A.C.7:7A-11.3(a)1 would be duplicative.

Property Suitable for Mitigation (N.J.A.C. 7:7A-11.4)

422. COMMENT: Please clarify N.J.A.C. 7:7A-11.4(c)1 as follows (additions in bold, deletions in brackets): "Theinstallation of a new public facility, or improvement to[,] an existing public facility, which is intended for human use,such as a ball field, nature trail, or boardwalk; or ..." (255)

RESPONSE: The Department is clarifying this provision on adoption in response to this comment.

423. COMMENT: N.J.A.C. 7:7A-11.4(f) is too broad. The Historic Preservation Office should be consulted toensure that a mitigation activity does not impact a historic resource. For example, if a mitigation site contains a historiccemetery, the project can still presumably proceed if the applicant agrees to ensure protection of the cemetery. (415)

RESPONSE: This requirement, which was recodified from N.J.A.C. 7:7A-15.4(d) is intended to prevent mitigationactivities from having an adverse impact to cultural or historic resources. The "area" referred to in N.J.A.C.7:7A-11.4(f) is not intended to mean the entire property on which mitigation can occur. In the commenter's example ofa property that contains a historic cemetery, the Department may approve [page=3912] mitigation in another area of theproperty if, after consultation between the Division of Land Use Regulation and the State Historic Preservation Office,the Department determines that the mitigation proposed will not have an adverse impact on the cemetery or any othercultural or historic resource on the site.

424. COMMENT: N.J.A.C. 7:7A-11.4(i) is too broad and should be deleted. Every tidal system may have thepotential for "the reintroduction of contamination to ecological communities." The provision precludes mitigation in anytidal system and in most freshwater systems throughout the State. (415)

RESPONSE: N.J.A.C. 7:7A-11.4(i) is similar to previous N.J.A.C. 7:7A-15.4(h) but has been modified to furtheralign the processes and terminology of the FWPA rules with the process and terminology of the CZM rules. The goal ofthis section is to ensure that for every proposed mitigation project, the permittee demonstrates to the satisfaction of theDepartment that any ecological risk on the site has been addressed. In order for an applicant to fully address theecological risk, consideration must be given to the surrounding area and the amount of contamination surrounding thesite. This provision is purposefully broad, as there are many scenarios of ecological risk and this provision must be ableto cover them all. The Department believes that the protections provided by this subsection of the rules to ensure thatmitigation does not have unintended effects, including reintroduction of contamination to ecological communities, or

49 N.J.R. 3849(a)

exposure of humans to contamination, are both necessary and appropriate.

Further, N.J.A.C. 7:7A-11.4(i) does not preclude mitigation in any tidal system and in most freshwater systems.Instead, the subsection ensures that identified risks are appropriately analyzed to avoid inappropriate risks to humanhealth and the environment. If it is determined that there is no ecological risk, as indicated at N.J.A.C. 7:7A-11.4(i)1,the proposed mitigation, regardless of whether it is in a tidal system or a freshwater system, is reviewed to determinewhether it otherwise complies with the requirements of the rules; if it does, the mitigation may be approved. Even if it isdetermined that the proposed mitigation activities would pose an ecological risk, while the Department would not allowsuch a risk to occur, the rules provide the mitigator with the ability to proceed with the mitigation if they were to firstremediate the site in accordance with the Department's Technical Requirements for Site Remediation. The Departmentbelieves that elimination of this subsection and the protections it provides would be contrary to the goals of the FWPAand the Department's mission to protect public health and the environment.

425. COMMENT: New N.J.A.C. 7:7A-11.4(j) establishes that properties where a substantial amount of soil mustbe removed in order to achieve suitable wetland hydrology are not acceptable mitigation sites. The Department isrequested to clarify the meaning of "substantial," including examples of context and intensity. (255)

RESPONSE: N.J.A.C. 7:7A-11.4(j) specifies that proposed mitigation sites where a substantial amount of soil mustbe removed to achieve suitable wetland hydrology are not acceptable mitigation sites. These sites are not suitable formitigation purposes as it is questionable if the hydrology would support a wetland in perpetuity. If an applicant mustremove feet of soil in order to establish hydrology appropriate for a wetland, the proposed site does not have a highprobability of success and, therefore, is not an approvable mitigation site.

While the determination of what constitutes "substantial" soil removal is somewhat site- and situation-specific,mitigation sites should be selected in areas where a wetland could or would normally exist in the landscape. Forexample, a wetland will not generally exist at high elevations. Accordingly, a proposal to remove substantial amounts ofsoil to artificially lower the surface elevation in a high elevation area is not likely to result in the establishment of awetland. As such a proposal to remove substantial amounts of soil would be anticipated to result in an unsuccessfulmitigation project, the project would not be approved under N.J.A.C. 7:7A-11.4(j).

426. COMMENT: The existing FWPA Rules require the mitigation site to be owned in fee simple, and, if there areeasements on the property, those easements must be extinguished. The proposed amendments remove the requirementfor the easements to be extinguished. If an easement could potentially impact the functioning of the wetland or themitigation site, the easement should be extinguished before the Department accepts the site as suitable for mitigation.(319)

RESPONSE: The rules maintain at N.J.A.C. 7:7A-11.4(a) that the Department may only approve mitigation onproperty that is owned in fee simple or under legal control of the person responsible for performing the mitigation. Theadopted subsection simplifies the language while continuing to ensure that the mitigator has legal rights sufficient tocarry out the mitigation. Further, all mitigation sites must have a conservation restriction placed on them. The personresponsible for performing the mitigation would need the legal right to place a conservation restriction on the mitigationsite. If the person responsible for performing the mitigation has legal rights to the property sufficient to both record therequired conservation restriction and to otherwise comply with all requirements of the rules without the need toextinguish an easement that does not affect the proposed mitigation, then in that instance, there is no reason to prohibitthe mitigation. However, if an easement present on the property might allow activities that would be contrary to, orinterfere with, a successful mitigation project and/or compliance with all requirements of the rules, the mitigationproject would not be approved. In that instance, the Department would view the person responsible for mitigation aslacking sufficient legal control of the property to enable compliance with all requirements of this chapter and theproposal would be rejected. Accordingly, it is unnecessary to require extinguishment of all easements in every case.

Conceptual Review of a Mitigation Area (N.J.A.C. 7:7A-11.5)

49 N.J.R. 3849(a)

427. COMMENT: Proposed N.J.A.C. 7:7A-11.5(d) removes the content concerning scheduling and conducting asite inspection. Will the Department no longer conduct a site inspection as part of a conceptual review of a mitigationarea? (255)

RESPONSE: Under neither the previous rules nor the adopted rules, is a site inspection required for all conceptualreviews. Site inspections were not required in all cases under the prior rules, but could be scheduled at the Department'sdiscretion. Elimination of the language regarding the potential for the Department to conduct a site inspection does notindicate that site inspections may not be part of a conceptual review in appropriate situations.

Department Review and Approval of a Mitigation Proposal (N.J.A.C. 7:7A-11.7)

428. COMMENT: Proposed N.J.A.C. 7:7A-11.7(a) establishes that, for a mitigation proposal submitted to complywith a condition of a permit, the Department's completeness review will occur within 30 calendar days of receipt. Is thereferenced review for administrative completeness, technical completeness, or both (leading to the Departmentdeclaring the proposal "complete for further review" per N.J.A.C. 7:7A-11.7(a)2)? (255)

RESPONSE: N.J.A.C. 7:7A-11.7 specifies that the Department will review a mitigation proposal submitted tocomply with a condition of a permit within 30 calendar days. The Department will either request additional informationor declare the proposal complete "for further review." This process is distinct from the administrative and technicalcompleteness review of a permit application under N.J.A.C. 7:7A-19. For the purposes of the review of a mitigationproposal, a proposal is complete for further review when it contains all of the information and materials required byN.J.A.C. 7:7A-11.6 for the chosen mitigation alternative. However, during the subsequent review of the proposal, theDepartment may determine that the mitigation alternative chosen is not appropriate, require changes to the proposedmitigation plan, or request more information. While the initial completeness review for a mitigation proposal atN.J.A.C. 7:7A-11.7(a) is similar to the administrative completeness review for a permit application, it is a distinctprocess not to be confused with the permit application review process.

Mitigation Hierarchy for a Smaller Disturbance and Mitigation Hierarchy for a Larger Disturbance (N.J.A.C.7:7A-11.9 and 11.10)

429. COMMENT: At N.J.A.C. 7:7A-11.9(c)1, what size is sufficient? Small parcels may remain in a disturbed areathat provide habitat or other valuable features that should be protected, regardless of the size of the parcel. (415)

[page=3913] RESPONSE: The provisions under this section do not address or require a minimum or maximum size fora mitigation site. The Department concurs with the commenter that small parcels can provide habitat or other valuablefeatures that should be protected. At N.J.A.C. 7:7A-11.9(c)1, the Department will consider the size of a proposedmitigation area in determining the feasibility of onsite or offsite creation, restoration, or enhancement to compensate fora smaller disturbance. Larger mitigation areas, and those areas associated with a larger wetland complex, are morelikely to be feasible sites to provide equal or better ecological functions and values to those lost; however, N.J.A.C.7:7A-11.9(c)1 does not establish a required parcel size or preclude the use of a relatively small parcel for mitigation,provided the mitigation required can be achieved on the parcel in accordance with all applicable requirements ofN.J.A.C. 7:7A-11.

430. COMMENT: Proposed N.J.A.C. 7:7A-11.9(c) retains the presumption that onsite mitigation is not feasible fora smaller disturbance and requires the purchase of "in-kind" credits from a mitigation bank, or onsite or offsiterestoration, creation, or enhancement. However, proposed N.J.A.C. 7:7A-11.2(a) specifies that the Department willconsider proposals for out-of-kind mitigation if the mitigation would result in equal ecological functions and values.The Department is requested to preface proposed N.J.A.C. 7:7A-11.9(c) with the phrase, "Except as provided atN.J.A.C. 7:7A-11.2(a) ..." to reflect this provision. (255)

RESPONSE: N.J.A.C. 7:7A-11.2(a) specifies that mitigation shall be in-kind and while there is an exception

49 N.J.R. 3849(a)

allowed on a case-by-case basis for out-of-kind mitigation provided the applicant can demonstrate the mitigation projectcan provide equal ecological functions and values, the Department prefers in-kind mitigation. This is evident in thehierarchy at N.J.A.C. 7:7A-11.9(c), which requires the purchase of in-kind mitigation credits from a mitigation bank; ifthat is not feasible, then mitigation must be completed through on-site restoration, creation, or enhancement, or offsiterestoration, creation, or enhancement within the same watershed management area as the disturbance. Mitigation mustprovide equal ecological values to those wetlands that were impacted by the regulated activity, however, there are thoseinstances where this is not practical or feasible and providing a mitigation site that provides greater ecological valuethan those wetlands that were lost would be the preferred option. There is an exception for this circumstance built intothe rules on a case-by-basis. Since this exception exists at N.J.A.C. 7:7A-11.2(a), there is no reason to restate it again atN.J.A.C. 7:7A-11.9(c) and risk implying that the Department will routinely accept out-of-kind mitigation by includingthis alternative in the hierarchy.

431. COMMENT: At N.J.A.C. 7:7A-11.9(f), why must applicants supply a list of six sites? What happens if sixsites are not available on the market? For a small impact, this provision is onerous. (415)

RESPONSE: In the Department's experience, some permittees are interested in pursuing only a particularmitigation alternative and so attempt to demonstrate that other mitigation alternatives are not practical or feasible.Typically, these permittees either state that there are no sites available that are suitable for these other mitigationalternatives, or list possible sites that are clearly unsuitable. The adopted rule requires that six sites be presented, inorder to ensure that the permittee has thoroughly investigated possible sites. Although in some cases more sites wouldbe desirable to ensure that possible sites were not missed, the Department believes that six sites are adequate. Theprovision strikes a balance between the need for a thorough investigation of possible sites, and the burden on theapplicant and the Department of evaluating multiple sites.

If sites are not available to purchase, the mitigator will include that information in their demonstration of theinfeasibility of offsite mitigation in accordance with N.J.A.C. 7:7A-11.9(f)3. While offsite creation, restoration, orenhancement is higher in the hierarchy of preferred mitigation alternatives, there are other alternatives that may beacceptable if offsite mitigation is not feasible. Under N.J.A.C. 7:7A-11.9(d), if credit purchase and onsite or offsitecreation, restoration, or enhancement are not feasible, mitigation must be provided by a monetary contribution to theIn-Lieu Fee Program and/or upland preservation. If these options are infeasible, mitigation must be in the form of a landdonation.

The adopted mitigation hierarchy seeks to ensure timely and successful compensation for impacts to freshwaterwetlands; to ensure the most ecologically valuable mitigation is provided, the consideration of sites in accordance withN.J.A.C. 7:7A-11.9 is appropriate.

432. COMMENT: Why must an applicant with a small disturbance use a mitigation bank, while an applicant with alarger disturbance may choose to perform mitigation themselves under N.J.A.C. 7:7A-11.10(c) regardless of theircapabilities? The Department of Transportation is an example of an entity performing mitigation for larger impacts andwhat is their track record with performing that mitigation properly and in a reasonable amount of time? Tennessee Gastook more than five years to begin to address the mitigation requirement for their impacts, but the Department took noaction against them. Projects with a large impact should be required to use a mitigation bank if possible so that thisproblem is not repeated. (415)

RESPONSE: An applicant with a larger disturbance is required to perform mitigation through restoration, creation,or enhancement onsite, as this is the most environmentally beneficial location to mitigate for the wetland loss. Onlywhen onsite mitigation is determined infeasible, is a permittee authorized to look offsite in the same watershedmanagement area as the disturbance or to purchase credits from a mitigation bank with a service area that includes thearea of disturbance. Any entity, regardless of their capabilities, is required to meet the standards and substance of themitigation requirements at N.J.A.C. 7:7A-11.

49 N.J.R. 3849(a)

433. COMMENT: At proposed N.J.A.C. 7:7A-11.9(c), the Department indicates that onsite mitigation is notfeasible for smaller sites. Permitting mitigation for smaller impacts through the purchase of credits in the in-lieu feeprogram will not compensate the area for the impacts to the wetland. The Department does not provide a concretegeographic range for "service area." This "service area" may be larger than a watershed management area, an area thatis already too big to provide ecological benefits to the impacted areas. The Department's proposed mitigation programwill sacrifice some areas for the benefit of others. Also, the Department has not provided any science-based analysis tosupport this proposed amendment. (319)

434. COMMENT: The mitigation hierarchy for a larger disturbance at proposed N.J.A.C. 7:7A-11.10(c) shouldfavor onsite mitigation or, if that is not possible, mitigation as close to the site as possible within the same HUC-14. Ifthat is not possible, mitigation should be within the same HUC-11. The default area for mitigation, whether large orsmall, should not be within a service area or watershed management area that may be a significant distance from theimpact. (319)

435. COMMENT: The proposed provision to allow mitigation to occur outside of the immediate area of impactswill result in less protection for the impacted area. The result of this provision will be a greater potential for floodingand more water pollution in the area of the permit while environmental benefits go to the surrounding mitigation bankwhere the mitigation occurred. (14, 18, 53, 54, 77, 85, 90, 91, 107, 143, 163, 177, 178, 200, 205, 248, 251, 253, 258,264, 267, 269, 291, 292, 307, 322, 331, 339, 364, 372, 421, 426, 432, and 450)

436. COMMENT: Allowing mitigation to take place in areas adjacent to the impacted area rather than directlyaround the impacted area does not make sense and will not address the localized impacts of flooding or water pollution.(240 and 415)

437. COMMENT: Allowing a monetary contribution in lieu of mitigation and allowing mitigation to occur far fromthe location of disturbance fails to protect water resources because they do not account for the fact that New Jersey'ssurface waters are impaired. (431)

438. COMMENT: Allowing the purchase of credits from a mitigation bank in another area of the State from thedisturbance does not protect local drinking water. (84, 179, and 222)

439. COMMENT: Removing the proximity requirement for mitigation will result in the shifting of impact out ofthe mitigation area, rather than the avoidance of significant impact through mitigation. Even if the mitigated wetlandsare in the same Watershed Management Area as the permit area, the result is not automatically guaranteed to bebeneficial. Therefore, the rules should contain a requirement that proposed mitigation plans show a demonstrablebenefit to the permit area. (253 and 364)

[page=3914] 440. COMMENT: Allowing mitigation to occur outside of the immediate area of impacts will resultin fewer protections for the impacted area. This is an environmental justice issue; managing for no let loss of ecologicalservices must take into account the distinct services provided by freshwater wetlands in urban areas. These ecologicalservices, specifically flood control/stormwater absorption, carbon storage, water and air pollution removal, and localclimate regulation, are qualitatively different in urban landscapes characterized by significant impervious cover issues.(125)

441. COMMENT: The proposed rules would allow a permit to fill in wetlands in one town in exchange for buyingcredits in another town. The two areas have different wildlife areas, and different streams run through the areas.Removing the requirement that mitigation occurs as close to the impact as possible will result in further damage to NewJersey's wetlands. (14, 18, 53, 54, 77, 85, 90, 91, 107, 143, 163, 177, 178, 200, 205, 248, 251, 253, 258, 264, 267, 269,291, 292, 307, 322, 331, 339, 364, 372, 421, 426, 432, and 450)

442. COMMENT: The proposed rules allow mitigation to occur outside of the watershed of the disturbance as ameans of allowing destruction in more wetlands. Mitigation never fully equals what was lost. (104, 144, and 361)

49 N.J.R. 3849(a)

443. COMMENT: The proposed mitigation amendments are concerning. Currently, mitigation must occur withinthe same HUC-11. These areas average about 60 square miles. Under the proposed rules, mitigation is only required tobe performed within the same watershed management area. While there are 151 HUC-11 regions in the State, there areonly 20 watershed management areas. Projects undertaken under the in-lieu fee program only need to be within thesame water region (of which there are only five in the State) as the disturbance. While wetlands provide essentialservices to the watershed and estuary systems at a higher level, they also serve the immediate adjacent areas byproviding habitat, regulating surface water flow, managing stormwater, and improving water quality. The loss of thesetypes of benefits within a highly developed area is a significant one that must be mitigated within the same HUC-11, notjust within the same estuary. (376)

444. COMMENT: The Department is proposing to delete the requirement for mitigation to occur within the sameHUC-11 or adjacent HUC-11 at N.J.A.C. 7:7A-11.9(c)2. However, the Department does not provide any studies thatjustify the statement that "the effects and benefits to the estuary as a whole are the same wherever the mitigation isperformed." Given the benefits that wetlands provide in filtering pollution and in absorbing stormwater, mitigationshould be required as close to the impacts as possible to prevent damage to the aquatic system and increased flooding. Ifwetlands are impacted in an area of heavy nonpoint source pollution, restoration downstream of those impacts may notbe a remedy, as there is no mechanism to filter the pollution. Additionally, wetlands provide habitat for wildlife,including threatened and endangered species. Removing the requirement to mitigate as close to the site of the permit aspossible, or at least within the same HUC-14, could lead to further fragmentation of habitat and may not result in therestoration of habitat similar to the habitat that was impacted. In the watershed management areas where drinking watercomes primarily from private or community wells, mitigation in the wetlands of a different HUC-11 will most likely notoffset the potential damage to the groundwater/drinking water. Therefore, the rules should prefer mitigation occurwithin the same site as the disturbance. If mitigation is not possible on the impacted site, it should occur within the sameHUC-14, which would be consistent with Federal requirements. (319)

445. COMMENT: Under recodified N.J.A.C. 7:7A-11.9(c)2, the Department is proposing to delete the requirementthat offsite restoration, creation, or enhancement occur within the same HUC-11 or an adjacent HUC-11 as thedisturbance. This amendment is opposed because it releases developers from restoring areas near where the destructionof wetlands occurred and allows developers to prioritize restoration within the larger estuary instead of the impactedHUC-11. (125)

446. COMMENT: Mitigation must take place within the same HUC 14 as the wetland loss or damage. If mitigationis farther from the impact, it will not adequately address surface water and groundwater effects and waters will continueto fail to support designated used. (431)

RESPONSE TO COMMENTS 433 THROUGH 446: The Department is adopting many amendments to mitigationstandards in an effort to provide clarity and to simplify requirements. The current rulemaking does not significantlychange the mitigation hierarchy for a mitigation site, nor does it change the location of where mitigation may occur.Under the FWPA Rules, it has always been recognized that, in order to achieve the required equal functions and values,it may be necessary in certain cases to allow mitigation for impacts to include mitigation offsite within the samewatershed management area; the previous rules do not restrict mitigation to the same HUC-11 as the disturbance. Whilethe prior rules required a mitigator to first look to perform mitigation on sites within the same HUC-11 or adjacentHUC-11 in the same watershed management area as the disturbance when pursuing offsite mitigation, if that was notfeasible, mitigation could occur elsewhere in the same watershed management area. In practice, the Department foundthat the majority of mitigators could not find suitable sites within the same HUC-11 and, therefore, would performoffsite mitigation within the same watershed management area. By allowing the offsite mitigation site to be locatedwithin the same watershed management area rather than requiring applicants to first consider the same HUC-11 or anadjacent HUC-11, the Department is providing greater flexibility in locating a potential mitigation site that will providefor in-kind mitigation. HUC-11s and watershed management areas all drain into the same estuary. Therefore, the effectsand benefits to the estuary system as a whole are the same wherever the mitigation is performed, as long as it is in thesame watershed management area as the disturbance. As with any mitigation that is not performed at the site where the

49 N.J.R. 3849(a)

impact occurs, the site does experience a loss; however, the overall ecosystem benefits from the mitigation.

The requirement that the purchase of bank credits must be from a bank that includes the disturbance site in itsservice area similarly simplifies the mitigation process without sacrificing environmental benefits. Under N.J.A.C.7:7A-11.26(b)8, the service area of a mitigation bank must be designed to give priority to mitigation for impacts in thesame watershed management area as the proposed bank. The prior rules requirements for the mitigator to first considerthe purchase of credits from a bank in the same or adjacent HUC-11 as the site of the impacts led to the same issues asthe similar requirement for offsite mitigation; most mitigators could not find banks within the same HUC-11 and wouldend up purchasing credits from a bank in the same watershed management area as the impacts. When approving amitigation bank, the Department ensures that the service area is designed to provide mitigation that compensates for theloss of wetlands functions and values within a hydrologically connected service area.

The proposed rules still ensure that permitted impacts are properly mitigated. In accordance with N.J.A.C.7:7A-11.2(a), any mitigation must fully compensate for any ecological loss occurring as a result of the regulatedactivity. Mitigation must result in equal ecological functions and values as those lost, including surface and groundwaterquality benefits, habitat functions, and stormwater management functions. Further, the adopted rules ensure thatpermitted impacts are limited, even when mitigation is required. As explained in the Response to Comments 77 through85, stringent standards ensure that permitted activities do not significantly impact water quality near the site of theimpact, while, as explained in the Response to Comments 35 through 37, additional requirements ensure protection ofthreatened and endangered species and their habitats. Activities must be acceptable under these and other stringentrequirements to be permitted; mitigation is not a substitute for compliance with all applicable requirements of N.J.A.C.7:7A.

With reference to environmental justice concerns, the FWPA Rules minimize disturbance through the robustrequirements for activities in and near freshwater wetlands described in previous comments and responses. Whenapplying the mitigation hierarchies in N.J.A.C. 7:7A-11.9 and 11.10, mitigation located as close to the impacts aspossible is preferred.

447. COMMENT: Land donations should be a more preferred option in the mitigation hierarchy over monetarycontributions. Money contributions are not well tracked and are misused. (346)

[page=3915] RESPONSE: As explained in the notice of proposal Summary, the Department has determined thatland donation is the least favorable mitigation alternative, as it does not result in the creation, restoration, orenhancement of wetlands on the ground. The Department's In-Lieu Fee Program, which is administered by the NewJersey Wetlands Mitigation Council (Council), manages all monetary contributions received in accordance with theIn-Lieu Fee Instrument (http://www.nj.gov/dep/landuse/download/mit_040.pdf). This instrument is an agreement thatwas signed by the Department, the USEPA, and the Council. The ILF Instrument sets forth guidelines andresponsibilities for the establishment, use, operation, protection, monitoring, and maintenance of the ILF Program toensure the work associated with the ILF Program produces the necessary compensatory mitigation credits tocompensate for unavoidable impacts to waters of the United States, including wetlands, that result from activitiesauthorized under the FWPA, N.J.S.A.13:9B-1 et seq., FWPA rules, N.J.A.C. 7:7A, and CZM Rules, N.J.A.C. 7:7. TheILF Program will accomplish these objectives by creating, restoring, enhancing, and preserving in perpetuity bothfreshwater and coastal wetlands habitats throughout New Jersey within the ILF Program service area.

The Council has implemented and carried out to completion many projects throughout the State of New Jerseysince its inception in July 1988, and will continue to achieve no net loss of wetlands under this ILF Program.Historically, the Council has provided full compensation for all wetland impacts received through monetarycontributions. For example, at the time of implementation of the ILF instrument, the Council had accepted $7,653,760.17, which represents payments to compensate for 48.6755 acres of wetland impacts. The Council thenprovided funding to non-profits and governmental entities whose projects resulted in 643.40 acres of land preserved and355.84 acres of restored and enhanced wetlands for a total acreage of over 1,000 acres of mitigation completed. All

49 N.J.R. 3849(a)

Council-funded projects are required to meet the mitigation requirements in the FWPA Rules and CZM Rules, asapplicable. Therefore, as evidenced by the tracking of monetary contributions through the years and the Council'sdemonstrated success in facilitating mitigation, the indication that monetary contributions are poorly tracked andmisused is not accurate.

Requirements for Upland Preservation (N.J.A.C. 7:7A-11.13)

448. COMMENT: The Department is proposing to require transfer of ownership and the maintenance fund to thegovernment agency or charitable conservancy prior to Department sign off on the success of uplands preservation. TheDepartment states that these actions are needed to ensure the project will be successful in the long-term and, therefore,must occur prior to the Department declaring the mitigation has been successfully completed. However, acceptance ofmitigation lands by land stewards has become problematic. Many do not desire lands unless they are in a specificgeographic region. Many will not accept lands with the Department conservation restriction fearing onerous andperpetual management and maintenance responsibilities. Many agencies have declined fully approved and successfulmitigation lands, such as Green Acres, the Division of Fish and Wildlife, the New Jersey Conservation Foundation, andthe Ocean County Natural Land Trust Fund Program. Also, the Federal National Wildlife Refuge will not accept anylands encumbered by the Department conservation restriction. The requirement of land transfer prior to "sign-off" putsthe fate of mitigators in the hands of limited land stewards who are not party to or obligated by these regulations toaccept lands simply because these regulations target them as stewards. (335)

RESPONSE: A conservation restriction must be placed on all wetland mitigation projects and wetland mitigationbanks; without such protection, the Department cannot ensure that mitigated wetlands will be protected in perpetuity.The Department believes the placement of a conservation restriction on the land is critical to the long-term success ofthe project and, therefore, will not waive or lift a conservation restriction for a mitigation bank transferred to the Federalgovernment or other government agency. With no restrictions on the land, an agency could more readily sell theproperty and/or modify the land for other purposes that may not protect the wetlands.

As explained in the notice of proposal Summary, it is necessary to require the transfer of land prior to theDepartment declaring mitigation successful in order to ensure the long-term success (success in this case being thelong-term preservation of an upland area which supports the functions and values of adjacent wetlands) of themitigation. This requirement ensures the lost functions and values for which mitigation is required are properlycompensated for by the responsible party(ies) (see N.J.A.C. 7:7A-11.26(c)18). The Department anticipates thatmitigation bankers will seek suitable charitable conservancies to transfer the mitigation project as part of their planningto satisfy this condition of the mitigation banking process will before completion of the mitigation bankingrequirements.

449. COMMENT: The Department should add wetlands preservation as a mitigation alternative and establish amitigation ratio for wetlands preservation. (335)

450. COMMENT: Why is preservation a mitigation option for mitigation banks but not for other applicants? Whyare the owners of small properties with smaller disturbances precluded from deed restricting the remainder of thewetlands on their properties upon completion of regulated activities? The protection and preservation of wetlands isappropriate, and the Department should allow wetland preservation in those cases where no other mitigation options arefeasible. If the wetland area contains threatened or endangered species, preservation is the only option and shouldremain available. (415)

RESPONSE TO COMMENTS 449 AND 450: The Freshwater Wetlands Protection Act does not recognize wetlandpreservation as a mitigation alternative. However, upland preservation may serve as mitigation if such preservationwould assist or function as a component of a freshwater wetland ecosystem. Mitigation banks (as well as othermitigators) may provide mitigation through a land donation, which has the effect of preserving wetlands but alsoensuring that the land is stewarded by an appropriate entity; wetlands preservation that is not accomplished via land

49 N.J.R. 3849(a)

donation to an appropriate government agency or charitable conservancy is not an acceptable mitigation alternative.

Requirements for Credit Purchase from an Approved Mitigation Bank (N.J.A.C. 7:7A-11.14)

451. COMMENT: The definition of "credit purchase" states that "[o]nce a credit is applied to satisfy a mitigationobligation under this subchapter, it is exhausted and may not be sold or used again." Therefore, mitigation bankersshould not be allowed to resell credits from a wetlands area as riparian zone credits. Once sold, the credit is supposed tobe exhausted and should not be reincarnated as a different type of credit. Also, as N.J.A.C. 7:7A-11.2(m) says thatmitigation cannot be used to satisfy a different provision unless it actually satisfies that provision, mitigation bankersthat did not take any action to create riparian zone credits should not be given additional credits since no action wastaken to also meet the requirements of this subchapter. (415)

RESPONSE: Mitigation bankers are not reselling credits in the scenario described by the commenter. Riparian zonecredits are established on a bank site in accordance with the FHACA Rules, N.J.A.C. 7:13, with any credits establishedmeeting the requirements of that chapter. When either wetland or riparian zone credits are sold, they are exhausted andare not resold again. However, sale of a wetland credit does not exhaust or otherwise impact a riparian zone creditestablished in accordance with the FHACA Rules. Similarly, sale of a riparian zone credit does not impact a wetlandcredit established under these rules by a mitigation banker. Mitigation bankers have undertaken actions to establishriparian zone credits in accordance with the appropriate regulations and it is, therefore, appropriate to establish riparianzone credits at the banks.

Requirements for a Land Donation (N.J.A.C. 7:7A-11.15)

452. COMMENT: No single family will have five acres available for a land donation, so N.J.A.C. 7:7A-11.15(d)1unfairly discriminates against smaller property owners who are likely to have smaller wetland impacts. (415)

RESPONSE: It is not the Department's intent to discriminate against single family homes. A land donation is verylow in the mitigation hierarchy and it is very unlikely that a single-family homeowner would [page=3916] reach thisoption in the hierarchy or wish to satisfy a mitigation obligation with this option. Most single-family homeowners areable to either conduct their own mitigation on site or will purchase credits from a bank or make an In-Lieu Feecontribution to the Mitigation Council, which are all more conducive to the very small impacts usually associated withactivities at single-family home properties.

453. COMMENT: The Department should establish its own entity to accept donated land parcels since theseparcels, although valuable, will likely be too small and too scattered for non-profit entities to accept. (415)

RESPONSE: The Department has the ability to accept donated land parcels through the Green Acres Program.However, when determining if a parcel should be accepted, the Department reviews ecological characteristics of theproposed parcel for donation, as well as their proximity to existing State holdings.

Requirements for a Monetary Contribution to the Department's In-Lieu Fee Program (N.J.A.C. 7:7A-11.16)

454. COMMENT: Under the proposed rules, for single family property owners, the amount of monetarycontribution is the acreage of wetlands/State open water impacts multiplied by $ 42,300, adjusted periodically using theConsumer Price Index for Urban Consumers (CPI) published by the U.S. Department of Labor. This is the sameprocedure in the existing rules, with the dollar amount adjusted using the CPI for 2016. For property owners that are notsingle-family property owners, the monetary contribution is the acreage of wetlands/State open water impactsmultiplied by a greater dollar amount, also adjusted periodically. "Periodically" is not a reliable adjustment period andleaves the adjustment subject to a when and if basis. Because the single-family homeowner monetary contributions areproposed to be adjusted periodically, rather than annually, these adjustments may not occur, especially without aspecific person or department responsible for this task. The adjustment should be automatic and annual regardless of

49 N.J.R. 3849(a)

value change. (335)

RESPONSE: As set forth at N.J.A.C. 7A-11.16(f), the Department will update the codified monetary contributionamount when the Consumer Price Index adjustment either solely or cumulatively since the last adjustment results in achange of $ 500.00 or more above the currently codified amount. While this will not necessarily result in adjustment onan annual basis in years where the Consumer Price Index change is small, the Department believes this thresholdprovides a reasonable, efficient basis for making the change.

455. COMMENT: In the notice of proposal Summary, the Department describes how the Wetlands MitigationCouncil has leveraged monetary contributions to achieve mitigation projects with wetlands benefits and functionsproduced that exceed the necessary amounts for the disturbance that the monetary contributions offset. Thedemonstration of the Council producing mitigation far in excess of those necessary is debatable. At least one majormitigation project on the ILF tabulation (9.5 credits of 141 reported to have been created) has not been built sincefunded six years ago. Additionally, this project is currently designed to deliver less mitigation than approved six yearsago. By comparison, private sector mitigation banking has occurred in the State since the 1990s. However, not one bankhas been awarded more or excess mitigation credits compared to its implementing authorities, such as Resolutions orMitigation Banking Instruments. (335)

RESPONSE: Because the Council has been able to leverage monetary contributions, the Council has been able toestablish, through wetland restoration, creation, or enhancement, more acreage (credits) than the permitted impacts forwhich monetary contributions were provided. The number of credits that the Council has established was determinedusing the ratios established by these rules. In regard to the specific project that the commenter references, the project iscurrently designed to fully satisfy the requirements set forth by the Council at the time of its approval. This projectrepresents less than one percent of the overall credits established by the Council, far less than the 10 percent that wouldbe afforded to a private banker for completing the administrative aspects of a mitigation bank. Specifically, under theserules, a private banker would receive 10 percent of the total number of credits for compliance with all pre-release creditsale conditions. New Jersey's ILF program has not been awarded more or excess mitigation credits than they havecompleted or are about to complete.

456. COMMENT: Under the proposed rules, the Council will consider cost estimates submitted by the applicantand the Department, information obtained from experts in the field of mitigation, and any other information available tothe Council in determining the costs of mitigation to determine the amount of a monetary contribution. This requirementwill provide advanced notice to Council members, so they may make a thorough review. Will Council members beallotted 30 to 60 days advanced notice? Will Council members be provided design plans and data for review as far inadvance as the Department is provided same data? (335)

RESPONSE: The Wetland Mitigation Council will be provided the same information that the Department receivesin the applicant's mitigation proposal. The Council will receive the information as soon as it has been reviewed by theDepartment and is ready for Council review. This will be no later than two weeks prior to the scheduled Councilmeeting.

Financial Assurance for Mitigation Projects; General Provisions (N.J.A.C. 7:7A-11.17)

457. COMMENT: Although financial assurance is an acceptable concept, all types of financial assurance listed atN.J.A.C. 7:7A-11.17(d) have an associated cost that will likely be passed on to the applicant or, in the case of amitigation bank, added to the price of credits. What are the specific charges to an applicant for each type of assurance?The costs of these assurances should have been included in the Economic Impact statement since they will affect thecost of mitigation, which affects the cost of development. (415)

RESPONSE: The Economic Impact statement discusses the economic impacts both positive and negative forproposed new amendments. The requirement for financial assurance is not a new requirement, therefore, was not

49 N.J.R. 3849(a)

included in the economic analysis. The costs for an applicant to provide financial assurance remains unchanged.

New Jersey In-Lieu Fee Mitigation Program (N.J.A.C. 7:7A-11.23)

458. COMMENT: Regardless of the USEPA's approval, the Department's in-lieu fee program does not meetFederal requirements as the USACE will not allow it to be used for impacts associated with Federal permits. (415)

459. COMMENT: The money coming into the Department through the In-Lieu Fee (ILF) Program is opposed.(327)

460. COMMENT: The concept of in-lieu fee payments is opposed. An in-lieu fee payment can quickly become apayoff to allow projects to proceed regardless of the law. (346)

RESPONSE TO COMMENTS 458 THROUGH 460: In accordance with the Freshwater Wetlands Protection Act,the Wetland Mitigation Council is the only entity in New Jersey that may collect and disburse funds under the FWPARules. The adopted changes incorporate provisions from the ILF Program Instrument approved by the USEPA in June2015. This ILF Instrument represents an agreement entered into by the Department, the USEPA, and the WetlandsMitigation Council concerning the operation, responsibilities, and goals of the ILF Program. The ILF Program enablesthose responsible for mitigation under the FWPA Rules to fulfill their mitigation obligation through a monetarycontribution to the ILF Program. Those monetary contributions are then distributed by the Wetlands Mitigation Council(as the ILF Program Administrator) to fund mitigation in designated service areas across the State.

USEPA approval of the ILF Program Instrument documents the Federal agency's agreement that the ILF Programis consistent with Federal regulations. The USACE could sign on to the ILF Program Instrument and allow theDepartment's ILF Program to be used for impacts associated with Federal permits, but this has not yet occurred. TheUSACE's decision on whether to sign onto the ILF Program Instrument is not indicative of whether the ILF Programmeets Federal requirements; as explained previously, the Department has assumed freshwater wetlands permittingauthority from the Federal government and, per the USEPA's approval of the Department's ILF Program, has[page=3917] established in-lieu fee mitigation requirements at least as stringent as Federal requirements.

In addition, as stated in the Response to Comment 449, funds deposited with the ILF Program are tracked and haveproven to be successful in creating, restoring, enhancing, and preserving (through land donations) wetlands. Thoseprojects that receive approval by the Council to receive funding meet all the standards and requirements of the FWPARules.

Finally, ILF funds are not received by the Department, but are paid to the ILF Program, which is administered bythe Wetland Mitigation Council. While the Department is a signatory to the In-Lieu Fee Instrument, the Council is anindependent body which is comprised of seven members appointed by the Governor with the advice and consent of theSenate.

New Jersey In-Lieu Fee Mitigation Program Grant Funding Procedures (N.J.A.C. 7:7A-11.24)

461. COMMENT: The Wetland Mitigation Council should not be able to distribute funds at any time. Alleged"charities" should not be supported by tax dollars but should be supported by donations. The Council will act against thecitizens of New Jersey in order to gain access to taxpayer dollars. In addition, the Council works with the Department tokeep information and knowledge of what is going on from the public. (346)

RESPONSE: The FWPA at N.J.S.A. 13:9B-14 establishes the Wetland Mitigation Council (Council). The Council,as required by the FWPA, is comprised of seven members: the Commissioner of the Department, who serves ex officio;and six members of the general public appointed by the Governor with the advice and consent of the Senate, two ofwhom are recommended by recognized building and development organizations; two of whom are recommended byrecognized environmental and conservation organizations; and two of whom are recommended from institutions of

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higher learning in the State.

The Council is not supported by taxpayer money; rather, the money that the Council receives representscompensation for unmitigated wetland loss. Section 15 of the FWPA, N.J.S.A. 13:9B-15, states that the Council isresponsible for disbursements of funds from the Wetlands Mitigation Bank to finance mitigation projects. Specifically,the Wetland Mitigation Council, in consultation with the USEPA, may transfer any funds or lands restricted by deed,easement, or other appropriate means for mitigation and freshwater wetlands conservation purposes, to a State orFederal conservation agency that consents to the transfer, to expand or provide for: freshwater wetlands preserves;transition areas around existing freshwater wetlands to preserve freshwater wetland quality; future mitigation sites forfreshwater wetlands enhancement, restoration, or other mitigation efforts, or research to enhance the practice ofmitigation. The Council's duties are further enunciated in N.J.A.C. 7:7A-11.22, which sets forth that the Council's dutiesand functions include the review of: proposed monetary contributions, proposed land donations, advising theDepartment on mitigation issues; buying land in order to conduct mitigation, or to preserve wetlands, transition areas,uplands, and/or State open waters; contracting with a charitable conservancy or appropriate agency to carry out itsresponsibilities; conducting research to monitor the success of mitigation as part of a Council-funded and approvedcreation, restoration, or enhancement project; enhancing or restoring wetlands on public lands; and disbursing fundsfrom the Wetland Mitigation Fund to finance the activities listed above. To carry out these functions, the Council maycontract with a government agency, nonprofit organization, or other appropriate agency to carry out its responsibilities.

All monetary contributions received by the Council are held at a financial institution that is a member of theFederal Deposit Insurance Corporation. All interest accruing from the account will be used to fund projects to providecompensatory mitigation for impacts to wetlands authorized by Department permits. Monetary contributions paid mayonly be used for the restoration, creation, enhancement, or preservation of wetlands and associated buffers. Specifically,funds may be used for the selection, design, land acquisition (that is, appraisals, surveys, title insurance, etc.),implementation, and management of compensatory mitigation projects. This may include fees associated with securinga permit for conducting mitigation activities, activities related to restoration, enhancement, creation, and/or preservationof wetlands and associated buffers, maintenance and monitoring of mitigation sites, or any other fee related to themitigation process contemplated by the Council.

The Council currently operates under an approved In-Lieu Fee Instrument, which requires that any future projectsapproved by the Council must meet the requirements and procedures of the In-Lieu Fee Instrument. Under the In-LieuFee Program, the Council must put out a request for proposals in order to receive potential applications to fund. Oncethe request for proposal has closed, the Council will meet and review the proposed project during their regularlyscheduled public meetings. The Council typically meets six times per year, and all meetings are announced throughnotification to newspapers, a listserv, and the Department's webpage. In addition, all meetings are open to the public andpublic comment is taken into consideration on all decisions by the Council.

462. COMMENT: As established by proposed N.J.A.C. 7:7A-11.23(e), the Council will disburse mitigation funddollars for ILF projects within primary and secondary service areas of the State. The primary service area will be theservice area where the impact occurs and for which the monetary contribution is collected, and is the preferred locationfor mitigation to occur. The secondary service area will be the adjacent water region where the impact may be mitigatedfor if, after three years, there are no credits available within the primary service area. When a monetary contribution hasbeen collected and cannot be assigned to an approved project within the primary service area after three years, theProgram Administrator shall utilize a secondary service area in order to provide compensation. Why is the State Bankafforded different and larger service areas than private sector mitigation banks? Federal Mitigation Rules requiremitigation banks and ILF programs to be treated equitably. (335)

RESPONSE: The commenter is correct; the Federal government does require mitigation banks and ILF programs tobe treated equitably. In addition, under the 2008 Compensatory Mitigation Rules, the hierarchy prefers the use of ILFand banking over permittee-responsible mitigation. These rules, however, do not preclude the use of permitteeresponsible mitigation. As an assumed program, New Jersey must remain as stringent as the Federal government when

49 N.J.R. 3849(a)

administering its wetland program. In New Jersey, the Department has established a hierarchy that, for larger sites, hasbanking higher in the hierarchy than the ILF. If an applicant has been approved to make a monetary contribution, thenthe applicant has demonstrated to the Department that there are no feasible mitigation alternatives within the WatershedManagement Area where the impact occurs, including credit purchase from a bank with a service area that includes thesite of the impacts. The ILF Program's service area is larger than a typical mitigation bank service area in recognition ofthe fact that the mitigator has already demonstrated that onsite mitigation, offsite mitigation, and bank credit purchaseare not feasible options. While the ILF Program's service area is typically larger than a mitigation bank's service area,the rules do allow for a mitigation banker to make an ecological argument that a larger service area will provide equalfunctions and values to the impacts that the bank is servicing (see N.J.A.C. 7:7A-11.26(c)8).

Mitigation Banks (N.J.A.C. 7:7A-11.25 and 11.26)

463. COMMENT: Mitigation banks should never be used. It is far too easy to criminalize their operations (346).

464. COMMENT: Wetland mitigation banks should not be allowed. Most wetland banks in New Jersey have failed.(240 and 415)

RESPONSE TO COMMENTS 463 AND 464: The practice of compensatory mitigation and mitigation banks is anationally recognized strategy for offsetting lost ecological functions and is supported by Federal guidelines released bythe USEPA and USACE. Additionally, New Jersey's 19 approved wetlands mitigation banks serving 19 of the 20watershed management areas throughout the State are an example of success in implementing this strategy.

465. COMMENT: The credit release schedule is too stringent and is curtailing mitigation banking in the State. TheState protects credit releases as if the credits were immediately sold and used as mitigation; [page=3918] review ofbanking in New Jersey indicates this is hardly ever the case. A banker implements a mitigation project and delivers allmitigation value immediately. Over a projected five-year period, credits are released based on performance. However,this process actually takes almost seven years considering the build year and the last year inspection. A bankingcompany has eight operating banks in the State containing 129 credits, enough mitigation to compensate for 129 acresof impact. However, fewer than 25 percent of these credits have been used as mitigation over an 11-year period. Thisdemonstrates that the private mitigation banking sector is providing advanced mitigation to the State well in advanceand in excess of need. Holding 25 percent of the credits until year five, really closer to year seven, is unnecessary,stifling advanced mitigation and punitive. The State retains tremendous control over the bank via bonds and permitapproval to use any credits, without having to hold 25 percent for seven years. A 10 percent release upon constructioncompletion (aka hydrologic regime establishment) is too low. As there are already a number of protective measures inplace, including maintenance bonds, performance bonds, and the fact that any mitigation bank can be shut down at anypoint, this additional protective measure goes one step too far. Please add a section whereby mitigation banks can bereassessed in year five to include more credits than in the implementing mitigation banking instrument, if performancemetrics exceed those stipulated in the mitigation banking instrument. (335)

RESPONSE: Unlike permittee-constructed mitigation for a single project, a mitigation bank is a mitigationalternative where mitigation is provided for multiple types of wetland impacts associated with multiple projects formultiple permittees at a single site. Generally, other mitigation projects compensate for impacts associated with a singledisturbance and are typically smaller and, therefore, easier to remedy should the mitigation begin to fail. Becausemitigation banks are larger in size and represent multiple impacts from multiple permittees, if a mitigation bank were tofail, there is a greater loss to the environment than a smaller permittee responsible mitigation project. Failure of thebank means that compliance with the FWPA Rules and compensation for the losses associated with many permittedactivities may not occur within a timely manner. Therefore, it is necessary for the Department to hold credits in reserveto ensure that the mitigation bank is successfully meeting certain milestones and compensating for the impacts forwhich mitigation is required.

466. COMMENT: The proposed rules require that a banker transfers a mitigation bank site in fee simple to a

49 N.J.R. 3849(a)

government agency or Department-approved charitable conservancy. What are the approval criteria for a charitableconservancy? Does the Department have a list of approved charitable conservancies? (335)

RESPONSE: As indicated in the definitions at N.J.A.C. 7:7A-1.3, a charitable conservancy is a corporation or trustthat meets the definition of a charitable conservancy at N.J.S.A. 13:8B-2. In accordance with the statutory definition, acharitable conservancy is a corporation or trust whose purposes include the acquisition and preservation of land or waterareas or of a particular land or water area, or either thereof, in a natural, scenic, or open condition, no part of the netearnings of which insures to the benefit of any private shareholder or individual, and which has received tax exemptionunder section 501(c) of the 1954 Internal Revenue Code. The Department does not maintain a list of all the potentialcharitable conservancies that would qualify to receive a transfer of a mitigation bank. If a charitable conservancy meetsthe statutory definition, then it is eligible to receive a transfer of a mitigation bank.

467. COMMENT: Preservation credits should not be released prematurely because doing so provides a disincentivefor a banker to complete the more difficult aspects of the mitigation bank project. Preservation credits should beapportioned with the release of other credits to ensure that the entire bank is completed. (415)

RESPONSE: N.J.A.C. 7:7A-11.25(f) states that preservation credits may be released in their entirety when theconditions set forth at recodified N.J.A.C. 7:7A-11.25(e)1 are met. All credits will be released upon completion of thefollowing: signing of the banking instrument approving the bank; and compliance with all pre-release credit saleconditions in the banking instrument approving the bank, including securing all construction permits, posting adequateand effective financial assurance, and filing the conservation restriction. This is appropriate, since once all thepre-release credit sale conditions are completed, the preservation component of the mitigation bank has alreadyachieved success and does not have to be monitored further. Therefore, there is no reason to withhold credit releasebased on success criteria. A banker is obligated under N.J.A.C. 7:7A-11.25(c) to carry out all requirements of thebanking instrument approving the bank, regardless of whether or when credits are sold. Construction of the wetlandcreation, enhancement, or restoration components of an approved mitigation bank must be initiated no later than oneyear after the date of the first credit transaction. For these aspects of the mitigation bank, credits are not released untilperformance standards have been met and are only released in accordance with the credit release schedule at N.J.A.C.7:7A-11.25(e)1.

468. COMMENT: Why are credits for preservation not included at N.J.A.C. 7:7A-11.26(b)3? (415)

RESPONSE: The list of potential mitigation alternatives at N.J.A.C. 7:7A-11.26(b)3 is not intended to beall-inclusive. Instead, similar to the prior rules at N.J.A.C. 7:7A-15.25(a)3, the three most common mitigationalternatives are listed as examples of the alternatives that may be considered; preservation mitigation is one of themitigation alternatives allowed by the rules and accordingly would be one of the options allowed under this paragraph.

469. COMMENT: The rules should be amended to indicate that the Department must respond within 60 days of thesubmittal of a monitoring report for a mitigation project. (335)

RESPONSE: It is not appropriate to conduct a site inspection without the monitoring report as the purpose of thesite inspection is to confirm the findings of the monitoring report. Most monitoring reports are submitted in Decemberand January. In most cases, Department review of a monitoring report includes a visit to the mitigation site. Due to thetiming of the submission, it is not always feasible or practical to conduct the site inspection during the winter months,resulting in a delay in completing the review that may extend beyond the 60-day period suggested by the commenter.

N.J.A.C. 7:7A-12, Conservation Restrictions

Conservation Restriction Form and Recording Requirements (N.J.A.C. 7:7A-12.1)

470. COMMENT: N.J.A.C. 7:7A-12.1(f) is not accurate. The Wetlands Mitigation Council is not involved in

49 N.J.R. 3849(a)

approving wetland mitigation banks. (415)

RESPONSE: While the Wetlands Mitigation Council is not involved in the review of mitigation bank plans or draftinstruments, the Council is the authority responsible for approving land donations. Therefore, land donation mitigationbanks must be approved by the Council, including the conservation restriction recorded to ensure the protection of thedonated land in perpetuity. Adopted N.J.A.C. 7:7A-12.1(f) correctly identifies the potential scope of the Council'sinvolvement in activities requiring a conservation restriction.

Property Owners' Reservation of Rights (N.J.A.C. 7:7A-12.2)

471. COMMENT: New N.J.A.C. 7:7A-12.2, which allows the property owner or grantor to reserve the right toabandon a project at any time prior to the start of site disturbance and receive an executed release of the conservationrestriction to be recorded by the permittee or grantor is supported. (255)


472. COMMENT: The amendments regarding the timing procedures for recording conservation restrictions atN.J.A.C. 7:7A-12.2 are supported because applicants will be able to make de minimis changes. However, clarification isneeded as to whether the proposed changes will be retroactive to apply to all previously recorded conservationrestrictions to allow for de minimis changes to be made to them. (140 and 262)

RESPONSE: The adopted provision will apply to all new conservation restrictions recorded under this chapter.Prior N.J.A.C. 7:7A-2.12(i) also allowed for de minimis modification of a recorded conservation restriction with slightlydifferent process requirements, but under prior N.J.A.C. 7:7A-2.12(j), the recorded conservation restriction [page=3919]itself was required to include language allowing for a modification for this provision to apply. The ability to make deminimis changes will, therefore, not retroactively apply to previously-recorded conservation restrictions that do notcontain language specifically reserving the ability to make de minimis changes.

473. COMMENT: The Department should include a clause in the required conservation restriction form thatrecognizes amended N.J.A.C. 7:7A-12.2(b), which allows for release of the conservation restriction if construction hasnot commenced. (140 and 262)

RESPONSE: The Department has added this language to the approved conservation restriction form available onits website or by contacting the Department at the address set forth in adopted N.J.A.C. 7:7A-1.4.

474. COMMENT: With regard to N.J.A.C. 7:7A-12.2(b), how should applicants demonstrate a project has beenabandoned? Is a letter to that effect sufficient? (140)

RESPONSE: An applicant needs to submit a letter informing the Department that a project has been abandoned.The applicant must also state in such as letter that they relinquish and abandon all permits issued in connection with theproject. Upon the Department's confirmation that no regulated activities (including pre-construction earth movementand vegetation removal) have occurred, the Department will provide an executed release of the conservation restrictionto the permittee or grantor.

475. COMMENT: While proposed amendments to the "right to abandon" provision in N.J.A.C. 7:7A-12.2(b), are apositive step, further amendments are needed to establish that if a conservation restriction is recorded, the approvalshould remain valid in perpetuity unless the activity would not be allowed due to new regulations. Where theDepartment receives the benefit of the conservation restriction and the affected property owner's land is made subject tothe limitations imposed by the conservation restriction in perpetuity, the owner should likewise have perpetual rightsunder the approval. (140)

476. COMMENT: The proposed rules do not address the inconsistent position that a deed restriction is valid in

49 N.J.R. 3849(a)

perpetuity while a transition area waiver is only valid for five years with the potential for one five-year extension. If noactivities have commenced within five years, there should be a provision in the conservation restriction that it beremoved. Alternatively, the transition area waiver should be valid as long as the conservation restriction is in effect.(140 and 262)

RESPONSE TO COMMENTS 475 AND 476: Most permits, including transition area waivers, are valid for fiveyears, with the possibility for one five-year extension. Site conditions, regulations, and laws may change over time, suchthat the activity formerly approved may not be "approvable" in perpetuity. The Department establishes set permitdurations and extension requirements that allow for delays in project commencement while remaining protective offreshwater wetlands, transition areas, and State open waters. Allowing regulated activities to occur well beyond the dateof issuance of the permit without Department confirmation of site conditions is not appropriate. Because the landownerhas the ability to abandon the project before any site disturbance occurs, and may make de minimis changes to arecorded conservation restriction, the Department does not believe that allowing permits to remain valid in perpetuity isnecessary to respect the property owner's rights. The recorded conservation restriction, combined with the permit andLOI recording requirements, ensure that current and future property owners are aware of the regulatory history of theproperty. Furthermore, applicants and property owners can ask the Department to release the conservation restriction inthe event that a permit is issued and expires before any regulated activities have occurred.

N.J.A.C. 7:7A Appendix 1

477. COMMENT: The proposed updates to N.J.A.C. 7:7A Appendix 1 are supported because they serve to moreaccurately identify those areas that meet the definition of vernal habitat. (277)


478. COMMENT: The notice of proposal Summary states that "[f]acultative species are those that use vernalhabitats, but not exclusively, and, therefore, the Department requires the presence of two or more of these species forvernal habitat documentation," but then states, in reference to the two addition turtle species added to N.J.A.C. 7:7AAppendix 1, that "[t]he Department will not determine a vernal habitat is present by only observing the presence ofturtle species, so the addition of the Eastern Box Turtle and Eastern Musk Turtle will have very minor effects."Facultative species include several turtle species, with two more proposed to be added. Does the Department intend tomodify the vernal habitat facultative species criteria such that the presence of two facultative turtle species is notenough to classify a wetland as a vernal habitat? (409)

RESPONSE: The apparent contradiction identified by the commenter was not intended. The second sentence in thenotice of proposal Summary should have read (addition to Summary text in bold): "The Department will not determinea vernal habitat is present by only observing the presence of one of the additional turtle species ..." The first sentencereferred to by the commenter remains an accurate description of the criteria for classifying a vernal habitat. Thepresence of any two or more facultative species can result in the Department classifying a wetland as a vernal habitat, aslong as the other necessary criteria are met. Because the presence of either one of the added turtle species is not enoughby itself to lead to an area's classification as a vernal habitat, the Department still anticipates very minor effects from theaddition of the two turtle species.

Flood Hazard Area Control Act Rules, N.J.A.C. 7:13

General

479. COMMENT: The rulemaking represents rollbacks in flood hazard rules. (173)

RESPONSE: The only amendments proposed to the FHACA Rules under this rulemaking are amendments togeneral permit 1 to reflect the January 11, 2016, amendments to the Stream Cleaning Act, N.J.S.A. 58:16A-67,

49 N.J.R. 3849(a)

effectuated by P.L. 2015, c. 210, and amendments to notice requirements for sediment removal projects, which areidentical to amendments made in the FWPA Rules. These amendments do not roll back any protective requirement inthe FHACA Rules and, in the case of amendments to general permit 1, are required to effectuate the Legislature's intentin N.J.S.A. 58:16A-67.

N.J.A.C. 7:13-9.1, General Permit 1

480. COMMENT: The amendments to N.J.A.C. 7:13-9.1(a)7i, ii, and iii, which provide greater flexibility for localgovernment sediment removal projects, are supported. (255)


Impact Statements

Economic Impact

481. COMMENT: The proposed rules will have a negative impact on the economy of New Jersey (346).

RESPONSE: The Department has concluded that the adopted amendments, repeals, and new rules will have agenerally positive impact on the economy of the State while minimizing adverse impacts to the functions and values offreshwater wetlands and State open waters. As explained in the Economic Impact statement, the Department expects theimplementation of the proposed rules to reduce time and expense spent on preparing, submitting, and reviewing apermit application for regulated activities in freshwater wetlands, State open waters, and transition areas, which willreduce the cost of preparing a complete application. The alignment of land use rules will streamline the permittingprocess by creating consistency between land use programs and will be especially beneficial in cases where more thanone type of permit is required for a regulated activity. Changes to the mitigation rules will allow flexibility, which willincrease compliance and reduce the cost of mitigation and enforcement.

482. COMMENT: The elimination of the $ 500.00 fee for the transfer of a permit when ownership of a sitechanges, discussed in the Economic Impact statement as having a minor positive economic impact, is opposed. (346).

RESPONSE: The review of a request to transfer a permit does not involve sufficient time or resources to warrant a$ 500.00 fee. The [page=3920] FHACA Rules and CZM Rules do not charge a fee for a permit transfer. In order toensure consistency between the three land use rule chapters and to ensure the fees charges are commensurate with thestaff time and resources needed to review an application, the Department has determined that it is appropriate toeliminate the $ 500.00 fee.

Jobs Impact

483. COMMENT: Only lawyers will receive business as a result of the proposed rule changes. The people of NewJersey will not see any jobs benefits. (346)

RESPONSE: The Department concluded, in the Jobs Impact statement in the notice of proposal, that theamendments, repeals, and new rules presently adopted will not have a significant impact on jobs. The adopted changesare intended to align the FWPA, CZM, and FHACA Rules while simplifying language and processes. The Departmentdoes not anticipate any significant increase or decrease in the numbers of jobs for lawyers or any other profession as aresult of this rulemaking.

Agriculture Industry Impact

484. COMMENT: The agricultural changes proposed will negatively impact the environment. The proposedchanges allow profiteering by the agricultural community. (346)

49 N.J.R. 3849(a)

RESPONSE: The adopted amendments relating to agriculture are adopted to reflect the Legislative amendments tothe FWPA made by P.L. 2014, c. 89, and P.L. 2015, c. 272. The amendments exempting certain temporary farmstructures will not negatively impact the environment. These structures, such as hoophouses and polyhouses, are veryminor, temporary, and involve no permanent footings or other disturbance. These activities are only exempt withinestablished, ongoing agricultural operations that were actively cultivated on or before July 1, 1988. The amendmentsthat exempt activities considered normal maintenance of cranberry bogs and blueberry fields and activities consideredrenewal or rehabilitation of cranberry bogs will have similarly minor impacts. Again, the activities exempted are onlyexempt on land that is in established, ongoing agricultural use, and has been since July 1, 1988. There will be no newdisturbance to wetlands as a result of the amendments related to agricultural exemptions.

Regulatory Flexibility Analysis

485. COMMENT: There is no flexibility in the flexibility analysis (346).

RESPONSE: The Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., directs New Jersey agencies developingand proposing a rule for adoption to "utilize approaches which will accomplish the objectives of applicable statuteswhile minimizing any adverse economic impact of the proposed rule on small businesses of different types and ofdiffering sizes." The Regulatory Flexibility Act provides examples of such approaches including establishing differentrequirements to take into account the resources available to small businesses, using performance (rather than design)standards, and exempting small businesses from rule provisions provided public health, safety, or general welfare is notendangered. N.J.S.A. 52:14B-19 requires that a notice of proposal of rules that impose reporting, recordkeeping, orother compliance requirements on small businesses include a regulatory flexibility analysis that describes methods usedto minimize any adverse economic impact on small businesses. A small business is any business that is resident in NewJersey, independently owned and operated, and not dominant in its field, which employs fewer than 100 full-timeemployees. As explained in the Regulatory Flexibility Analysis in the notice of proposal, a number of contractors,builders, and property owners affected by amendments, repeals, and new rules adopted herein are small businessesaccording to this definition. The adopted rules apply to any entity owning property containing freshwater wetlands,transition areas, and/or State open waters, intending to engage in a regulated activity. These rules will have the sameimpact on a small business in any industry as they will on any person or entity proposing such activities in freshwaterwetlands, transition areas, and/or State open waters. Since the amendments and new rules are the minimum necessary toprotect public health and safety and the environment, adopting differing standards applicable to small businesses isneither appropriate nor sufficiently protective of the residents of New Jersey from the deleterious impacts of damage tofreshwater wetlands, transition areas, and/or State open waters.

Smart Growth

486. COMMENT: The proposed rule allows for overdevelopment, not smart growth. (346)

487. COMMENT: Redeveloping previously-developed areas is preferable to allowing development in wetlands.The rules should not be weakened to allow for new development in wetlands that destroys natural resources. (88, 175,213, and 238)

RESPONSE TO COMMENTS 486 AND 487: The FWPA Rules, as amended herein, contain detailed procedures,standards, and criteria for development within freshwater wetlands, wetland transition areas, and State open watersthroughout the State. The adopted rules are consistent with the law and policy of New Jersey to promote smart growthand to reduce the negative effects of sprawl and disinvestment in older communities. A specific general permit (generalpermit 26 at N.J.A.C. 7:7A-7.26) and a special activity transition area waiver (at N.J.A.C. 7:7A-8.3(f)) promoteredevelopment of existing developed sites to minimize sprawl and encroachment of development on currentlyundeveloped sites. The general permit for redevelopment has been amended to add that the area on which a project isproposed must be identified as an area of redevelopment by the municipality and formally designated as such by theNew Jersey Department of Community Affairs to ensure appropriate use of this general permit and to facilitate

49 N.J.R. 3849(a)

high-priority redevelopment projects.

The adopted rules promote State Plan General Policy 4, Prevention of Water Pollution. Wetlands protect andpreserve drinking water supplies, purify surface and groundwater resources, provide a natural means of flood and stormdamage protection, reduce flooding, and provide essential breeding, spawning, nesting and wintering habitats for fishand wildlife, including migratory birds, endangered and threatened species, and commercially and recreationallyimportant species. The regulatory framework in the FWPA Rules ensures that developments are constructed to avoidrandom, unnecessary, or undesirable alteration or disturbance to wetlands, transition areas, and State open waters.

The State Plan policy also identifies the protection and enhancement of water resources through coordinatedplanning efforts aimed at reducing sources of pollution and other adverse effects of development, encouraging designsin hazard-free areas that will protect the natural function of stream and wetland systems, and optimizing sustainableresource use. The rules contain provisions to achieve this State Plan policy, including stringent limitations onencroachment into wetlands, State open waters, and wetland transition areas, which result in protecting water qualityand often reducing the size and impacts of development.

The adopted rules further advance the State's smart growth policies by providing clear standards and guidance tothe regulated public. Many of the amendments adopted are intended to align the language, processes, and requirementsof the FWPA Rules with the CZM and FHACA Rules as much as enabling statutes allow to create a consistent,predictable, and efficient permitting process. In addition, the incorporation of electronic application processes forseveral permits and Letters of Interpretation leverages technology to expedite the review and approval process.

Summary of Agency-Initiated Changes:

The Department is modifying the rules on adoption to make the changes below:

1. Various cross-references to the FWPA Rules in the CZM Rules are impacted by the adopted recodifications. TheDepartment is making changes to correct recodifications in the following CZM Rule provisions: N.J.A.C. 7:7-9.27(a)4and (b)1, 17.11(f)1 and (g), and 17.14(c)1 and 2 and (d).

2. The Department is changing N.J.A.C. 7:7A-1.1(d) on adoption to replace the word "chapter" with the word"section" to correctly identify the scope of this provision. As indicated in the notice of proposal Summary at 49 N.J.R.842, this provision was intended to be relocated from N.J.A.C. 7:7A-1.6(c) with no change in text.

[page=3921] 3. Although not proposed for amendment, the definition of "Best Management Practices" at recodifiedN.J.A.C. 7:7A-1.3 contains an outdated reference to the "Department's Technical Manual for Stream Encroachment."To reflect the FHACA Rules technical manual and maintain consistency with the FHACA Rules, the outdated referenceis replaced with a reference to the Department's "Flood Hazard Area Technical Manual." The Department is additionallychanging this definition to reflect the current heading of the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13.

4. The definition of "individual permit" is changed on adoption to change the term "alternatives test" to"alternatives analysis" to create consistency with the requirements for individual permits at N.J.A.C. 7:7A-10.2, whichrequires an "analysis of alternatives."

5. The definition of "project" is changed on adoption to correct the term "right of ways" to "rights-of-way."

6. The Department is deleting the phrase "or easement" from recodified N.J.A.C. 7:7A-2.3(b) for consistency withchanges made throughout the chapter and with the adopted definition of "conservation restriction," which has beenamended from the previous definition of "conservation restriction or easement" to eliminate reference to "or easement"since easements are included within the definition (see 49 N.J.R. 843).

7. General permit 15 authorizes mosquito control activities in freshwater wetlands, transition areas, and State open

49 N.J.R. 3849(a)

waters. These activities are subject to specific public notice requirements contained within the permit, and not to thenotice requirements for other general permits. N.J.A.C. 7:7A-7.15(f) explains these public notice requirements. TheDepartment is correcting the citation to the public notice subchapter from "N.J.A.C. 7:7A-10.17" to "N.J.A.C. 7:7A-17"in this subsection.

8. Proposed N.J.A.C. 7:7A-8.1(e)2i inadvertently deleted language essential to understanding the provision. Onadoption, the phrase "was recorded" is not deleted; the phrase "or easement" is deleted as proposed.

9. N.J.A.C. 7:7A-8.1(i) is changed on adoption to correct a grammatical error.

10. N.J.A.C. 7:7A-11.24(a) is changed to specify the ILF "Program" Instrument for clarity; ILF ProgramInstrument is a term defined at N.J.A.C. 7:7A-11.1.

11. The Department is modifying N.J.A.C. 7:7A-11.24(c)2 to capitalize "Instrument" in "ILF Program Instrument"for consistency with the definition at N.J.A.C. 7:7A-11.1 and other uses of the term in the subchapter.

12. The Department is correcting a typographical error at N.J.A.C. 7:7A-11.24(c)2v by changing "Letters ofInterpretations" to "Letters of Interpretation."

13. The Department is changing N.J.A.C. 7:7A-16.1(b) to refer to "authorizations under" general permit 24 andgeneral permit 25, to accurately reflect the mechanism of approval when using a general permit to authorize an activity.

14. The Department is correcting N.J.A.C. 7:7A-16.7(a)4 to remove a redundant application requirement. Stateplane coordinates are required by N.J.A.C. 7:7A-16.7(a)5; N.J.A.C. 7:7A-16.7(a)4v, which required State planecoordinates under the requirements for a site plan, is, therefore, deleted.

15. The Department is correcting a citation at N.J.A.C. 7:7A-17.3(b)6.

16. The Department is modifying N.J.A.C. 7:7A-18.1(b) on adoption to add an administrative modification to thelist of applications that do not require a fee. Administrative modifications address very minor changes to issued permits,such as correcting typographical errors. As stated in the notice of proposal Summary at 49 N.J.R. 868, the Departmentdid not intend for these types of modifications to require a fee in recognition of the very minor nature of the changesinvolved.

17. Table 18.1 is changed to replace the proposed $ 500.00 fee for an administrative modification with "no fee." Inaccordance with adopted N.J.A.C. 7:7A-20.6(a), an authorization under a general permit that is valid in accordance withN.J.A.C. 7:7A-5.6 may be modified through an administrative modification, a minor technical modification, or a majortechnical modification. Table 18.1 is also changed on adoption to reflect that general permit authorizations may bemodified by a major technical modification, and to specify that major modifications are a type of technicalmodification, to reflect the adopted requirements at N.J.A.C. 7:7A-20.6(e) and 20.7(d).

18. The Department is correcting a citation at N.J.A.C. 7:7A-19.3(b).

19. N.J.A.C. 7:7A-11.26(c)7 and 11.12(f) and (g) are changed on adoption to correct a cross-reference.

Federal Standards Statement

Executive Order No. 27 (1994) and N.J.S.A. 52:14B-1 et seq. (P.L. 1995, c. 65), require State agencies that adopt,readopt, or amend State regulations that exceed any Federal standards or requirements to include in the rulemakingdocument a comparison with Federal law. The Department's authority for regulating development within freshwaterwetlands and State open waters is derived from Federal and State law.

The Department's authority for regulating development within freshwater wetlands and State open waters is derived

49 N.J.R. 3849(a)

from Federal and State law. The Freshwater Wetlands Protect Act, N.J.S.A. 13:9B-1 et seq., requires rules to bepromulgated to govern the removal, excavation, disturbance, or dredging, drainage, or disturbance of water level orwater table, dumping, discharging, or filling with any materials, driving of pilings, and placing obstructions in afreshwater wetland, and the destruction of vegetation, which would alter the character of a freshwater wetland. TheFWPA Rules, N.J.A.C. 7:7A, fulfill this purpose and also regulate the discharge of dredge and fill material in State openwaters, as well as govern activities in transition areas.

New Jersey's freshwater wetlands program operates in place of the Federal 404 program (Section 404 of the FederalWater Pollution Control Act, 33 U.S.C. §§ 1251 et seq.). The Department, under Section 404(g), has assumed theFederal permitting authority. The United States Environmental Protection Agency (USEPA) oversees the Department'swetlands program in accordance with the Federal Clean Water Act and a Memorandum of Agreement between theDepartment and the USEPA. The requirement imposed by the Federal Clean Water Act on a state assuming the Federalpermitting authority is that the state implements regulatory standards at least equally stringent as those currently inplace for the Federal 404 program for the protection of waters of the United States, including wetlands.

The adopted amendments, repeals, and new rules add flexibility where appropriate; address implementation issues;provide consistency with other Federal, local, and State requirements; align procedures with flood hazard and coastalpermitting procedures where possible; and simplify language to improve the permitting process and reduce the cost ofcompliance. The proposed changes retain the appropriate level of stringency to ensure compliance with Federal law.

Full text of the adopted recodifications, amendments, and new rules follows (additions to proposal indicated in boldfacewith asterisks *thus*; deletions from proposal indicated in brackets with asterisks *[thus]*):

CHAPTER 7COASTAL ZONE MANAGEMENT RULES

SUBCHAPTER 9. SPECIAL AREAS

7:7-9.27 Wetlands

(a) Wetlands or wetland means an area that is inundated or saturated by surface water or groundwater at a frequency andduration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typicallyadapted for life in saturated soil conditions, commonly known as hydrophytic vegetation.

1.-3. (No change.)

4. All tidal and inland wetlands, excluding the delineated tidal wetlands defined pursuant to N.J.A.C. 7:7-2.3, shall beidentified and delineated in accordance with the USEPA three-parameter approach (that is, hydrology, soils*,* andvegetation) specified under N.J.A.C. 7:7A-*[1.4]**1.3* of the Freshwater Wetlands Protection Act Rules.

(b) Development in wetlands defined under the Freshwater Wetlands Protection Act is prohibited unless thedevelopment is found to be acceptable under the Freshwater Wetlands Protection Act Rules, [page=3922] N.J.A.C.7:7A, except as provided at (b)1 below. Pursuant to the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-6, coastalactivities under the jurisdiction of the New Jersey Meadowlands Commission shall not require a Freshwater Wetlandspermit, or be subject to transition area requirements of the Freshwater Wetlands Protection Act, except that discharge ofdredged or fill materials may require a permit issued under the provisions of Section 404 of the Federal Water PollutionControl Act of 1972 as amended by the Federal Clean Water Act of 1977, or under an individual or general permitprogram administered by the State under the provisions of the Federal Act and applicable State laws. Accordingly,under this rule the Department does not exert jurisdiction under the Freshwater Wetlands Protection Act, N.J.S.A.13:9B-1 et seq., in the Hackensack Meadowlands District. However, the Department shall, in accordance with N.J.S.A.

49 N.J.R. 3849(a)

13:9B-6 and applicable law, review any such coastal activity or development as follows:

1. For the purposes of reviewing a coastal activity or development that proposes the placement of dredged or fillmaterials in wetlands located waterward of the mean high water line in the Hackensack Meadowlands District under theWaterfront Development Law, N.J.S.A. 12:5-3, Federal Consistency provisions of the Federal Coastal ZoneManagement Act, 16 U.S.C. *[§§1451]* *§§ 1451* et seq., or water quality certification under Section 401 of theFederal Clean Water Act, 33 U.S.C. *[§§1251]* *§§ 1251* et seq., the Department shall use the conditions, limits, andrequirements governing activities or developments in wetlands set forth in the Freshwater Wetlands Protection ActRules at N.J.A.C. 7:7A-*[4, 5, and 7]**5, 7, 9, and 10*. For the purposes of reviewing a coastal activity ordevelopment that proposes the placement of dredged or fill materials in wetlands landward of the mean high water linethat does not require a zoning certificate, resolution, or statement of consistency from the New Jersey MeadowlandsCommission pursuant to N.J.A.C. 7:7-9.43(c) in the Hackensack Meadowlands District under the Federal Consistencyprovisions of the Federal Coastal Zone Management Act, 16 U.S.C. *[§§1451]* *§§ 1451* et seq., or water qualitycertification under Section 401 of the Federal Clean Water Act, 33 U.S.C. *[§§1251]* *§§ 1251* et seq., theDepartment shall use the conditions, limits, and requirements governing activities or developments in wetlands set forthin the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A-*[4, 5, and 7]**5, 7, 9, and 10*.

i. (No change.)

(c)-(j) (No change.)

SUBCHAPTER 17. MITIGATION

7:7-17.11 Requirements for intertidal and subtidal shallows and tidal water mitigation

(a)-(e) (No change.)

(f) If mitigation for the filling of intertidal and subtidal shallows or tidal waters as described at (e) above is not feasible,then mitigation shall be in the form of one or both of the following, as determined in consultation with the Department:

1. Upland preservation in accordance with the Freshwater Wetlands Protection Act Rules at N.J.A.C.7:7A-*[15.9]**11.13*; or

2. (No change.)

(g) If mitigation for the filling of intertidal and subtidal shallows or tidal waters as described at (f) above is not feasible,then mitigation shall be in the form of a land donation in accordance with the Freshwater Wetlands Protection Act Rulesat N.J.A.C. 7:7A-*[15.19]**11.15*.

(h)-(i) (No change.)

7:7-17.14 Wetlands mitigation hierarchy

(a)-(b) (No change.)

(c) If mitigation as described at (b) above is not feasible, then mitigation shall be required in the form of one or more ofthe following, as determined in consultation with the Department:

1. Monetary contribution in accordance with the Freshwater Wetlands Protection Act Rules at N.J.A.C.7:7A-*[15.18]**11.16*;

49 N.J.R. 3849(a)

2. Upland preservation in accordance with the Freshwater Wetlands Protection Act Rules at N.J.A.C.7:7A-*[15.9]**11.13*; or

3. (No change.)

(d) If mitigation as described at (c) above is not feasible, mitigation shall be in the form of a land donation inaccordance with the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A-*[15.19]**11.15*.

SUBCHAPTER 24. REQUIREMENTS FOR AN APPLICANT TO PROVIDE PUBLIC NOTICE OF ANAPPLICATION

7:7-24.3 Contents and recipients of public notice of an application


(c) If the permit application is for a development listed at (c)1 through 5 below, the applicant shall provide the noticerequired at (b)6 above by publishing newspaper notice and, in addition, sending the notice at (d) below, in the mannerset forth in the Municipal Land Use Law at N.J.S.A. 40:55D-12.b, to all owners of real property, including easements,within 200 feet of any proposed above ground structure that is part of the proposed development, such as a pumpingstation, treatment plant, groin, bulkhead, revetment or gabion, or dune walkover:

1.-2. (No change.)

3. A public development on a site of 50 acres or more;

4. An industrial or commercial development on a site of 100 acres or more; or

5. Maintenance dredging of a State navigation channel of one-half mile or longer.

(d)-(f) (No change.)

7:7-24.4 Additional requirements for public notice of an application for a CAFRA individual permit


(c) An applicant for a CAFRA individual permit for a development listed at (c)1 through 5 below shall provide thenotice required at (b)4 above by publishing newspaper notice and, in addition, sending the notice described at (d) below,in the manner set forth in the Municipal Land Use Law at N.J.S.A. 40:55D-12.b, to all owners of real property,including easements, within 200 feet of any proposed above ground structure that is part of the proposed development,such as a pumping station, treatment plant, groin, bulkhead, revetment or gabion, or dune walkover:

1.-2. (No change.)

3. A public development on a site of 50 acres or more;

4. An industrial or commercial development on a site of 100 acres or more; or

5. Maintenance dredging of a State navigation channel of one-half mile or longer.

49 N.J.R. 3849(a)

(d)-(e) (No change.)

CHAPTER 7AFRESHWATER WETLANDS PROTECTION ACT RULES

SUBCHAPTER 1. GENERAL PROVISIONS

7:7A-1.1 Purpose and scope

(a) This chapter constitutes the rules governing the implementation of the Freshwater Wetlands Protection Act, N.J.S.A.13:9B-1 et seq., and the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq. Certain violations of theNew Jersey Water Pollution Control Act are also subject to enforcement provisions at N.J.A.C. 7:14.

(b) The powers, duties, and functions vested in the Department under this chapter shall not limit, in any manner, thepowers, duties, and functions vested under any other law, except as specifically set forth in this chapter.

(c) The Freshwater Wetlands Protection Act, on and subsequent to July 1, 1988, shall supersede any law or ordinanceenacted by any municipality, county, or political subdivision thereof, regulating freshwater wetlands or freshwaterwetlands transition areas, except that the Pinelands Commission may provide for more stringent regulation of activitiesin and around freshwater wetland areas within its jurisdiction. No municipality, county, or political subdivision thereofshall enact any law, ordinance, rule, or regulation requiring a transition area adjacent to a freshwater wetland, exceptthat the Pinelands Commission may [page=3923] provide for more stringent regulation of activities in and aroundfreshwater wetland areas within its jurisdiction.

(d) This *[chapter]* *section* shall not, however, preclude municipal advice to the Department concerning letters ofinterpretation or other matters.

(e) This chapter shall not preempt State regulatory programs that affect regulated activities in freshwater wetlands,including, but not limited to, Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 et seq., the Flood HazardArea Control Act, N.J.S.A. 58:16A-50 et seq., and State-approved municipal water quality management plans. Theseprograms will continue to regulate based on the concerns covered by their respective enabling statutes and rules, andmay, through such regulation, have some impact on projects in freshwater wetlands. However, those programs will notuse freshwater wetlands concerns as a basis for regulation, and any regulation by these programs of projects infreshwater wetlands will be limited to that based on other concerns (for example, flood danger).

(f) If a proposed project does not involve a freshwater wetland or State open water, does not constitute a regulatedactivity, or is exempt under this chapter, the final decision on the application shall be based solely on the requirementsof other applicable permit programs.

7:7A-1.2 Effect of a permit

(a) Compliance with a permit during its term constitutes compliance, for enforcement purposes, with sections 301, 307,and 403 of the Federal Act, with the Freshwater Wetlands Protection Act, and with this chapter. Because transitionareas are not regulated under the Federal Act, compliance with a transition area waiver during its term constitutescompliance, for enforcement purposes, with the Freshwater Wetlands Protection Act and with this chapter. However, apermit may be modified, terminated and reissued, suspended, or terminated during its term for cause as set forth in thischapter.

(b) The issuance of a permit does not convey property rights of any sort, or any exclusive privilege.

49 N.J.R. 3849(a)

7:7A-1.3 Definitions

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearlyindicates otherwise. Additional definitions specifically applicable to N.J.A.C. 7:7A-11, Mitigation, are set forth atN.J.A.C. 7:7A-11.1.

"Abandoned" means, with respect to an agricultural field, including a blueberry field or a cranberry bog, that the fieldwas used for agriculture, but has not been used to produce a crop or product, or maintained or improved for agriculturalpurposes, for five years or more. If an agricultural field has been abandoned for 40 or more years, it shall no longer beconsidered an abandoned agricultural field. The lack of a commercial harvest or production of a crop on or from acranberry bog or blueberry field shall not be a determining factor as to whether the agricultural use has been abandoned.

"Administratively complete" means that every item required on the application checklist for a letter of interpretation orpermit being sought is included in the application.

. . .

"Best Management Practices" or "BMPs" means methods, measures, designs, performance standards, maintenanceprocedures, and other management practices which prevent or reduce adverse impacts upon or pollution of freshwaterwetlands, State open waters, and adjacent aquatic habitats, which facilitate compliance with the Federal Section404(b)(1) guidelines (40 *[C.F.R.]* *CFR* Part 230), New Jersey Department of Environmental Protection FloodHazard Area Control *[rules]* *Act Rules*, N.J.A.C. 7:13; the Department's Storm Water Management Regulations,N.J.A.C. 7:8; the Standards for Soil Erosion and Sediment Control in New Jersey, promulgated by the New Jersey StateSoil Conservation Committee at N.J.A.C. 2:90; and effluent limitations or prohibitions under Section 307(a) of theFederal Act and the Department's Surface Water Quality Standards, N.J.A.C. 7:9B. Examples include practices found at33 *[C.F.R.]* *CFR* 330.6, 40 *[C.F.R.]* *CFR* 233.35(a)6, the Department's *[Technical Manual for StreamEncroachment]* *Flood Hazard Area Technical Manual*, and "A Manual of Freshwater Wetland ManagementPractices for Mosquito Control in New Jersey." The manuals included in this definition are only a partial listing, andinterested persons should contact the Department for the most up to date list.

. . .

"Charitable conservancy" means a corporation or trust that meets the definition of a charitable conservancy at N.J.S.A.13:8B-2. (Note: Effective as of May 1, 2017, the definition of charitable conservancy at N.J.S.A. 13:8B-2 is acorporation or trust whose purposes include the acquisition and preservation of land or water areas or of a particularland or water area, or either thereof, in a natural, scenic or open condition, no part of the net earnings of which insuresto the benefit of any private shareholder or individual, and which has received tax exemption under section 501(c) of the1954 Internal Revenue Code.)

"Commissioner" means the Commissioner of the Department, or his or her designated representative.

. . .

"Complete for review" means that an application for a letter of interpretation or a permit is both administratively andtechnically complete and is ready to be evaluated by the Department for compliance with the applicable requirements ofthis chapter.

"Conservation restriction" means a restriction, easement, covenant, or condition, in any deed, will, or other instrument,other than a lease, executed by or on behalf of the owner of the land, appropriate to retaining land or water areaspredominantly in their natural state, scenic or open or wooded condition, or for conservation of soil or wildlife, or for

49 N.J.R. 3849(a)

outdoor recreation or park use, or as suitable habitat for fish or wildlife, to forbid or limit any or all of the following:

1.-7. (No change.)

. . .

"Degraded wetland" means a wetland in which there is impaired surface water flow or groundwater hydrology, orexcessive drainage; a wetland which has been partially filled or excavated, contaminated with hazardous substances, orwhich has an ecological function substantially less than that of undisturbed wetlands in the region.

. . .

"Electronic LOI" or "E-LOI" means an application for a letter of interpretation submitted to the Departmentelectronically.

. . .

"EPA priority wetlands" or "USEPA priority wetlands" means wetlands that are designated as priority wetlands by theUSEPA, and are listed on the "Priority Wetlands List for the State of New Jersey," which is available from theDepartment at the address set forth at N.J.A.C. 7:7A-1.4.

"Established, ongoing farming, ranching, or silviculture operation" means activities on areas subject to a farming,ranching, or silviculture use as of June 30, 1988, which use has been pursued continuously since June 30, 1988.Activities on areas lying fallow as part of a conventional rotational cycle that does not exceed five years are part of anestablished operation. Activities that bring an area into farming, silviculture, or ranching use are not part of anestablished operation. An operation ceases to be established when the area on which it was conducted has beenconverted to another use or has lain idle for so long that modifications to the hydrological regime are necessary toresume operations, or for more than five years, whichever is shorter.

A cranberry bog, blueberry field, or portion thereof that was used for such purposes as of June 30, 1988, and on whichany of the activities listed at N.J.A.C. 7:7A-2.4(c)2 and 3 have occurred within the prior five years shall be consideredan established, ongoing farming operation and shall not be deemed abandoned. The lack of a commercial harvest orproduction of a crop on or from the lands shall not be a determining factor as to whether the agricultural use has beenabandoned.

"Excavation" means the removal of soil, rocks, or other material resulting in a change in site elevation.

. . .

"FW1 waters" means waters designated as FW1 waters in the Department's Surface Water Quality Standards, N.J.A.C.7:9B. *[As of September 4, 2001 N.J.A.C. 7:9B-1.15 defines FW1 waters as those fresh waters wholly within Federalor State lands or special holdings, that are preserved for posterity, and are not subject to wastewater discharges ofhuman origin.]*

. . .

[page=3924]"General permit-by-certification" means a permit to undertake a regulated activity for which the terms andconditions are established in rules promulgated under this chapter at N.J.A.C. 7:7A-5 and 6, and which may beconducted upon Department approval through the electronic permitting process set forth at N.J.A.C. 7:7A-16.6.

49 N.J.R. 3849(a)

. . .

"Hoophouse" or "polyhouse" means a temporary pipe-frame structure covered with plastic sheeting, with a dirt or fabricfloor, that provides for a controlled growing environment to create more favorable growing conditions for crops grownwithin the covered space. For the purposes of this chapter, a "hoophouse" or "polyhouse" shall not include permanentfootings.

. . .

"Hydrophyte" means plant life adapted to growth and reproduction under periodically saturated root zone conditionsduring at least a portion of the growing season. A listing of these plants can be found in the "National List of PlantSpecies that Occur in Wetlands: 1988-New Jersey" and amendments thereto, compiled by the USFWS, USACE,USEPA, and the Natural Resources Conservation Service.

"Impervious surface" means a surface that is covered with a layer of material, so that it is highly resistant to infiltrationby water.

"Individual permit" means a freshwater wetlands permit or open water fill permit that is issued by the Department afteran alternatives *[test]* *analysis* and other site-specific and project-specific reviews required at N.J.A.C. 7:7A-10.

. . .

"Letter of interpretation" or "LOI" means the document issued by the Department under N.J.A.C. 7:7A-4, indicating thepresence or absence of wetlands, State open waters, or transition areas; verifying or delineating the boundaries offreshwater wetlands, State open waters, and/or transition areas; or assigning a wetland a resource value classification.

"Linear development" means a development with the basic function of connecting two points, such as a road, drive,public walkway, railroad, sewerage pipe, stormwater management pipe, gas pipeline, water pipeline, or electric,telephone, or other transmission line. Linear development shall not mean residential, commercial, office, or industrialbuildings, improvements within a development, such as utility lines or pipes, or internal circulation roads.

. . .

"Major discharge" means a discharge or activity that the Department must transmit to USEPA for review in accordancewith the Department's 1993 MOA with the USEPA regarding assumption of the Federal 404 program. Provisionsregarding USEPA review of major discharges are found at N.J.A.C. 7:7A-19.5. The following are major discharges:

1. (No change.)

2. A discharge with reasonable potential to affect Federally listed or proposed endangered or threatened species asdetermined by the USFWS;

3.-10. (No change.)

. . .

"Mitigation" means activities carried out pursuant to N.J.A.C. 7:7A-11 in order to compensate for freshwater wetlandsor State open waters loss or disturbance caused by regulated activities.

"Mitigation bank" means an operation in which wetlands, uplands, and/or other aquatic resources are restored, created,

49 N.J.R. 3849(a)

enhanced, or preserved by a mitigation bank operator for the purpose of providing compensatory mitigation fordisturbances to freshwater wetlands and/or State open waters.

. . .

"1989 Federal Manual" means the Federal Manual for Identifying and Delineating Jurisdictional Wetlands, published in1989 by the USEPA, USACE, USFWS, and the U.S. Department of Agriculture's Natural Resources ConservationService (formerly the Soil Conservation Service), as amended and/or supplemented, which Manual is incorporatedherein by reference.

. . .

"Palustrine emergent" means a wetlands vegetation pattern in which persistent and non-persistent grasses, rushes,sedges, forbs, and other herbaceous or grass-like plants are the dominant vegetation.

. . .

"Permit" means an authorization or approval to engage in a regulated activity in a freshwater wetland, State open water,or transition area, issued by the Department under this chapter. The Department issues the following permits under thischapter:

1.-3. (No change.)

. . .

"Project" means the following:

1. For the purpose of a transition area exemption under N.J.A.C. 7:7A-2.4(f) based on the application for or the grant ofa preliminary site plan approval:

i. (No change.)

2. For the purpose of a transition area exemption under N.J.A.C. 7:7A-2.4, based on the application for or the grant of apreliminary subdivision approval:

i.-ii. (No change.)

iii. The following are examples of how the Department will determine the "project" exempted on the basis of theapplication for or grant of preliminary subdivision approval:

(1)-(4) (No change.)

(5) Where land is subdivided but requires further subdivision, other than de minimis changes for road *[right of ways]**rights-of-way* or other infrastructure, before the applicant can proceed to the next step of municipal approval (eitherbuilding permits or site plan approvals), there is no evidence of intended economic development at the time of initialsubdivision application or approval, because the proposed economic development only comes into being with thesubsequent, untimely subdivision. Therefore, there is no basis for exemption.

. . .

49 N.J.R. 3849(a)

"Regulated activity" means any of the activities described at N.J.A.C. 7:7A-2.2 or at N.J.A.C. 7:7A-2.3.

. . .

"Site plan" or "plan" means a graphic depiction of land, vegetation, water, structures, and other physical features onpaper, such as a blueprint, construction plan, cross-section, topographic map, architectural rendering, or other similarillustration, which is submitted to the Department to describe an existing or proposed activity or condition.

"Soil Conservation District" means a governmental subdivision of this State, and a public body corporate and politic,organized in accordance with N.J.S.A. 4:24-1 et seq. Each Soil Conservation District administers New JerseyDepartment of Agriculture programs for one or more counties. Soil Conservation Districts are overseen by the NewJersey State Soil Conservation Committee in the New Jersey Department of Agriculture, which promulgates theStandards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90. For the purposes of this chapter only,the term "Soil Conservation District" shall include any exempt municipality authorized to enforce the Standards for SoilErosion and Sediment Control by ordinance pursuant to N.J.S.A. 4:24-48.

. . .

"Technically complete" means that each item included in an application for a letter of interpretation or a permit providessufficient information for the Department to declare the application complete for review.

"Temporary disturbance" means a regulated activity that occupies, persists, and/or occurs on a site for no more than sixmonths. Where a disturbance associated with certain regulated activities, such as hazardous substance remediation orsolid waste facility closure, is intended to be temporary, but will exceed six months in duration because of the nature ofthe activity, the Department will consider the disturbance to be temporary for purposes of this subchapter provided thedisturbed areas are restored to their original topography, and all necessary measures are implemented to ensure that theoriginal vegetative cover onsite is restored to its previous (or an improved) condition.

. . .

"Transition area waiver" or "waiver" means a waiver issued by the Department under this chapter, authorizing any ofthe regulated activities enumerated at N.J.A.C. 7:7A-2.3 in a transition area.

[page=3925] . . .

"USACE" means the United States Army Corps of Engineers.

"USEPA" means the United States Environmental Protection Agency.

"USFWS" means the United States Fish and Wildlife Service.

. . .

"USGS quad map" means a topographic quadrangle map issued by the USGS, 7.5 minute series, drawn at a scale of1:24,000.

"Utility line" means a pipe, cable, line, or wire for the transport or transmission of gases, liquids, electrical energy, orcommunications. This term includes a pole or tower required to support a utility line, but does not include a tower thatonly transmits or receives electromagnetic waves through the air, such as for radio, television, or telephonetransmission. The term "utility line" does not include a stormwater pipe, or a pipe that drains a wetland or State open

49 N.J.R. 3849(a)

water, such as a drainage tile.

"Vernal habitat" means a wetland as identified at N.J.A.C. 7:7A-3.1, or State open water, as defined above in thissection that meets all of the criteria at 1 through 4 below. Evidence of breeding by an obligate species under 2i belowcreates a rebuttable presumption that the criteria at 3 and 4 below are met:

1.-4. (No change.)

"Water dependent activity" means an activity that cannot physically function without direct access to the body of wateralong which it is proposed. Uses, or portions of uses, that can function on sites not adjacent to the water are notconsidered water dependent regardless of the economic advantages that may be gained from a waterfront location.Maritime activity, commercial fishing, public waterfront recreation, and marinas are examples of water dependent uses,but only the portion of the development requiring direct access to the water is water dependent. The test for waterdependency shall assess both the need of the proposed use for access to the water and the capacity of the proposed waterbody to satisfy the requirements and absorb the impacts of the proposed use. A proposed use will not be consideredwater dependent if either the use can function away from the water or if the water body proposed is unsuitable for theuse. For example, in a maritime operation, a dock or quay and associated unloading area would be water dependent, butan associated warehouse would not be water dependent.

1. Examples of water dependent uses include: docks, piers, marina activities requiring access to the water, such ascommissioning and decommissioning new and used boats, boat repairs and short-term parking for boaters, storage forboats that are too large to be feasibly transported by car trailer (generally greater than 24 feet), rack systems for boatstorage, industries, such as fish processing plants and other commercial fishing operations, port activities requiring theloading and unloading of vessels, and water-oriented recreation.

2. Water dependent uses exclude, for example: housing, hotels, motels, restaurants, warehouses, manufacturing facilities(except for those which receive and quickly process raw materials by ship), dry boat storage for boats that can betransported by car trailer, long-term parking, parking for persons not participating in a water dependent activity, boatsales, automobile junk yards, and non-water oriented recreation, such as roller rinks and racquetball courts.

. . .

"Water quality certificate" means a determination by the Department of the consistency with this chapter of an activitythat proposes a discharge to waters of the United States that requires a Federal license or permit pursuant to Section 401of the Federal Clean Water Act, 33 U.S.C. § 1341. Federal licenses and permits for which water quality certificates areissued include, but are not limited to:

1. NJPDES permits by USEPA under Section 402 of the Federal Clean Water Act, 33 U.S.C. § 1342;

2. Permits for the discharge of dredged or fill material issued by the USACE under Section 404 of the Federal CleanWater Act, 33 U.S.C. § 1344;

3. Permits for activities that have a potential to discharge in navigable waters issued by the USACE under Sections 9and 10 of the Rivers and Harbors Act, 33 U.S.C. §§ 403 and 404; and

4. Hydropower licenses issued by the Federal Energy Regulatory Commission under Sections 3(11), 4(e) and 15 of theFederal Power Act, 16 U.S.C. §§ 796(11), 797(e), and 808.

. . .

49 N.J.R. 3849(a)

"Working day" means a day on which the offices of the New Jersey Department of Environmental Protection are openfor business.

7:7A-1.4 Forms, checklists, and information; Department address and website

(a) Forms, checklists, and other information related to this chapter can be obtained from the Division of Land UseRegulation at the address in (b) below, by telephone at (609) 984-0162, or through the Division's website atwww.nj.gov/dep/landuse. Further information about the Department can be accessed at www.nj.gov/dep.

(b) Applications, fees, and other correspondence shall be submitted to the following addresses:

1. For regular mail:

New Jersey Department of Environmental Protection

Division of Land Use Regulation

Mail Code 501-02A

PO Box 420

Trenton, NJ 08625;

2. For hand delivery, courier service, and overnight mail:

New Jersey Department of Environmental Protection

Division of Land Use Regulation

501 East State Street

5 Station Plaza, Second Floor

Trenton, New Jersey 08609; and

3. For submittal of an application for authorization under a general permit-by-certification, the Department's website atwww.nj.gov/dep/online.

(c) Questions regarding the requirements of this chapter or about the status of a particular application can be directed tothe Division of Land Use Regulation Technical Support Center at (609) 777-0454, via e-mail [email protected], or by using an online contact form at www.nj.gov/dep/landuse/contact.html.

(d) Applications or other materials sent or delivered to the Department at an address other than those in (b) above shallnot be deemed to have been received for the purposes of calculating application review deadlines or other time periodsunder this chapter.

7:7A-1.5 Liberal construction

This chapter shall be liberally construed to effectuate the purpose of the Acts under which it was adopted.

49 N.J.R. 3849(a)

7:7A-1.6 (No change in text.)

SUBCHAPTER 2. APPLICABILITY AND ACTIVITIES FOR WHICH A PERMIT IS REQUIRED

7:7A-2.1 When a permit is required

(a) No person shall engage in a regulated activity subject to this chapter without a permit or authorization listed in (b)below. Initiation of a regulated activity without a permit or conducting a regulated activity beyond that specificallyauthorized by a permit is considered a violation of this chapter and shall subject the person or persons responsible forthe regulated activity to enforcement action in accordance with N.J.A.C. 7:7A-22.

(b) A person undertaking any regulated activity under this chapter shall do so only in accordance with:

1. An authorization under a general permit-by-certification, pursuant to N.J.A.C. 7:7A-5 and 6;

2. An authorization under a general permit, pursuant to N.J.A.C. 7:7A-5 and 7;

3. A transition area waiver, pursuant to N.J.A.C. 7:7A-8;

4. An individual permit, pursuant to N.J.A.C. 7:7A-9 and 10; or

5. An emergency authorization, pursuant to N.J.A.C. 7:7A-14.

(c) On March 2, 1994, the Department assumed responsibility for administering the Federal wetlands program (alsoknown as the 404 program) in delegable waters. In non-delegable waters, the USACE retains jurisdiction under Federallaw, and both Federal and State requirements apply. Accordingly, a person proposing to engage in a regulated activityin non-delegable waters shall obtain two permits, one [page=3926] from the Department under this chapter and onefrom the USACE under the Federal 404 program.

(d) A permit issued under this chapter shall constitute the water quality certificate required under the Federal Act at 33U.S.C. § 1341 for any activity covered by this chapter. If a discharge of dredged or fill material into waters of theUnited States does not require a permit under this chapter but does require a water quality certificate, the Departmentshall use the standards and procedures in this chapter to determine whether to issue the water quality certificate, exceptin the New Jersey coastal zone, as described at N.J.A.C. 7:7-1.2(b). For a discharge of dredged or fill material in thecoastal zone, the Department shall use the standards and procedures in the Coastal Zone Management rules, N.J.A.C.7:7, to determine whether to issue a water quality certificate.

7:7A-2.2 Regulated activities in freshwater wetlands and State open waters


(c) Notwithstanding (a) above, the following activities are not regulated activities:

1.-4. (No change.)

5. The driving of one or more pilings in a State open water, if the pilings are not regulated by the USACE under theFederal 404 program. The USACE regulates the placement of pilings if the placement would have the effect of adischarge of fill material. Examples of activities that are and are not regulated by the USACE are:

i.-ii. (No change.)

49 N.J.R. 3849(a)

7:7A-2.3 Regulated activities in transition areas

(a) (No change.)

(b) Notwithstanding (a) above, the following activities are not regulated in transition areas and do not requireDepartment approval under this chapter, provided that the activities are performed in a manner that minimizes adverseeffects to the transition area and adjacent freshwater wetlands, and provided that the transition area is not containedwithin a conservation restriction. If the transition area is contained in a conservation restriction *[or easement]*, none ofthe following activities are allowed unless explicitly stated in the conservation restriction:

1. Normal property maintenance;

i. For the purposes of this paragraph, "normal property maintenance" means activities required to maintain lawfullyexisting artificial and natural features, landscaping, and gardening. These activities include:


(8) Continued cultivation of existing gardens and the development of new gardens provided that the new garden is:

(A)-(B) (No change.)

(C) Located in a transition area not subject to a conservation restriction; and

(9) (No change.)

ii. (No change.)

2.-3. (No change.)

(c) Certain regulated activities are exempt from transition area requirements under N.J.A.C. 7:7A-2.4(f). In addition, anactivity that is exempt from freshwater wetlands permit requirements under N.J.A.C. 7:7A-2.4(c) for farming activities,or N.J.A.C. 7:7A-2.4(d) for forestry activities, is also exempt from transition area requirements, subject to the limits onfreshwater wetlands exemptions at N.J.A.C. 7:7A-2.4. A person may request an exemption letter confirming theexemption status of an activity by using the procedures at N.J.A.C. 7:7A-2.6.

7:7A-2.4 Activities exempted from permit and/or waiver requirement

(a) The following are exempt from the requirement of a freshwater wetlands permit and/or waiver unless the USEPA'sregulations providing for the delegation to the State of the Federal wetlands program conducted pursuant to the FederalAct require a permit for any of these activities, in which case the Department shall require a permit for those activitiesso identified by that agency. Any activity conducted under an exemption that does not meet all standards, conditions, orlimitations of the exemption shall constitute a violation of this chapter, and shall be subject to enforcement action inaccordance with N.J.A.C. 7:7A-22.

(b) The farming, ranching, and silviculture exemptions in (c) and (d) below are subject to the following limits:

1.-3. (No change.)

4. Normal silviculture activities must be part of a forest management plan that conforms to best management practices

49 N.J.R. 3849(a)

(BMPs) and is reviewed and approved by the State Forester before the activities are undertaken. A woodlandmanagement plan prepared for tax purposes but that does not address wetlands is insufficient to qualify for theexemption; and

5. If an area with hydric soils has been drained for farming or other purposes through the use of drainage structures suchas tiles or ditches, the Department shall, in the absence of compelling scientific information that wetland hydrology hasbeen effectively removed by factors other than the drainage structures, presume that the area maintains wetlandshydrology for the purpose of identifying a freshwater wetland under N.J.A.C. 7:7A-3.1. To rebut this presumption ofwetlands hydrology, all drainage structures shall be removed or completely disabled and the area shall be leftundisturbed for at least one normal rainfall year, after which the presence or absence of wetlands hydrology shall bedetermined through use of technical criteria, field indicators, and other information, in accordance with the 1989 FederalManual.

(c) Subject to the limitations of this section, the following activities, when part of an established, ongoing farming,ranching, or silviculture operation, on properties that have received or are eligible for a farmland assessment under theNew Jersey Farmland Assessment Act, N.J.S.A. 54:4-23.1 et seq., are exempt from the requirement of a freshwaterwetlands or open water fill permit, or transition area waiver:

1. Normal farming, silviculture, and ranching activities, such as plowing, seeding, cultivating, minor drainage,harvesting for the production of food and fiber, or soil and water conservation practices. For the purposes of thisparagraph, "minor drainage" means:

i. (No change.)

ii. The discharge of material for the purpose of installing ditching or other such water control facilities incidental toplanting, cultivating, protecting, or harvesting of rice, cranberries, or other wetland crop species, where the farmingactivities and the discharge occur in wetlands and waters that are in established use for such agricultural andsilvicultural wetlands crop production. Any discharge of material into wetlands or waters, excavation of wetlands, ordraining of wetlands or waters, that are not in established use for such agricultural and silvicultural wetlands cropproduction requires a permit. For example, the construction of ditches within the confines of an established cranberrybog is an exempt activity. However, the construction of *new* ditches in wetlands or waters located outside of theestablished cranberry bog requires a permit;

iii.-iv. (No change.)

v. Minor drainage in wetlands is limited to drainage within areas that are part of an established farming or silviculturaloperation. It includes maintenance of existing drainage tile or other drainage structures. It does not include drainageassociated with the immediate or gradual conversion of a wetland to a non-wetland (for example, wetlands species toupland species not typically adapted to life in saturated soil conditions), or conversion from one wetland use to another(for example, silviculture to farming).

2. Activities associated with the normal maintenance of cranberry bogs and blueberry fields where the maintenanceactivities and the discharge occur in wetlands and waters that are in established use for cranberry or blueberryproduction, such as:

i. Periodic flooding;

ii. Sanding;

iii. Control or suppression of weeds or brush in and around the bog or field;

49 N.J.R. 3849(a)

iv. Pest control or suppression; and

v. Maintenance, repair, or cleaning of dams, ditches, underdrains, floodgates, irrigation systems, or other drainage orwater control facilities;

3. Activities for the renewal or rehabilitation of a cranberry bog, including but not limited to:

i. Removal of undesirable soil or vegetation;

ii. Grading and leveling;

[page=3927] iii. Installation, reconfiguration, repair, or replacement of water control or supply systems or facilities;

iv. The removal, relocation, or construction of internal dams; and

v. The planting of new vines in an appropriate soil layer;

4. Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches,provided that such facilities are for farming, ranching, or silvicultural purposes and do not constitute a change in use.Any dredged material from pond construction or maintenance must be placed outside the freshwater wetlands, unless itis needed for the structural or environmental integrity of the pond;

i. (No change.)

ii. To qualify for this exemption, a farm pond shall be:


(5) Intended exclusively for agricultural purposes. The applicant shall submit a description of the purpose of the pondwith any application for an exemption letter under N.J.A.C. 7:7A-2.6; and

(6) Sized appropriately for the intended use under (c)3ii(5) above.

5. Construction or maintenance of farm roads or forest roads constructed and maintained in accordance with bestmanagement practices (BMPs) to assure that flow and circulation patterns and chemical and biological characteristics offreshwater wetlands and State open waters are not impaired and that any adverse effect on the aquatic environment willbe minimized; where the proposed discharge will result in significant discernible alterations to flow or circulation, thepresumption is that flow or circulation may be impaired by such alteration. Roads constructed for forestry andsilviculture purposes shall be constructed using temporary mats whenever practicable. Once the land use changes fromforestry or farming to another use, that is, once the property no longer qualifies for a farmland assessment, all roadsemploying the placement of fill shall be removed within 30 days;

i. Construction of a farm road shall be undertaken only in accordance with the following:


(5) The farm road shall be built at grade. If not built at grade, the applicant shall demonstrate to the Department why fillmaterial is necessary for the farming operation with any application for an exemption letter under N.J.A.C. 7:7A-2.6;and

49 N.J.R. 3849(a)

(6) In accordance with (c)4i(5) above, if fill material is necessary, it shall be no more than six inches deep and shall belimited to 0.25 acres of wetland disturbance. In addition, pipes shall be installed to maintain wetland hydrology;

ii. "Maintenance of a farm road" means:


(3) A culvert shall be used only to replace an existing culvert. If it is necessary to install a culvert for the first time, theDepartment will consider the project to be construction of a new road subject to the limitations in (c)4i above; and

6. Installation of temporary farm structures with only a dirt or fabric floor, such as hoophouses, polyhouses, run-insheds, and pole barns and any grading or land contouring associated therewith, and fencing without foundations onlands that were actively cultivated on or before July 1, 1988, have been in active agricultural use since then, were inactive agricultural use at the time that the temporary farm structures were or are to be erected, and are identified as"ModAg" farmed wetlands on the Wetlands Maps promulgated by the Department in 1988.

(d) Normal silviculture activities, in accordance with a forest management plan approved by the State Forester beforethe conduct of the forest management activities, are exempt from the requirement of a freshwater wetlands permit,transition area waiver, or open water fill permit, subject to the limitations of this section. A woodland management planprepared for tax purposes but that does not address wetlands is insufficient to qualify for the exemption. However, theremoval of stumps results in a discharge of dredged or fill material, and a change in use and an impairment of flow orcirculation. Therefore, under (b)1 above, the removal of stumps is not exempt and shall require a permit under thischapter.

(e) (No change.)

(f) Subject to the limitations of this section including (g) below, the following projects, are exempt from transition arearequirements, but are subject to freshwater wetlands and State open water requirements:

1.-2. (No change.)

(g)-(h) (No change.)

(i) A project covered by an individual permit issued by the USACE prior to July 1, 1988, shall be governed only by theFederal Act, and shall not be subject to additional or inconsistent substantive requirements of this chapter. However,when the USACE permit expires, any application for an extension shall be made to the Department under N.J.A.C.7:7A-20.4. The Department shall not require a transition area as a condition of any extension of an USACE permitissued prior to July 1, 1988.

7:7A-2.5 Geographic areas exempted from permit and/or waiver requirement

(a) Regulated activities in areas under the jurisdiction of the New Jersey Sports and Exposition Authority underN.J.S.A. 13:17-1 et seq., do not require a permit under this chapter, but may require other State and/or Federal wetlandsapprovals, such as a Federal 404 permit from the USACE, a water quality certificate, or a Federal ConsistencyDetermination issued under the Federal Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq.

(b)-(d) (No change.)

7:7A-2.6 Exemption letters

49 N.J.R. 3849(a)

(a) (No change.)

(b) To apply for an exemption letter for a farming, silviculture, or ranching exemption under N.J.A.C. 7:7A-2.4(c), anapplicant shall submit the following:

1.-3. (No change.)

4. The fee specified in N.J.A.C. 7:7A-18.

(c) To apply for an exemption letter for a normal silviculture activities exemption pursuant to N.J.A.C. 7:7A-2.4(d), anapplicant shall submit the following:

1. (No change.)


(d) To apply for an exemption letter for a transition area exemption pursuant to N.J.A.C. 7:7A-2.4(f), an applicant shallsubmit the following:

1.-2. (No change.)


7:7A-2.7 Stormwater management

If a project requires an individual permit under this chapter and the project in its entirety (that means the whole project,not just the portions within wetlands or transition area) meets the definition of "major development" at N.J.A.C. 7:8-1.2,then the project shall comply in its entirety with the Stormwater Management rules at N.J.A.C. 7:8. If an activityrequires a general permit under this chapter and the regulated activity meets the definition of "major development" atN.J.A.C. 7:8-1.2, then the project of which the regulated activity is a part shall comply in its entirety with theStormwater Management rules at N.J.A.C. 7:8. In accordance with N.J.A.C. 7:7A-1.1(c), the Pinelands Commissionmay require equal or more stringent stormwater management regulation of activities in and around freshwater wetlandareas within its jurisdiction.

SUBCHAPTER 3. IDENTIFYING FRESHWATER WETLANDS AND TRANSITION AREAS; FRESHWATERWETLANDS RESOURCE VALUE CLASSIFICATION

7:7A-3.1 Identifying freshwater wetlands

(a) Freshwater wetlands shall be identified and delineated using the three-parameter approach (that is, hydrology, soils,and vegetation) enumerated in the 1989 Federal Manual.

(b) To aid in determining the presence or absence of freshwater wetlands, the Department may refer to any of thefollowing sources of information:

1.-3. (No change.)

4. USGS topographic maps;

49 N.J.R. 3849(a)

5.-7. (No change.)

(c) Vegetative species classified as hydrophytes and indicative of freshwater wetlands shall include, but not be limitedto, those plants [page=3928] listed in "National List of Plant Species that Occur in Wetlands: 1988 New Jersey,"compiled by the USFWS in cooperation with the USACE, USEPA, and the United States Soil Conservation Service,and any subsequent amendments thereto.

(d) To obtain a determination from the Department of the presence, absence, or boundaries of freshwater wetlands on aparticular site, a person may apply to the Department for a letter of interpretation under N.J.A.C. 7:7A-4.

(e) (No change.)

(f) The Department has provided the New Jersey freshwater wetlands maps to the offices listed at (f)1 and 2 below forpublic inspection. The maps are also available through NJ-GeoWeb at http://www.nj.gov/dep/gis/newmapping.htm.

1. The county clerk or registrar of deeds and mortgages in each county; and

2. The municipal clerk of each municipality.

7:7A-3.2 Classification of freshwater wetlands by resource value


(c) For the purposes of (b) above, the Department identifies present and documented habitat for threatened orendangered species using the Landscape Project method, which focuses on habitat areas required to support localpopulations of threatened and endangered wildlife species. The report entitled New Jersey's Landscape Project, which isupdated periodically, provides additional information on mapping methodology and is available atwww.nj.gov/dep/fgw/ensphome.htm or through the Department's interactive website atwww.nj.gov/dep/gis/geowebsplash.htm. Interested parties may also obtain information by writing to the Division ofFish and Wildlife, Endangered and Nongame Species Program at:

The Landscape Project

State of New Jersey Department of Environmental Protection

Division of Fish and Wildlife Endangered and Nongame Species Program

Mail Code 501-03

PO Box 420

Trenton, NJ 08625-0420.

(d) If the Department becomes aware of an occurrence of an threatened or endangered wildlife species on or proximateto a site that is not mapped as threatened or endangered wildlife species habitat by the Landscape Project, and theDepartment determines that the habitat may be suitable for that species, the Department shall notify the applicant of theproposed exceptional resource value classification based on new endangered or threatened species data and providethem with the opportunity to contest the classification decision prior to formally classifying the wetlands of exceptionalresource value in accordance with (b) above.

49 N.J.R. 3849(a)

(e) An applicant may request that a documented habitat not result in the classification of a freshwater wetland as afreshwater wetland of exceptional resource value. Such a request shall include a demonstration of the long-term loss ofone or more habitat requirements of the specific documented threatened or endangered species, including, but notlimited to, wetlands size or overall habitat size, water quality, or vegetation density or diversity. Upon such a request,the Department shall review all available information, and shall make a final classification of the wetland.

(f) A freshwater wetland of ordinary resource value, or an ordinary resource value wetland, is a freshwater wetland,which does not exhibit any of the characteristics in (b) above, and which is:

1. An isolated wetland that:

i.-ii. (No change.)

2.-4. (No change.)

Recodify existing (e) and (f) as (g) and (h) (No change in text.)

(i) To obtain a Department determination of the resource value classification for a particular wetland, an applicant mayobtain a letter of interpretation from the Department under N.J.A.C. 7:7A-4.

7:7A-3.3 Identifying a transition area


(c) A transition area is required adjacent to a freshwater wetland of exceptional resource value and of intermediateresource value as classified in N.J.A.C. 7:7A-3.2. A transition area is not required adjacent to a freshwater wetland ofordinary resource value or adjacent to a State open water.

(d) The standard widths of a transition area are set forth at (d)1 and 2 below. These standard widths shall only bemodified through the issuance of a transition area waiver. The types of transition area waivers are listed at N.J.A.C.7:7A-8.1(a).

1. The standard width of a transition area adjacent to a freshwater wetland of exceptional resource value shall be 150feet.

2. The standard width of a transition area adjacent to a freshwater wetland of intermediate resource value shall be 50feet.

(e) A person shall not engage in regulated activities, as described at N.J.A.C. 7:7A-2.3, in a transition area exceptpursuant to a transition area waiver.

(f) (No change in text.)

7:7A-3.4 Transition areas due to freshwater wetlands on adjacent property

(a) (No change.)

(b) To determine whether a site has transition areas on it caused by wetlands on another property:

1. (No change.)

49 N.J.R. 3849(a)

2. If there are freshwater wetlands on another property within 150 feet of the site's property line, determine the resourcevalue classification of the wetlands on the nearby property. For a Department-issued resource value classification of thewetlands, obtain an LOI under N.J.A.C. 7:7A-4;

3. (No change.)

4. If any of the freshwater wetlands on nearby properties within 150 feet of the site's property line cannot be classifiedas ordinary resource value wetlands, determine the transition area on the site as follows:

i. If any wetlands on nearby properties are intermediate resource value wetlands, and are within 50 feet of the site'sproperty line, there is at least some transition area on the site arising from these wetlands. In order to determine the sizeand shape of the transition area, obtain a delineation of the wetlands on the nearby properties and determine thetransition area for each under N.J.A.C. 7:7A-3.3(d)2; and

ii. If any wetlands on nearby properties are exceptional resource value wetlands, and are within 150 feet of the site'sproperty line, there is at least some transition area on the site arising from these wetlands. In order to determine the sizeand shape of the transition area, obtain a delineation of the wetlands on the nearby properties and determine thetransition area for each under N.J.A.C. 7:7A-3.3(d)1; and

5. (No change.)

(c) (No change.)

SUBCHAPTER 4. LETTERS OF INTERPRETATION


This subchapter sets forth the general provisions relating to letters of interpretation; the types of letters of interpretation;the duration of a letter of interpretation; and the conditions that apply to a letter of interpretation.

7:7A-4.2 General provisions

(a) A letter of interpretation (LOI) provides the Department's official determination of one or more of the following:

1.-2. (No change.)

3. What resource value classification under N.J.A.C. 7:7A-3.2 applies to the freshwater wetlands on a site.

(b) (No change.)

(c) The Department issues the following three types of LOIs:

1. A presence/absence LOI, in which the Department determines whether any freshwater wetlands, transition areas,and/or State open waters exist on a site or on a portion of a site (also called a footprint of disturbance LOI). SeeN.J.A.C. 7:7A-4.3 for further details regarding presence/absence LOIs;

2. A line delineation LOI, in which the Department delineates the boundary lines of freshwater wetlands, transitionareas, and/or State open waters for an applicant. See N.J.A.C. 7:7A-4.4 for further details regarding line delineationLOIs; and

49 N.J.R. 3849(a)

[page=3929] 3. A line verification LOI, in which the Department confirms or modifies a delineation proposed by theapplicant. See N.J.A.C. 7:7A-4.5 for further details regarding line verification LOIs.

(d) If an area with hydric soils has been drained for farming or other purposes through the use of drainage structures orfeatures, such as tiles or ditches, the Department shall, in the absence of compelling scientific information that wetlandhydrology has been effectively removed by factors other than the drainage structures, presume that the area maintainswetlands hydrology for the purpose of identifying a freshwater wetland under N.J.A.C. 7:7A-3.1. To rebut thispresumption of wetlands hydrology, all drainage structures shall be removed or completely disabled and the area shallbe left undisturbed for at least one normal rainfall year, after which the presence or absence of wetlands hydrology shallbe determined through use of technical criteria, field indicators, and other information, in accordance with the 1989Federal Manual.

(e) Each LOI that indicates the presence of freshwater wetlands shall state the resource value classification of thewetlands under N.J.A.C. 7:7A-3.2 and will specify the width of the transition area. However, in some cases, seasonalconditions make it difficult to determine the resource value classification of a wetland. For example, if there has been apast sighting of a bog turtle (an endangered species) in the area, and an LOI application is submitted in December whenthe early successional habitat needed by bog turtles may be impossible to identify under snow cover, Department staffcannot determine if the habitat remains suitable for bog turtles until the snow melts. In such a case, the Department shallnotify the applicant that seasonal conditions do not permit an accurate assessment of resource value, shall provide anexplanation of the seasonal conditions involved, and shall give the applicant the option to accept an exceptionalresource value classification, or to wait for the LOI until the Department can determine the resource value classificationof the wetland.

(f) The Department shall issue an LOI for a portion of a site, also called a footprint of disturbance, under N.J.A.C.7:7A-4.3(c)2 or 4.5(b)3. Special application requirements shall apply to such an LOI, in order to ensure that the portionof the site is clearly marked on the plan and on the ground. These requirements are described at N.J.A.C. 7:7A-16.3(a)4iand (b)4.

(g) The Department shall not issue an LOI if the Department determines that the information submitted in theapplication for the LOI is inaccurate. In such a case, the applicant may provide corrected information upon theDepartment's request, or may apply directly for a permit without obtaining an LOI. If the applicant applies for thepermit without first obtaining an LOI, the permit application must include all information that would be necessary forthe Department to issue an LOI for the site, in accordance with N.J.A.C. 7:7A-16.8(b)1, 16.9(b)1, or 16.10(b)1, asapplicable. The Department will then review the submitted wetland delineation as part of the permit review process.

(h) Except for a presence/absence LOI for an entire site under N.J.A.C. 7:7A-4.3(c)1, all LOI *[recipients]**applicants* shall provide the Department with a survey *[of the approved]* *in accordance with N.J.A.C.7:7A-16.3(e). If the Department requires adjustments to the* delineated wetlands and/or State open waters boundary*[line]* after the *[LOI is issued.]**survey is submitted, the applicant shall resurvey the delineated boundaryafter the adjustments are made and the Department has approved the boundary. The issued LOI will referencethe approved and surveyed boundary line.*

7:7A-4.3 Presence/absence LOI

(a) (No change.)

(b) A presence/absence LOI does not identify the boundaries or location of any freshwater wetlands, transition areas,and/or State open waters found within a site or portion thereof. To obtain an LOI indicating the location or theboundaries of freshwater wetlands, transition areas, and/or State open waters, an applicant shall apply for a line

49 N.J.R. 3849(a)

delineation LOI under N.J.A.C. 7:7A-4.4, or a line verification LOI under N.J.A.C. 7:7A-4.5.

(c) The Department shall issue a presence/absence LOI for either of the following:

1. An entire site, regardless of its size; or

2. (No change.)

(d) (No change.)

7:7A-4.4 Line delineation LOI

(a) (No change.)

(b) The Department shall issue a line delineation LOI for a site, or for a municipal tax lot, that is one acre or smaller.The Department shall not issue a line delineation LOI for a site larger than one acre. The Department shall not issue aline delineation LOI for a portion of a site, unless the portion is a municipal tax lot.

7:7A-4.5 Line verification LOI

(a) (No change.)

(b) The Department shall issue a line verification LOI for the following:

1. A site, regardless of its size;

2.-3. (No change.)

7:7A-4.6 Duration of a letter of interpretation


(c) Requests for extensions shall be made in writing to the Department before the letter of interpretation has expired, butno more than one year before the expiration date, and shall be subject to the application requirements at N.J.A.C.7:7A-16. Applicants will be required to submit a new application if an extension is not applied for prior to theexpiration date of the letter of interpretation.

7:7A-4.7 Conditions that apply to an issued letter of interpretation delineation or verification

(a) Within 90 calendar days after the Department issues a delineation or verification letter of interpretation on aprivately owned lot, or on a publicly owned lot other than a right-of-way, the recipient of the delineation or verificationshall submit the following information to the Office of the County Clerk or the registrar of deeds and mortgages inwhich the site is located, and shall send proof to the Department in accordance with (b) below that this information isrecorded on the deed of each lot referenced in the delineation or verification letter of interpretation:

1. The Department file number for the letter of interpretation;

2. The approval and expiration date of the letter of interpretation;

3. A metes and bounds description of the wetland boundary approved under the letter of interpretation;

49 N.J.R. 3849(a)

4. The width and location of any transition area approved under the letter of interpretation; and

5. The following statement: "The State of New Jersey has determined that all or a portion of this lot lies in a freshwaterwetland and/or transition area. Certain activities in wetlands and transition areas are regulated by the New JerseyDepartment of Environmental Protection and some activities may be prohibited on this site or may first require afreshwater wetland permit. Contact the Division of Land Use Regulation at (609) 292-0060 orhttp://www.nj.gov/landuse for more information prior to any construction onsite."

(b) Proof that the information at (a) above has been recorded on the deed of each lot referenced in the letter ofinterpretation shall be in the form of either a copy of the complete recorded document or a receipt from the clerk orother proof of recordation provided by the recording office. However, if the initial proof provided to the Department isnot a copy of the complete recorded document, a copy of the complete recorded document shall be provided to theDepartment within 180 calendar days of the issuance or reissuance of the letter of interpretation.

SUBCHAPTER 5. GENERAL PROVISIONS FOR GENERAL PERMITS-BY-CERTIFICATION AND GENERALPERMITS


This subchapter sets forth the standards for the Department to issue, by rulemaking, general permits-by-certification andgeneral permits; the use of these permits to conduct authorized activities; the standards governing the use of more thanone of these permits on a single site; the duration of authorizations under these permits; and the conditions that apply tothese permits.

[page=3930] 7:7A-5.2 Standards for issuance, by rulemaking, of general permits-by-certification and general permits

(a) The Department will, in accordance with the rulemaking provisions of the New Jersey Administrative ProcedureAct, N.J.S.A. 52:14B-1 et seq., promulgate each general permit-by-certification or general permit, except for generalpermit numbers 6 and 7, after publication of a notice of rule proposal in the New Jersey Register and consideration ofpublic comment. In addition, the Department will send a copy of the draft general permit-by-certification or generalpermit to the USEPA, and will follow the procedures for USEPA comment found at N.J.A.C. 7:7A-19.5.

(b) The Department will promulgate a general permit-by-certification or general permit only if all of the followingconditions are met:

1. The Department determines that the regulated activities will cause only minimal adverse environmental impacts whenperformed separately, will have only minimal cumulative adverse impacts on the environment, and will cause onlyminor impacts on freshwater wetlands and State open waters;

2. (No change.)

3. The Department has provided public notice and an opportunity for a public hearing with respect to the proposedgeneral permit-by-certification or general permit. After a general permit-by-certification or general permit has beenpromulgated pursuant to this subchapter, the Department will not hold public hearings on individual applications forauthorization under a general permit-by-certification or general permit.

(c) Each general permit-by-certification or general permit shall contain limitations as necessary to comply with Federalregulations governing the Department's assumption of the Federal 404 program at 40 CFR 233.21(c) as follows:

49 N.J.R. 3849(a)

1. (No change.)

2. A precise description of the geographic area to which the general permit-by-certification or general permit applies,including, when appropriate, limits on the type(s) of water(s) or wetlands where activities may be conducted.

(d) The Department will include in each general permit-by-certification or general permit promulgated pursuant to thissubchapter appropriate conditions applicable to particular types of sites or development that must be met in order for aproposed activity to qualify for authorization under the general permit-by-certification or general permit.

(e) The Department may, through rulemaking in accordance with the New Jersey Administrative Procedure Act,N.J.S.A. 52:14B-1 et seq., repeal a general permit-by-certification or general permit and thereafter require individualpermits for activities previously covered by the general permit-by-certification or general permit, if it finds that thegeneral permit-by-certification or general permit no longer meets the standards of the Freshwater Wetlands ProtectionAct and this chapter.

(f)-(g) (No change.)

7:7A-5.3 Use of an authorization pursuant to a general permit-by-certification or a general permit to conductregulated activities

(a) An activity that meets the requirements of a general permit-by-certification may be conducted when the personproposing to conduct the activity receives the automatic authorization resulting from completion of the applicationsubmission through the Department's electronic permitting system in accordance with N.J.A.C. 7:7A-16.6.

(b) An activity that meets the requirements of a general permit may be conducted when the person proposing to conductthe activity receives authorization from the Department in accordance with N.J.A.C. 7:7A-19, except in an area underthe jurisdiction of the Pinelands Commission. In such an area, the application shall be submitted to the PinelandsCommission rather than to the Department, in accordance with the Pinelands Comprehensive Management Plan (CMP).For information on freshwater wetlands and transition areas in the Pinelands, contact the Pinelands Commission at(609) 894-7300 or through its website at www.state.nj.us/pinelands.

(c) Each general permit-by-certification or general permit specifies whether it covers activities in freshwater wetlands,transition areas, State open waters, or a combination thereof. An authorization issued under a generalpermit-by-certification or general permit that covers activities in freshwater wetlands satisfies the requirement for afreshwater wetlands permit. An authorization issued under a general permit-by-certification or general permit thatcovers activities in State open waters satisfies the requirement for an open water fill permit. An authorization issuedunder a general permit-by-certification or general permit that covers activities in a transition area satisfies therequirement for a transition area waiver.

(d) Each authorization under a general permit shall include an access transition area waiver that allows access to theauthorized activity, in accordance with N.J.A.C. 7:7A-8.1(a)5. No fee or application is required for this waiver and thedisturbance authorized under this waiver is not counted in calculating the amount of disturbance under the generalpermit.

(e) The Department shall deny an application for authorization under a general permit and require an application for anindividual permit if the Department finds that:

1. Additional permit conditions added under N.J.A.C. 7:7A-20.3 would not be sufficient to ensure compliance with thischapter and other applicable laws; or

49 N.J.R. 3849(a)

2. (No change.)

(f) The limits on disturbance in each general permit-by-certification or general permit apply to the entire site uponwhich activities authorized under the general permit-by-certification or general permit occur. An applicant shall notsegment a project or its impacts by applying for a general permit-by-certification or general permit authorization for oneportion of the project and applying for an individual permit for another portion of the project. Similarly, an applicantshall not segment a project or its impacts by separately applying for authorizations under a generalpermit-by-certification or a general permit for different portions of the same project.

(g) Unless otherwise specified, the limits on disturbance under a general permit-by certification or a general permitapply to total disturbance, including both temporary and permanent disturbance.

(h) If a regulated activity is not covered by any general permit-by-certification, general permit, or combination thereof,an individual freshwater wetlands or open water fill permit must be obtained under N.J.A.C. 7:7A-9 in order toauthorize the activity under this chapter. If a regulated activity in a transition area is not covered by any generalpermit-by-certification, general permit, or combination thereof, a transition area waiver must be obtained underN.J.A.C. 7:7A-8 in order to authorize the activity under this chapter.

(i) An authorization under a general permit-by-certification or general permit does not relieve the person conducting theauthorized regulated activities from the obligation to obtain any other applicable permits or approvals required by law.

7:7A-5.4 Use of more than one general permit or general permit-by- certification on a single site

(a) A person may undertake more than one regulated activity on a single site. The activities may be authorized underone or more general permits-by-certification and/or general permits, provided:

1. The individual limits of each general permit-by-certification and/or general permit are complied with. If activitiesunder one general permit-by-certification and/or general permit are conducted in more than one place on a site, the totaldisturbance caused by all activities at all locations onsite under that general permit-by-certification and/or generalpermit shall be summed in order to determine if the limits in the general permit-by-certification and/or general permitare met. For example, if an applicant seeks authorization for more than one outfall structure under general permit 11(N.J.A.C. 7:7A-7.11) on a site, the impacts from all of the structures shall be summed and the total must be no greaterthan 0.25 acres, which is the acreage limit for that general permit (see N.J.A.C. 7:7A-7.11(c)1). In a second example, ifan applicant proposes a minor road crossing under general permit 10B (N.J.A.C. 7:7A-7.10B) and two outfall structuresunder general permit 11 on the same site, the minor road crossing cannot exceed 0.25 acres, which is the acreage limitfor that general permit (see N.J.A.C. 7:7A-7.10B(b)2), and the combined impact of the two outfall structures cannotexceed the 0.25-acre limit for general permit 11. Other than the combination of general permits 6 and 6A, theDepartment shall not authorize the combination of two different [page=3931] general permits-by-certification or generalpermits, or combination thereof, for a single activity. For example, if an applicant seeks authorization for a roadcrossing that will have an impact of 0.60 acres, an individual permit will be required because the Department will notauthorize 0.25 acres under general permit 10B to be combined with 0.35 acres under general permit 6, which has aone-acre limit (see N.J.A.C. 7:7A-7.6(a)1) for a minor road crossing of 0.60 acres. In addition, other than thecombination of *an access transition area waiver (see N.J.A.C. 7:7A-8.1(a)5),* a transition area waiver averagingplan (see N.J.A.C. 7:7A-8.2), a special activity transition area waiver for linear development (see N.J.A.C. 7:7A-8.3(e)),or a special activity waiver for redevelopment (see N.J.A.C. 7:7A-8.3(f)), with a general permit, the Department shallnot authorize the combination of a general permit or general permit-by-certification with a transition area waiver for asingle activity *if the combined effect of the transition area waiver and general permit authorization would be toexpand the general permit activity beyond the limits set forth in the general permit*;

2. The total combined area of wetlands, State open waters, and transition areas disturbed or modified on the site under

49 N.J.R. 3849(a)

general permits 2, 6, 6A, 7, 8, 10A, 10B, 11, 12, 13, 14, 17, 17A, 18, 19, 21, 23, 24, and 25, and generalpermits-by-certification 8 and 24 does not exceed one acre with the exception of the following:

i. Disturbance of State open waters as part of a lake dredging project under general permit 13 at N.J.A.C. 7:7A-7.13.However, disturbance of wetlands or transition area in the lake or for access to the dredging project shall be countedtoward the one acre limit in this subsection;

ii. Disturbance of State open waters as part of a channel or stream cleaning project under general permit 25 at N.J.A.C.7:7A-7.25. However, disturbance of wetlands or transition area in the channel or stream or for access to the channel orstream cleaning project shall be counted toward the one acre limit in this subsection;

iii. Disturbance of a transition area solely for access to a general permit activity performed in a wetland in accordancewith N.J.A.C. 7:7A-8.1(a)5; and

iv. Disturbance authorized under general permit 17 on a publicly owned site or on land dedicated for conservationand/or recreation purposes;

Recodify existing 4. and 5. as 3. and 4. (No change in text.)

(b) The Department may authorize activities under a general permit-by-certification and/or general permit more thanonce on the same site, and/or at different times on the same site. However, the total disturbance authorized on a siteunder general permits-by-certification and/or general permits since July 1, 1988, shall meet the criteria for use ofmultiple general permits set forth at (a)1 and 2 above.

(c) If a general permit-by-certification or general permit is not listed at (a)2 above, any acreage disturbed under thatgeneral permit-by-certification or general permit is not counted towards the one acre limit in (a)2 above, regardless ofwhether the general permit-by-certification or general permit is used singly or in combination with other generalpermits-by-certification or general permits, and regardless of whether the general permit-by-certification or generalpermit is used once or repeatedly.

(d) (No change.)

7:7A-5.5 Duration of an authorization under a general permit-by-certification

(a) An authorization under a general permit-by-certification is valid for five years from the date of issuance of theauthorization.

(b) The five-year term of an authorization under a general permit-by-certification shall not be extended.

(c) All regulated activities being conducted pursuant to an authorization under a general permit-by-certification shallimmediately cease if the authorization expires.

(d) If an authorization under a general permit-by-certification expires and the person intends to commence or continuethe regulated activities, the person shall obtain a new authorization or permit under this chapter authorizing theregulated activities.

7:7A-5.6 Duration of an authorization under a general permit

(a) Except as provided in (b) below, an authorization under a general permit is valid for five years from the date ofissuance of the authorization.

49 N.J.R. 3849(a)

(b) The five-year term of an authorization under a general permit may be extended one time for five years pursuant toN.J.A.C. 7:7A-20.4.

(c) If an authorization under a general permit expires and the person intends to commence or continue the regulatedactivities, the person shall obtain a new authorization under this chapter authorizing the regulated activities.

1. If no regulated activities have occurred prior to the expiration of the authorization, the Department shall issue a newauthorization under the general permit only if the project is revised where necessary to comply with the requirements ofthis chapter in effect when the application for the new authorization is declared complete for review;

2. If any regulated activities have occurred prior to the expiration of the authorization, the Department shall issue a newauthorization under the general permit only if the project is revised where feasible to comply with the requirements ofthis chapter in effect when the application for the new authorization is declared complete for review. In determining thefeasibility of compliance with the requirements in effect at the time the application is declared complete for review, theDepartment shall consider the amount of construction that has been completed prior to the expiration of the originalauthorization, the amount of reasonable financial investment that has been made in the original design consistent withthe requirements applicable under the original authorization, and whether continuing construction as approved under theoriginal authorization would have an adverse impact on the environment.

7:7A-5.7 Conditions applicable to an authorization pursuant to a general permit-by-certification or a general permit

(a) A person conducting regulated activities pursuant to an authorization under a general permit-by-certification or ageneral permit shall comply with:

1. The conditions set forth in the general permit-by-certification or general permit itself;

2. The conditions that apply to all general permits-by-certification and general permits set forth at (b) below;

3. The conditions that apply to all permits at N.J.A.C. 7:7A-20.2;

4. The limits on the use of multiple general permits-by-certification or general permits in N.J.A.C. 7:7A-5.4;

5. If required under a particular general permit, mitigation pursuant to N.J.A.C. 7:7A-11; and

6. Any additional conditions imposed under (f) below.

(b) The following conditions apply to all activities conducted under the authority of a general permit-by-certification orgeneral permit:

1. Activities performed under a general permit-by-certification or general permit shall be associated with a proposedproject. The Department shall not authorize activities under a general permit-by-certification or general permit for thepurpose of eliminating a natural resource in order to avoid regulation. For the purposes of this subsection, project shallmean the use and configuration of all buildings, pavements, roadways, storage areas and structures, and all associatedactivities;

2. The regulated activities shall not occur in the proximity of a public water supply intake;

3. (No change.)

49 N.J.R. 3849(a)

4. The activities will not occur in a component of either the Federal or State Wild and Scenic River System; nor in ariver officially designated by Congress or the State Legislature as a "study river" for possible inclusion in either systemwhile the river is in an official study status; except that the activity may occur in these waters if approved by theNational Park Service in accordance with 40 CFR 233;

5. The activities shall not adversely affect properties which are listed or are eligible for listing on the New Jersey orNational Register of Historic Places unless the applicant demonstrates to the Department that the proposed activityavoids or minimizes impacts to the maximum extent practicable or the Department determines that any impact to theaffected property would not impact the property's ability to continue to meet the criteria for listing at N.J.A.C. 7:4-2.3 orotherwise negatively impact the integrity of the property or the characteristics of the property [page=3932] that led tothe determination of listing or eligibility. The Department shall not issue a conditional permit if it finds that themitigation proposed is inadequate to compensate for the adverse effect. Any permit for an activity which may adversely*[effect]* *affect* a property listed or eligible for listing on the New Jersey or National Register of Historic Placesshall contain conditions to ensure that any impact to the property is minimized to the maximum extent practicable andany unavoidable impact is mitigated.

i. If the permittee, before or during the work authorized, encounters a possible historic property, as described atN.J.A.C. 7:7A-19.5(l), that is or may be eligible for listing in the New Jersey or National Register, the permittee shallpreserve the resource, immediately notify the Department and proceed as directed.

ii. The Department shall not issue a general permit-by-certification or general permit authorization if the applicant, itsconsultants, engineers, surveyors and/or agents significantly adversely affect a historic property to which the generalpermit-by-certification or general permit authorization applies, unless the Department determines that circumstancesjustify issuing the general permit-by-certification or general permit authorization;

6.-7. (No change.)

8. The activities will not result in a violation of the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50, orimplementing rules at N.J.A.C. 7:13;

9. (No change in text.)

10. If activities under the general permit-by-certification or general permit involve excavation or dredging, the applicantshall use an acceptable disposal site for the excavated or dredged material. No material shall be deposited or dewateredin freshwater wetlands, transition areas, State open waters or other environmentally sensitive areas. The Departmentmay require testing of dredged material if there is reason to suspect that the material is contaminated. If any dredgedmaterial is contaminated with toxic substances, the dredged material shall be removed and disposed of in accordancewith Department-approved procedures;


12. Best management practices shall be followed whenever applicable;


15. Activities authorized under a general permit-by-certification or general permit shall not take place in a vernalhabitat, or in a transition area adjacent to a vernal habitat, with the exception of activities associated with generalpermits 1, 6, 6A, and 16, which shall be reviewed on a case-by-case basis in accordance with N.J.A.C. 7:7A-5.3(e).

(c) In order to protect the fishery resources and/or the spawning of the fish population, any activity which may introduce

49 N.J.R. 3849(a)

sediment into a stream or cause a stream to become turbid shall not be performed during the time periods listed in Table5.7 below:

Table 5.7<1>

RESTRICTED TIME PERIODS FOR WATERS WITH FISHERY RESOURCES

Water and classification Time period (inclusive) during which

activities are prohibited

1. Trout Waters

-- All trout production waters except rainbow

trout September 15 through March 15

-- Rainbow trout production waters February 1 through April 30

-- Trout stocked waters

-- Trout maintenance waters March 15 through June 15

-- All regulated waters located within 1

mile upstream of a trout stocked or a trout

maintenance water

2. Non-Trout Waters

-- Regulated waters that support general

game fish located north of Interstate 195 May 1 through July 31

-- Regulated waters that support general

game fish located south of Interstate 195 May 1 through June 30

-- Regulated waters that support pickerel Ice out through April 30

-- Regulated waters that support walleye March 1 through May 30

3. Anadromous Waters

-- All unimpeded tidal regulated waters

open to the Atlantic Ocean or any coastal bay April 1 through June 30

-- All regulated waters identified as

anadromous migratory pathways

April 1 through June 30 and

-- Delaware River upstream of U.S. Route 1 September 1 through November 30

-- Delaware River between U.S. Route 1 and

49 N.J.R. 3849(a)

Interstate 295 (Delaware Memorial Bridge) March 1 through June 30 and

-- Tidal portions of Raccoon Creek, Rancocas September 1 through November 30

Creek, Crosswicks Creek, and Cooper River

-- All unimpeded tidal regulated waters open

to the Delaware River downstream of Interstate

295(Delaware Memorial Bridge) March 1 through June 30 and

-- Tidal portions of the Maurice River, October 1 through November 30

Cohansey River, and Salem River

<1>Note that the Delaware River Basin Commission (DRBC) imposes additional timing restrictions on certain activitiesin waters under DRBC jurisdiction. Contact the U.S. Fish and Wildlife Service's River Basin Coordinator through theDRBC at (609) 883-9500 for information on these additional timing restrictions.

[page=3933] (d) The Department shall reduce, extend, or otherwise modify a timing restriction listed in Table 5.7, if itdetermines that one or more of the following requirements is satisfied:

1. Potential adverse impacts to the fishery resource are likely to be reduced if a regulated activity occurs during arestricted time period rather than during an unrestricted time period;

2. A regulated activity is subject to more than one restricted time period, the combined effect of which would limit theregulated activity to fewer than 183 calendar days per year. In such a case, the Department shall allow regulatedactivities to occur for up to 183 calendar days, provided the applicant demonstrates that additional measures will betaken to reduce potential adverse impacts to fishery resources to a level acceptable to the Department. Note that the183-calendar day period during which the Department determines that activities may occur need not be consecutive. Forexample, the Department may determine that restricting activities for three months in the spring and three months in thefall best protects fishery resources in a particular case;

3. The observance of a timing restriction would adversely impact public health, safety, and/or welfare, and the applicantdemonstrates that additional measures are taken where necessary to reduce adverse impacts to fishery resources to anacceptable level; or

4. Due to the nature of the project or an unusual circumstance on site, the timing restriction must be modified in order toprevent a substantial adverse impact to the fishery resource, to the aquatic environment, or to a threatened orendangered species or its habitat.

(e) If an activity will take place in a non-delegable water, and the activity requires approval from the USACE under theFederal 404 program, the activities authorized under the general permit or general permit-by-certification shall notbegin until the permittee obtains the required Federal 404 program approval.

(f) In addition to the conditions that apply to every authorization pursuant to a general permit under (a) above, theDepartment shall establish additional conditions in a specific authorization pursuant to a general permit, on acase-by-case basis in accordance with N.J.A.C. 7:7A-20.3, as required to ensure the authorized regulated activity meetsall applicable requirements of this chapter and its enabling statutes.

SUBCHAPTER 6. GENERAL PERMITS-BY-CERTIFICATION

49 N.J.R. 3849(a)

7:7A-6.1 General permit-by-certification 8--Construction of an addition to a lawfully existing residential dwelling

(a) General permit-by-certification 8 authorizes construction of an addition to a lawfully existing residential dwelling infreshwater wetlands and/or transition areas, provided the conditions at N.J.A.C. 7:7A-5.7 are met and:

1. The dwelling was lawfully constructed prior to July 1, 1988;

2. The proposed addition is attached to or an extension of the residential dwelling;

3. The proposed activities do not include disturbance of State open waters;

4. The total area of disturbance, including freshwater wetlands, transition areas, and non-regulated areas, is no morethan 750 square feet; and

5. The footprint of the existing building has not increased by more than 750 square feet, cumulatively, since July 1,1988, and the addition will not exceed a cumulative 750-square-foot increase in combination with previous additions.

7:7A-6.2 General permit-by-certification 24--Repair or modification of a malfunctioning individual subsurfacesewage disposal (septic) system

(a) General permit-by-certification 24 authorizes activities in freshwater wetlands and transition areas necessary for therepair or modification of a malfunctioning individual subsurface sewage disposal system, provided the conditions atN.J.A.C. 7:7A-5.7 are met and:

1. The total area of disturbance including freshwater wetlands, transition areas, and non-regulated areas is no more thanone-quarter acre and all disturbance is located on the same property where the malfunctioning system is located;

2. The proposed activities do not include disturbance of State open waters;

3. The repair or modification of the system is limited to serve only those volumes of sanitary sewage, estimated inaccordance with N.J.A.C. 7:9A-7.4, that were approved prior to the malfunction; and

4. Prior to applying for this general permit-by-certification, the applicant obtains a letter from the local board of healthwith jurisdiction over the individual subsurface sewage disposal system, stating that:

i. The proposed activities are authorized under, and comply with, the Department's Standards for Individual SubsurfaceSewage Disposal Systems at N.J.A.C. 7:9A;

ii. The proposed activities are not directly or indirectly caused by an expansion of the facility the individual subsurfacesewage disposal system serves, or a change in its use, including a change from disuse or abandonment to any type ofuse; and

iii. There is no alternative location on the site that:

(1) Has a seasonal high water table deeper than 1.5 feet below the existing ground surface; and

(2) Can be used for a subsurface sewage disposal system.

SUBCHAPTER 7. GENERAL PERMITS

49 N.J.R. 3849(a)

7:7A-7.1 General permit 1--Maintenance and repair of existing features

(a) General permit 1 authorizes activities in freshwater wetlands and State open waters required to carry out the repair,rehabilitation, replacement, maintenance, or reconstruction of a previously authorized, currently serviceable structure,fill, roadway, utility line, active irrigation, or drainage ditch, or stormwater management facility lawfully existing priorto July 1, 1988, or permitted under this chapter, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 aremet and:

1. The previously authorized structure, fill, roadway, utility, ditch, or facility has not been and will not be put to any useother than as specified in any permit authorizing its original construction; and

2. The activities do not expand, widen, or deepen the previously authorized feature, and do not deviate from any plansof the original activity, except that minor deviations due to changes in materials or construction techniques and whichare necessary to make repairs, rehabilitation, or replacements are allowed, provided such changes do not result indisturbance of additional freshwater wetlands or State open waters upon completion of the activity.

(b) If the activity is the ongoing maintenance of an off-stream stormwater management facility created in uplands,including a wetland constructed in uplands for stormwater management purposes after September 4, 2001, the followingshall apply:

1. The application for authorization shall be subject to the public notice requirements in N.J.A.C. 7:7A-17, but shall notbe subject to the application requirements in N.J.A.C. 7:7A-16;

2. The application for authorization shall be submitted to the Department by mail at the address set forth at N.J.A.C.7:7A-1.4, and shall include the following:

i. A completed application form as described at N.J.A.C. 7:7A-16.7(a)1 and available from the Department at theaddress set forth at N.J.A.C. 7:7A-1.4;

ii. A copy of the permit, if any, authorizing the original construction of the stormwater management facility;

iii. A copy of a USGS quad map for the site;

iv. Documentation that public notice of the application has been provided in accordance with N.J.A.C. 7:7A-17; and

v. The appropriate application fee as set forth at N.J.A.C. 7:7A-18; and

3. For the purposes of this subsection, maintenance includes removal of sediment and debris and mowing of vegetationas necessary to ensure that the stormwater management facility will function as it was originally designed and/orpermitted. Maintenance does not include enlargement of a stormwater management structure, excavation below theoriginal bottom of a structure, or any other change in its design.

7:7A-7.2 General permit 2--Underground utility lines

(a) General permit 2 authorizes activities in freshwater wetlands, transition areas, and/or State open waters necessary forthe construction and/or maintenance of an underground utility line, provided all applicable requirements at N.J.A.C.7:7A-5.7 and 20.3 are met and:

[page=3934] 1. Permanent above-ground disturbance of wetlands, transition area, and/or State open waters is no greater

49 N.J.R. 3849(a)

than 0.5 acre. Anything that changes the character of the existing wetland, even if only to a different wetland type, ispermanent disturbance. For example, maintained clearing over a utility line is permanent disturbance. For the purposesof this section, installation of a utility line in scrub shrub or emergent wetlands shall not be considered permanentdisturbance;

2. Permanently maintained clearing over the utility line is no wider than 20 feet unless a wider area is required by law;

3. The trench into which the utility line is placed is no wider than necessary to comply with the United StatesOccupational Safety and Health Administration safety standards for excavations, set forth at 29 CFR Part 1926, SubpartP;

4. Temporary disturbance, such as temporary construction clearing or temporary storage of dirt or equipment, is theminimum size necessary for compliance with applicable laws;

5. The activities shall not cause any change in preconstruction elevation of a freshwater wetland, transition area, or Stateopen water; and

6. Manholes and siphons for sewer lines are placed outside of wetlands, unless the Department's Municipal Finance andConstruction Element determines under N.J.A.C. 7:22 and/or 7:14A-23 that there is no feasible alternative to placementin wetlands.

(b) (No change.)

Recodify existing (d) and (e) as (c) and (d) (No change in text.)

(e) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater of freshwaterwetlands or State open waters. Mitigation shall be performed for all permanent loss and/or disturbance of less than 0.1acres of freshwater wetlands or State open waters unless the applicant demonstrates to the Department that all activitieshave been designed to avoid and minimize impacts to wetlands. For purposes of this subsection, "minimize" means thatthe project is configured so that most or all of it is contained in the uplands on the site, and that the wetlands are avoidedto the greatest extent possible. An applicant is not required to reduce the scope of the project or to consider offsitealternatives to comply with this requirement.

1. The mitigation shall meet the substantive and procedural requirements at N.J.A.C. 7:7A-11 and shall be submitted tothe Department for review and approval no later than 90-calendar days prior to the initiation of regulated activitiesauthorized by this general permit.

7:7A-7.3 General permit 3--Discharge of return water

(a) General permit 3 authorizes the discharge of return water from an upland, contained, dredged material managementarea into State open waters, and placement of a pipe above ground for the discharge through freshwater wetlands and/ortransition areas, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met.

(b) The dredging itself may also require other State and Federal permits.

7:7A-7.4 General permit 4--Hazardous site investigation and cleanup

(a) General permit 4 authorizes activities in freshwater wetlands, transition areas, and State open waters that areundertaken by the Department or by a licensed site remediation professional pursuant to the AdministrativeRequirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C, for the investigation, cleanup, removal, or

49 N.J.R. 3849(a)

remediation of hazardous substances as defined by or pursuant to the Department's rules governing hazardoussubstances at N.J.A.C. 7:1E, Appendix A or pollutants as defined by or pursuant to the New Jersey Pollutant DischargeElimination System (NJPDES) rules at N.J.A.C. 7:14A, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and20.3 are met and:

1. The applicant demonstrates, or provides a certification from a licensed site remediation professional pursuant to theAdministrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C, that the area of freshwaterwetlands, State open waters, and/or transition areas disturbed is the minimum necessary for compliance with theTechnical Requirements for Site Remediation, N.J.A.C. 7:26E, and the Administrative Requirements for theRemediation of Contaminated Sites rules, N.J.A.C. 7:26C. This demonstration or certification shall include:

i. An exploration of all feasible alternative remediation methods acceptable under N.J.A.C. 7:26E and 7:26C; and

ii. The identification of any remediation methods that would result in less area of freshwater wetlands, State openwaters, and transition areas disturbance with an explanation for why these remediation methods were not chosen; and

2. The applicant provides mitigation, in accordance with N.J.A.C. 7:7A-11, for the total area of freshwater wetlandsand/or State open waters disturbed, except that mitigation is not required to compensate for disturbance of wetlands orState open waters that have formed as a direct result of the remediation activities.

(b) The mitigation proposal required under (a)2 above may be incorporated into the document approved pursuant to theAdministrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C, and/or it may be submitted aspart of the general permit application. The Department shall not issue an authorization under general permit 4 until themitigation proposal, or an equivalent document that ensures that the requirements of N.J.A.C. 7:7A-11 are met, isapproved.

7:7A-7.5 General permit 5--Landfill closures

(a) General permit 5 authorizes activities in freshwater wetlands, transition areas, and/or State open waters that areundertaken by the Department's Division of Solid and Hazardous Waste, or authorized through a solid waste facilityclosure and post-closure plan or disruption approval issued by the Department under N.J.A.C. 7:26-2A.9, provided allapplicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The Department determines that the activities that will cause the disturbance are necessary to properly close the solidwaste facility and to properly maintain and monitor it after closure. For example, an access road necessary for landfillclosure may be authorized under general permit 5, but an access road that is not necessary for landfill closure, but thatwill facilitate development of the site, is not authorized under general permit 5; and

2. The applicant demonstrates that the amount of disturbance is the minimum necessary in order to adequately closeand/or maintain the landfill. For example, a disturbance for an access road through wetlands may be necessary toproperly close the landfill in accordance with (a)1 above, but the road shall be the minimum size possible.

(b) There is no acreage limit on activities under general permit 5. However, mitigation shall be performed tocompensate for disturbance of freshwater wetlands and/or State open waters authorized under general permit 5, exceptthat mitigation is not required for disturbance of wetlands located on top of the landfill, or on the intermediate orpermanent cover of the landfill. The mitigation shall meet the procedural and substantive requirements at N.J.A.C.7:7A-11.

(c) The mitigation proposal required under (b) above may be incorporated into the closure and post-closure plan ordisruption approval and/or it may be submitted as part of the general permit application.

49 N.J.R. 3849(a)

(d) The Department shall not issue an authorization under general permit 5 until the mitigation proposal is approved.Activities under general permit 5 shall not begin until the Department has approved the mitigation proposal.

7:7A-7.6 General permit 6--Non-tributary wetlands

(a) General permit 6 authorizes regulated activities in freshwater wetlands and/or State open waters, if the freshwaterwetlands and/or State open waters are not part of a surface water tributary system discharging into an inland lake orpond, or a river or stream, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The activities disturb no more than one acre of a freshwater wetland and/or State open water that is not a water of theUnited States; and

2. The activities disturb no more than one-half acre of a freshwater wetland and/or State open water that is a water of theUnited States. Mitigation shall be performed for all permanent loss and/or disturbance to wetlands and/or State openwater that are waters of the United States in accordance with (b) below.

3. The activities do not take place in any of the following:

[page=3935] i. An exceptional resource value wetland, as described at N.J.A.C. 7:7A-3.2;

ii. A State open water that is a special aquatic site;

Recodify existing 3. and 4. as iii. and iv. (No change in text.)

(b) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater of freshwaterwetlands or State open waters that are also waters of the United States. Mitigation shall be performed for permanent lossand/or disturbance of less than 0.1 acres of freshwater wetlands or State open waters that are also waters of the UnitedStates unless the applicant demonstrates to the Department that all activities have been designed to avoid and minimizeimpacts to wetlands. For purposes of this subsection, "minimize" means that the project is configured so that most or allof it is contained in the uplands on the site, and that the wetlands are avoided to the greatest extent possible. Anapplicant is not required to reduce the scope of the project or to consider offsite alternatives to comply with thisrequirement.


7:7A-7.6A General permit 6A--Transition areas adjacent to non-tributary wetlands

(a) General permit 6A authorizes regulated activities in transition areas adjacent to freshwater wetlands, if thefreshwater wetlands are not part of a surface water tributary system discharging into an inland lake or pond, or a river orstream, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The activities disturb no more than one-half acre of a transition area.

i. (No change in text.)

2. Activities do not take place in a transition area adjacent to the following:

49 N.J.R. 3849(a)

i. An exceptional resource value wetland, as described at N.J.A.C. 7:7A-3.2; or

ii. (No change in text.)

7:7A-7.7 General permit 7--Human-made ditches or swales in headwaters

(a) General permit 7 authorizes activities in freshwater wetlands that are human-made ditches or in freshwater wetlandsthat are swales, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The ditch or swale is located in a headwater;


2. The activities do not take place in the following:

i. A ditch or swale that is, or is located within, an exceptional resource value wetland, as described at N.J.A.C.7:7A-3.2; or

ii. A ditch or swale that is, or is located within, a USEPA priority wetland.

3. The activities do not result in either of the following:

Recodify existing 1. and 2. as i. and ii. (No change in text.)

7:7A-7.8 General permit 8--House additions

(a) General permit 8 authorizes activities in freshwater wetlands and/or transition areas necessary for the construction ofadditions or appurtenant improvements to residential dwellings lawfully existing prior to July 1, 1988, provided allapplicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The activities will not occur in State open waters;

2. The improvement or addition requires no more than a cumulative surface area of 750 square feet of fill and/ordisturbance and will not result in new alterations to freshwater wetlands outside of the 750-square-foot area; and

3. The improvement or addition is located within 100 feet of the residential dwelling.

(b) If requested within five years of the destruction of a dwelling, this permit authorizes the replacement of a residentialdwelling that was lawfully existing prior to July 1, 1988, within the same footprint of the previous dwelling with anincrease of up to 750 square feet of fill and/or disturbance provided that:

Recodify existing i. and ii. as 1. and 2. (No change in text.)

7:7A-7.9 General permit 9--Airport sight line clearing

(a) General permit 9 authorizes the selective cutting of certain vegetation in freshwater wetlands and transition areas at apublic use aeronautical facility, as defined in the New Jersey Department of Transportation rules at N.J.A.C. 16:54-1.3,provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The cutting of vegetation is only as necessary to comply with the protected air space provisions for a public use

49 N.J.R. 3849(a)

aeronautical facility, mandated by the Federal Aviation Administration (FAA) and set forth in the New JerseyDepartment of Transportation rules at N.J.A.C. 16:54-4.2(a)1iii and 2ii;

2. The activities are necessary to enable an aeronautical facility to comply with New Jersey Department ofTransportation rules. The cutting of vegetation in wetlands and/or transition areas as part of a project that increases thearea of pavement or buildings at an airport is not authorized under general permit 9, and would require an individualpermit under this chapter;

3. Adverse environmental impacts are minimized as follows:

i. Activities shall be timed to minimize disturbance of threatened and endangered species. The Department will specifythe required timing in the general permit authorization when issued;

ii. The permittee shall leave all tree stumps, brush stumps, and root systems in place;

iii. The permittee shall minimize disturbance of freshwater wetlands and transition areas through use of matting,equipment running on oversized tires, or other similar practices; and

iv. Cut vegetation shall be disposed of in a manner that will minimize adverse environmental impacts on wetlands andtransition areas, taking into consideration State Forest Fire Service requirements at N.J.S.A. 13:9-23 and/or otherapplicable laws.

(b) In addition to meeting all applicable application requirements at N.J.A.C. 7:7A-16, an applicant for authorizationunder general permit 9 shall provide a certification from the Director of the Division of Aeronautics in the New JerseyDepartment of Transportation, containing:

1.-3. (No change.)

7:7A-7.10A General permit 10A--Very minor road crossings

(a) (No change.)

(b) The Department shall issue a general permit 10A authorization only if the activities comply with all applicablerequirements at N.J.A.C. 7:7A-5.7 and 20.3 and with the limits in one of the following scenarios:

1.-2. (No change.)

(c) If a proposed road crossing skirts along the edge of a wetland or transition area or touches the wetland or transitionarea, without actually crossing through the wetland or transition area, the applicant shall, in addition to meeting therequirements at (b) above, demonstrate in accordance with N.J.A.C. 7:7A-7.10B(d) that there is no alternative onsitelocation and/or configuration for the road crossing that would provide access to the developable upland with lessadverse environmental impact.


(f) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater of freshwater wetlandsor State open waters. Mitigation shall be performed for permanent loss and/or disturbance of less than 0.1 acres offreshwater wetlands or State open waters unless the applicant demonstrates to the Department that all activities havebeen designed to avoid and minimize impacts to wetlands. For purposes of this subsection, "minimize" means that theproject is configured so that most or all of it is contained in the uplands on the site, and that the wetlands are avoided to

49 N.J.R. 3849(a)

the greatest extent possible. An applicant is not required to reduce the scope of the project or to consider offsitealternatives to comply with this requirement.


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49 N.J.R. 3849(a)

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7:7A-7.10B General permit 10B--Minor road crossings

(a) (No change.)

(b) The Department shall issue a general permit 10B authorization only if all applicable requirements at N.J.A.C.7:7A-5.7 and 20.3 are met and:

49 N.J.R. 3849(a)

1.-2. (No change.)

(c)-(d) (No change.)

(e) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater of freshwaterwetlands or State open waters. Mitigation shall be performed for permanent loss and/or disturbance of less than 0.1acres of freshwater wetlands or State open waters unless the applicant demonstrates to the Department that all activitieshave been designed to avoid and minimize impacts to wetlands. For purposes of this subsection, "minimize" means thatthe project is configured so that most or all of it is contained in the uplands on the site, and that the wetlands are avoidedto the greatest extent possible. An applicant is not required to reduce the scope of the project or to consider offsitealternatives to comply with this requirement.


7:7A-7.11 General permit 11--Outfalls and intake structures


(c) The Department shall issue a general permit 11 authorization only if all applicable requirements at N.J.A.C.7:7A-5.7 and 20.3 are met and:

1. The activities disturb no more than one quarter acre of freshwater wetlands, transition areas, and/or State open waters,including both temporary and permanent disturbance;

2. The area disturbed during construction of a conveyance structure is no wider than is necessary to comply with theUnited States Occupational Safety and Health Administration safety standards for excavations, set forth at 29 CFR Part1926, Subpart P; and

3. The amount of rip-rap or other energy dissipating material placed is the minimum necessary to prevent erosion, andshall not exceed 10 cubic yards of fill per outfall, unless a larger amount is required in order to comply with theStandards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90.


(f) For any excavated area in freshwater wetlands, transition areas, and/or State open waters, the following requirementsapply:

1.-2. (No change.)

3. The wetland and/or transition area above the excavation shall be replanted, in accordance with applicable BMPs, withappropriate indigenous species.

(g)-(h) (No change.)

[page=3938] (i) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater offreshwater wetlands or State open waters. Mitigation shall be performed for permanent loss and/or disturbance of lessthan 0.1 acres of freshwater wetlands or State open waters unless the applicant demonstrates to the Department that allactivities have been designed to avoid and minimize impacts to wetlands. For purposes of this subsection, "minimize"

49 N.J.R. 3849(a)

means that the project is configured so that most or all of it is contained in the uplands on the site, and that the wetlandsare avoided to the greatest extent possible. An applicant is not required to reduce the scope of the project or to consideroffsite alternatives to comply with this requirement.


7:7A-7.12 General permit 12--Surveying and investigating

(a) (No change.)

(b) The Department shall issue a general permit 12 authorization only if all applicable requirements at N.J.A.C.7:7A-5.7 and 20.3 are met and:

1. Disturbance is the minimum necessary to obtain the desired information; and

2. If activities disturb soil, the soil is restored to its pre-existing elevation, retaining its original soil layers, unless thesoil disturbance is six inches in diameter or smaller. This paragraph shall not apply if other permits that allowpermanent impacts in the same location have been obtained.

7:7A-7.13 General permit 13--Lake dredging

(a) General permit 13 authorizes up to one acre of dredging in palustrine emergent freshwater wetlands necessary torestore or maintain a lake, pond, or reservoir to its original bottom contours, provided all applicable requirements atN.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. Dredging does not occur in wetlands that are not palustrine emergent wetlands;

2. If the lake, pond, or reservoir is to be lowered during dredging:

i. The permittee obtains a lake lowering permit from the Department's Division of Fish and Wildlife;

ii. Regulated activities do not begin until the lake, pond, or reservoir is lowered in accordance with the lake loweringpermit; and

iii. All regulated activities are discontinued before the lake, pond, or reservoir is refilled;

3. In order to minimize adverse impacts on fish and on the downstream environment:

i. All necessary measures, including adjusting the timing of the dredging, are taken to prevent any detrimental effect tospawning of fish in the lake, pond, or reservoir or downstream; and

4. There is a continuous flow of sediment-free water to the area downstream of the lake, pond, or reservoir at all timesduring activities authorized under general permit 13.

(b) (No change.)

(c) The permittee may temporarily disturb wetlands (palustrine emergent or otherwise), transition areas, or State openwaters, beyond those disturbed directly by the dredging, in order to obtain vehicular access for the dredging, provided:

49 N.J.R. 3849(a)

1. Disturbance to wetlands, transition areas, and/or State open waters for access does not exceed one eighth of an acre,unless the applicant demonstrates in accordance with the standards at N.J.A.C. 7:7A-7.10B(d) that there is noalternative onsite location and/or configuration that would provide access to the dredging with less adverseenvironmental impact. If such a demonstration is made, the access disturbance may be increased as necessary, but shallnot exceed one-quarter acre; and

2. Upon completion of dredging, all access disturbances are restored to their pre-existing elevation and condition.

(d) In addition to meeting all applicable application requirements at N.J.A.C. 7:7A-16, an application for authorizationunder general permit 13 shall include:

1. (No change.)

2. For a lake larger than five acres, the following information:

i. (No change.)

ii. A list of the sources of sediment in the lake, including all stormwater pipes, outfalls, ditches, and similar features thatdischarge directly into the lake or that discharge into a tributary to the lake within 1,000 feet of the lake. The location ofeach listed source shall be indicated on the map required in (d)2i above; and

iii. (No change.)

(e) (No change in text.)

(f) The permittee shall dispose of dredged material in accordance with the requirements at N.J.A.C. 7:7A-5.7,Conditions applicable to an authorization pursuant to a general permit-by-certification or a general permit. TheDepartment may require testing of dredged material if there is reason to suspect that the material is contaminated.

7:7A-7.14 General permit 14--Water monitoring devices

(a) General permit 14 authorizes the placement and use of water monitoring devices in freshwater wetlands, transitionareas, and State open waters, provided the conditions at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The devices consist of one or more of the following:

Recodify existing 1.-5. as i.-v. (No change in text.)

2. The devices will not significantly disrupt the movement of aquatic species native to the water body, or of species thatnormally migrate through the area.

(b) (No change in text.)

(c) An item listed at (a) above is not regulated under this chapter and, therefore, does not require Department approval ifit meets both of the following criteria;

1. (No change.)

2. The placement and/or use of the item does not involve the placement of fill.

49 N.J.R. 3849(a)

7:7A-7.15 General permit 15--Mosquito control activities

(a) General permit 15 authorizes activities in freshwater wetlands, transition areas, and State open waters necessary formosquito control water management activities conducted by a county mosquito control agency, or by a Federal agencyon Federal land provided the conditions at N.J.A.C. 7:7A-5.7 and 20.3, as well as (b) through (g) below are met.

(b)-(e) (No change.)

(f) A county agency applying for authorization under general permit 15 shall provide public notice of the application inaccordance with this subsection, and shall not be subject to the public notice requirements found at N.J.A.C.7:7A-*[10.17]**17*. The county agency shall publish a display advertisement describing the proposed general permitactivities. The advertisement shall be:

1.-3. (No change.)

(g) (No change.)

7:7A-7.16 General permit 16--Creation, restoration, and enhancement of habitat and water quality functions andvalues

(a) General permit 16 authorizes regulated activities in freshwater wetlands, transition areas, and State open watersnecessary to implement a plan for the creation, restoration, or enhancement of habitat and water quality functions andvalues of wetlands. Activities authorized under this general permit include, but are not limited to:

1. Altering hydrology to restore, enhance, or create wetlands conditions, such as by blocking, removing, or disabling ahuman-made drainage ditch or other drainage structure such as a tile, culvert, or pipe;

2. Breaching a structure, such as a dike or berm in order to allow water into an area;

3. Placing habitat improvement structures such as:

i. Nesting islands;

ii. Fencing to contain, or to prevent intrusion by, livestock or other animals; and

iii. Aquatic habitat enhancement devices or habitat improvement structures, such as placed boulders, stream deflectors,or brush piles;

4. Regrading to provide proper elevation or topography for wetlands restoration, creation, or enhancement; and

5. Removing, planting, cutting, burning, or otherwise managing vegetation in order to increase habitat diversity orcontrol invasive flora.

[page=3939] (b) Creation, restoration, and enhancement activities are eligible for authorization under this generalpermit, provided the conditions at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The plan is:

i. Approved by one of the following agencies:

49 N.J.R. 3849(a)

(1) The Department's Division of Fish and Wildlife;

(2) The Department's Office of Natural Resource Restoration;

(3) The USFWS;

(4) The USDA Natural Resources Conservation Service;

(5) A government resource protection agency, such as a parks commission; or

(6) A charitable conservancy; or

ii. Required by or approved by a government agency, such as the Department and/or USACE, under a mitigation plan.

(1) Pursuant to N.J.A.C. 7:7A-11, a mitigation plan submitted to the Department to satisfy the requirements and/orconditions of a permit does not require the submittal of a separate application for an authorization or permit;

2. The project is consistent with the goals of the Freshwater Wetlands Protection Act;

3. The project will improve the values and functions of the ecosystem;

4. The project will have a reasonable likelihood of success;

5. The activities disturb the minimum amount of freshwater wetlands, transition areas, and/or State open watersnecessary to successfully implement the project plan; and

6. The activities do not decrease the total combined area of freshwater wetlands, State open waters, and/or transitionareas on a site. However, the Department may approve such a decrease, if the Department determines that the activitiescausing the decrease are sufficiently environmentally beneficial to outweigh the negative environmental effects of thedecrease. In addition, the Department may approve conversion of wetlands to State open waters or transition areas,conversion of State open waters to wetlands or transition areas, or the conversion of transition areas to freshwaterwetlands or State open waters, if the Department determines that such conversion is environmentally beneficial.

(c) This general permit does not authorize an activity unless the sole purpose of the activity is habitat creation,restoration, or enhancement. For example, general permit 16 does not authorize construction of a detention basin inwetlands for stormwater management, even if the detention basin or the project of which the basin is a part will alsoresult in habitat creation, restoration, or enhancement. Similarly, general permit 16 does not authorize a flood controlproject that may also result in creation, restoration, or enhancement of some wildlife habitat.

(d) An application for authorization under general permit 16 does not require an application fee under N.J.A.C.7:7A-18.


(f) If an activity is exempt under this chapter, it shall not require authorization under general permit 16 solely by virtueof being conducted as part of a program included in (b) above. For example, if a farmer proposes a habitat enhancementproject that is eligible for authorization under general permit 16, and some of the activities involved in the project meetthe requirements for the farming exemption under N.J.A.C. 7:7A-2.4(c), those activities do not lose their exempt statusmerely by virtue of being part of a project authorized under general permit 16.

49 N.J.R. 3849(a)

7:7A-7.17 General permit 17--Trails and boardwalks

(a) General permit 17 authorizes activities in freshwater wetlands, transition areas, and/or State open waters necessaryfor construction of a trail and/or boardwalk for use by pedestrians, bicycles, and other non-motorized methods oftransport, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met. General permit 17 does notauthorize construction of a restroom, gazebo, rain shelter, or any covered or enclosed structure. General permit 17 doesnot authorize construction of a roadway for use by automobiles, golf carts, motorcycles, motorized trail bikes, all-terrainvehicles, or other motor vehicles.

(b)-(f) (No change.)

7:7A-7.17A General permit 17A--Non-Motorized, Multiple-use Paths

(a) General permit 17A authorizes activities in freshwater wetlands, transition areas, and/or State open waters necessaryfor construction of a non-motorized, multiple use path for use by bicycles, skate boards, rollerblades, and othernon-motorized methods of transport, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met.General permit 17A does not authorize construction of a restroom, gazebo, rain shelter, or any covered or enclosedstructure. General permit 17A does not authorize construction of a roadway for use by automobiles, golf carts,motorcycles, motorized trail bikes, all-terrain vehicles, or other motor vehicles.

(b)-(e) (No change.)

7:7A-7.18 General permit 18--Dam repair

(a)-(c) (No change.)

(d) Activities under general permit 18 shall meet all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 and aresubject to the following limits:

1.-6. (No change.)

(e) If a dam is removed under general permit 18, and the dam owner also owns or controls any of the propertycontaining the lake bottom, the Department may require the owner to execute and record a conservation restriction inaccordance with the requirements at N.J.A.C. 7:7A-12 covering the lake bottom area. The conservation restriction shallprohibit any development or regulated activity for five years from the date the dam is removed, in order to allow thestream corridor and associated wetlands in the lake bottom area to revert to their natural state. The conservationrestriction shall include the land covered by the lake bottom, and all associated wetlands, as they exist at the time thedam is removed. When the conservation restriction expires, the Department's jurisdiction under this chapter shall bebased on existing conditions on the site.

7:7A-7.19 General permit 19--Docks and piers

(a) General permit 19 authorizes:

1. (No change.)

2. Activities in freshwater wetlands, transition areas, and/or State open waters necessary for the construction of a publicboat ramp. Private boat ramps are not covered by this general permit.

49 N.J.R. 3849(a)

(b) All activities under general permit 19, when combined, shall meet the applicable requirements at N.J.A.C. 7:7A-5.7and 20.3 and the following criteria, as applicable:

1.-3. (No change.)

(c) A dock or pier shall be elevated on pilings, so that it does not affect the hydrology of the surrounding wetland. Intidal wetlands that are subject to this chapter but not subject to the Department's coastal permitting program underN.J.A.C. 7:7, a dock or pier shall be elevated at least four feet above the ground surface.

(d)-(h) (No change.)

7:7A-7.20 General permit 20--Bank stabilization

(a) General permit 20 authorizes activities in freshwater wetlands, transition areas, and/or State open waters necessaryto stabilize the bank of a water body in order to reduce or prevent erosion. General permit 20 does not authorize thechannelization of a stream or the stabilization of the bottom of the stream. Bank stabilization projects are eligible forauthorization under this general permit provided the applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. Vegetative or bioengineering stabilization methods are used to stabilize the eroded bank, unless the applicantdemonstrates that, based on the velocity and configuration of the channel or other factors, the Standards for Soil Erosionand Sediment Control in New Jersey at N.J.A.C. 2:90 require other methods;

2. The total cumulative length of water body bank affected by the bank stabilization activities meets the applicablelength limit below in this paragraph. These limits apply to the total linear footage of stream bank affected, regardless ofwhich side of the stream it is on, or whether the activities are contiguous. For example, a bank stabilization using onlyrip-rap could disturb one bank of a stream for a distance of 150 [page=3940] feet, or both banks for 75 feet. Theapplicable length limits are as follows:


ii. For the following bank stabilization activities, no more than 300 feet of stream bank:

(1) (No change in text.)

(2) Soil bioengineering systems not included in (a)2ii(1) above but approved by the Department in writing, which areappropriate to the site and which provide environmental benefits similar to those provided by the measures in (a)2ii(1)above. Examples of such measures are the placement of coconut fiber rolls or sand filled textile containers, parallel tothe shoreline of a stream bank; and

iii. For bank stabilization activities that meet the following criteria, no more than 500 feet of stream bank:

(1) The activities are funded by the Department's Bureau of Environmental Analysis, Restoration, and Standards; and

(2) (No change in text.)

iv. (No change in text.)

3. The bank stabilization activities described in (a)2 above may be used in combination. For example, a bankstabilization project might involve 100 feet of rip-rap authorized under (a)2i above, 300 feet of soil bioengineeringauthorized under (a)2ii above, and 400 feet of vegetative planting measures authorized under (a)2iv above; and

49 N.J.R. 3849(a)

4. Environmental impacts are minimized as follows:

Recodify existing 1.-6. as i.-vi. (No change in text.)

7:7A-7.21 General permit 21--Above ground utility lines

(a) General permit 21 authorizes the following activities in freshwater wetlands, transition areas, and/or State openwaters necessary for the construction of an above ground utility line:

1.-4. (No change.)

5. Minor, temporary disturbances, necessary for access during construction.

(b) Activities under general permit 21 shall comply with the applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 andthe following limits:

1. (No change.)

2. Permanent disturbance of freshwater wetlands, transition areas, and/or State open waters, including the area ofvegetative clearing to be maintained underneath the utility line shall be no greater than 0.5 acre and no wider than 20feet, unless the applicant demonstrates that a wider disturbance is necessary to comply with applicable laws orregulations. For the purposes of this paragraph, installation of a utility line in scrub shrub or emergent wetlands shall notbe considered permanent disturbance.


(e) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater of freshwaterwetlands or State open waters. Mitigation shall be performed for permanent loss and/or disturbance of less than 0.1acres of freshwater wetlands or State open waters unless the applicant demonstrates to the Department that all activitieshave been designed to avoid and minimize impacts to wetlands. For purposes of this subsection, "minimize" means thatthe project is configured so that most or all of it is contained in the uplands on the site, and that the wetlands are avoidedto the greatest extent possible. An applicant is not required to reduce the scope of the project or to consider offsitealternatives to comply with this requirement.


7:7A-7.22 General permit 22--Expansion of cranberry growing operations in the Pinelands

(a) General permit 22 authorizes the expansion of certain cranberry growing operations in the Pinelands. To be eligiblefor authorization under the general permit, the cranberry growing operation must be a single, discrete legal entity that,prior to the date general permit 22 becomes operative under (u) below:

1.-2. (No change.)

3. Was reported as a cranberry growing operation to the United States Department of Agriculture Cranberry MarketingCommittee under the Federal Cranberry Marketing Order (7 CFR Part 929).

49 N.J.R. 3849(a)

(b) Activities authorized under general permit 22 include, but are not limited to, the construction or expansion of a bog,reservoir, canal, ditch, dike, tail water recovery system, water quality improvement system, or other similar support typefacility. General permit 22 does not authorize:

1.-3. (No change.)

(c) The Department shall authorize activities under general permit 22 only if the activities will be conducted on the areawith the lowest number ranking on the list at (d) below, which is available and has the following characteristics:

1.-2. (No change.)

(d) For the purposes of general permit 22, State open waters and wetland types are ranked in the order that they shall beconsidered for use for the expansion of a cranberry growing operation, as follows:

1.-8. (No change.)

(e) For the purposes of general permit 22, if a freshwater wetlands area was forested, but the trees have been harvestedwithin the five years immediately preceding submittal of an application for authorization, the area is consideredforested.

(f) The Department shall not issue more than one authorization under general permit 22 per year to a single cranberrygrowing operation.

(g) The Department shall not issue an authorization under general permit 22 for activities that will cause a net loss offreshwater wetlands at a single cranberry growing operation.

(h) The Department shall limit authorizations issued to any single cranberry growing operation under general permit 22,so as to ensure that the loss and/or disturbance of freshwater wetlands and/or State open waters at that single operationmeets all of the following criteria:

1. (No change.)

2. No more than 10 acres of forested freshwater wetlands shall be lost and/or disturbed over the five-year term ofgeneral permit 22; and

3. (No change.)

(i) The Department shall limit authorizations issued Statewide, so as to ensure that the total Statewide loss and/ordisturbance of freshwater wetlands and/or State open waters under general permit 22 meets all of the following criteria:

1. No more than 60 acres of freshwater wetlands and/or State open waters shall be lost and/or disturbed in any one yearthat general permit 22 is operative, except that if the Department authorizes fewer than 60 acres of loss and/ordisturbance in any year, up to 30 acres of unused loss or disturbance may be carried forward to a subsequent year, but inno case shall more than 90 acres of freshwater wetlands and/or State open waters be lost or disturbed in one year;

2. No more than 300 acres of freshwater wetlands and/or State open waters shall be lost and/or disturbed during thefive-year term of general permit 22;

3.-4. (No change.)

49 N.J.R. 3849(a)

(j) If an applicant proposes activities under general permit 22 that will result in the loss and/or disturbance of Atlanticwhite-cedar wetlands, the applicant shall, in addition to meeting all other requirements, demonstrate that there is nosuitable upland area available, which is owned by the applicant, which the applicant could use in order to eliminate orminimize impacts to Atlantic white-cedar wetlands. For purposes of this subsection, a suitable upland area is an uplandarea which meets all of the following criteria:

1.-4. (No change.)

(k) If an applicant proposes activities under general permit 22 in an Atlantic white-cedar wetlands that is larger than fiveacres, the applicant shall, in addition to meeting all other requirements of this section, submit a written statement fromthe Natural Resources Conservation Service that the activities will minimize, to the extent feasible, the impacts to theremaining Atlantic white-cedar wetlands.

(l) (No change.)

(m) The applicant shall transfer any PDCs required under (l) above to the Department, or to a nonprofit or governmentalagency designated by the Department, prior to beginning activities authorized under general permit 22, and no later than90 days after receiving the general permit authorization. The Department or its designee shall convey the PDCs to[page=3941] the Pinelands Development Credit Bank in accordance with the MOA established under (n) below, andshall use the resulting funds to establish and/or restore Atlantic white-cedar wetlands in the Pinelands.

(n) The Department shall enter into a memorandum of agreement (MOA) with the Pinelands Commission and thePinelands Development Credit Bank. The MOA shall include a general plan for implementing the Atlantic white-cedarrestoration program required by this section, and shall:

1. (No change.)

2. Include a requirement for at least one acre of Atlantic white-cedar restoration for each acre of Atlantic white-cedarwetlands lost and/or disturbed under general permit 22;

3.-4. (No change.)

(o) To minimize impacts to freshwater wetlands and/or State open waters, a permittee under general permit 22 shall:

1. Follow, to the maximum extent practicable, the management practices recommended by the Rutgers Philip E.Marucci Center for Blueberry and Cranberry Research and Extension;

2. Stabilize all disturbed areas in accordance with the New Jersey Field Office Technical Guide, 1998 edition, asamended and supplemented, issued by the U.S. Department of Agriculture's Natural Resources Conservation Service(NRCS), available from the NRCS at 220 Davidson Avenue 4th Floor, Somerset, New Jersey 08873;

3.-5. (No change.)

(p) The requirements of (c), (j), (k), (l), and (m) above shall not apply to the proposed activities under general permit 22if the Department determines that the activities:

1.-2. (No change.)

(q) Each year, the Commissioner shall make a finding as to whether the pace of impacts under the general permit isproportional to the pace of Atlantic white-cedar restoration efforts. The Commissioner shall consult with the Pinelands

49 N.J.R. 3849(a)

Commission, and shall consider, among other factors, whether restoration efforts are making reasonable progresstowards the goals in the Department's overall plan for Atlantic white-cedar restoration. The Department shall publishthe Commissioner's finding as a public notice in the New Jersey Register by October 31 of each year:

1. (No change.)

2. If the Commissioner finds that the pace of impacts is out of proportion to the pace of Atlantic white-cedar restorationefforts, the Department shall publish a finding of temporary hold of general permit authorizations, and shall stop issuingauthorizations under general permit 22. A finding of temporary hold shall remain in effect until the Commissionerdetermines that the pace of impacts under the general permit has again become proportional to restoration efforts, andthe Department publishes a finding of continuance.

(r) The Commissioner reserves the right (that is, discretion) to modify, suspend, or revoke general permit 22authorizations. Modification means the imposition of additional or revised terms or conditions on the authorization.Suspension means the temporary cancellation of the authorization while a decision is made to modify, revoke, orreinstate the authorization. Revocation means the cancellation of the authorization. The Commissioner may assertdiscretionary authority by modifying, suspending, or revoking general permit 22 authorizations for a specificgeographic area or class of waters, whenever the Commissioner determines sufficient concerns for the environmentunder the Freshwater Wetlands Protection Act or the Federal Section 404(b)(1) Guidelines, or if the Commissionerotherwise determines that the general permit would result in more than minimal adverse environmental effects eitherindividually or cumulatively. Whenever the Commissioner determines that a proposed specific activity covered bygeneral permit 22 would have more than minimal individual or cumulative adverse effects on the environment, theCommissioner shall either modify the general permit 22 authorization to reduce or eliminate the adverse impacts, ornotify the prospective permittee that the proposed activity is not authorized by general permit 22 and provideinstructions on how to seek authorization under an individual permit. The Commissioner shall restore authorizationunder general permit 22 at any time that the Commissioner determines that the reason for asserting discretionaryauthority has been satisfied by a condition, project modification, or new information.

(s) An application for authorization under general permit 22 shall be submitted within 90 days after the general permitbecomes operative under (u) below. Within 180 days after general permit 22 becomes operative, the Department shallmake a final decision on all applications submitted within the 90-day deadline. Thereafter, applications shall besubmitted to the Department by January 1 of each year. The Department shall issue decisions on applications by March1 of each year.

(t) If the Department receives applications for authorization under general permit 22 which would, if approved, result ina total Statewide loss and/or disturbance of freshwater wetlands and/or State open waters that exceeds the limits at (i)above, the Department shall give priority to applications involving areas with the lowest number rankings on the list at(d) above, taking into consideration overall environmental impacts. If two or more applications involve similarly rankedland and similar environmental impacts, the Department shall give priority to the application submitted and determinedcomplete under N.J.A.C. 7:7A-19.2 first.

(u) General permit 22 shall become operative as of the date that the Department publishes a notice in the New JerseyRegister announcing that:

1. The Department has signed the MOA required under (n) above; and

2. Twenty-five thousand dollars has been deposited from public sources to the fund established by the Departmentunder the MOA for the implementation of the Atlantic white-cedar restoration program.

(v) In order to ensure compliance with the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq., general permit

49 N.J.R. 3849(a)

22 will be added to the list of general permits subject to coordination procedures with the U.S. Fish and Wildlife Serviceunder the Department's Memorandum of Agreement regarding the Endangered Species Act and New Jersey'sassumption of the Federal 404 program.

7:7A-7.23 General permit 23--Spring developments

(a) General permit 23 authorizes activities in farmed wetlands or in State open waters necessary for the construction of aspring development or other structure that diverts or collects water for the purpose of watering livestock. Activitiesauthorized under general permit 23 include the installation of a collecting trench, a cutoff wall, crushed rock, perforatedtubing, and/or a spring box. General permit 23 does not authorize diversion or use of water for irrigation, or for anypurpose other than watering livestock. The activities authorized under general permit 23 constitute soil and waterconservation practices that are exempt in transition areas under N.J.A.C. 7:7A-2.4(c)1.

(b) (No change.)

(c) An activity is authorized under general permit 23 only if all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3are met and:

1. (No change.)

2. The activity will be conducted at an established, ongoing farming, ranching, or silviculture operation;

3. The activity is located in a farmed wetland that is eligible for a farmland assessment under the New Jersey FarmlandAssessment Act, N.J.S.A. 54:4-23.1 et seq.; and

4. Any portion of a spring development from which livestock will drink, such as a watering trough or tub, is locatedoutside of wetlands and State open waters.

7:7A-7.24 General permit 24--Malfunctioning individual subsurface sewage disposal (septic) systems

(a) General permit 24 authorizes activities in freshwater wetlands and transition areas necessary for the repair ormodification of a malfunctioning individual subsurface sewage disposal system. General permit 24 does not authorizeactivities in State open waters.

(b) For the purpose of general permit 24:

1.-2. (No change.)

(c) Activities are authorized under general permit 24, provided the applicable requirements at N.J.A.C. 7:7A-5.7 and20.3 are met and:

1. The activities do not disturb more than one-quarter acre of freshwater wetlands and/or transition areas and shall belocated on the same property where the malfunctioning system is located;

[page=3942] 2. The repair or modification is not directly or indirectly caused by an expansion of the facility theindividual subsurface sewage disposal system serves, or by a change in its use, including a change from disuse orabandonment to any type of use; and

3. The repair or modification of the system is limited to serve only those volumes of sanitary sewage, estimated inaccordance with N.J.A.C. 7:9A-7.4, that were approved prior to the malfunction.

49 N.J.R. 3849(a)

(d) Activities under general permit 24 are not subject to the application contents requirements at N.J.A.C. 7:7A-16, butare subject to the public notice requirements at N.J.A.C. 7:7A-17. There is no application fee for an authorization undergeneral permit 24. Instead, an applicant for authorization under general permit 24 shall submit the following in writingto the Department, at least 30 days prior to starting work:

1.-2. (No change.)

3. A letter from the local board of health with jurisdiction over the individual subsurface sewage disposal system,stating that:

i. (No change.)

ii. The proposed activities are not directly or indirectly caused by an expansion of the facility the individual subsurfacesewage disposal system serves, or a change in its use, including a change from disuse or abandonment to any type ofuse; and

iii. (No change.)

7:7A-7.25 General permit 25-- Minor channel or stream cleaning for local government agencies

(a) General permit 25 authorizes a county, municipality, or a designated agency thereof to conduct activities infreshwater wetlands and transition areas within their jurisdiction, necessary to desnag a channel or stream and/orremove accumulated sediment, debris, and garbage, which are obstructing flow in a channel or stream, provided allapplicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The project's sole purpose is to remove obstructions to flow, or to desnag a channel or stream;

2. The project is necessary and in the public interest;

3. The project consists solely of either:

i. The removal of accumulated silt, sediment, debris, and/or garbage from a channel or stream with a natural bed anddoes not alter the natural bed or banks of the channel; or

ii. The removal of any accumulated material from a channel or stream previously lined with concrete or similar artificialmaterial;

4. The project is conducted from only one bank, where possible, and the existing tree canopy on the more southerly orwesterly bank is preserved in order to shade the channel or stream;

5. The use of heavy equipment in the channel is avoided; and

6. If the project involves sediment removal from a channel with a natural bed, the following requirements are satisfied:

i. If the project is undertaken by a municipality, or a designated agency thereof, it is located wholly within thatmunicipality;

ii. If the project is undertaken by a county, or designated agency thereof, the project is located wholly within onemunicipality or, if located within more than one municipality, the channel reach is less than 500 feet in length;

49 N.J.R. 3849(a)

iii. The average width of the channel or stream bed does not exceed 30 feet;

Recodify existing 4. and 5. as iv. and v. (No change in text)

(b) In accordance with N.J.A.C. 7:7A-2.2(b), if the project meets all the following criteria, Department approval underthis chapter is not required:

1. The project disturbs State open waters only, and does not disturb wetlands located in the channel or stream;

2. The project does not disturb wetlands or transition areas adjacent to the channel or stream; and

3. The project does not involve the discharge of dredged or fill material in the State open water. For example, if theproject involves placement of fill within a channel for an access road, or involves temporary placement of dredgedmaterial in the channel prior to removal of the dredged material, the project would be regulated and would requireDepartment approval.

(c) All materials, including dredged material, removed from a channel or stream during activities authorized undergeneral permit 25 shall be placed outside of freshwater wetlands, transition areas, State open waters, and areas regulatedunder the Department's Flood Hazard Area Control Act rules at N.J.A.C. 7:13, unless it is demonstrated that this wouldcause more environmental harm than placement of the material in these areas. For example, if removal of dredgedmaterial requires construction of a long temporary road through wetlands with a very high water table to enable trucksto transport the dredged material offsite, this may cause more environmental harm than spreading the dredged materialthinly over a large area.

(d) This general permit does not authorize activities that alter the natural banks of the stream. Such modification may insome cases be authorized under general permit 20. This general permit does not authorize the straightening orrealignment of a channel. Straightening or realignment constitutes channel modification and requires an individualpermit pursuant to N.J.A.C. 7:7A-9.

(e) An application for authorization under general permit 25 is not subject to the application requirements in N.J.A.C.7:7A-16, but is subject to the public notice requirements at N.J.A.C. 7:7A-17. An application for authorization undergeneral permit 25 shall be submitted to the Department by mail at the address set forth at N.J.A.C. 7:7A-1.4, and shallinclude the following:

1. A completed application form as described at N.J.A.C. 7:7A-16.7(a)1 and available from the Department at theaddress set forth at N.J.A.C. 7:7A-1.4;

2. Two sets of plans prepared by an engineer, which clearly depict the segments of channel or stream to be cleaned andthe limit of wetlands and/or transition areas to be impacted;

3. The location of the affected portion of the channel, including the county, municipality, and the block(s) and lot(s);

4. One copy of a USGS quad map showing the affected portion of the channel or stream;

5. Color photographs and a brief narrative description of the affected portion of the channel or stream, including theaccess points where workers and equipment will be brought to the channel or stream, and the wetlands and/or transitionareas to be impacted by the activities;


49 N.J.R. 3849(a)

8. A description of the proposed methods that will be used to remove material from the channel or stream and thelocation where the dredged material will be placed;

9. The appropriate application fee as set forth at N.J.A.C. 7:7A-18;

10. Documentation that the public notice requirements of N.J.A.C. 7:7A-17 have been met; and

11. A certification signed by the county or municipal engineer, or an engineer employed by the local Soil ConservationDistrict, which lists each requirement in (a) and (c) above that applies to the project, and states how the requirement hasbeen or will be satisfied.

(f) Within 15 calendar days after completion of a project under general permit 25 that involves the removal of sediment,the permittee shall submit to the Department:

1. A written notice that the project has been completed; and

2. A certification, signed by the county or municipal engineer, or an engineer employed by the local Soil ConservationDistrict that lists each requirement in (a) and (c) above that applies to the project, and states how the requirement hasbeen satisfied.

7:7A-7.26 General permit 26--Redevelopment of previously disturbed areas

(a) General permit 26 authorizes the disturbance of certain degraded freshwater wetlands, transition areas, and/or Stateopen waters necessary for redevelopment of an area previously significantly disturbed by industrial or commercialactivities, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1.-2. (No change.)

3. The area meets at least one of the following criteria:

i. (No change.)

ii. It is the subject of a redevelopment agreement entered into pursuant to N.J.S.A. 58:10B-27;

[page=3943] iii. It has been identified as an environmental opportunity zone pursuant to N.J.S.A. 54:4-3.150 et seq.; or

iv. It has been identified as an area of redevelopment by the municipality and formally designated as such by the NewJersey Department of Community Affairs in accordance with N.J.S.A. 40A:12A-6;

4. The freshwater wetlands, transition areas, and/or State open waters to be disturbed are significantly degraded byhuman disturbance or alteration and are of little ecological value. Examples of significantly degraded wetlands are thosethat have formed as a result of a landfill cap, ponding of contaminated ground or surface water, or as a result ofdemolition of structures on a previously developed site;

5. The activities disturb no more than one acre of a freshwater wetlands and/or State open water, which is a not a waterof the United States;

6. The activities disturb no more than one acre of a transition area; and

49 N.J.R. 3849(a)

7. The activities disturb no more than one-half acre of a freshwater wetland and/or State open water, which is a water ofthe United States.

(b) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater of freshwaterwetlands or State open waters. Mitigation shall be performed for permanent loss and/or disturbance of less than 0.1acres of freshwater wetlands or State open waters unless the applicant demonstrates to the Department that all activitieshave been designed to avoid and minimize impacts to wetlands. For purposes of this subsection, "minimize" means thatthe project is configured so that most or all of it is contained in the uplands on the site, and that the wetlands are avoidedto the greatest extent possible. An applicant is not required to reduce the scope of the project or to consider offsitealternatives to comply with this requirement.


(c) A disturbance authorized under general permit 26 does not count toward the one acre of disturbance allowed undermultiple general permits under N.J.A.C. 7:7A-5.4(a)2.

SUBCHAPTER 8. TRANSITION AREA WAIVERS

7:7A-8.1 General provisions for transition area waivers

(a) This section sets forth the requirements for transition area waivers. The Department issues the following types oftransition area waivers:

1. An averaging plan transition area waiver, addressed at N.J.A.C. 7:7A-8.2;

2. A special activity transition area waiver for stormwater management, linear development, redevelopment, oractivities eligible for an individual permit, addressed at N.J.A.C. 7:7A-8.3;

3. A hardship transition area waiver, addressed at N.J.A.C. 7:7A-8.4;

4. A general permit transition area waiver. If a general permit authorizes disturbance of a transition area, anauthorization issued under the general permit constitutes a transition area waiver for the activities covered by thegeneral permit. This waiver is not addressed in this section, but in each general permit in N.J.A.C. 7:7A-7 that coverstransition area disturbances. All general permits except for general permits 1, 6, 7, and 23 authorize activities intransition areas; and

5. An access transition area waiver. Each general permit authorization, individual freshwater wetlands permit, andmitigation proposal shall include a limited transition area waiver to allow access to the authorized activity. No fee orapplication is required for this waiver and the disturbance authorized under this waiver is not counted in calculating theamount of disturbance under the permit or mitigation proposal. However, an access transition area waiver will allowregulated activities only:

i. (No change.)

ii. For an activity that the Department determines is necessary to accomplish construction, and for future use, of theactivity authorized in the wetlands under the general permit. An activity not directly required in order to obtain access tothe permitted activity shall require a separate transition area waiver. If the activity authorized under the permiteliminates the wetland in its entirety, the transition area associated with that wetland may also be eliminated in its

49 N.J.R. 3849(a)

entirety without a separate transition area waiver. If the activity authorized under the permit partially eliminates thewetland, the access shall be limited to the transition area adjacent to the location of the approved wetland filling. Anyadditional impacts to the transition area shall require a separate transition area waiver.

(b) If necessary, the Department shall include in a transition area waiver additional conditions to ensure that an activitydoes not result in a substantial impact on the adjacent wetlands, and does not impair the purposes and functions oftransition areas as set forth in N.J.A.C. 7:7A-3.3. Such conditions may include, but are not limited to, the following:

1. Construction activities shall be conducted in such a way that there will be no regulated activities in the transition areaor the wetland except any that are authorized by a permit;

2. The structure is designed and shall be used in such a way that there will be no regulated activities in the transitionarea or the wetland except any that are authorized by a permit;

3. The modified transition area shall be permanently marked, in a manner determined appropriate by the Department, soas to clearly delineate its boundary and to prevent people from disturbing the transition area and/or wetland. Examplesof appropriate markers include permanent fencing, concrete monuments, and boulders.

i. In determining the appropriate type of marker, the Department will consider such factors as the type of projectproposed, wildlife that may be present, and the likelihood for people to disturb the transition area and/or wetland. Forexample, it may be necessary to mark the boundary of a modified transition area associated with a single-family homeor duplex with permanent fencing because in many of these situations the modified transition area is directly adjacent toback yards and, therefore, the likelihood of homeowners disturbing the transition area is great. However, it may beappropriate to identify a modified transition area associated with a commercial or industrial development with concretemonuments because the likelihood of people disturbing the modified transition is usually less around these types ofdevelopments;

ii. If the Department determines that it is appropriate to delineate the boundary of the modified transition area withmonuments, boulders, or similar markers, the number of markers and spacing between markers shall be determined bythe Department and shall be that necessary to clearly identify the modified transition area, taking into consideration thesize of the modified transition area to be delineated;

4. The permittee shall execute and record a conservation restriction, in accordance with the procedures at N.J.A.C.7:7A-12, which prohibits any regulated activities in the remaining transition area as appropriate.

(c) (No change.)

(d) An applicant whose application does not meet the requirements for any of the transition area waivers listed in (a)above may obtain a transition area waiver through scientifically documenting that a proposed activity will have nosubstantial impact on the adjacent wetlands. This documentation may include, but is not limited to, nutrient or sedimenttransport models, buffer models, or wildlife habitat suitability studies. An applicant is not eligible for a waiver underthis subsection if the applicant took action that rendered its application ineligible for any of the transition area waiverslisted in (a) above. An application submitted under this subsection shall address the following, as they relate to theadjacent wetlands:

1.-3. (No change.)

(e) Transition area waivers may be conditioned on the recording of a Department-approved conservation restriction inaccordance with the requirements at N.J.A.C. 7:7A-12, restricting future activities in the remaining transition area.

49 N.J.R. 3849(a)

1. If the permittee does not conduct regulated activities before the transition area waiver expires, the following applywith regard to the transition area:

i. If no activities have been conducted, regardless of whether or not a conservation restriction was recorded, thepermittee shall obtain a new transition area waiver to conduct regulated activities in the transition area; or

ii. If no activities have been conducted and a conservation restriction was properly recorded, but the permittee wants toreconfigure the project [page=3944] to use portions of the property contained within the restriction or easement, thepermittee shall apply for a new transition area waiver, together with a request for a modification of the conservationrestriction or easement in accordance with the procedures at N.J.A.C. 7:7A-12;

2. In the case of a subdivision for which a transition area waiver was approved, if one or more lots remain undevelopedwhen the transition area waiver expires, the following shall apply with regard to the transition area:

i. If no activities have been conducted on a lot which was part of a larger subdivision, regardless of whether or not aconservation restriction *was recorded*, the permittee shall apply for a new transition area waiver for the lot, using thesame plan that was used to obtain the transition area waiver for the subdivision as a whole. That is, if a transition areawaiver averaging plan was obtained for the subdivision as a whole and that transition area waiver averaging planexpires, the individual lot owner shall apply for a transition area averaging plan for the individual lot using the originalaveraging plan for the subdivision as a whole. The Department shall consider proposed changes to the originallyapproved plan only if the conservation easement or restriction was recorded and the changes meet the standards for a deminimis modification at N.J.A.C. 7:7A-12;

3. If the permittee does not properly record a required conservation restriction, he or she shall be in violation of theFreshwater Wetlands Protection Act and this chapter.

(f) The process at N.J.A.C. 7:7A-13 is also available to applicants for a transition area waiver.

(g) (No change.)

(h) With the exception of a transition area waiver for access in accordance with N.J.A.C. 7:7A-8.1(a)5, a transition areaaveraging plan waiver in accordance with N.J.A.C. 7:7A-8.2, a special activity waiver for linear development inaccordance with N.J.A.C. 7:7A-8.3(e), and a special activity waiver for redevelopment in accordance with N.J.A.C.7:7A-8.3(f), the Department shall not issue a transition area waiver under this section and a general permit authorizationfor the same site and for the same activity, if the combined effect of the transition area waiver and general permitauthorization would be to expand the general permit activity beyond the limits set forth in the general permit.

(i) With the exception of *[an]* *a* transition area waiver for access approved in accordance with (a)5 above or atransition area waiver meeting the requirements for an individual permit at N.J.A.C. 7:7A-8.3(g), a transition areawaiver shall not be approved to allow encroachment within 75 feet of an exceptional resource value wetland.

7:7A-8.2 Transition area averaging plan waiver

(a) A transition area averaging plan waiver modifies the overall shape of a transition area without reducing its totalsquare footage. The Department may approve a transition area averaging plan waiver for activities adjacent to anintermediate or exceptional resource value freshwater wetlands.

(b) The Department shall issue a transition area averaging plan waiver only if the transition area, as modified, willcontinue to serve the purposes of a transition area set forth in N.J.A.C. 7:7A-3.3. The Department shall presume that thefollowing will result in a transition area that will not serve the purposes set forth in N.J.A.C. 7:7A-3.3, and shall not

49 N.J.R. 3849(a)

issue a transition area averaging plan waiver, unless the applicant demonstrates otherwise under N.J.A.C. 7:7A-8.1(d):

1. The portion of the existing, pre-activity transition area that will be reduced has a slope greater than 25 percent;

i. The percent slope shall be established by measuring the distance perpendicular to the contour of the slope on the plan.The percent slope shall be calculated for each two-foot contour interval at 10-foot intervals. For example, any locationin the transition area where there is a one-foot rise over a 10-foot horizontal run constitutes a 10 percent slope; atwo-foot rise over a 10-foot horizontal run constitutes a 20 percent slope.

2.-4. (No change.)

(c) In addition to the presumptions at (b) above, the Department shall also presume that, for a transition area adjacent toan intermediate resource value wetland, the following will result in a substantial impact on the adjacent freshwaterwetlands, and the Department shall not issue a transition area averaging plan waiver unless the applicant demonstratesotherwise under N.J.A.C. 7:7A-8.1(d):

1. A structure, impervious surface, or stormwater management facility will be placed within 20 feet of freshwaterwetlands; or

2. The transition area averaging plan proposes to:

i. (No change.)

ii. Reduce a transition area to less than 25 feet wide in an area containing critical habitat for fauna or flora;

iii.-vi. (No change.)

(d) In addition to the presumptions at (b) and (c) above, the Department shall also presume that, for a transition areaadjacent to an exceptional resource value wetland, the following will result in a substantial impact on the adjacentfreshwater wetlands, and the Department shall not issue a transition area averaging plan waiver unless the applicantdemonstrates that the activity would qualify for an individual permit under this chapter:

1. The freshwater wetland adjacent to the transition area is a breeding or nesting habitat for a threatened or endangeredspecies;

2.-3. (No change.)

(e) Each transition area averaging plan shall be specific to a particular freshwater wetland and its associated transitionarea. To determine whether a freshwater wetland area is all one wetland or made up of multiple separate wetlands, theDepartment shall consider the factors listed at N.J.A.C. 7:7A-8.1(c). If an applicant proposes to expand a transition areato compensate for a reduction elsewhere, the expanded portion of the transition area shall:

1. (No change.)

2. Be located on the same site as the reduction;

3. (No change.)

4. Have the same ecological characteristics as the reduced portion of the transition area, including the vegetation types,or have characteristics that are equivalent or better than the characteristics of the reduced portion of the transition area in

49 N.J.R. 3849(a)

regards to the transition area's ability to serve the functions listed at N.J.A.C. 7:7A-3.3. For example, if a forestedportion of the transition area is reduced, the expanded portion of the transition area must also be forested.

(f) All transition area averaging plan waivers shall be conditioned on the recording of a Department-approvedconservation restriction in accordance with the requirements at N.J.A.C. 7:7A-12 restricting future activities in theaveraging compensation area.

7:7A-8.3 Special activity transition area waiver

(a)-(d) (No change.)

(e) The Department shall issue a special activity transition area waiver for linear development if there is no feasiblealternative location for the linear development. In considering alternative locations, the Department shall consider thefactors at (c) above and the following:

1.-2. (No change.)

(f) The Department shall issue a special activity transition area waiver for redevelopment of a significantly disturbedarea if all of the following conditions are met:

1. The area of proposed activity is significantly disturbed, so that it is not functioning as a transition area at the time ofapplication, for example, the area is covered by an impervious surface such as pavement, by gravel or paver blocks, orby a deck that is less than five feet off the ground;

2.-3. (No change.)

4. Where practicable, any remaining disturbed portion of the transition area shall be planted with indigenous plants thatare beneficial to the wetland and protected from future development by a conservation restriction that meets therequirements at N.J.A.C. 7:7A-12.

(g) The Department shall issue a special activity transition area waiver for an activity if the applicant demonstrates that,if the activity were instead proposed in a freshwater wetland, it would meet the standards for a freshwater wetlandsindividual permit at N.J.A.C. 7:7A-10.2 and 10.3, and mitigation in accordance with N.J.A.C. 7:7A-11.

7:7A-8.4 Hardship transition area waiver

(a) (No change.)

(b) The Department shall presume that a hardship under (a) above exists and shall issue a hardship transition areawaiver that reduces the [page=3945] transition area in an amount determined under (c) below, provided the applicantdemonstrates that all of the following criteria are met:

1.-6. (No change.)

7. The applicant has offered the site for sale at fair market value as determined by a fair market value appraisal,performed by a State-licensed appraiser and using a form letter provided by the Department, to adjacent propertyowners and the offer was refused or is not reasonable, assuming a minimum beneficial economically viable use, inaccordance with N.J.A.C. 7:7A-13, to alleviate the hardship;

8. The applicant has offered the site for sale at fair market value as determined by a fair market value appraisal,

49 N.J.R. 3849(a)

performed by a State-licensed appraiser, and using a form letter provided by the Department, to interested public and/orprivate conservation organizations on a list provided by the Department, and the offer was refused or is not reasonable,assuming a minimum beneficial economically viable use, in accordance with N.J.A.C. 7:7A-13, to alleviate thehardship; and

9. (No change.)

(c) (No change.)

7:7A-8.5 Duration of a transition area waiver

A transition area waiver is valid for five years from the date of issuance, and may be extended one time for five yearspursuant to N.J.A.C. 7:7A-20.4.

SUBCHAPTER 9. INDIVIDUAL FRESHWATER WETLANDS AND OPEN WATER FILL PERMITS

7:7A-9.1 Requirement to obtain an individual permit

A person shall obtain an individual permit under this subchapter in order to undertake any activity that does not meetthe requirements of an authorization under a general permit-by-certification pursuant to N.J.A.C. 7:7A-6, anauthorization under a general permit pursuant to N.J.A.C. 7:7A-7, or a transition area waiver pursuant to N.J.A.C.7:7A-8.

7:7A-9.2 Duration of an individual permit

(a) An individual permit for any regulated activity *[other than those identified at (b) below]* is valid for five yearsfrom the date of issuance, and may be extended one time for five years pursuant to N.J.A.C. 7:7A-20.4.

*[(b) An individual permit for a linear activity or project that is greater than 10 miles in length, a flood control project,or a quarry or mining operation is valid for 10 years from the date of issuance, and shall not be extended.]*

*[(c)]* *(b)* All regulated activities authorized by an individual permit shall immediately cease if the permit, includingany extension thereof pursuant to N.J.A.C. 7:7A-20.4, expires. If a person intends to commence or continue regulatedactivities that had been authorized under an individual permit that has expired, the person shall obtain a new individualpermit under this chapter authorizing the regulated activities.

1. If no regulated activities have occurred prior to the expiration of the individual permit, the Department shall issue anew individual permit only if the project is revised, where necessary, to comply with the requirements of this chapter ineffect when the application for the new individual permit is declared complete for review.

2. If any regulated activities have occurred prior to the expiration of the individual permit, the Department shall issue anew individual permit only if the project is revised, where feasible, to comply with the requirements of this chapter ineffect when the application for the new individual permit is declared complete for review. In determining the feasibilityof compliance with the requirements in effect at the time the application is declared complete for review, theDepartment shall consider the amount of construction that has been completed prior to the expiration of the originalindividual permit, the amount of reasonable financial investment that has been made in the original design consistentwith the requirements applicable under the original individual permit, and whether continuing construction as approvedunder the original individual permit would have an adverse impact on the environment.

7:7A-9.3 Conditions applicable to an individual permit

49 N.J.R. 3849(a)

(a) A person conducting regulated activities pursuant to an individual permit shall comply with:

1. The conditions set forth in the individual permit itself; and

2. The conditions that apply to all permits at N.J.A.C. 7:7A-20.2.

(b) In addition to the conditions that apply to every individual permit under (a) above, the Department shall establishconditions in accordance with N.J.A.C. 7:7A-20.3 in a specific individual permit, as required on a case-by-case basis, toensure the authorized regulated activity meets all applicable requirements of this chapter and its enabling statutes.

SUBCHAPTER 10. REQUIREMENTS FOR ALL INDIVIDUAL FRESHWATER WETLANDS AND OPENWATER FILL PERMITS

7:7A-10.1 General provisions for individual permits

(a) A regulated activity or project subject to an individual permit shall meet the applicable requirements below:

1. Requirements for all individual permits at N.J.A.C. 7:7A-10.2;

2. For a non-water dependent activity, the requirements at N.J.A.C. 7:7A-10.3, except if the activity disturbs only Stateopen waters that are not special aquatic sites; and

3. For a non-water dependent activity in an exceptional resource value wetland or trout production water, therequirements at N.J.A.C. 7:7A-10.4.

(b) (No change.)

(c) Each individual permit applies to the entire site upon which permitted activities occur. An applicant shall notsegment a project or its impacts by applying for general permit authorization for one portion of the project and applyingfor an individual permit for another portion of the project. Similarly, an applicant shall not segment a project or itsimpacts by separately applying for individual permits for different portions of the same project *[on the same site]*.

(d) (No change.)

7:7A-10.2 Standard requirements for all individual permits

(a) This section sets forth requirements that apply to all activities to be covered by an individual permit, including bothwater dependent activities and non-water dependent activities. Additional individual permit requirements that applyonly to non-water dependent activities are found in N.J.A.C. 7:7A-10.3.

(b) The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity:

1.-8. (No change.)

9. Will not adversely affect a property that is listed or is eligible for listing on the New Jersey or National Register ofHistoric Places unless the applicant demonstrates to the Department that the proposed activity avoids or minimizesimpacts to the maximum extent practicable or the Department determines that any impact to the affected property wouldnot impact the property's ability to continue to meet the criteria for listing at N.J.A.C. 7:4-2.3 or otherwise negativelyimpact the integrity of the property or the characteristics of the property that led to the determination of listing or

49 N.J.R. 3849(a)

eligibility. The Department shall not issue a conditional permit if it finds that the mitigation proposed is inadequate tocompensate for the adverse effect. Any permit for an activity which may adversely affect a property listed or eligible forlisting on the New Jersey or National Register of Historic Places shall contain conditions to ensure that any impact tothe property is minimized to the maximum extent practicable and any unavoidable impact is mitigated;

i. If the permittee, before or during the authorized work, encounters a possible historic property, as described atN.J.A.C. 7:7A-19.5(l), that is or may be eligible for listing on the New Jersey or National Register, the permittee shallpreserve the resource, immediately notify the Department and proceed as directed by the Department;

10.-11. (No change.)

12. Is in the public interest, as determined by the Department in consideration of the following:

i.-iv. (No change.)

v. The quality and resource value classification pursuant to N.J.A.C. 7:7A-3.3 of the wetland, which may be affectedand the amount of freshwater wetlands to be disturbed;

[page=3946] vi.-vii (No change.)


15. In accordance with N.J.A.C. 7:7A-2.7, is part of a project that in its entirety complies with the StormwaterManagement rules at N.J.A.C. 7:8.

(c) (No change.)

7:7A-10.3 Additional requirements for a non-water dependent activity in a wetland or special aquatic site

(a) In addition to meeting the requirements of N.J.A.C. 7:7A-10.2, a non-water dependent activity in a freshwaterwetland or special aquatic site shall meet the requirements of this section. If an activity is water-dependent, or if itdisturbs only a State open water that is not a special aquatic site, this section does not apply to the activity.

(b) There shall be a rebuttable presumption that there is a practicable alternative to a non-water dependent activity in afreshwater wetland or in a special aquatic site, which alternative does not involve a freshwater wetland or specialaquatic site, and that such an alternative would have less of an impact on the aquatic ecosystem.

(c) In order to rebut the presumption established in (b) above, an applicant must demonstrate all of the following:

1.-4. (No change.)

5. If any portion of the proposed activity will take place in an exceptional resource value wetland or in trout productionwaters, that the requirements of N.J.A.C. 7:7A-10.4 are met.


SUBCHAPTER 11. MITIGATION

7:7A-11.1 Definitions

49 N.J.R. 3849(a)

In addition to the terms defined at N.J.A.C. 7:7A-1.3, the following words and terms, when used in this subchapter,shall have the following meanings unless the context clearly indicates otherwise.

. . .

"Credit purchase" means the purchase of credits from a mitigation bank, as that term is defined at N.J.A.C. 7:7A-1.3, asa substitute for performance of restoration, creation, enhancement, or upland preservation by a permittee. Each creditcounts for a certain acreage amount of mitigation type. Once a credit is applied to satisfy a mitigation obligation underthis subchapter, it is exhausted and may not be sold or used again.

. . .

"Fee simple" means absolute ownership in land, unencumbered by any other interest or estate.

"In-kind mitigation" means mitigation that provides similar or higher values and functions as the area disturbed,including similar wildlife habitat, similar vegetative species coverage, and density, equivalent flood water storagecapacity, and equivalency of other relevant values or functions. In the case of a mitigation bank, this is accomplishedthrough the purchase of credits in a bank at which similar values and functions have been established.

"In-lieu fee program" or "ILF Program" means a program approved by the Department and the USEPA that involves therestoration, creation, enhancement, and/or preservation of wetland and State open water habitats through funds paid to agovernment or non-profit entity to satisfy compensatory mitigation requirements. An in-lieu fee mitigation programsells compensatory mitigation credits to permittees whose obligation to provide mitigation is transferred to the in-lieufee mitigation program.

"In-lieu fee program instrument" or "ILF Instrument" means the legal document for the establishment, operation, anduse of an in-lieu fee mitigation program.

. . .

"Mitigation area" means the portion of a site or piece of property upon which mitigation is proposed or performed. If amitigation area includes a wetland, a transition area is included as part of the mitigation area in accordance withN.J.A.C. 7:7A-11.12(c).

"Mitigation banking instrument" means documentation of Department approval of the objectives and administration ofthe bank including, as appropriate:

1.-10. (No change.)

11. Contingency and corrective actions and responsibilities;


"Mitigation bank site" means the portion of a site, or piece of property, upon which a mitigation bank is proposed ordeveloped.

"Monetary contribution" or "monetary contribution to the in-lieu fee program" means giving money to the WetlandsMitigation Council.

. . .

49 N.J.R. 3849(a)

"Restoration" means:

1. The reestablishment of wetland and/or State open water characteristics and functions in an area that was once awetlands and/or State open water but is no longer; or

2. The reversal of a temporary disturbance and the reestablishment of the functions and values of the wetlands and/orState open water that was temporarily disturbed.

"Service area" means the geographic area within which impacts can be mitigated at a specific mitigation bank.

"Upland preservation" means the permanent protection of transition areas or other uplands from disturbance ordevelopment, through transfer of the property to a charitable conservancy and the execution of legal instruments toprevent development, such as a conservation restriction.

"Watershed Management Area" means an aggregation of HUC 11s designated by the Department as a watershedmanagement area and shown on the map entitled "New Jersey's Watersheds, Watershed Management Areas, and WaterRegions," dated April 2000, as amended and supplemented. The map of watershed management areas may be viewedon the internet at http://www.nj.gov/dep/gis.

. . .

7:7A-11.2 General mitigation requirements

(a) Mitigation shall be in-kind and shall fully compensate for any ecological loss. The Department will considerproposals for out-of-kind mitigation, provided the mitigator demonstrates to the Department that the mitigation meetsthe goals and objectives of this subchapter and would result in equal ecological functions and values as compared to theecological functions and values of the resource(s) prior to loss or impact. In order to demonstrate equal ecologicalfunctions and values, the mitigator shall provide current scientific literature concerning wetlands, aquatic resources, andmitigation; as well as survey the conditions on the site of disturbance and on the proposed mitigation area and providewritten documentation regarding the existing and proposed soil conditions, type and density of vegetation, any existingcontamination or other degradation, sediment and pollution removal ability and flood storage capacity of the wetlandresources, all proposed soil erosion protection measures, and existing, as well as any anticipated, wildlife habitatconditions. The documentation shall also detail how the mitigation proposal will replace the ecological values of thewetland resource lost or disturbed.

(b) Mitigation proposals may be submitted as part of a permit application for concurrent review. The determination as towhether a permit application should be approved shall be independent of the analysis of proposed mitigation forcompliance with this subchapter. Where a mitigation proposal is not submitted as part of a permit application for anotherwise approvable project and this chapter requires mitigation for wetland, State open water, and/or transition areaimpacts proposed, the Department shall place a condition upon any permit issued requiring submission and Departmentapproval of a mitigation proposal prior to the commencement of any regulated activities under the permit.

(c) A mitigator shall carry out the full acreage amount of mitigation required under this subchapter, unless the mitigatordemonstrates, through use of productivity models or other similar studies, that a smaller mitigation area will result inreplacement wetland resources of equal ecological value to those lost or disturbed. However, in no case shall theDepartment approve a mitigation ratio of less than 1:1. The mitigator shall demonstrate equal ecological value inaccordance with (a) above.

(d) Mitigation for an individual permit is not required in cases where the Department determines that environmental

49 N.J.R. 3849(a)

impacts to the freshwater resources are de minimis and where the applicant demonstrates avoidance and minimization ofimpacts.

[page=3947] (e) When mitigation is required in order to compensate for impacts to a freshwater wetland, State openwater, and/or transition areas resulting from regulated activities, the Department shall authorize any regulated activitiesrequired to undertake and complete the mitigation through:

1. An authorization under a general permit;

2. A freshwater wetlands individual permit;

3. An open water fill individual permit;

4. A special activity transition area waiver at N.J.A.C. 7:7A-8.3(g);

5. Approval of a mitigation proposal submitted to comply with a condition of a permit;

6. An enforcement document specifying mitigation requirements; or

7. Approval of a mitigation proposal submitted to comply with the requirements of an enforcement document.

(f) To be approved under this subchapter, mitigation must have a high probability of long-term success which, at aminimum, requires the following:

1. Adequate financial and other resources dedicated to the project;

2. A project design that takes advantage of and works within the existing conditions in the proposed mitigation area tothe extent possible;

3. Hydrology in and around the mitigation area adequate to support wetland conditions year round and indefinitely intothe future. The hydrology for a proposed wetland mitigation site shall not include discharged stormwater;

4. Soils in the mitigation area must be adequate to support wetland conditions; and

5. Assignment of responsibility for long-term maintenance of the mitigation area to an entity that has adequate resourcesto ensure maintenance as required by this subchapter.

(g) Mitigation shall not commence until the Department has approved a mitigation proposal through one of theapprovals listed at (e) above. In addition, for mitigation through a monetary contribution to the in-lieu fee mitigationprogram or a land donation, the amount of money or the particular parcel of land must also be approved by theWetlands Mitigation Council.

(h) Mitigation approved under this subchapter may also require additional State or Federal permits or approvals, such asa flood hazard area permit or a coastal permit from the Department or an approval from the USACE. Mitigation shallnot commence until all necessary permits or approvals are obtained.

(i) If the Department requires mitigation as part of a remedy for a violation under this chapter, the Department shalldetermine the amount of mitigation necessary and the particular alternative required in consideration of the extent (area)and severity of the violation and the functions and values provided by the proposed mitigation. A mitigation proposalsubmitted as part of a remedy for a violation shall provide for mitigation that is at least as ecologically valuable as

49 N.J.R. 3849(a)

mitigation that would otherwise be required under this chapter under a permit. The Department may require a greateramount of mitigation than that required under a permit where necessary to provide at least equal ecological value due tothe duration of time that the freshwater resource(s) was impaired as a result of the particular regulated activitiesundertaken in violation of this chapter.

(j) A mitigation area shall be permanently protected from future development by a conservation restriction inaccordance with N.J.A.C. 7:7A-12.

(k) Mitigation may consist of one or more mitigation alternatives set forth under this subchapter.

(l) Mitigation for multiple disturbances by a single permittee may, upon Department approval, be aggregated into asingle mitigation project. Such an aggregated mitigation project shall not be used as mitigation for disturbances by anyperson other than the permittee, unless the permittee obtains approval of the project as a mitigation bank under thissubchapter.

(m) Mitigation provided to satisfy a mitigation requirement of a Federal or local law or another State law shall notsubstitute for, or otherwise satisfy, any mitigation requirement under this chapter unless the mitigation project alsomeets the requirements of this subchapter. For example, a mitigation project proposed to meet a mitigation requirementof the Coastal Zone Management Rules at N.J.A.C. 7:7 shall satisfy a mitigation requirement imposed under thischapter only if the proposed mitigation project meets the requirements of this subchapter.

(n) If the mitigator encounters a possible historic property that is or may be eligible for listing in the New Jersey orNational Register, the mitigator shall preserve the resource, immediately notify the Department, and proceed as directedby the Department.

(o) Specific requirements for each type of mitigation project are located as follows:

1. Mitigation for temporary disturbance at N.J.A.C. 7:7A-11.8;

2. Requirements for wetland restoration, creation, or enhancement at N.J.A.C. 7:7A-11.12;

3. Requirements for upland preservation at N.J.A.C. 7:7A-11.13;

4. Requirements for credit purchase from an approved mitigation bank at N.J.A.C. 7:7A-11.14;

5. Requirements for land donation at N.J.A.C. 7:7A-11.15;

6. Requirements for a monetary contribution to the ILF Program at N.J.A.C. 7:7A-11.16; and

7. Requirements for mitigation for transition area impacts (N.J.A.C. 7:7A-8.3(g)) at N.J.A.C. 7:7A-11.11.

7:7A-11.3 Timing of mitigation

(a) Mitigation shall be performed within the applicable time period below:

1. Except for restoration of a temporary disturbance under (a)2 below, mitigation required under a general permitauthorization, individual permit, or special activity transition area waiver shall be performed prior to or concurrentlywith the regulated activity that causes the disturbance;

2. Mitigation for any temporary disturbance shall commence immediately upon completion of the regulated activity that

49 N.J.R. 3849(a)

caused the disturbance and shall continue until completion, which shall not exceed six months after the cessation of theregulated activities that caused the disturbance; and

3. Mitigation required as part of an enforcement action shall be performed in accordance with the schedule set forth inthe enforcement document.

(b) All mitigation shall be continued until completion according to the schedule in the approved mitigation proposal.

Recodify existing (b)-(c) as (c)-(d) (No change in text.)

7:7A-11.4 Property suitable for mitigation

(a) The Department shall approve mitigation only on property that is owned in fee simple and under legal control of theperson responsible for performing the mitigation, unless the person responsible for performing the mitigationdemonstrates that they have legal rights to the property sufficient to enable compliance with all requirements of thischapter.

(b) Any offsite mitigation shall be carried out on private property, except that a government agency may create, restore,or enhance on public land in accordance with this subchapter, as mitigation for a project funded solely with publicmonies, if the land was not acquired with Green Acres funding, as defined at N.J.A.C. 7:36-2.1, and any one of thefollowing criteria is met:

1.-3. (No change.)

(c) The following shall not constitute mitigation under this subchapter:

1. The installation of *a new public facility*, or improvement to*[,]* an existing public facility*, that is* intended forhuman use, such as a ball field, nature trail, or boardwalk; or

2. A stormwater management facility, such as a basin.

(d) (No change in text.)

(e) The Department shall not approve creation, restoration, or enhancement in an area that the Department hasdetermined is currently of high ecological value, for example if the area contains a mature, well developed, ecologicallydesirable natural community; or a forested habitat.

(f) The Department shall not approve creation, restoration, or enhancement in an area that the Department hasdetermined is a significant cultural or historic resource, as identified in accordance with N.J.A.C. 7:7A-19.5.

(g) (No change in text.)

(h) The Department shall not approve mitigation that would:

[page=3948] 1. Destroy, jeopardize, or adversely modify a present or documented habitat for threatened or endangeredspecies; or

2. In any way jeopardize the continued existence of any local population of a threatened or endangered species.

(i) The Department shall not approve mitigation in an area where the proposed mitigation poses an ecological risk. For

49 N.J.R. 3849(a)

purposes of this section, ecological risk means that the mitigation may result in the reintroduction of contamination toecological communities, the exposure of humans to contamination, or the contamination of the mitigation site bysubsequent exposure to new areas of contamination requiring remediation. The mitigator shall properly characterize andassess the mitigation area in accordance with the Technical Requirements for Site Remediation at N.J.A.C. 7:26E-1.16and 4.9 to determine ecological risk.

1. If the Department determines based on the characterization and assessment that the mitigation activities at theproposed site do not pose an ecological risk, the Department shall complete its review of the proposed mitigation site todetermine whether the proposed mitigation satisfies the requirements of this subchapter.

2. If the Department determines based on the characterization and assessment that the proposed mitigation activities atthe proposed site do pose an ecological risk, the mitigator shall not be permitted to use the site for mitigation unless themitigator remediates the site pursuant to the Technical Requirements for Site Remediation at N.J.A.C. 7:26E-4.8, 5.1,and 5.2. The Department shall allow the mitigator to proceed with the mitigation project only after it demonstrates thatthe remediation and/or mitigation activities will fully address the ecological risk and that the proposed mitigationsatisfies the requirements of this subchapter.

(j) Properties where a substantial amount of soil must be removed in order to achieve suitable wetland hydrology are notacceptable mitigation sites.

7:7A-11.5 Conceptual review of a mitigation area

(a) This section sets forth the requirements for the conceptual review of potential mitigation areas except for mitigationbank sites. The requirements for conceptual review of a mitigation bank site are set forth at N.J.A.C. 7:7A-11.26(a) and(b).

(b) The Department encourages applicants to obtain the conceptual review of any land being considered as a potentialmitigation area, prior to purchase of land for mitigation purposes and/or submittal of a mitigation proposal.

(c) To obtain conceptual review of a mitigation area, the applicant shall submit a written request to the address set forthat N.J.A.C. 7:7A-1.4, including:

1. (No change.)

2. A map showing the location and extent of the prospective mitigation area, including topography if available;

3.-4. (No change.)

5. Consent from the owner of the prospective mitigation area allowing Department representatives to enter the propertyin a reasonable manner and at reasonable times to inspect the mitigation area.

(d) The Department's guidance on a proposed mitigation area is not binding and shall not be relied upon by the applicantin purchasing a proposed mitigation area. A conceptual review does not grant any property or other rights or in any wayimply that the Department has authorized, or will authorize, any mitigation activities at the proposed mitigation area, orissue any other approval.

7:7A-11.6 Basic requirements for mitigation proposals

(a) A mitigation proposal required under this chapter shall be submitted at least 90 calendar days prior to thecommencement of regulated activities authorized by a permit.

49 N.J.R. 3849(a)

(b) A mitigation proposal to remedy a violation under this chapter shall be submitted by the deadline set forth in theDepartment's enforcement document.

(c) A mitigation proposal shall include all information necessary for the Department to determine if the requirements ofthis subchapter are met.

(d) The applicant shall provide notification in accordance with N.J.A.C. 7:7A-17 for all mitigation proposals to becarried out at a location that is not the location of the permit activity that include creation, enhancement, or restoration(except restoration for a temporary disturbance).

(e) The information required to be submitted in a mitigation proposal for restoration, creation, and/or enhancement,uplands preservation, and land donation is set forth in the appropriate mitigation proposal checklist, available from theDepartment's website at the address set forth at N.J.A.C. 7:7A-1.4 and described at (h) and (i) below.

(f) The information required to be submitted in a mitigation proposal for a monetary contribution to the Department'sILF Program in accordance with N.J.A.C. 7:7A-11.16 is set forth in the appropriate monetary contribution checklist,available from the Department's website at the address set forth at N.J.A.C. 7:7A-1.4. The checklists require thefollowing information:

1. A copy of the permit (if issued) authorizing the impact(s) being mitigated; and

2. A demonstration that the contribution amount addresses the factors specified at N.J.A.C. 7:7A-11.16.

(g) A mitigation proposal for the purchase of bank credits shall consist of a description of the type and quantity ofwetland resource disturbance for which mitigation is being proposed, a copy of the permit (if issued) authorizing thedisturbance being mitigated, and identification of the mitigation bank from which appropriate credits will be purchased.

(h) The mitigation proposal checklists identified at (e) above require the following information:

1. Basic information regarding the applicant, the specific impacts for which the mitigation is intended to compensate,and a copy of the permit (if issued) or enforcement document that is the source of the mitigation requirement;

2. (No change.)

3. Information demonstrating that the proposed mitigation alternative complies with N.J.A.C. 7:7A-11.9 or 11.10, asapplicable, including information on the feasibility or practicability of other mitigation alternatives;

4.-6. (No change.)

7. A certification of truth and accuracy in accordance with N.J.A.C. 7:7A-16.2(j);

8. Consent from the owner of the proposed mitigation area allowing the Department to enter the property in areasonable manner and at reasonable times to inspect the proposed mitigation area;

9. The following material necessary to explain and illustrate the existing and proposed conditions at the mitigation site:

i. Visual materials, such as maps, site plans, planting plans, surveys, topography, diagrams, delineations, and/orphotographs;

49 N.J.R. 3849(a)

ii. A narrative describing the existing conditions and proposed mitigation, as well as supporting soil or vegetationsamples; and

iii. A preventive maintenance plan detailing how invasive or noxious vegetation will be controlled, and how predationof the mitigation plantings will be prevented;

10. A specific breakdown of each resource for which mitigation is being proposed (for example, 0.01 acres of forestedwetlands or 0.4 acres of scrub shrub wetlands) and the type and quantity of proposed mitigation for each resource;

11. Information and/or certifications regarding the presence or absence of endangered and/or threatened wildlife andplant species habitat, or other features on the proposed mitigation area that are relevant to determining compliance withthis chapter.

12. A certification that the proposed mitigation will not adversely affect historic resources that are listed or are eligiblefor listing on the New Jersey or National Register of Historic Places;


14. Information regarding relevant features of other properties in the vicinity of the mitigation area, such as whethernearby properties are publicly owned, or contain preserved open space or significant natural resources;


16. Cost estimates to perform the mitigation and maintain the mitigation area after construction and/or transfer iscompleted;

17. A preliminary characterization and assessment of the site in accordance with N.J.A.C. 7:7A-11.4(h) to enable theDepartment to [page=3949] determine if contamination is present and if the proposed mitigation activities pose anecological risk;

18. A description of post-construction activities, including schedules for monitoring, maintenance, and reporting; and

19. Contingency measures that will be followed if the mitigation project fails or shows indications of failing.

(i) In addition to the information required by the mitigation proposal checklist as set forth at (h) above, a proposal tocreate, restore, or enhance wetlands shall also include a projected water budget for the proposed mitigation site. Thewater budget shall:

1. Detail the sources of water for the mitigation project, as well as the water losses;

2. Document that an ample supply of water is available to create, enhance, or restore wetland conditions, as applicable;

3. Contain sufficient data to show that the mitigation project will, indefinitely into the future, have sustained wetlandhydrology; and

4. Include the following regional information for the proposed and existing site conditions:

i. The tidal range (low, high, and spring high tide) over the course of a month (where applicable);

ii. The elevation of the existing reference wetland system in the vicinity of the project site;

49 N.J.R. 3849(a)

iii. The salinity range of adjacent waters (where applicable); and

iv. A detailed discussion relating to the created substrate of the proposed mitigation site.

7:7A-11.7 Department review and approval of a mitigation proposal

(a) The Department shall, within 30 calendar days of receipt of a mitigation proposal submitted to comply with acondition of a permit, review the proposal for completeness in accordance with N.J.A.C. 7:7A-11.6, and:

1. (No change.)

2. Declare the mitigation proposal complete for further review.

(b) If a mitigation proposal is intended to compensate for a major discharge the Department shall consult with theUSEPA prior to determining whether to approve the proposal.

(c) (No change.)

7:7A-11.8 Mitigation for a temporary disturbance

(a) Mitigation for a temporary disturbance shall be performed as follows:

1.-2. (No change.)

(b) The transition area for a temporary disturbance shall be as follows:

1. (No change.)

2. If additional mitigation is performed under (a)2ii above, the width of the transition area on the mitigation area shallbe the width required at N.J.A.C. 7:7A-11.12(c), as applicable.

7:7A-11.9 Mitigation hierarchy for a smaller disturbance

(a) This section governs, for a smaller disturbance, the mitigation alternative required and the location of mitigation inrelation to the disturbance. However, if a smaller disturbance is a temporary disturbance, it is governed by N.J.A.C.7:7A-11.8.

(b) (No change.)

(c) The Department presumes that onsite mitigation for a smaller disturbance is not feasible. Therefore, mitigation for asmaller disturbance shall be performed through the purchase of in-kind credits from a mitigation bank with a servicearea that includes the site of the disturbance in accordance with N.J.A.C. 7:7A-11.14, or, if that is not feasible, theneither through onsite restoration, creation, or enhancement or offsite restoration, creation, or enhancement within thesame watershed management area as the disturbance. In determining the feasibility of onsite or offsite mitigation for asmaller disturbance the Department shall consider the following factors regarding the proposed mitigation area:

1. Size. Generally, the larger a mitigation area, the greater its potential environmental benefit. A mitigation area that isassociated with a large existing wetland complex is more likely to be environmentally beneficial;

49 N.J.R. 3849(a)

2. (No change.)

3. Habitat value. A mitigation area that will provide valuable habitat for critical wildlife species or threatened orendangered species is more likely to be environmentally beneficial;

4. Interaction with nearby resources. A mitigation project is more likely to be environmentally beneficial if itcomplements existing nearby resources. For example, a mitigation project that adds riparian wetlands habitat adjacent toan existing stream enhances the environmental value of both the riparian area and the stream; and

5. Availability of parcels for offsite mitigation that meet the requirements of (f) below.

(d) If mitigation as described at (c) above is not feasible, mitigation shall be in the form of one or more of the following,as determined in consultation with the Department:

1. Monetary contribution to the ILF Program in accordance with N.J.A.C. 7:7A-11.16; and/or

2. Upland preservation in accordance with N.J.A.C. 7:7A-11.13.

(e) If mitigation as described at (d) above is not feasible, mitigation shall be in the form of a land donation inaccordance with N.J.A.C. 7:7A-11.15.

(f) In order to demonstrate that offsite mitigation under (c) above is not feasible, an applicant shall provide to theDepartment a list of at least six sites within the same watershed management area to accommodate the requiredmitigation. With respect to each site on the list, the applicant shall explain why:

1. The site is not located at a practical elevation suitable for wetlands;

2. The site lacks an adequate water supply;

3. The site is not available for purchase; and

4. The site does not meet the requirements of N.J.A.C. 7:7A-11.4(i) regarding ecological risk.

7:7A-11.10 Mitigation hierarchy for a larger disturbance

(a) This section governs, for a larger disturbance, the mitigation alternative required and the location of mitigation inrelation to the disturbance. However, if a larger disturbance is a temporary disturbance it is governed by N.J.A.C.7:7A-11.8.

(b) A larger disturbance is a disturbance not listed at N.J.A.C. 7:7A-11.9(b).

(c) Mitigation for a larger disturbance shall be performed through restoration, creation, or enhancement onsite or, if thatis not feasible, then offsite in the same watershed management area as the disturbance or through the purchase of creditsfrom a mitigation bank with a service area that includes the area of disturbance. In determining the feasibility of onsiteor offsite mitigation for a larger disturbance, the Department shall consider the following factors regarding the proposedmitigation area:

1. Size. Generally, the larger a mitigation area is, the greater its potential environmental benefit. A mitigation area thatis associated with a large existing wetland complex is more likely to be environmentally beneficial;

49 N.J.R. 3849(a)

2. Location in relation to other preserved open space. A mitigation area adjacent to public land or other preserved areasis more likely to be environmentally *[benficial]* *beneficial*;

3. Habitat value. A mitigation area that will provide valuable habitat for critical wildlife species or threatened orendangered species is more likely to be environmentally beneficial;

4. Interaction with nearby resources. A mitigation project is more likely to be environmentally beneficial if itcomplements existing nearby resources. For example a mitigation project that adds riparian wetlands habitat adjacent toan existing stream enhances the environmental value of both the riparian area and the stream; and

5. Availability of parcels for offsite mitigation that meet the requirements of (f) below.

(d) If mitigation as described at (c) above is not feasible, mitigation shall be required in the form of one or more of thefollowing, as determined in consultation with the Department:

1. A monetary contribution to the Department's ILF Program in accordance with N.J.A.C. 7:7A-11.16; or

2. Upland preservation, in accordance with N.J.A.C. 7:7A-11.13.

[page=3950] (e) If mitigation as described at (d) above is not feasible, mitigation shall be in the form of a land donationapproved by the Wetland Mitigation Council in accordance with N.J.A.C. 7:7A-11.15.

(f) In order to demonstrate that offsite mitigation under (c) above is not feasible, an applicant shall provide to theDepartment a list of at least six sites within the same watershed management area to accommodate the requiredmitigation. With respect to each site on the list, the applicant shall explain why:

1. The site is not located at a practical elevation suitable for wetlands;

2. The site lacks an adequate water supply;

3. The site is not available for purchase; and

4. The site does not meet the requirements of N.J.A.C. 7:7A-11.4(i) regarding ecological risk.

7:7A-11.11 Mitigation for transition area impacts in accordance with N.J.A.C. 7:7A-8.3(g) (special activity transitionarea waivers based upon individual permit criteria)

(a) This section governs the mitigation alternative required and the location of mitigation in relation to the disturbancefor a transition area impact in accordance with N.J.A.C. 7:7A-8.3(g) (special activity transition area waivers based uponindividual permit criteria). Mitigation for a transition area disturbance shall be performed through restoration orenhancement of transition areas carried out on the site of the disturbance to the maximum extent feasible.

(b) If onsite transition area restoration or enhancement is not feasible, mitigation shall be performed through:

1. The purchase of credits from a mitigation bank with a service area that includes the area of disturbance; or

2. Offsite restoration or enhancement in the same watershed management area as the disturbance.

(c) If transition area mitigation is not feasible under (b) above, mitigation shall be performed through:

49 N.J.R. 3849(a)

1. A monetary contribution to the Department's ILF Program in accordance with N.J.A.C. 7:7A-11.16;

2. Upland preservation, in accordance with N.J.A.C. 7:7A-11.13; or

3. A land donation approved by the Wetland Mitigation Council in accordance with N.J.A.C. 7:7A-11.15.

7:7A-11.12 Requirements for restoration, creation, or enhancement

(a) This section sets forth the requirements that apply to a creation, restoration, or enhancement mitigation project.

(b) If creation or restoration is the mitigation alternative, wetlands shall be created or restored at a creation or restorationto lost or disturbed ratio of 2:1, unless the applicant demonstrates in accordance with (b)1 below that creation orrestoration at a ratio of less than 2:1 will provide equal ecological functions and values. The mitigation project shall bedesigned to include a wetlands transition area pursuant to (c) below. The wetlands transition area shall not be counted inthe acreage of mitigation provided by the wetlands creation or restoration.

1. A mitigator may create or restore wetlands at a ratio of less than 2:1 if the mitigator demonstrates through the use ofproductivity models or other similar studies that restoring or creating a lesser area of wetlands will result in replacementwetlands of equal ecological value to those lost or disturbed. However, in no case shall the Department approve a ratioof less than 1:1. In order to demonstrate equal ecological value, the mitigator shall survey and provide writtendocumentation regarding, at a minimum, existing soil, vegetation, water quality functions; flood storage capacity; soilerosion and sediment control functions; and wildlife habitat conditions and detail how the mitigation proposal willreplace the ecological values of the wetlands lost or disturbed.

(c) A mitigation area involving restoration or creation shall include a transition area. The transition area shall not becounted in calculating the acreage of mitigation required. For example, if a person must create one acre of wetlands, themitigation area shall include one acre of created wetlands and, in addition, a transition area around the created wetlands.The width of the transition area around a wetland resulting from mitigation shall be determined as follows:

1. If the mitigation area includes or will include exceptional resource value wetlands, the transition area shall be 150feet wide;

2. If mitigation is restoration under N.J.A.C. 7:7A-11.8(b)1 of an area temporarily disturbed, the transition area shall bethat which was required for the wetland prior to the temporary disturbance; and

3. For all mitigation not listed at (c)1 or 2 above, the transition area shall be 50 feet wide.

(d) If enhancement is the mitigation alternative, the Department shall determine, on a case-by-case basis, the amount ofenhancement required to ensure that the mitigation results in wetlands of equal or better functions and values to thoselost.

(e) Within 60 calendar days after construction of a creation, restoration, or enhancement wetlands mitigation project iscompleted, the mitigator shall submit a construction completion report to the Department. The Department mayestablish a different timeframe for the submittal of the construction completion report if it determines that doing sowould better facilitate assessing the progress and success of the mitigation. The construction completion report shallinclude:

1. An as-built plan of the completed mitigation area, showing grading, plantings (including species, size, and densities),and any structures included in the approved mitigation proposal;

49 N.J.R. 3849(a)

2. Photographs of the completed mitigation; and

3. An explanation for any deviation from the approved mitigation proposal.

(f) In addition to the construction completion report required under *[(d)]* *(e)* above, the mitigator shall submit apost-construction monitoring report to the Department each year for five years after completion of construction, unless adifferent timeframe for submittal is specified in the approved mitigation proposal. The Department may modify thefrequency and/or duration of required reporting if it determines that such modification is necessary to ensure the successof the mitigation. Post-construction monitoring shall begin the first full growing season after the mitigation project iscompleted.

(g) The post-construction monitoring reports required under *[(e)]* *(f)* above shall be submitted to the Department byDecember 31 of each reporting year, and shall include:

1. (No change.)

2. The requirements and goals of the approved mitigation proposal;

3. A detailed explanation of the ways in which the mitigation has or has not achieved progress toward the goals of theapproved mitigation proposal. If mitigation has not achieved anticipated progress, the report shall also include a list ofcorrective actions to be implemented and a timeframe for completion;

4. Information required by the wetlands mitigation monitoring project checklist available from the Department at theaddress set forth at N.J.A.C. 7:7A-1.4. For a wetlands mitigation project, the checklist requires the followinginformation:

i. A USGS quad map and an aerial photograph on which the limits of the mitigation site and all proposed access pointsare clearly indicated;

ii. Photographs of the mitigation site with a location map indicating the location and direction of each photograph;

iii. An assessment of the success of the planted vegetation; a separate assessment of the species that are naturallycolonizing the mitigation site; and an overall assessment of plant coverage including documentation concerninginvasive or noxious plant species and the percent coverage of these species on the site;

iv. An assessment of the hydrology of the mitigation site including, where appropriate, monitoring well data, streamgauge data, relevant tidal data, photographs, and field observation notes collected throughout the monitoring period;

v. A field delineation of the wetlands at the wetlands mitigation project site, based on techniques specified in theFederal Manual for Identifying and Delineating Jurisdictional Wetlands, published in 1989 by the USEPA, USACE,USFWS, and U.S. Department of Agriculture's Conservation Services, incorporated herein by reference, available atwww.digitalmedia.fws.gov/cdm/ref/collection/document/id/1341; and

vi. A plan showing the flagged wetlands delineation and global positioning system data points.

(h) The standards by which the wetlands mitigation project shall be determined to be successful are set forth at (h)1through 5 below. The mitigator shall submit a post-construction monitoring report as required [page=3951] at (g) abovedemonstrating that these standards have been met. The standards are:

1. The goals of the approved mitigation proposal (including the required transition area) have been achieved;

49 N.J.R. 3849(a)

2. The mitigation site is a wetland, as documented through monitoring well data, stream gauge data, relevant tidal data(when appropriate), photographs, and field observation notes collected throughout the monitoring period;

3. The wetland community comprised of the planted vegetation or targeted hydrophytes as detailed in the approvedmitigation proposal and permit conditions has been achieved, or, if not yet achieved, all site indicators suggest that thesite is on a positive trajectory to meeting the desired wetland plant community;

4. The mitigation provided meets all applicable requirements of this subchapter; and

5. The mitigator has executed and recorded a conservation restriction for the mitigation area that meets the requirementsof N.J.A.C. 7:7A-12.

(i) If a mitigation project does not meet the success criteria in (h) above, the Department, in consultation with thepermittee, shall determine the appropriate corrective action(s) that the mitigator shall implement. Corrective action mayinclude regrading or replanting the mitigation site, relocation of the mitigation project to another, more suitable site,and/or extending the monitoring period as necessary to ensure success of the mitigation.

(j) If the mitigator makes the demonstrations required for a restoration, creation, or enhancement project at (h) above,the Department shall issue a declaration that the mitigation is successful.

7:7A-11.13 Requirements for upland preservation

(a) (No change.)

(b) Preserved uplands shall be valuable for the protection of a freshwater wetlands ecosystem. Factors the Departmentshall consider in evaluating an area for upland preservation include, but are not limited to:

1.-2. (No change.)

3. Whether the uplands to be preserved are located in the same watershed management area as the disturbance;

4. Whether the uplands to be preserved are adjacent to a freshwater wetland that:

i. (No change.)

ii. Contains critical habitat for flora or fauna;

iii.-v. (No change.)

5.-7. (No change.)

(c) The amount of uplands preserved shall be sufficient to ensure that the functions and values resulting from thepreservation of the uplands will fully compensate for the loss of functions and values caused by the disturbance. Indetermining if an upland preservation proposal will fully compensate for a disturbance, the Department shall consult thesources, and consider the conditions, referenced in N.J.A.C. 7:7A-11.2(a). At a minimum, the uplands preserved shallbe:

1. (No change.)

49 N.J.R. 3849(a)

2. If adjacent to a wetland, the uplands preserved shall include the standard transition area required for the wetlandsunder N.J.A.C. 7:7A-3.3, plus an additional area at least 150 feet wide, measured from the outer edge of the transitionarea.

(d) The Department shall declare mitigation through upland preservation successful upon:

1. Demonstration that any required conservation restriction has been recorded in accordance with N.J.A.C. 7:7A-12;

2. Documentation that the property has been transferred in fee simple to a government agency or Department approvedcharitable conservancy; and

3. Documentation that a maintenance fund for maintenance and supervision of the mitigation area has been transferredto the governmental agency or charitable conservancy. The amount of the maintenance fund shall be determined byagreement between the mitigator and the agency or conservancy.

7:7A-11.14 Requirements for credit purchase from an approved mitigation bank

(a) If the Department determines that credit purchase is the appropriate mitigation alternative, the Department shallevaluate the values and functions lost as a result of the impacts and determine the number of credits required to ensurethat the mitigation results in wetlands, State open waters, or transition areas of equal functions and values to those lost.

(b) The mitigator shall prepare and execute all documents necessary to ensure that the credits have been purchased froma Department-approved mitigation bank with available credits.

(c) The Department shall determine mitigation through credit purchase successful upon receipt of documentation fromthe permittee that the credit purchase was made as required. Documentation shall include a written certification from themitigation bank operator, indicating the number of credits purchased and the Department permit number.

7:7A-11.15 Requirements for a land donation

(a) If the Department determines that a land donation is the appropriate mitigation alternative, the mitigator shall applyto the Wetlands Mitigation Council for approval of the particular parcel of land to be donated.

(b) The Council shall approve the proposed parcel of land to be donated only if the amount of land to be donated issufficient to ensure that the functions and values provided by the donated land will fully compensate for the loss offunctions and values caused by the disturbance.

(c) If a proposed parcel to be donated is also being donated or otherwise restricted in order to satisfy requirements ofanother government agency, the Council shall not approve the donation unless the applicant also enhances or restoreswetlands on the parcel. For example, if land is required by a municipality to be preserved as open space, the Councilshall only approve the parcel for a land donation if the applicant also performs wetlands restoration or enhancement inaccordance with this subchapter. If restoration or enhancement cannot be performed on the parcel, the Council shall notaccept the parcel as a land donation.

(d) The Council shall approve the proposed parcel of land to be donated only if the applicant demonstrates that the landhas the potential to be a valuable component of a wetland ecosystem. The Council shall evaluate each parcel todetermine its potential on a case-by-case basis, taking into consideration the following:

1. The parcel shall be at least five acres in size, or shall be immediately adjacent to a protected natural area, such as aState wildlife management area;

49 N.J.R. 3849(a)

2. The parcel shall not be adversely affected by solid waste, hazardous waste, or air, water, or soil pollution;

3. A functional comparison between the impacted wetland system and the wetland system proposed for donation; and

4. The parcel shall meet at least one, and preferably several, of the following criteria:

i. Contains exceptional resource value wetlands;

ii. Contains critical habitat for flora or fauna;

iii. Contains wetlands or waters draining to FW1 or category one waters, as defined at N.J.A.C. 7:9B, or into publicdrinking water sources;

iv. Contains wetlands or waters that connect one public open space or significant natural resource to another publicopen space or significant natural resource. For example, a parcel containing a stream that runs through two wildlifepreserves that are not adjacent;

v. Is adjacent to public lands containing wetland preserves, such as a Federal wildlife refuge, a State wildlifemanagement area, a State park or forest, or a State, county, or local wetland preservation area, or wetland preservationareas held by a charitable conservancy; or

vi. Has unique aspects or characteristics that contribute to its ecological value, such as an unusual or regionally rare typeof wetland.

(e) The Department shall declare mitigation through a land donation successful upon a demonstration that:

1. (No change.)

2. The land donation has been transferred in fee simple to a government agency or a Department approved charitableconservancy and that the transfer has been recorded with each county in which the preserved land is located;

[page=3952] 3. The mitigator has provided the government agency or charitable conservancy with an adequatemaintenance fund for maintenance and supervision of the mitigation area. The amount of the maintenance fund shall bedetermined by agreement between the mitigator and the agency or conservancy; and

4. The required conservation restriction has been recorded in accordance with N.J.A.C. 7:7A-12.

7:7A-11.16 Requirements for a monetary contribution to the Department's in-lieu fee program

(a) This subchapter includes the requirements for a monetary contribution to the Department's ILF Program, describedat N.J.A.C. 7:7A-11.23, to compensate for wetland impacts in accordance with the State of New Jersey In-Lieu FeeMitigation Program Instrument (ILF Instrument) made and entered into by and among the Department, the USEPA, andthe Wetlands Mitigation Council.

(b) For mitigation through a monetary contribution to the ILF Program, the mitigator shall first obtain the Department'sauthorization to use monetary contribution as the mitigation alternative. After the Department determines that monetarycontribution is the appropriate mitigation alternative, the mitigator shall either:

1. For an individual permit, obtain approval from the Wetlands Mitigation Council for the amount of the monetary

49 N.J.R. 3849(a)

contribution; or

2. For a general permit, calculate the amount of the monetary contribution in accordance with (e) below.

(c) The Wetlands Mitigation Council shall approve the amount of a monetary contribution for an individual permit onlyif the contribution is equal to the lesser of the following:

1. The cost of buying and enhancing and/or restoring existing degraded freshwater wetlands and/or State open waters,resulting in an area that will provide equal functions and values to that disturbed; or

2. The cost of buying uplands and creating freshwater wetlands, and/or State open waters, resulting in an area that willprovide equal functions and values to that disturbed.

(d) In determining the costs at (c)1 and 2 above, the Council may consider cost estimates submitted by the applicant andthe Department, information obtained from experts in the field of mitigation (including Council members), and anyother information available to the Council.

(e) The following analysis shall be used to determine the amount of a monetary contribution when mitigating forgeneral permit impacts at N.J.A.C. 7:7A-7:

1. For single-family property owners, the acreage of wetlands/State open water impacts multiplied by $ 42,300, adjustedin accordance with (f) below, using the Consumer Price Index for Urban Consumers as published by the United StatesDepartment of Labor; or

2. For all other property owners, the acreage of wetlands/State open water impacts multiplied by $ 334,000, adjusted inaccordance with (f) below using the Consumer Price Index for Urban Consumers as published by the United StatesDepartment of Labor.

(f) When the Department determines, based on an annual review of the Consumer Price Index for Urban Consumers aspublished by the United States Department of Labor under (e)1 or 2 above, that the singular or cumulative ConsumerPrice Index adjustment(s) results in a change of $ 500.00 or more above the currently codified figure, the Departmentshall publish a notice of administrative change announcing the adjustment and the amount of the adjusted monetarycontribution in the New Jersey Register.

(g) The Department shall declare mitigation through a monetary contribution to the ILF Program successful upon ademonstration that:

1. For a monetary contribution for an individual permit:

i. The Wetlands Mitigation Council has approved the amount of the monetary contribution;

ii. The monetary contribution has been completed in accordance with the ILF Instrument and the Council resolutionapproving the contribution, all applicable permit conditions, requirements of this subchapter, and requirements of theapproved mitigation proposal; and

iii. The ILF Program Administrator has received the payment in full; or

2. For a monetary contribution for a general permit:

i. The amount has been properly calculated in accordance with (e) above; and

49 N.J.R. 3849(a)

ii. The ILF Program Administrator has received the payment in full.

7:7A-11.17 Financial assurance for mitigation projects; general provisions

(a) Financial assurance in accordance with this section is required for mitigation projects involving restoration, creation,or enhancement activities as mitigation for impacts to wetlands, State open waters, and transition areas. Financialassurance is not required for a mitigation proposal or mitigation bank proposal submitted by a government agency or anentity that is exempt from the requirement to provide financial assurance under Federal law.

(b) The person responsible for conducting mitigation identified at (b)1 or 2 below shall establish and maintain financialassurance in accordance with this section:

1. Where mitigation is required pursuant to a permit, the permittee or mitigation bank sponsor of a mitigation project ormitigation bank; or

2. Where mitigation is required as part of the remedy for a violation, the person designated to provide mitigation in theenforcement document.

(c) The person identified at (b) above shall establish and maintain financial assurance in the amount specified at (f)below, until the Department determines that the mitigation site or mitigation bank has satisfied the applicableperformance standards, permit conditions, enforcement document, or settlement agreement.

(d) Financial assurance shall comprise of one or more of the instruments identified at (d)1 through 5 below. A templatefor each of the types of financial assurance identified at (d)1 through 4 is available from the Department at the addressset forth at N.J.A.C. 7:7A-1.4.

1. A fully funded trust fund, in accordance with N.J.A.C. 7:7A-11.18;

2. A line of credit, in accordance with N.J.A.C. 7:7A-11.19;

3. A letter of credit, in accordance with N.J.A.C. 7:7A-11.20;

4. A surety bond, in accordance with N.J.A.C. 7:7A-11.21; and/or

5. Other forms of financial assurance, other than self-insurance or self-guarantee, as determined by the Department tomeet the requirements of this section.

(e) Financial assurance that meets the requirements of this section shall be provided at least 30 calendar days prior toundertaking mitigation activities approved under a permit or mitigation banking instrument, or as required under anenforcement document or settlement.

(f) The amount of financial assurance shall be based on an itemized estimate provided by an independent contractor andshall include the following:

1. Construction costs, equal to 115 percent of the estimated cost of completing the creation, restoration, orenhancement; and

2. Maintenance costs, equal to 115 percent of the estimated cost of monitoring and maintaining the site, including thecost to replant the mitigation area.

49 N.J.R. 3849(a)

(g) The Department shall review the financial assurance annually and adjust the amount as necessary to reflect currenteconomic factors.

(h) The Department shall require additional financial assurance if additional construction and/or monitoring is requiredto ensure success of the mitigation project.

(i) The portion of the financial assurance required under (f)1 above shall be released upon the Department'sdetermination that the construction (including grading, hydrologic modifications, and planting) of the mitigation projector bank has been successfully completed in accordance with the approved mitigation proposal.

(j) The portion of the financial assurance required under (f)2 above shall be released when the Department determinesthat the mitigation project or bank is successful pursuant to N.J.A.C. 7:7A-11.12(h) or 11.25(j) (for a mitigation bank)as applicable.

(k) If the Department determines that the person responsible for conducting mitigation and providing financialassurance as specified at (b) above has failed to perform a mitigation project or bank as required by a permit, mitigationbanking instrument, enforcement document, or settlement agreement, the Department shall:

1. Provide written notice of this determination to the person; and

[page=3953] 2. Require that the mitigation project or bank be brought into conformance with the permit, mitigationbanking instrument, enforcement document or settlement agreement within 30 calendar days after receipt of the notice,unless the timeframe for compliance is extended in writing by the Department.

(l) No sooner than 30 days from the date the person required to establish the financial assurance receives the noticeunder (k) above, the Department may, at its discretion, perform the mitigation project or bank by drawing on the fundsavailable in the financial assurance.

7:7A-11.18 Financial assurance; fully funded trust fund requirements

(a) A person who chooses to establish a fully funded trust fund as financial assurance pursuant to this subchapter shallsubmit to the Department the original fully funded trust fund agreement. The trust fund agreement shall:

1. Be executed by an entity that has the authority to act as a trustee and whose trust operations are regulated andexamined by a New Jersey or Federal agency;

2. Include any applicable Department file number and the name, street address, lot and block numbers, municipality,and county of the mitigation site;

3. Specify that the fully funded trust fund cannot be revoked or terminated without the prior written approval of theDepartment;

4. Specify that the trustee may only disburse funds with the Department's written approval;

5. Specify that funds shall be utilized solely for the purposes of conducting the mitigation project or mitigation bank asapproved by the Department;

6. Specify that the Department may access the fully funded trust fund to pay for the cost of the mitigation project orbank, pursuant to N.J.A.C. 7:7A-11.17(l); and

49 N.J.R. 3849(a)

7. Identify the Department as the sole beneficiary of the fully funded trust fund.

(b) Any person responsible for conducting a mitigation project or bank that uses a fully funded trust fund to satisfy therequirements of this subchapter shall annually, at least 30 calendar days prior to the anniversary date of when thatperson was obligated to establish a financial assurance, submit to the Department a written statement from the trusteeconfirming the value of the trust in the amount that the Department has approved, and confirming that the trust shallcontinue for the next consecutive 12-month period.

7:7A-11.19 Financial assurance; line of credit requirements

(a) A person who chooses to establish a line of credit agreement as financial assurance pursuant to this subchapter shallsubmit to the Department the original line of credit. The line of credit shall:

1. Be issued by an entity that is licensed by the New Jersey Department of Banking and Insurance to transact business inthe State of New Jersey or by a Federally regulated bank;

2. Include any applicable Department file number, and the name, street address, lot and block numbers, municipality,and county of the mitigation site;

3. Specify that the line of credit shall be issued for a period of one year and shall be automatically extended thereafterfor a period of at least one year;

4. Specify that, if the issuer of the line of credit decides not to extend the line of credit beyond the then-currentexpiration date, the issuer shall notify the person using the line of credit and the Department by certified mail of thatdecision at least 120 calendar days before the current expiration date, beginning from the date of receipt by theDepartment as shown on the signed return receipt;

5. Specify that the lender shall disburse only those funds that the Department approves in writing;

6. Specify that the funds in the line of credit shall be utilized solely for the purposes of conducting the mitigation projector bank; and

7. Specify that the Department may access the line of credit to pay for the cost of the mitigation project or bank,pursuant to N.J.A.C. 7:7A-11.17(l).

(b) A person responsible for conducting a mitigation project or bank who uses a line of credit to satisfy the requirementsof this subchapter shall annually, at least 30 calendar days prior to the anniversary date of when that person wasobligated to establish a financial assurance, submit to the Department a written statement from the lender confirming thevalue of the line of credit in an amount that the Department has approved and confirming that the lender has renewedthe line of credit for the next consecutive 12-month period.

7:7A-11.20 Financial assurance; letter of credit requirements

(a) A person who chooses to provide a letter of credit as financial assurance to guarantee the availability of fundspursuant to this subchapter shall submit to the Department the original letter of credit. The letter of credit shall:

1. Be issued by an entity that is licensed by the New Jersey Department of Banking and Insurance to transact business inthe State of New Jersey or by a Federally regulated bank;

49 N.J.R. 3849(a)


3. Specify that the letter of credit is irrevocable and issued for a period of at least one year and that it will beautomatically extended thereafter for a period of at least one year;

4. Specify that, if the issuer of the letter of credit decides not to extend the letter of credit beyond the then-currentexpiration date, the issuer shall notify the person providing the letter of credit and the Department by certified mail ofthat decision at least 120 calendar days before the current expiration date, beginning from the date of receipt by theDepartment as shown on the signed return receipt; and

5. Specify that the Department may access the letter of credit to pay for the cost of the mitigation project or mitigationbank, pursuant to N.J.A.C. 7:7A-11.17(l).

7:7A-11.21 Financial assurance; surety bond requirements

(a) A person who chooses to provide a surety bond as a financial assurance to guarantee the availability of fundspursuant to this subchapter shall complete and submit to the Department the original surety bond. The surety bond shall:

1. Be issued by an entity that is licensed by the New Jersey Department of Banking and Insurance to transact business inthe State of New Jersey or is listed as acceptable surety on Federal bonds in Circular 570 of the U.S. Department of theTreasury;


3. Specify that, if the issuer of the surety bond decides not to extend the surety bond beyond the then-current expirationdate, the issuer shall notify the person using the surety bond and the Department by certified mail of that decision atleast 120 calendar days before the current expiration date, beginning from the date of receipt by the Department asshown on the signed return receipt; and

4. Specify that the Department may access the surety bond to pay for the cost of the mitigation project or mitigationbank, pursuant to N.J.A.C. 7:7A-11.17(l).

7:7A-11.22 Wetlands Mitigation Council

(a) The Wetlands Mitigation Council's duties and functions include:

1. (No change.)

2. Advising the Department on mitigation issues; and

3. Managing the Department's ILF Program in accordance with the ILF Instrument and N.J.A.C. 7:7A-11.23 and 11.24.As the ILF Program Administrator, the Council is responsible for:

i. Accepting approved monetary contributions to the Wetlands Mitigation Fund;

ii. Disbursing funds from the Wetlands Mitigation Fund to finance the following activities:

49 N.J.R. 3849(a)

(1) Buying land in order to conduct mitigation, or to preserve wetlands, transition areas, uplands, and/or State openwaters;

(2) Enhancing or restoring wetlands on public lands; and

(3) Conducting research to monitor the success of mitigation as part of a Council-funded and approved creation,restoration, or enhancement project.

iii. Requesting proposals for ILF grant applications;

iv. Reviewing grant applications and managing grant contracts; and

[page=3954] v. Establishing and maintaining Accounting Reports for the ILF Program that meet the requirements setforth in the ILF Instrument and 40 CFR 230.98(i)(3).

(b) If the Council transfers funds or land, the Council shall first execute and record a conservation restriction that meetsall applicable requirements at N.J.A.C. 7:7A-12, and that ensures that the funds or land will be used only for mitigationand freshwater wetlands conservation.

(c) The Council may contract with a government agency, nonprofit organization, or other appropriate agency to carryout its responsibilities under this chapter. Any such contract shall be subject to review and approval by the USEPA.

(d) ILF grant funding procedures, including how to apply for a grant, are found at N.J.A.C. 7:7A-11.24.

(e) Council meetings are open to the public. A schedule of Council meetings and other information relating to specificCouncil meetings can be obtained by contacting Council staff at the address set forth at N.J.A.C. 7:7A-1.4.

7:7A-11.23 New Jersey In-Lieu Fee Mitigation Program

(a) The Department's ILF Program provides a third-party compensatory mitigation option for unavoidable impacts towetland resources and enforcement actions approved by the Department.

(b) The ILF Program will be used for all activities and program management related to the selection, design,acquisition, implementation, monitoring, management, and long-term protection of ILF Program projects.

(c) The ILF Program Instrument sets forth guidelines and responsibilities for the establishment, use, operation,protection, monitoring, and maintenance of the ILF Program to ensure that work associated with the ILF Programproduces the necessary compensatory mitigation credits to compensate for unavoidable impacts to wetland resources.The ILF Program Instrument is intended to ensure New Jersey's Wetland Mitigation Fund complies with EPA's 2008regulations governing in-lieu fee programs (40 CFR 230.98). The Council will sell credits to satisfy compensatorymitigation requirements only if all of the terms of the ILF Program Instrument are satisfied.

(d) The Council shall receive 10 percent of each monetary contribution when contributions are deposited into the ILFProgram account. This administrative fee will be used for reasonable overhead and related costs of administering theILF Program.

(e) The Council shall disperse mitigation fund dollars in accordance with the ILF Program Instrument for ILF projectswithin primary and secondary service areas of the State.

(f) The Council is authorized to sell credits to provide compensatory mitigation for impacts authorized by the

49 N.J.R. 3849(a)

Department within each service area, provided:

1. The Council collects the monetary contributions in accordance with the ILF Instrument; and

2. In the event that a project funded by the Council fails to result in mitigation, and the Council fails to timely fund analternative mitigation project, the Council deducts the outstanding mitigation obligations from its pool of availablecredits.

(g) The Department will only consider the Council to be a feasible alternative for mitigation if the Council maintains aminimum balance of 10 credits and the Department is satisfied the Council is accurately accounting for its mitigationobligations.

(h) If the Council does not perform in accordance with the ILF Instrument, or this subchapter, the Department willreevaluate whether using the Council is a feasible means of ensuring mitigation.

(i) If the Department determines that Council is no longer a feasible alternative for mitigation, the Department shallensure that all outstanding wetland mitigation obligations are met in accordance with this subchapter.

7:7A-11.24 New Jersey In-Lieu Fee Mitigation Program grant funding procedures

(a) The Program Administrator shall publish, on the Department's website, a request for grant proposals for the waterregions in which funding is available in the Wetland Mitigation Fund in accordance with the ILF *Program*Instrument.

(b) To be eligible for funding, interested applicants must submit a conceptual ILF grant proposal in response to therequest for proposals. A conceptual proposal shall be prepared in accordance with the ILF Program Instrument andshall:

1. Identify the location of the project (including service area, county, and municipality);

2. Identify the amount of wetlands to be preserved, enhanced, created, or restored;

3. Identify the amount of money requested for the project;

4. Include a detailed explanation of the proposed budget;

5. Identify the amount of proposed credits to be generated; and

6. Include a summary of the proposal.

(c) If the Council determines that a conceptual proposal is eligible to be submitted as a full proposal, the full proposalshall be submitted within 90 days after conceptual approval and shall include:

1. The information required in the appropriate restoration, creation, and/or enhancement mitigation proposal checklist,available from the Department's website at the address set forth at N.J.A.C. 7:7A-1.4, and described at N.J.A.C.7:7A-11.6(i); and

2. The following information prepared in accordance with the ILF Program *[instrument]**Instrument*:

i. A cover page that identifies the title of the project, location of the project including lot and block numbers,

49 N.J.R. 3849(a)

municipality, county, and watershed management area, applicant's name, address, phone number, and e-mail, fundingamount requested, and project cost;

ii. A scope of work that includes background information, goals, objective, and approach, and project partners;

iii. A project implementation schedule;

iv. Detailed budget narratives justifying all proposed expenses; and

v. An appendix that includes any prior permits or Letters of Interpretation*[s]* issued for the property; maps, aerialphotographs, photographs, plans, or drawings of the proposed project, a map of known contaminated sites, and alandscape map for the project area.

(d) Prior to the Council and the grantee entering into a contract, the Council shall send all approved proposals to theUSEPA for review and consultation as follows:

1. The grantee must address any comments or concerns raised by the USEPA; and

2. The USEPA shall have 15 business days to review the proposed project. The USEPA may or may not issuecomments on the project. If no response is received by the Council from the USEPA, the Council will assume that theUSEPA has no objections to the project and will proceed with the contracting process.

(e) Each approved project shall have a project contract agreement. The grantee and the Council shall be held to theterms and the conditions of the contract.

(f) At any point during the contract, if the grantee fails to perform in accordance with the proposal, the contract, or thepermit, the Council can take the steps necessary to terminate the contract and return any unused money back to theWetland Mitigation Fund to be reallocated to another wetland mitigation project.

7:7A-11.25 Mitigation banks

(a) A mitigation bank requires approval by the Department prior to the sale of any mitigation credits. "Approval" for thepurposes of this section means approval in accordance with N.J.A.C. 7:7A-11.26.

(b) If the establishment of a mitigation bank involves regulated activities as described at N.J.A.C. 7:7A-2.2 or 2.3, thebank operator shall obtain all necessary approvals from the Department prior to undertaking the regulated activities.

(c) Once the Department has approved a mitigation bank, the bank operator shall carry out all requirements of thebanking instrument approving the bank, regardless of whether or when credits are sold. Construction of the wetlandcreation, enhancement, and restoration components of an approved mitigation bank shall be initiated no later than oneyear after the date of the first credit transaction.

(d) The Department shall determine how many mitigation credits each mitigation bank operator may receive or sell,based on the increase in values and functions created as a result of the proposed mitigation bank, as well as how theincrease in functions and values will interact [page=3955] with the regional wetland and aquatic resources. TheDepartment shall evaluate each mitigation bank to determine its functions and values considering the following:

1. The functions and values provided by the bank site at the time the mitigation bank proposal is submitted, such asexisting soil, vegetation, water quality functions, flood storage capacity, soil erosion and sediment control functions,and wildlife habitat functions;

49 N.J.R. 3849(a)

2.-3. (No change.)

4. The amount of wetlands, transition area, and/or State open waters on the proposed bank site;

5. The potential for the completed mitigation site to be a valuable component of the ecosystem;

6.-10. (No change.)

(e) The Department shall include in the banking instrument approving a mitigation bank a schedule, as set forth at (e)1through 8 below, under which a bank operator may sell credits. The Department shall adjust the amount of credits thatcan be released under (e)2 through 8 below to reflect the degree of progress the bank has shown toward meeting thegoals and performance standards in the approved mitigation proposal:

1. Ten percent of the credits shall be released upon completion of both of the following:

i. (No change.)

ii. Compliance with all pre-release credit sale conditions in the banking instrument approving the bank, includingsecuring all construction permits, posting adequate and effective financial assurance in accordance with N.J.A.C.7:7A-11.17, and filing of the conservation restriction;

2. Up to 10 percent of the credits shall be released upon successful establishment of the approved hydrologic regime,such that this regime will persist over time under normal hydrologic conditions;

3. (No change.)

4. Up to 10 percent of the credits shall be released when monitoring indicates that the performance standards in thebanking instrument approving the bank have been met for an entire one-year period;

5. Up to 10 percent of the credits shall be released when monitoring indicates that the performance standards in thebanking instrument approving the bank have been met for a two-year period;


7. Up to 15 percent of the credits shall be released when monitoring indicates that the performance standards in thebanking instrument approving the bank have been met for four consecutive years; and

8. The remaining credits shall be released when monitoring in accordance with the banking instrument approving thebank indicates that the performance standards in the banking instrument have been met for five consecutive years.

(f) Preservation credits may be released in their entirety when the conditions set forth at (e)1 above have been met.

(g) The mitigation bank operator shall execute and record a conservation restriction on the mitigation bank site prior tothe sale of any credits. The conservation restriction shall meet the requirements of N.J.A.C. 7:7A-12.

(h) The mitigation bank operator shall monitor the bank during and after construction until such time that the last creditis sold, the final inspection is conducted, or the bank is transferred to a charitable conservancy, whichever occurs last, inorder to ensure its success. The bank operator shall submit progress reports to the Department at least annually duringand after construction, and more frequently if required by the banking instrument approving the bank.

49 N.J.R. 3849(a)

(i) If the mitigation bank falls more than one year behind the schedule for completion specified in the bankinginstrument approving the bank, the Department may amend the banking instrument approving the bank, and mayrequire corrective action to ensure the successful completion of the bank. The Department may reduce the number ofcredits that may be sold based on the approved corrective action, in order to reflect the change in values and functionsthat will result from the changes to the bank.

(j) Upon completion of the monitoring period and all other requirements in the banking instrument approving the bank,the Department shall determine the mitigation bank is successful, provided the mitigation bank operator:

1. Demonstrates that the bank is successful, as set forth within the banking instrument and the permit;

2. Transfers the mitigation bank site in fee simple to a government agency or Department-approved charitableconservancy;

3. Provides the government agency or charitable conservancy to which the mitigation bank site is transferred with amaintenance fund. The maintenance fund shall support maintenance activities such as trash removal, maintenance ofnatural features, monitoring the site to ensure proper upkeep, maintenance of water control structures, fences or safetyfeatures, and any other activities necessary to ensure the site complies with this chapter and all applicable laws. Theamount of the maintenance fund shall be determined between the bank operator and the agency or conservancy to whichthe mitigation bank site is transferred; and

4. Ensures that the transfer, and the conservation restriction required under (g) above, are recorded with the county orother appropriate agency.

(k) If the Department determines that the mitigation bank operator is in default of any provision of the mitigationbanking instrument, the Department shall determine whether the amount of mitigation completed at the bank site iscommensurate with the number of credits already sold. If the Department determines that the amount of mitigationcompleted is less than the number of credits already sold, the Department may assert its rights to the financial assuranceprovided under N.J.A.C. 7:7A-11.17(k) and (l).

7:7A-11.26 Application for a mitigation bank

(a) A prospective mitigation bank operator may obtain conceptual review of a proposed mitigation bank before buyingland or preparing a detailed mitigation bank proposal. In a conceptual review, Department staff will discuss the apparentstrengths and weaknesses of the proposed mitigation bank. Guidance provided through a conceptual review is notbinding on the Department and shall not be relied upon by the applicant in purchasing a proposed mitigation area. Aconceptual review does not grant any property or other rights or in any way imply that the Department has or willauthorize any mitigation activities at the proposed mitigation area or issue any other approval.

(b) To obtain conceptual review of a proposed mitigation bank, an applicant shall submit the following to theDepartment:

1. (No change.)

2. Information on previous uses of the site, including the presence of historic or archaeological resources in accordancewith N.J.A.C. 7:7A-19.5 or the potential of mitigation activities to pose an ecological risk as defined in N.J.A.C.7:7A-11.4(h).

i. If available, the applicant shall provide a copy of the characterization and other information required at N.J.A.C.

49 N.J.R. 3849(a)

7:7A-11.4(h) to determine ecological risk;

3. The proposed mitigation alternative(s) being considered, such as creation, restoration, and/or enhancement;

4.-5. (No change.)

6. The names and addresses of all current owner(s) of the mitigation bank site, and any prospective owner(s), as of thedate the request for conceptual review is submitted; and

7. Consent from the owner of the proposed mitigation bank site, allowing Department representatives to enter theproperty in a reasonable manner and at reasonable times to inspect the site.

(c) To obtain Department approval of a proposed mitigation bank, an applicant shall submit the information required bythe wetlands mitigation bank proposal checklist, available from the Department at the address set forth at N.J.A.C.7:7A-1.4. The checklist shall require a draft mitigation banking instrument that includes the following:

1. A letter of interpretation covering the entire proposed mitigation bank site, issued by the Department under N.J.A.C.7:7A-4;

2. A functional assessment of the bank site prior to construction and proposed site conditions after construction;

3. The goals and objectives of the bank;

4. Ownership of the bank site including disclosure of any leases, easements, or other encumbrances;

5. The size of the bank site, as well as type and amount of the resources for which credits from the bank could serve assuitable compensation;

[page=3956] 6. A description of baseline conditions on the bank site, including all relevant natural features andparameters, as well as pollutants, contamination, and other factors that could affect the bank's ability to providemitigation credits;

7. For a bank proposal that includes creation, restoration, and/or enhancement of wetlands or waters, a projected waterbudget prepared in accordance with N.J.A.C. 7:7A-*[11.6(j)]* *11.6(i)*;

8. The proposed service area within which the mitigation bank credits can be used to compensate for a disturbance. Theservice area shall be designated to give priority to mitigation for impacts in the same watershed management area(s) asthe proposed bank;

Recodify existing vii. and viii. as 9. and 10. (No change in text.)

11. Performance standards to enable the Department to determine when credits may be released under N.J.A.C.7:7A-11.25(e);

12. Performance standards to enable the Department to determine if and when the mitigation bank is successful;


14. Contingency and corrective actions that will be taken by the mitigation bank operator in case the bank fails;

49 N.J.R. 3849(a)

15. Financial assurances meeting the requirements of N.J.A.C. 7:7A-11.17;



18. Draft legal instruments necessary to meet the requirements of this chapter, including a conservation restriction,financial assurance, property transfer, and/or agreement with a charitable conservancy to maintain the site;

19. Identification of the persons who will construct, operate, and maintain the mitigation bank and mitigation bank site;and

20. Documentation that public notice of the proposed mitigation bank was provided in accordance with N.J.A.C.7:7A-17.

(d) The Department's approval of a mitigation bank shall incorporate conditions necessary to ensure that therequirements of this subchapter are met.

SUBCHAPTER 12. CONSERVATION RESTRICTIONS

7:7A-12.1 Conservation restriction form and recording requirements

(a) Any conservation restriction required under this chapter shall conform with the New Jersey Conservation Restrictionand Historic Preservation Restriction Act, N.J.S.A. 13:8B-1 et seq., and shall:

1. Run with the land and be binding, in perpetuity, upon:

i. For mitigation areas, the land owner and successors in interest to any interest in the land or any part of the landcovered by the mitigation area; and

ii. For conservation restrictions required under this chapter that do not include a mitigation area, the land owner andsuccessors in interest to any interest in the land or in any part thereof;

2. Be recorded in accordance with the New Jersey Recording Act, N.J.S.A. 46:15-1.1 et seq., in the chain of title for allproperties affected by the restriction; and

3. Be in the form and include such terms as specified and approved by the Department. The applicant shall not alter theform, except in consultation with the Department and only when the Department agrees that an alteration is necessary toaddress site-specific conditions. Form conservation restrictions are available from the Department's website at theaddress set forth at N.J.A.C. 7:7A-1.4; and

4. In those cases deemed appropriate by the State Historic Preservation Office in order to ensure that a proposed projectwill not affect a property that is listed or eligible for listing on the New Jersey or National Register of Historic Places,include a historic preservation restriction or easement with all of the attendant rights, restrictions, prohibitions, andlimitations associated therewith.

(b) The conservation restriction shall be recorded in the Office of the County Clerk or the registrar of deeds andmortgages of the county in which the regulated activity, project, project site, or mitigation area is located, and proof thatthe conservation restriction has been recorded shall be provided to the Department as follows:

49 N.J.R. 3849(a)

1. For a permit that authorizes the establishment of a mitigation bank, prior to the release of any credits;

2. For any other permit for which a conservation restriction is required, prior to the sooner of either:

i. The start of any site disturbance (including pre-construction earth movement, removal of vegetation or structures, orconstruction of the project); or

ii. The date that is 90 calendar days after the issuance of the permit or approval of the mitigation plan, if a mitigationplan is submitted pursuant to a condition of the permit in accordance with N.J.A.C. 7:7A-11.2(e).

(c) Proof that the conservation restriction has been recorded under (b) above shall be in the form of either a copy of thecomplete recorded document or a receipt from the clerk or other proof of recordation provided by the recording office.However, if the initial proof provided to the Department is not a copy of the complete recorded document, a copy of thecomplete recorded document shall be provided to the Department within 180 days of the issuance of the permit orapproval of the mitigation plan, if a mitigation plan is submitted pursuant to a condition of the permit.

(d) The conservation restriction shall include a requirement that each owner of any interest in the land subject to theconservation restriction shall:

1. Notify the county and/or municipality of the conservation restriction whenever any application for a local approvalinvolving the land subject to the conservation restriction is submitted; and

2. Insert notice of the conservation restriction into any subsequent deed or other legal instrument by which the ownerdivests either the fee simple title or any possessory interest in the land subject to the conservation restriction.

(e) Any conservation restriction shall be enforceable by the Department. The Department may also direct that theconservation restriction be made enforceable by a government agency or by a charitable conservancy whose trusteeshave no other ownership interest in the land.

(f) If the mitigation area is donated land or a mitigation bank that requires approval by the Wetland Mitigation Council,the conservation restriction shall be approved by both the Department and the Wetland Mitigation Council.

7:7A-12.2 Property owners' reservation of rights

(a) Except for a conservation restriction associated with a mitigation site, the property owner or grantor may requestapproval from the Department to undertake a de minimis modification of the area subject to a conservation restrictionrecorded in accordance with this subchapter. The Department shall approve the modification in writing, if it determinesthat the modification will result in an equivalent level of protection of the regulated resource or the modification willresult in an equivalent area of resource protection and will not compromise the original protected resource.

(b) The property owner or grantor may reserve the right to abandon the project. At any time prior to the start of any sitedisturbance, including pre-construction earth movement, removal of vegetation or structures, or construction of theproject, the property owner or grantor may inform the Department in writing that it is abandoning the project andrequest that the Department void the permit. Upon confirmation that no site disturbance, including pre-constructionearth movement, removal of vegetation or structures, or construction of the project, has occurred, the Department shallprovide to the permittee or grantor an executed release of the conservation restriction, which the permittee or grantormay then record.

SUBCHAPTER 13. RECONSIDERATION BY DEPARTMENT OF ITS ACTION OR INACTION CONCERNINGA PERMIT

49 N.J.R. 3849(a)

7:7A-13.1 Reconsideration by Department of its action or inaction concerning a permit

(a) (No change.)

(b) The Department may reconsider and modify its action or inaction concerning a permit so as to minimize thedetrimental effect to the value of the property, provided:

1.-2. (No change.)

[page=3957] 3. Any of the following requirements are met:

i. A court has determined that the issuance, modification, or denial of an individual freshwater wetlands permit wouldconstitute a taking of property, and the property owner thereupon submits a request for a reconsideration andmodification of the permit action or inaction;

ii. A takings complaint has been filed with the court or the court has determined that the issuance, modification or denialof an individual freshwater wetlands permit would constitute a taking of property, and the Department initiates thereconsideration; or

iii. The issuance, modification, or denial of an individual freshwater wetlands permit is for a single-family home orduplex and the Department initiates the reconsideration prior to the filing of a takings complaint.

(c) (No change.)

(d) In determining whether the property owner's investments in the property as a whole were reasonable, and reflectedreasonable expectations, the Department shall evaluate the following information:

1. Conditions at the time of the investment. That is, the investment shall have been made in pursuit of development thatwould likely have been legally and practically possible on the property, considering all constraints existing andreasonably ascertainable at the time of the investment. For example, if a property owner bought property containingfreshwater wetlands regulated under this chapter, it would not be reasonable to expect that the property could bedeveloped without constraints. In determining conditions at the time of the investment, the Department shall consider, ata minimum, the following:

i. (No change.)

ii. Historic landmarks or other historic or cultural resources, as described at N.J.A.C. 7:7A-19.5;

iii.-vi. (No change.)

2.-5. (No change.)

(e) (No change.)

(f) In determining the environmental impacts of any minimum beneficial economically viable uses of the property andthe consistency of those impacts with the goals of the Freshwater Wetlands Protection Act, in accordance with (c)above, the Department shall evaluate whether the minimum beneficial economically viable use would:

1. Adversely affect the quality and resource value classification of the wetland, pursuant to N.J.A.C. 7:7A-3.2, and the

49 N.J.R. 3849(a)

quantity of freshwater wetlands, transition areas, and/or State open waters to be disturbed;

2. Adversely affect other protected resources, for example, historic or cultural resources, as described at N.J.A.C.7:7A-19.5, ecologically unique areas or critical wildlife habitat;

3.-4. (No change.)

(g) The Department shall not modify its action or inaction concerning a permit and approve a minimum beneficialeconomically viable use as a result of the reconsideration of the application of a rule(s) in this chapter under this sectionif that use would cause any one of the following:

1.-3. (No change.)

(h) (No change.)

(i) A complete request for the Department to reconsider and modify its action or inaction concerning a permit under thissection shall include the following items:

1. A completed application form, as described at N.J.A.C. 7:7A-16.7(a)1 and available from the Department at theaddress set forth at N.J.A.C. 7:7A-1.4, indicating a request for reconsideration and the type of permit being requested;

2. Unconditional written consent from the owner of the site for Department representatives to enter the site to conductsite inspections;

3. Documentation in accordance with N.J.A.C. 7:7A-17.5 that public notice of the request was provided in accordancewith the requirements at N.J.A.C. 7:7A-17. The public notice shall follow the form provided by the Department, andshall state that a request for reconsideration has been submitted to the Department, that the request can be reviewed atthe municipal clerk's office or at the Department, and that comments may be submitted to the Department within 15calendar days of receipt of the notice. This notice may be combined with the offer to sell the property required under(i)7 below;

4. Document(s) showing when the property as a whole was acquired, the purchase price of the property as a whole, andthe instrument which documents the applicant's real property interest;

5. Document(s) showing the amount and nature, as well as the date of any investments made to maintain and/or developthe property as a whole, other than the purchase price;

6. The language of a proposed conservation restriction that meets the requirements of (m)2 below;

7. Documentation that the property has been offered for sale in a letter following the form provided by the Department,to all owners of property, including easements as shown on the tax duplicate, within 200 feet of the property as a whole,and to the land conservancies, environmental organizations, and government agencies on a list supplied by theDepartment; and that no reasonable offer to purchase, that assumes a minimum beneficial economically viable use, hasbeen received. This documentation shall include the following:

i. (No change.)

ii. All responses the property owner receives to the letters sent under this subsection. Each response shall be submittedto the Department within 15 calendar days after the property owner's receipt of the response; and

49 N.J.R. 3849(a)

iii. A list, certified by the municipality, of all owners of real property within 200 feet of the property as a whole,including owners of easements as shown on the tax duplicate. The list of property owners certified by the municipalityshall be no more than one year old;

8. The written offer of sale required under (i)7 above shall be sent by certified mail and shall:

i. (No change.)

ii. Include a copy of a fair market value appraisal, performed by a State-licensed appraiser, that assumes that a minimumbeneficial economically viable use of the property would be allowed;

iii.-iv. (No change.)

9. Site plans showing the project that is proposed in order to provide a minimum beneficial economically viable use;

10. Information and/or certifications regarding the presence or absence of endangered or threatened species habitat,historic or archaeological resources, as described at N.J.A.C. 7:7A-19.5, or other features on the site relevant todetermining compliance with the requirements of this chapter;

11. A mitigation proposal that complies with N.J.A.C. 7:7A-11, to offset the impacts of the project on freshwaterwetlands, transition areas, and/or State open waters;


14. Documents showing that the property owner has concluded all administrative and judicial appeals of theDepartment's decision on the application for an individual freshwater wetlands permit. Such documentation shallinclude the last of the following (submitted after the appeal period for the applicable decision has expired):

i. (No change.)

ii. A final decision issued by the Commissioner regarding the Department's decision on the application for an individualpermit if the property owner contested the permit decision; and

iii. (No change.)

15. (No change.)

(j) In the case where the Department initiates the reconsideration of whether to modify its action or inaction concerninga permit under (a) above, the Department shall, upon initiation of the reconsideration process, follow all steps describedin (j)1 through 3 below. In the case where the property owner is requesting that the Department reconsider and modifyits action or inaction concerning a permit, the Department shall, upon initiation of the reconsideration process, followthe steps described in (j)1i and iii, 2, and 3 below:

1. Provide the following notifications:

i. (No change.)

ii. In accordance with the requirements at N.J.A.C. 7:7A-17; and

iii. (No change.)

49 N.J.R. 3849(a)

2.-3. (No change.)

(k) If the Department determines to approve a development upon reconsideration under this section, the Departmentshall provide notice of the development that the Department proposes to allow under the [page=3958] reconsiderationfollowing the same procedure described at (j) above, except that the Department shall provide a 30-day commentperiod, commencing from the date of publication of the notice in the DEP Bulletin.

(l) The Department shall complete the written analysis required under (c) above, which shall incorporate its decision onthe request for reconsideration and modification of its action or inaction concerning a permit, as follows:

1. For a request for reconsideration under (b) and (h) above, no later than 180 calendar days from the Department'sreceipt of a complete request under (h) above; or

2. For a reconsideration initiated by the Department under (b) above, no later than 180 calendar days from thepublication of notice in the DEP Bulletin under (j) above.

(m) (No change.)

(n) The property owner or any other person with a particularized property interest who is aggrieved by the Department'sdetermination on a reconsideration of the Department's action or inaction concerning a permit may request anadjudicatory hearing on the reconsideration determination pursuant to the procedures set forth at N.J.A.C. 7:7A-21.1.

SUBCHAPTER 14. EMERGENCY AUTHORIZATIONS

7:7A-14.1 Standards for issuance of an emergency authorization

(a) The Department shall issue an emergency authorization only if the person seeking such authorization demonstratesthat a threat to life, severe loss of property, or environmental degradation exists or is imminent, and the threat, severeloss, or degradation:

1. Can only be prevented or ameliorated through undertaking a regulated activity; and

2. Is likely to occur, persist, or be exacerbated before the Department can issue an authorization under a permit for thepreventive or ameliorative activity.

7:7A-14.2 Procedure to request an emergency authorization

(a) A person requesting an emergency authorization shall provide the Department with the following information bytelephone and, in addition, by fax, electronic mail, or letter, unless the nature of the emergency is so immediate thatonly telephone notice is feasible:

1. The name, address, and contact information for the owner(s) of the property upon which the regulated activity will beconducted and for the owner(s) of any other properties affected by the proposed regulated activity;

2. A demonstration that the property owner(s) has given permission for the proposed regulated activity or, in the case ofa public entity proposing activities on private property through power of eminent domain, a written statement of thepublic entity's intention to conduct the regulated activity;

3. The street address, lot and block numbers, municipality, and county of the property upon which the regulated activity

49 N.J.R. 3849(a)

is proposed;

4. The nature and cause of the threat to life, severe loss of property, or environmental degradation, including thecondition of existing structures, the vulnerability of people and/or property, and the threat to the environment;

5. The date and time at which the person requesting the emergency authorization learned of the threat to life, severe lossof property, or environmental degradation;

6. The nature and extent of the proposed regulated activity;

7. The proposed start and completion dates for the proposed regulated activity;

8. Photographs of the area where the regulated activity will be conducted;

9. If possible, a site plan showing the proposed regulated activity and anticipated impacts of the proposed activity tofreshwater wetlands, State open waters, and/or transition areas; and

10. Any other information necessary for the Department to ensure compliance with the requirements of this chapter.

(b) A person requesting an emergency authorization need not comply with the public notice requirements at N.J.A.C.7:7A-17 or submit an application fee. However, public notice and an application fee are required, as applicable, for theapplication for the permit, that, as required at N.J.A.C. 7:7A-14.3(f), must be submitted for the activities conductedunder the emergency authorization.

(c) Emergency activities in an area under the jurisdiction of the Pinelands Commission may require approval by thePinelands Commission, in accordance with the Pinelands Comprehensive Management Plan. For information onfreshwater wetlands and transition areas in the Pinelands, contact the Pinelands Commission at (609) 894-7300 orthrough its website at www.nj.gov/pinelands.

7:7A-14.3 Issuance of emergency authorization; conditions

(a) The Department shall issue or deny an emergency authorization within 15 calendar days after receiving a requestthat meets the requirements of N.J.A.C. 7:7A-14.2. The Director of the Division of Land Use Regulation, or theDirector's designee, shall provide this decision to the person who requested the emergency authorization verbally and, ifthe decision is to issue the emergency authorization, shall provide written confirmation within five working daysthereafter.

(b) Notice of the issuance of the emergency permit shall be published and public comments received, in accordancewith the provisions of 40 CFR 124.10 and 124.11, and of the Federal Act and applicable State law, provided that thisnotification shall be mailed no later than 10 days after issuance of the emergency permit.

(c) The Department's written confirmation of its decision to issue the emergency authorization shall include:

1. A full description of the activities authorized under the emergency authorization;

2. The timeframes within which the regulated activities authorized under the emergency authorization must becommenced and conducted as set forth in (e) below;

3. A requirement that the person conducting the regulated activities authorized under the emergency authorizationprovide regular updates of progress at the site;

49 N.J.R. 3849(a)

4. Any limits or other criteria necessary to ensure compliance to the maximum extent practicable with all requirementsof this chapter; and

5. A requirement to provide mitigation for impacts to wetlands, State open waters, and transition areas in accordancewith N.J.A.C. 7:7A-11, as appropriate.

(d) If the Department receives a request for an emergency authorization for a major discharge, the Department willnotify the Regional Administrator of Region II of the USEPA before issuing an emergency permit, and will send a copyof the written permit to the USEPA upon issuance.

(e) The regulated activities authorized under the emergency authorization shall be commenced and conducted within thefollowing timeframes:

1. Activities authorized under the emergency authorization shall be commenced within 30 calendar days after theDepartment's verbal decision is provided pursuant to (a) above, unless the Department establishes a different timeframein accordance with (g) below. If the emergency activities are not commenced within 30 calendar days or by the dateestablished under (g) below, as applicable, the emergency authorization is automatically void as of the 30th calendarday after the verbal approval or as of the date established in accordance with (g) below, as applicable; and

2. Activities authorized under the emergency authorization, including any required restoration, shall be completedwithin 60 calendar days after the Department's verbal decision is provided in accordance with (a) above, unless theDepartment establishes a different timeframe in accordance with (g) below. If the regulated activities authorized underthe emergency authorization are not completed within 60 calendar days or by the date established in accordance with (g)below, as applicable, the regulated activities shall cease until either a permit is obtained, or another emergencyauthorization is obtained.

(f) The person to whom the emergency authorization is provided shall submit a complete application in accordance withN.J.A.C. 7:7A-16 for a permit for the activities conducted under the emergency authorization within 90 calendar daysafter the Department's verbal decision is provided in accordance with (a) above, or by a different date established inaccordance with (g) below, as applicable.

[page=3959] (g) The Department shall establish a timeframe different from those set forth at (e) or (f) above where theapplicant demonstrates that the timeframe set forth at (e) or (f) cannot feasibly be met for all or a portion of theauthorized activities or where the Department determines that a different timeframe is necessary to facilitate theregulated activities. Except where further time is required to complete restoration of the freshwater wetland subsequentto completion of the emergency activity, in no case will an emergency authorization extend for more than 90 days.

(h) The person to whom the emergency authorization is provided shall conduct all activities authorized under theemergency authorization in accordance with all requirements that apply to that activity under this chapter to themaximum extent practicable.

(i) The permit application submitted under (f) above shall, in addition to meeting the application requirements for thespecific permit, include:

1. A demonstration that the regulated activities conducted under the emergency authorization meet the requirements ofthis chapter, or an explanation as to why full compliance could not be achieved; and

2. "As-built" site plans, signed and sealed by an engineer, land surveyor, or architect, as appropriate, showing theregulated activities that were or are being conducted under the emergency authorization.

49 N.J.R. 3849(a)

(j) Upon review of the application submitted under (f) above, the Department shall require design changes, restoration,and/or stabilization measures as necessary to ensure the requirements of this chapter are met to the maximum extentpracticable.

(k) The Department may modify or terminate an emergency authorization at any time without prior notice if theDepartment determines that modification or termination is necessary to protect public health, safety, and welfare, and/orthe environment.

(l) If the person to whom the emergency authorization was provided conducts any regulated activity not authorizedunder the emergency authorization and/or the permit obtained thereafter for the activities governed by the emergencyauthorization, such shall constitute a violation of this chapter subject to enforcement action under N.J.A.C. 7:7A-22.

SUBCHAPTER 15. PRE-APPLICATION CONFERENCES


(a) A pre-application conference is a meeting between the Department and a prospective applicant to discuss theapplicant's project and the application procedures and standards that will apply to the project. A prospective applicantmay request a pre-application conference for any project. In the appropriate case, the Department may determine thatthe questions raised by a prospective applicant can be adequately addressed by telephone or in writing.

(b) A pre-application conference is not mandatory, but is recommended for large and/or complicated projects.

(c) Discussion or guidance offered by the Department at a pre-application conference shall not constitute a commitmentby the Department to approve or deny an application.

(d) There is no fee for a pre-application conference.

(e) Where the prospective applicant's project will require approvals from several Department programs, the applicant isencouraged to contact the Department's Office of Permit Coordination and Environmental Review at (609) 292-3600 forassistance in coordinating the various applications.

7:7A-15.2 Request for a pre-application conference; scheduling; information required

(a) A request for a pre-application conference shall be directed by electronic mail to [email protected], orby writing to the address set forth at N.J.A.C. 7:7A-1.4 to the attention of "Supervisor, (county in which the proposedproject is located)."

(b) A request for a pre-application conference for any project shall include the following:

1. A written description of the site and the proposed project including the dimensions, number, and uses of proposedstructures;

2. Site plans or conceptual designs depicting the proposed project, if available;

3. The street address, lot and block numbers, municipality, and county of the property upon which the regulated activityis proposed; and

4. A copy of any Letter of Interpretation that the Department has issued for the site. If a Letter of Interpretation has not

49 N.J.R. 3849(a)

been issued, the prospective applicant shall provide the general location of freshwater wetlands, transition areas, andState open waters.

(c) Within 10 calendar days of receipt of the material submitted in accordance with (b) above, the Department shall:

1. Determine that a pre-application conference is necessary and contact the prospective applicant to schedule apre-application conference; or

2. Determine that a pre-application conference is not necessary and that the prospective applicant's questions can beaddressed in writing or by telephone. Where the Department makes such a determination, the Department shall addressthe questions within 20 calendar days of receipt of the material submitted in accordance with (b) above.

SUBCHAPTER 16. APPLICATION REQUIREMENTS


(a) This subchapter sets forth the application requirements for:

1. A letter of interpretation, including an E-LOI, and an extension or modification of a letter of interpretation;

2. An authorization under a general permit-by-certification;

3. An authorization under a general permit, with the following exceptions:

i. The ongoing maintenance of an off-stream stormwater management facility created in uplands under general permit 1;

ii. The repair or modification of an individual subsurface disposal system (septic system) under general permit 24; and

iii. Minor channel cleaning performed by a local government agency under general permit 25;

4. A transition area waiver; and

5. An individual permit.

(b) The application requirements for the following are set forth elsewhere in this chapter:

1. For an exemption letter, see N.J.A.C. 7:7A-2.6;

2. For the ongoing maintenance of an off-stream stormwater management facility created in uplands under generalpermit 1, see N.J.A.C. 7:7A-7.1;

3. For *an authorization under* general permit 24, see N.J.A.C. 7:7A-7.24;

4. For *[a]* *an authorization under* general permit 25, see N.J.A.C. 7:7A-7.25;

5. For a mitigation proposal, see N.J.A.C. 7:7A-11;

6. For an emergency authorization, see N.J.A.C. 7:7A-14; and

7. For an extension, transfer, or modification of an approval, see N.J.A.C. 7:7A-20.4, 20.5, or 20.6, respectively.

49 N.J.R. 3849(a)

7:7A-16.2 General application requirements

(a) The Department provides a checklist for each type of application submitted under this subchapter. The checklistidentifies the submissions required under the rules to be part of an application, and also the appropriate level of detailand the format of the information to be submitted for each type of application. For example, where the rules require, aspart of an application, the submittal of a site plan or photographs showing certain types of information, thecorresponding checklist will indicate, based on the type of development the particular permit covers; the number ofcopies of the plan to be submitted; the scale and details of the information to be illustrated on the plan; and the numberand orientation of photographs of the location of the proposed development. The checklist will also indicate that theplan should be folded or prepared in a certain manner to facilitate processing. Checklists can be downloaded from theDepartment's website at www.nj.gov/dep/landuse or obtained by contacting the Department at the address set forth atN.J.A.C. 7:7A-1.4.

(b) The level of detail and documentation required for an application shall be commensurate with the size and impact ofthe proposed regulated activity or project, its proximity to critical areas, and its potential for impacts to freshwaterwetlands, transition areas, and/or State open waters. The Department shall, upon request, provide the [page=3960]applicant with guidance regarding the appropriate level of detail for an application based on the activity the applicantproposes to undertake.

(c) The following persons may submit an application under this subchapter:

1. The owner(s) of a site on which a regulated activity is proposed or conducted, or which is the subject of a letter ofinterpretation;

2. An agent designated by the owner(s) of a site to obtain or operate under a letter of interpretation or permit on behalfof the owner(s);

3. A public entity proposing an activity within a right-of-way or easement that is held or controlled by that entity or thatwill be appropriated by that entity under the power of eminent domain; or

4. A person that has the legal authority to perform the activities proposed in the application on the site, and to carry outall requirements of this chapter.

(d) An application shall be certified as set forth in (j) below by the following individual(s), or by a duly authorizedrepresentative, as described at (e) below:

1. If the applicant is a corporation, a principal executive officer of at least the level of vice president;

2. If the applicant is a partnership or sole proprietorship, a general partner or the proprietor, respectively;

3. If the applicant is a municipality, or a State, Federal, or other public entity, either a principal executive officer orranking elected official; or

4. If the applicant is an entity not covered at (d)1, 2, or 3 above, all individual owners of record of the property uponwhich the activities will occur.

(e) An individual is a duly authorized representative of the applicant under (d) above only if the authorization is:

1. Made in writing by an individual required to certify under (d) above and is provided to the Department as part of the

49 N.J.R. 3849(a)

application; and

2. Specifies that the authorized representative is either:

i. The individual who has overall responsibility to obtain the letter of interpretation and/or operate, construct, orcomplete the activity, such as a contractor, construction site supervisor, or other individual of equivalent responsibility;or

ii. In a position of responsibility equivalent to that of the individual described in (e)2i above. In this case, the individualholding the specified position is the duly authorized representative for purposes of (d) above.

(f) If the written authorization provided to the Department under (e) above is no longer accurate because a differentindividual or position has overall responsibility to obtain the letter of interpretation or permit and/or operate, construct,or complete the activity, a new authorization satisfying the requirements of (e) above shall be submitted to theDepartment prior to or concurrent with any reports, information, or applications requiring the applicant's certification.

(g) If an application includes activities within a right-of-way or easement, the application shall include written consentfor the activity from the holder(s) of the right-of-way or easement.

(h) Any survey or site plan submitted as part of an application shall be signed and sealed by an engineer, land surveyor,or architect, as appropriate, unless the proposed regulated activity or project is one for which no survey, topography, orcalculations are necessary to demonstrate the requirements of this chapter are met, in which case the applicant may electto prepare his or her own site plan;

(i) Any professional report, survey, calculation, or other document prepared by a consultant, engineer, land surveyor,architect, attorney, scientist, or other professional and submitted as part of an application shall be certified in accordancewith (j) below. This certification is separate from the certification of the application by the applicant.

(j) The certification required by (d) and (i) above is as follows:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in thisdocument and all attachments and that, based on my inquiry of those individuals immediately responsible for obtainingand preparing the information, I believe that the information is true, accurate, and complete. I am aware that there aresignificant penalties for knowingly submitting false information, including the possibility of fine and imprisonment."

(k) Failure to provide complete and accurate information of which the applicant or its agents are aware, or reasonablyshould have been aware, may result in denial of an application or termination of the authorization under the generalpermit-by-certification or general permit, the transition area waiver, or the individual permit under N.J.A.C. 7:7A-20.9,and may subject the applicant or its agents to enforcement action under N.J.A.C. 7:7A-22.

(l) When a proposed regulated activity or project requires more than one approval under this chapter, or requires, inaddition, an approval under the Coastal Zone Management Rules at N.J.A.C. 7:7, and/or the Flood Hazard Area ControlAct Rules at N.J.A.C. 7:13, an applicant may submit a single application for all of the approvals, except for anauthorization under a general permit-by-certification, provided that the application meets all application requirements ofeach such approval included.

7:7A-16.3 Additional application requirements for an LOI

(a) In addition to meeting the requirements at N.J.A.C. 7:7A-16.2, an application for an LOI shall include the followingmaterial, in the number and format specified in the appropriate application checklist:

49 N.J.R. 3849(a)

1. A completed application form, available from the Department at the address set forth at N.J.A.C. 7:7A-1.4. This formrequires basic information regarding the requested LOI, including LOI type, name and address of the applicant and anydesignated agent(s), the specific site or portion of site that is the subject of the application, and certifications as to thetruth and accuracy of the information provided and as to the ownership of the property;

2. Documentation that public notice of the application has been provided in accordance with N.J.A.C. 7:7A-17;


4. A survey, certified in accordance with N.J.A.C. 7:7A-16.2(j), shall be submitted for every LOI, except apresence/absence LOI for an entire site. All surveys shall be conducted and documentation provided in accordance withthe requirements at N.J.A.C. 7:36 Appendix 2, or a subset of these requirements as may be defined by the appropriateLOI checklist.

i. The survey for a presence/absence LOI for a portion of a site under N.J.A.C. 7:7A-4.3(c)2 shall identify the portion(s)of the site that is the subject of the application; and

5. Consent from the owner of the site allowing the Department to enter the site in a reasonable manner and at reasonabletimes to inspect the site. This consent shall continue in effect for the duration of the application review and decisionprocess, including for the duration of any appeal made from the decision on the application.

(b) In addition to meeting the requirements at (a) above, an application for a line verification LOI issued under N.J.A.C.7:7A-4.5 shall include the following material, in the number and format specified in the appropriate applicationchecklist:

1. A proposed delineation of all freshwater wetlands, transition areas, and State open waters on the site, or portionthereof, which is the subject of the application. The delineation shall be clearly marked in the field as required by theapplication checklist. When delineating a State open water one to five feet in width measured from top of bank, with nowetland boundary, the delineation shall indicate the centerline of the State open water with several data pointsnumbered and shown on the plans. When delineating a State open water that is greater than five feet in width, thedelineation shall include two survey lines, with numbered points, depicting the top of bank on both sides of the Stateopen water;

2. Data sheets or other materials that explain and support the delineation including, but not limited to:

i. Soil logs describing the soil characteristics at the location of each soil boring, including a description of the fieldindicators, or lack thereof, for hydrology as outlined in the 1989 Federal Manual and as specified in the appropriateapplication checklist; and

ii. A description of the vegetative species on the site recorded at each soil boring location as specified in the appropriateapplication checklist;

3. If the applicant would like the Department to verify that a wetland is an isolated wetland, a request for thatdetermination, and supporting documentation demonstrating that the wetland is isolated. For example, if inlets or pipesare present in the vicinity of the subject wetland, a map [page=3961] of the storm sewer system depicting the endpointand invert elevations of the inlet or pipe; and

4. If the LOI is for a portion of a site, documentation that the site and portion meet the requirements at N.J.A.C.7:7A-4.5(b)3i through iii, and information identifying the subject portion of the site in accordance with N.J.A.C.

49 N.J.R. 3849(a)

7:7A-4.5(b)3iv.

(c) If a site is located in an area under the jurisdiction of the Pinelands Commission, the Department shall not issue aletter of interpretation. The lead agency in this area for determining the presence, absence, or extent of freshwaterwetlands is the Pinelands Commission. However, in cases of disagreement, the Department and the PinelandsCommission retain authority to independently or jointly establish these boundaries.

7:7A-16.4 Application requirements for an E-LOI

(a) An application for an LOI may be submitted electronically via the "NJDEP online business portal" (portal). The webaddress for the portal is: www.nj.gov/dep/online. All application information and supporting documentation can besubmitted electronically with the exception of any required surveys, which must be mailed or delivered to theDepartment for review.

(b) The portal requires an applicant submitting an application for an LOI electronically to provide the following, asspecified in the appropriate application checklist:

1. The type of LOI being requested;

2. The name of or other identifier for the application;

3. The location of the specific site or portion of site that is the subject of the application, including address, city, state,zip code, municipality, State plane coordinates, and, as applicable, lot and block numbers;

4. Contact information for the applicant, property owner, and any designated agent(s), including: name, address,telephone number, e-mail address, municipality, county, organization, and organization type;

5. The following certifications:

i. A certification that the site identified in the application is the actual location subject to the application;

ii. A certification that the applicant has obtained written consent from the property owner that the application can bemade on the property owner's behalf. This certification is required regardless of whether the applicant and propertyowner are the same person;

iii. A certification of truth and accuracy of the information provided;

iv. A certification that any required survey has been conducted and documentation provided as required by this chapter;and

v. A certification that the applicant has obtained written consent from the property owner allowing the Department toenter the site in a reasonable manner and at reasonable times to inspect the site;

6. To accomplish the certifications under (b)5 above, the PIN that was issued to the applicant upon registering with theDepartment's online permitting system; and

7. The appropriate application fee set forth at N.J.A.C. 7:7A-18.

(c) In addition to meeting the requirements of (b) above, an applicant submitting an LOI electronically is required toupload the following digital documents to the portal, in the format and number specified in the appropriate application

49 N.J.R. 3849(a)

checklist:


2. Color photographs of the site as described in the application checklist;

3. Consent from the owner of the site allowing the Department to enter the site in a reasonable manner and at reasonabletimes to inspect the site. The electronic submission of a signed Property Owner's Certification Form shall serve as theproperty owner's consent. This consent shall continue in effect for the duration of the application review and decisionprocess, including for the duration of any appeal made from the decision on the application;

4. A document, which includes the names and qualifications of the person(s) who prepared the material and, ifapplicable, the person(s) who performed the delineation;

5. A copy of the tax map(s) for the subject site;

6. A digital copy of all required surveys; and

7. A written narrative and/or reports necessary to accurately describe the site, its location, and existing site conditions.

(d) In addition to meeting the requirements of (a), (b), and (c) above, an applicant submitting an LOI electronically isrequired to upload to the portal the following shapefile(s) in the format specified in the appropriate application checklistand guidance documents:

1. For all E-LOIs, a shapefile that defines the boundaries of the site;

2. For an application for a presence/absence E-LOI for a portion(s) of a site under N.J.A.C. 7:7A-4.3(c)2, a shapefilethat defines the footprint of disturbance;

3. For an application for a line delineation E-LOI under N.J.A.C. 7:7A-4.4, the Department will delineate the wetlandsand/or wetland transition areas on the site. Once the Department has flagged the site, the applicant must submit ashapefile(s) that defines the limit of wetlands, State open waters, and/or transition areas as indicated by the Departmentdelineation.

4. For an application for a line verification E-LOI under N.J.A.C. 7:7A-4.5:

i. A shapefile(s) that defines the limit of wetlands, State open waters, and/or transition areas, as appropriate; and

ii. Data sheets for sample locations that include soil borings and a description of vegetation.

(e) In addition to meeting the requirements of (c) and (d) above, an applicant submitting an E-LOI, with the exceptionof an applicant submitting an E-LOI application for a presence/absence LOI for an entire site, is required to submit apaper survey to the Division for review that meets the requirements of N.J.A.C. 7:7A-16.3(a)4, in the format andnumber specified in the appropriate application checklist.

7:7A-16.5 Application requirements for an LOI extension

(a) In addition to meeting the requirements of N.J.A.C. 7:7A-16.3(a)1, 2, and 3, an application to extend an LOI shallinclude the following material, in the number and format specified in the appropriate application checklist:

49 N.J.R. 3849(a)

1. A copy of the original LOI that the applicant wishes to extend;

2. A copy of the survey or site plan submitted as part of the application for the original LOI that the applicant wishes toextend; and

3. Any other information reasonably necessary to determine if the information in the original LOI remains accurate.

7:7A-16.6 Additional application requirements for an authorization under a general permit-by-certification

(a) An application for authorization under a general permit-by-certification shall be submitted electronically through theDepartment's online permitting system at www.nj.gov/dep/online.

(b) The online application for a general permit-by-certification requires an applicant to provide the following:

1. The number (and subject matter) of the general permit-by-certification under which the application for authorizationis being submitted;

2. The name of or other identifier for the proposed development or project;

3. The location of the proposed development or project, including address, city, state, zip code, municipality, State planecoordinates, and lot and block numbers;

4. Information specific to the proposed project related to the requirements of the general permit-by-certification underwhich the application is being submitted, such as, for example, the area of proposed disturbance to wetlands undergeneral permit-by-certification 8 (see N.J.A.C. 7:7A-6.1);

5. Contact information for both the applicant and the property owner, including: name, address, telephone number,e-mail address, municipality, county, organization, and organization type;

6. A certification as to each of the following:

i. That the site identified in the application is the actual location of the project site;

ii. That public notice of the application has been provided in accordance with N.J.A.C. 7:7A-17;

iii. That the applicant has obtained written consent from the property owner that the application can be made on theproperty owner's behalf. This certification is required regardless of whether the applicant and property owner are thesame person; and

[page=3962] iv. That conditions specific to the general permit-by-certification under which the application forauthorization is being submitted are or will be met. For example, an applicant for authorization under generalpermit-by-certification 24 must certify that the total area of disturbance is no more than one-quarter acre;

7. To accomplish the certification under (b)6 above, the PIN that was issued to the applicant upon registering with theDepartment's online permitting system; and

8. The application fee for a general permit-by-certification set forth at N.J.A.C. 7:7A-18.

(c) Once the online application process is successfully completed, the authorization will be accessible to the applicantthrough the Department's online permitting system at www.nj.gov.dep/online.

49 N.J.R. 3849(a)

7:7A-16.7 Additional application requirements for an authorization under a general permit, for an individual permit,or for a transition area waiver

(a) In addition to meeting the requirements at N.J.A.C. 7:7A-16.2, an application for an authorization under a generalpermit, for an individual permit, or for a transition area waiver shall include the following material, in the number andformat specified in the appropriate application checklist:

1. A completed application form, available from the Department at the address set forth at N.J.A.C. 7:7A-1.4. This formrequires basic information regarding the regulated activity or project, including the name and address of the applicantand any designated agent(s), the specific location of the regulated activity or project, the types of approvals beingsought, a brief description of the proposed activities, and certifications as to the truth and accuracy of the informationprovided and as to the ownership of the property;



4. Site plans, certified in accordance with N.J.A.C. 7:7A-16.2(j), which include the following, both on and adjacent tothe site, as applicable:

i. Existing features, such as lot lines, structures, land coverage, and vegetation, which are necessary to demonstrate thatthe proposed regulated activity or project meets the requirements of this chapter;

ii. All proposed regulated activities; the size, location, and details of any proposed structures, roads, or utilities; detailsof any clearing, grading, filling, excavation, and dredging; the location and area of wetlands, transition areas, and/orState open waters that will be disturbed and the limits of disturbance;

iii. Existing and proposed topography where necessary to demonstrate that the proposed regulated activity or projectmeets the requirements of this chapter. All topography shall reference NGVD or include the appropriate conversionfactor to NGVD;*and*

iv. Details of any proposed soil erosion and sediment control measures; *[and]*

*[v. State plane coordinates for a point at the approximate center of the site, except for a linear activity or project asprovided at (a)5i below. The accuracy of the State plane coordinates shall be within 50 feet of the actual center point forthe site;]*

5. State plane coordinates for a point at the approximate center of the site, except for a linear activity or project asprovided at (a)5i below. The accuracy of the State plan coordinates shall be within 50 feet of the actual center point forthe site;

i. State plane coordinates shall be provided for a linear activity or project, such as a roadway, utility, stream bankstabilization project, or sediment and debris removal project, as follows:

(1) For a linear activity or project of one-half mile or more in length, the State plane coordinates shall include thecoordinates for the end points of the delineation or linear activity or project and the coordinates for points located at1,000-foot intervals along the entire length of the linear activity or project; and

(2) For a linear activity or project of less than one-half mile in length, the State plane coordinates shall include the

49 N.J.R. 3849(a)

coordinates for the end points of the linear activity or project;

6. In addition to the site plan specified at (a)4 above, other visual representations, such as photographs, graphs, maps,and tables, that illustrate existing site conditions and the proposed activity or project;

7. Calculations, analyses, reports, data, and supporting materials necessary to demonstrate that the proposed activity orproject meets the requirements of this chapter, and the requirements of the Department's Stormwater Management rulesat N.J.A.C. 7:8, if applicable;

8. Information about the anticipated impacts of the proposed activity or project, including any monitoring or reportingmethods that will be used;

9. Information and certifications regarding the presence or absence of endangered or threatened species habitat, criticalhabitat for fauna or flora, historic or archaeological resources, or other features on the site that are relevant todetermining compliance with the requirements of this chapter;

10. If a site is known or suspected to be contaminated with toxic substances, and if the Department requests it, alaboratory analysis of representative samples of the soil or sediment on the site;

11. Any information necessary to ensure compliance with State and/or Federal law, and/or to determine whether anapplication for an authorization under a general permit, an individual permit, or a transition area waiver meets Stateand/or Federal standards;

12. Any other information not listed in this subsection, if necessary to ensure compliance with the Federal rulesgoverning the Department's assumption of the Federal 404 program at 40 CFR 233.30; and

13. Consent from the owner of the site allowing the Department to enter the site in a reasonable manner and atreasonable times to inspect the site. This consent shall continue in effect for the duration of the application review anddecision process, including for the duration of any appeal made from the decision on the application.

(b) If a proposed activity or project for which an authorization under a general permit, an individual permit, or atransition area waiver is sought requires mitigation in accordance with this chapter, the applicant may submit amitigation proposal as part of the application for the authorization. If the applicant does not submit a mitigationproposal with the application, the applicant shall submit the mitigation proposal at least 90 calendar days before the startof activities authorized by the permit, in accordance with N.J.A.C. 7:7A-11.

7:7A-16.8 Additional requirements specific to an application for authorization under a general permit

(a) In addition to the requirements at N.J.A.C. 7:7A-16.2 and 16.7, an application for authorization under a generalpermit shall meet the requirements of this section.

(b) An application for authorization under a general permit shall include the following:

1. A line delineation LOI issued under N.J.A.C. 7:7A-4.4 or a line verification LOI issued under N.J.A.C. 7:7A-4.5, ifan LOI of either type has been issued. A presence/absence LOI issued under N.J.A.C. 7:7A-4.3 is not sufficient. If noLOI has been issued, or if only a presence/absence LOI has been issued, the application shall include all informationrequired for an application for a line delineation LOI or line verification LOI, covering the portion of the site that willbe affected by the general permit activity;

2. The total area, in acres, of wetlands and State open waters on the site before the regulated activity is performed, and

49 N.J.R. 3849(a)

the total area, in acres, of wetlands and State open waters on the site that will remain after the regulated activity isperformed. The total area of wetlands and State open waters on the site can be approximated using a planimeter or othermapping technique;

3. Documentation regarding when the lot that is the subject of the general permit was created by subdivision;

4. A history of the ownership of the property beginning June 30, 1988, to present; and

5. A listing of contiguous lots that were in common ownership with the lot on which the activities are proposed and theownership history of each lot beginning June 30, 1988, to present.

(c) An application for a general permit authorization for regulated activities in an area under the jurisdiction of thePinelands Commission [page=3963] shall be submitted to the Pinelands Commission rather than to the Department.

7:7A-16.9 Additional requirements specific to an application for an individual permit

(a) In addition to meeting the requirements at N.J.A.C. 7:7A-16.2 and 16.7, an application for an individual permit shallmeet the requirements of this section.

(b) An application for an individual permit shall include the following:

1. A line delineation LOI issued under N.J.A.C. 7:7A-4.4 or a line verification LOI issued under N.J.A.C. 7:7A-4.5, ifan LOI of either type has been issued. A presence/absence LOI issued under N.J.A.C. 7:7A-4.3 is not sufficient. If noLOI has been issued for the site, or if only a presence/absence LOI has been issued, the application shall include allinformation required for an application for a line delineation LOI or line verification LOI;

2. The total area of wetlands and State open waters, in acres, on the site before the regulated activity is performed, andthe total area, in acres, of wetlands and State open waters on the site that will remain after the regulated activity isperformed. The total area of wetlands and State open waters on the site can be approximated using a planimeter or othermapping technique;

3. A copy of the deed and/or other legal documents pertaining to the site;

4. An environmental report that includes:

i. A narrative that describes the basic project purpose of the proposed activity, including whether it is water dependent;

ii. Maps (such as freshwater wetlands maps and USDA soil surveys) that provide an environmental inventory of thesite;

iii. Information regarding special aquatic sites, public lands, critical habitat, and other relevant environmental featuresof the site;

iv. An analysis of any potential temporary and/or permanent adverse environmental impact(s), whether onsite or offsite,of the proposed regulated activity or project on freshwater wetlands, State open waters, transition areas, fisheryresources, and threatened or endangered species and their habitat.

v. An alternatives analysis that allows the Department to evaluate whether the requirements of N.J.A.C. 7:7A-10.2 aremet, including the following:

49 N.J.R. 3849(a)

(1) A description of all alternatives considered, including offsite alternatives, as well as onsite alternatives that couldminimize environmental impacts on the site, and the reasons for rejecting each alternative;

(2) Information regarding the history of the property as a whole, as necessary to evaluate the cost to the property ownerof various alternatives. Such information may include:

(A) Document(s) showing when the property as a whole was acquired and its purchase price;

(B) Documentation of any investments made to maintain and/or develop the property as a whole;

(C) Documentation of attempts by the property owner to sell the property or to obtain other property; and

vi. A description of all measures taken to reduce any potential adverse environmental impact(s) to the resources listed at(b)4iv above.

7:7A-16.10 Additional requirements specific to an application for a transition area waiver

(a) In addition to meeting the requirements at N.J.A.C. 7:7A-16.2 and 16.7, an application for a transition area waivershall meet the requirements of this section.

(b) An application for a transition area waiver shall include the following:

1. A line delineation LOI issued under N.J.A.C. 7:7A-4.4, or a line verification LOI issued under N.J.A.C. 7:7A-4.5, ifan LOI of either type has been issued. A presence/absence LOI issued under N.J.A.C. 7:7A-4.3 is not sufficient. If noLOI has been issued for the site, or if only a presence/absence LOI has been issued, the application shall include allinformation required for an application for a line delineation LOI or line verification LOI.

(c) In addition to the information required at (b) above, an application for a special activity transition area waiver basedupon an individual permit criteria under N.J.A.C. 7:7A-8.3(g) shall include the information required for an individualpermit application at N.J.A.C. 7:7A-16.9(b).

(d) In addition to the information required at (b) above, an application for a hardship transition area waiver underN.J.A.C. 7:7A-8.4 shall include the information contained in N.J.A.C. 7:7A- 13.1(i)4, 5, 7, and 8i, ii, and iii, and astatement indicating that the property owner has requested a hardship transition area waiver.

7:7A-16.11 Confidentiality

(a) Any information submitted to the Department under this chapter may be claimed as confidential by the submitter atthe time of submittal.

(b) Claims of confidentiality for the following information will be denied:

1. The name and address of any permit applicant or permittee;

2. Effluent data;

3. Permit application; and

4. Permit decision.

49 N.J.R. 3849(a)

(c) Claims of confidentiality for all information not listed in (b) above will be denied unless the claimant can show thatthe information should be kept confidential under the requirements and procedures of 40 CFR Part 2.



(a) An applicant shall provide public notice in accordance with this subchapter for the following:

1. An application for a letter of interpretation, including the extension of a letter of interpretation, pursuant to N.J.A.C.7:7A-4;

2. An application for an authorization under a general permit-by-certification pursuant to N.J.A.C. 7:7A-5 and 6;

3. An application for an authorization under a general permit pursuant to N.J.A.C. 7:7A-5 and 7, except for generalpermit 15 for mosquito control activities at N.J.A.C. 7:7A-7.15, which is subject only to the notice requirements foundat N.J.A.C. 7:7A-7.15(f);

4. An application for an individual freshwater wetland permit or open water fill permit pursuant to N.J.A.C. 7:7A-9 and10;

5. An application for a transition area waiver pursuant to N.J.A.C. 7:7A-8;

6. A mitigation proposal pursuant to N.J.A.C. 7:7A-11, which is not submitted as part of a permit application; and

7. An application for a major technical modification pursuant to N.J.A.C. 7:7A-20.6.

(b) A person who requests a reconsideration of the Department's action or inaction concerning a permit under N.J.A.C.7:7A-13 shall provide public notice in accordance with N.J.A.C. 7:7A-13.1(i)3.

(c) An applicant is not required to provide public notice for the following:

1. A request for an exemption letter pursuant to N.J.A.C. 7:7A-2.6;

2. An application for an emergency authorization pursuant to N.J.A.C. 7:7A-14;

3. An application for an administrative modification or a minor technical modification pursuant to N.J.A.C. 7:7A-20.6;or

4. The transfer of a permit pursuant to N.J.A.C. 7:7A-20.5.

(d) When a proposed regulated activity or project requires more than one approval under this chapter, or requires, inaddition, an approval under the Coastal Zone Management rules at N.J.A.C. 7:7, and/or the Flood Hazard Area ControlAct rules at N.J.A.C. 7:13, an applicant may provide combined public notice for all applications submitted, provided thecombined notice meets all of the notice requirements applicable to each application.

(e) Failure to provide public notice as required under this subchapter shall be cause for the Department to cancel anapplication under N.J.A.C. 7:7A-19.8.

49 N.J.R. 3849(a)

[page=3964] 7:7A-17.2 Timing of public notice of an application

For any of the applications listed in N.J.A.C. 7:7A-17.1(a), the applicant shall provide public notice in accordance withthis subchapter no more than 30 calendar days prior to submitting the application, and no later than the date theapplication is submitted to the Department.

7:7A-17.3 Contents and recipients of public notice of an application

(a) For any of the applications listed in N.J.A.C. 7:7A-17.1(a), the applicant shall provide a copy of the entireapplication, as submitted to the Department, to the municipal clerk in each municipality in which the site is located.

(b) For any of the applications listed in N.J.A.C. 7:7A-17.1(a), the applicant shall provide notice of the application to allof the persons or entities at (b)1 through 6 below, in accordance with the timeframe specified at N.J.A.C. 7:7A-17.2.The notice shall include the information specified at (e) below.

1. The construction official of each municipality in which the site is located;

2. The environmental commission, or other government agency with similar responsibilities, of each municipality inwhich the site is located;

3. The planning board of each municipality in which the site is located;

4. The planning board of each county in which the site is located;

5. The local Soil Conservation District if the regulated activity or project will disturb 5,000 square feet or more of land;and

6. All owners of real property, including easements, located within 200 feet of the site of the proposed regulatedactivity, in the manner set forth in the Municipal Land Use Law at N.J.S.A. 40:55D-12.b, unless the regulated activityor project is one of those listed at (c)1 through *[4]* *5* below, in which case the notice shall be provided as set forthin (c) below. The owners of real property, including easements, shall be those on a list that was certified by themunicipality. The date of certification of the list shall be no earlier than one year prior to the date the application issubmitted to the Department.

(c) For an application for an LOI, regulated activity, or project listed at (c)1 through 5 below, unless the application isfor an individual permit or for a mitigation proposal to create, enhance, or restore wetlands, State open waters. and/ortransition areas, which is not submitted as part of a permit application, the applicant shall provide the notice required at(b)6 above by publishing newspaper notice and, in addition, sending the notice at (e) below, in the manner set forth inthe Municipal Land Use Law at N.J.S.A. 40:55D-12.b, to all owners of real property, including easements, within 200feet of any proposed above ground structure that is part of the proposed development or project, excluding anyconveyance lines suspended above the ground or small utility support structures, such as telephone poles.

1. A linear project of one-half mile or longer;

2. A trail or boardwalk of one-half mile or longer;

3. A public project on a site of 50 acres or more;

4. An industrial or commercial project on a site of 100 acres or more; or

49 N.J.R. 3849(a)

5. A project to remove sediment or debris from a channel of one-half mile or longer.

(d) If the application is for an individual permit, in addition to providing notice required at (b) above, the applicantshall:

1. Provide notice by publishing newspaper notice in accordance with N.J.A.C. 7:7A-17.4; and

2. If the proposed project involves more than 10 acres of fill, publish a newspaper notice that meets the requirements ofN.J.A.C. 7:7A-17.4(b) in a newspaper with regional circulation in the region in which the site is located.

(e) The public notice required at (b) and (c) above, other than newspaper notice, shall:

1. Include all of the following:

i. A brief description of the area the applicant wishes the LOI to cover, and/or the site and regulated activity or project;

ii. A site plan, showing the location and boundaries of the site and depicting the area the applicant wishes the LOI tocover, and/or the proposed regulated activity, or project in relationship to existing site conditions. This need not be a fullset of plans and may be shown on one 8 1/2 inch by 11 inch sheet of paper provided the scale is legible and the locationof the regulated activity or project in relation to the property boundary is clearly shown; and

iii. A copy of the form notice letter, available from the Department's website at the address set forth at N.J.A.C.7:7A-1.4. The form notice letter explains that: an application will be submitted to the Department for an LOI and/or thespecific regulated activity or project depicted on the enclosed site plan; a complete copy of the application is availableto be reviewed at either the municipal clerk's office or by appointment at the Department's Trenton office; andcomments or information on the requested LOI or proposed regulated activity or project and site may be submitted tothe Department at the address set forth at N.J.A.C. 7:7A-1.4 within 15 calendar days of receipt of the letter; and

2. Be sent by certified mail or by delivery whereby the signature of the person to whom the notice is delivered isobtained, except that an applicant may obtain written permission from the specific municipal or county entity to submitnotice to it electronically.

7:7A-17.4 Content and format of newspaper notice

(a) The newspaper notice pursuant to N.J.A.C. 7:7A-17.3(c) shall be either a legal notice or a display advertisement inthe official newspaper of the municipality in which the site is located, or if there is no official newspaper, a newspaperof general circulation in the municipality.

(b) The newspaper notice pursuant to N.J.A.C. 7:7A-17.3(c) shall include all of the following:

1. The mailing address and telephone number of the Department as set forth at N.J.A.C. 7:7A-1.4;

2. The name and mailing address of the applicant;

3. The type of approval being sought;

4. A description of the proposed regulated activity, or project;

5. The street address of the site;

49 N.J.R. 3849(a)

6. A list of each lot, block, municipality, and county within which the LOI is requested and/or the proposed, regulatedactivity or project will occur; and

7. The standard language of the form notice letter available from the Department website at the address set forth atN.J.A.C. 7:7A-1.4.

i. The form notice letter explains that: an application will be submitted to the Department for the specific regulatedactivity or project as identified pursuant to (b)4, 5, and 6 above; a complete copy of the application is available to bereviewed at either the municipal clerk's office or by appointment at the Department's Trenton office; and comments orinformation on the requested LOI or proposed regulated activity or project and site may be submitted to the Departmentat the address set forth at N.J.A.C. 7:7A-1.4 within 15 calendar days of the date of the notice.

7:7A-17.5 Documenting public notice of an application

(a) An applicant shall include as part of the application documentation that the required public notice of the applicationhas been provided, as follows:

1. For public notice other than newspaper notice, the documentation shall consist of:

i. A copy of the certified United States Postal Service white mailing receipt for each public notice that was mailed, orother written receipt;

ii. A certified list of all owners of real property, including easements, located within 200 feet of the property boundaryof the site (including name, mailing address, and lot and block numbers) prepared by the municipality for eachmunicipality in which the project is located. The date of certification of the list shall be no earlier than one year prior tothe date the application is submitted to the Department; and

iii. A copy of each public notice letter that was mailed; and

2. For newspaper notice, the documentation shall consist of:

i. A copy of the published newspaper notice; and

ii. The date and name of the newspaper in which notice was published.

SUBCHAPTER 18. APPLICATION FEES

7:7A-18.1 Application fees

(a) This subchapter establishes the application fees for:

1. An exemption letter pursuant to N.J.A.C. 7:7A-2.6;

[page=3965] 2. A letter of interpretation pursuant to N.J.A.C. 7:7A-4;

3. An authorization under a general permit pursuant to N.J.A.C. 7:7A-7, except for:

i. General permit 16--Habitat creation and enhancement activities, N.J.A.C. 7:7A-7.16;

ii. General permit 17--Trails and boardwalks, N.J.A.C. 7:7A-7.17, for a project located on publicly-owned land; and

49 N.J.R. 3849(a)

iii. General permit 24--Malfunctioning individual subsurface sewage disposal (septic) systems, N.J.A.C. 7:7A-7.24;

4. An authorization under a general permit-by-certification pursuant to N.J.A.C. 7:7A-6, except for generalpermit-by-certification 24--Repair or modification of a malfunctioning individual subsurface sewage disposal (septic)system, N.J.A.C. 7:7A-6.2.

5. A transition area waiver pursuant to N.J.A.C. 7:7A-8;

6. A freshwater wetlands individual permit and an open water fill individual permit pursuant to N.J.A.C. 7:7A-9;


8. A modification of an authorization under a general permit, a transition area waiver, or a freshwater wetlands or openwater fill individual permit pursuant to N.J.A.C. 7:7A-20.6; and

9. An extension of a letter of interpretation pursuant to N.J.A.C. 7:7A-4.6, or of an authorization under a general permit,a transition waiver, or a freshwater wetlands or open water fill individual permit, pursuant to N.J.A.C. 7:7A-20.4.

(b) There is no application fee for:

1. An application submitted by an agency of the State;

2. An authorization under the following general permits:

i. General permit 16--Habitat creation and enhancement activities, N.J.A.C. 7:7A-7.16;

ii. General permit 17--Trails and boardwalks, N.J.A.C. 7:7A-7.17, for a project located on publicly-owned land; and

iii. General permit 24--Malfunctioning individual subsurface sewage disposal (septic) systems, N.J.A.C. 7:7A-7.24;

3. An authorization under general permit-by-certification 24--Repair or modification of a malfunctioning individualsubsurface sewage disposal (septic) system, N.J.A.C. 7:7A-6.2;

4. An emergency authorization pursuant to N.J.A.C. 7:7A-14; *[or]*

5. The transfer of an emergency authorization, authorization under a general permit, a transition area waiver, or anindividual permit pursuant to N.J.A.C. 7:7A-20.5*[.]**; or*

*6. An administrative modification pursuant to N.J.A.C. 7:7A-20.6.*



(f) The fees for applications under this chapter are set forth in Table 18.1 below:

Table 18.1

APPLICATION FEES

49 N.J.R. 3849(a)

Exemption letter

Fee

Exemption letter pursuant to N.J.A.C. 7:7A-2.6 $ 500.00

Letter of Interpretation (LOI)

Fee

Presence/absence LOI pursuant to N.J.A.C. 7:7A- $ 1,000

4.3

Footprint of disturbance LOI pursuant to N.J.A.C. $ 1,000

7:7A-4.3

Delineation LOI pursuant to N.J.A.C. 7:7A-4.4 $ 1,000

Line verification LOI pursuant to N.J.A.C. 7:7A-4.5 $ 1,000 plus

$ 100.00 per acre

of the site (or

fraction thereof)

Authorization under a general permit-by-certification pursuant to N.J.A.C. 7:7A-6

Fee

General permit-by-certification 24--Repair or No fee

modification of a malfunctioning individual

subsurface sewage disposal (septic) system,

N.J.A.C. 7:7A-6.2

Any other general permit-by-certification $ 1,000

Authorization under a general permit pursuant to N.J.A.C. 7:7A-7

Fee

General permit 16--Habitat creation and No fee

49 N.J.R. 3849(a)

enhancement activities, N.J.A.C. 7:7A-7.16

General permit 17--Trails and boardwalks, No fee

N.J.A.C. 7:7A-7.17, for a project located on

publicly-owned land

General permit 24--Malfunctioning individual No fee

subsurface sewage disposal (septic) systems,

N.J.A.C. 7:7A-7.24

Any other general permit $ 1,000

Transition area waiver pursuant to N.J.A.C. 7:7A-8

Fee

Transition area waiver with a $ 1,000 plus $ 100.00 per acres of

valid letter of interpretation disturbed regulated area (or fraction

thereof)

Transition area waiver without a $ 1,000 plus $ 100.00 per acre of

valid letter of interpretation disturbed regulated area (or fraction

thereof) and the application fee for

the appropriate LOI

Freshwater wetlands or open water fill individual permit pursuant to N.J.A.C. 7:7A-10

Fee

Freshwater wetlands or open water fill individual $ 2,000

permit for the construction of one single-family

home or duplex and/or appurtenant improvements

which is not being constructed as part of a

residential subdivision or multi-unit development

Freshwater wetlands or open water fill individual $ 5,000 plus

permit for any other activity $ 2,500 per acre

of disturbed

regulated area

(or fraction

thereof)

Water quality certificate pursuant to N.J.A.C. 7:7A-2.1(d)

49 N.J.R. 3849(a)

Fee

Water quality certificate where a permit $ 5,000 plus $ 2,500 per acre

is not also issued of disturbed regulated area

(or fraction thereof)

Modification of an authorization under a general permit, a transition area waiver or a freshwater wetlands or open waterfill individual permit pursuant to N.J.A.C. 7:7A-20.6

Fee

Administrative modification *[$ 500.00]* *No fee*

Minor technical modification $ 500.00

Major *technical* modification of a 30 percent of the original

transition area waiver, *general permit application fee or

authorization,* freshwater wetlands or $ 500.00, whichever is

open water fill individual permit greater

Extension of a letter of interpretation (LOI) pursuant to N.J.A.C. 7:7A-4.6 or of an authorization under a general permit,a transition area waiver, or an individual permit pursuant to N.J.A.C. 7:7A-20.4

Fee

Extension of a presence/absence LOI $ 500.00

Extension of a footprint of $ 500.00

disturbance LOI

Extension of a delineation LOI $ 500.00

Extension of a verification LOI 50 percent of the original

application fee or $ 500.00,

whichever is greater

Extension of an authorization under a $ 500.00

general permit

Extension of a transition area waiver $ 500.00

Extension of a freshwater wetlands or 50 percent of original

open water fill individual permit application fee or $ 500.00,

whichever is greater

Additional application fee for stormwater review if a project is a "major development" pursuant to the StormwaterManagement Rules (see N.J.A.C. 7:8-1.2)

Fee

Base fee for any major development $ 3,000

49 N.J.R. 3849(a)

Additional fee for review of groundwater $ 250.00 per acre of land

recharge calculations (see N.J.A.C. 7:8- disturbed by the project (or

5.4) fraction thereof)

Additional fee for review of runoff $ 250.00 per acre of land

quantity calculations (see N.J.A.C. 7:8- disturbed by the project (or

5.4) fraction thereof)

Additional fee for review of water $ 250.00 per acre of

quality calculations (see N.J.A.C. 7:8- impervious surface subject

5.5) to water quality review (or

fraction thereof)


SUBCHAPTER 19. APPLICATION REVIEW

7:7A-19.1 General application review provisions

(a) This subchapter sets forth the review procedures for applications for a letter of interpretation, applications forauthorization under a general permit, applications for an individual permit, and applications for a transition area waiver.These procedures also apply to applications for a water quality certificate.

(b) The review procedures for the following are set forth elsewhere in this chapter:

1. For a request for a written determination of exemption from the permit requirements of this chapter, see N.J.A.C.7:7A-2.6;

2. For a mitigation proposal, see N.J.A.C. 7:7A-11;

3. For a request for an emergency authorization, see N.J.A.C. 7:7A-14; and

4. For a request to extend, transfer, or modify a letter of interpretation or an approval, see N.J.A.C. 7:7A-20.4, 20.5, or20.6, respectively.

(c) An applicant may submit a revised application at any time during the application review process. Except forapplications for authorization under general permit 25 for minor channel cleaning for local government agencies atN.J.A.C. 7:7A-7.25, the applicant shall send a copy of the revised portions of the application to the municipal clerk ofeach municipality in which the site is located and shall provide notice explaining the revisions to any person listed atN.J.A.C. 7:7A-17.3(b) whom the Department determines would likely be affected by the revised application. Theapplicant shall provide documentation in accordance with N.J.A.C. 7:7A-17.5 that the notice was provided.

1. If an applicant submits a revised application less than 30 calendar days prior to the deadline for Department decisionestablished pursuant to N.J.A.C. 7:7A-19.7(b), the revised application shall state that the applicant consents to a30-calendar day extension of the decision deadline in accordance with N.J.A.C. *[7:13-19.7(c)]* *7:7A-19.7(c)*.

(d) In reviewing an application, the Department shall apply the requirements of this chapter in effect at the time the

49 N.J.R. 3849(a)

application is declared complete for review.

(e) The Department shall publish notice in the DEP Bulletin of the receipt of each administratively completeapplication, the status of the application during review, and the Department's decision to approve or deny theapplication. Publication in the DEP Bulletin constitutes constructive notice to interested persons of Department actionson applications for a letter of interpretation, applications for authorization under a general permit, applications for anindividual permit, applications for a transition area waiver, or applications for a water quality certificate. Actual noticeof the Department's decision to approve or deny an application will be provided, in accordance with N.J.A.C.7:7A-19.7, to the applicant and to persons who specifically request such notice.

(f) If a person submits an application and does not receive a response from the Department within the deadlinesimposed in this subchapter, the person shall not be entitled to assume that the application is approved, except if theapplication is for authorization of the following activities and complies with the applicable general permit:

1. Ongoing maintenance of an off-stream stormwater management facility created in uplands, including a wetlandconstructed in uplands for stormwater management purposes, under general permit 1;

2. Repair of a malfunctioning individual subsurface sewage disposal system under general permit 24, or generalpermit-by-certification 24; or

3. Minor channel or stream cleaning activities under general permit 25.

(g) Within 30 days after a notice of an application for an individual permit or transition area waiver is published in theDEP Bulletin, interested persons may request in writing that the Department hold a fact-finding meeting on theapplication. Requests shall state the nature of the issues proposed to be raised at the meeting.

1. The Department may issue or deny an individual permit or transition area waiver without a fact-finding meeting.However, the Department shall hold a fact-finding meeting if the Department determines that:

i. There is a significant degree of public interest in the application, as manifested by written requests for a meetingwithin the 30-day meeting request period set forth in (g) above. In considering the degree of public interest, theDepartment will consider whether the issues raised in the meeting requests are relevant to the application;

ii. A fact-finding meeting is requested by the USEPA; or

iii. The Department determines that based on public comment received and/or a review of the scope and/orenvironmental impact of the proposed project, additional information is necessary to assist the Department in itsevaluation of the potential impacts, and that this information can only be obtained through a fact-finding meeting.

[page=3967] 7:7A-19.2 Completeness review

(a) Except for the applications identified at (a)1, 2, and 3 below, the completeness review process for all applications fora letter of interpretation, applications for authorization under a general permit, applications for a transition area waiver,applications for an individual permit, and applications for a water quality certificate, is set forth at (b) through (g)below.

1. For an application for authorization under general permit 1 for ongoing maintenance of an off-stream stormwatermanagement facility created in uplands, including a wetland constructed in uplands for stormwater managementpurposes under N.J.A.C. 7:7A-7.1, the completeness review process is set forth at N.J.A.C. 7:7A-19.3;

49 N.J.R. 3849(a)

2. For an application for authorization under general permit 24 for repair of a malfunctioning individual subsurfacesewage disposal system under N.J.A.C. 7:7A-7.24, the completeness review process is set forth at N.J.A.C. 7:7A-19.3;and

3. For an application for an authorization under general permit 25 for minor channel or stream cleaning for localgovernment agencies at N.J.A.C. 7:7A-7.25, the completeness review process is set forth at N.J.A.C. 7:7A-19.4.

(b) Within 20 working days after receiving an application, where day one of the 20-working day period is the date theapplication is received, the Department shall take one of the following actions:

1. Determine the application is both administratively and technically complete, issue notification to the applicant inwriting that the application is complete for review, effective as of the date the Department received the application, andtransmit a copy of the application to other agencies if required under this chapter. For example, an application for anindividual permit for a major discharge must be transmitted to the USEPA for comment under N.J.A.C. 7:7A-19.5;

2. Determine the application is administratively complete but technically incomplete and issue notification to theapplicant in writing that the application is technically incomplete. This notification shall specify the additionalinformation required and the deadline by which the information must be submitted; or

3. Determine the application is administratively incomplete and return the application.

(c) Within 15 calendar days after receiving the additional information submitted pursuant to (b)2 above for a technicallyincomplete application, the Department shall take one of the following actions:

1. Determine the application is technically complete and issue notification to the applicant in writing that the applicationis complete for review, effective as of the date the Department received the additional information, and transmit a copyof the application to other agencies if required under this chapter; or

2. Determine the additional information is not sufficient and issue notification to the applicant in writing that theapplication remains technically incomplete. The notification shall specify the additional information required and thedeadline by which the additional information must be submitted. If the applicant submits all of the informationrequested pursuant to this notification, the Department shall declare the application complete for review, effective as ofthe date the Department received the additional information.

(d) The applicant shall send the additional information submitted to the Department pursuant to (b)2 and (c)2 above tothe municipal clerk of each municipality in which the project is located and shall provide notice explaining thatadditional information has been submitted to the Department to any person listed at N.J.A.C. 7:7A-17.3 whom theDepartment determines would likely be affected by the additional information. The applicant shall providedocumentation in accordance with N.J.A.C. 7:7A-17.5 that the additional information and notice were provided.

(e) An applicant shall submit all additional information pursuant to (b)2 or (c)2 above within 90 calendar days after thedate of the Department request, unless the Department specifies a different deadline in the request. If the applicant doesnot submit the additional information by the deadline, the Department shall, in accordance with N.J.A.C. 7:7A-19.8,cancel the application or, if the applicant demonstrates good cause for the delay in providing the requested information,extend the time to submit the information.

(f) If the Department does not take one of the actions in (b) above within 20 working days after receiving an application,the application shall be declared complete for review, effective as of the date the application was received by theDepartment.

49 N.J.R. 3849(a)

(g) If the Department does not take one of the actions in (c) above within 15 calendar days after receiving additionalinformation submitted for a technically incomplete application, the application shall be declared complete for review,effective as of the date the additional information was received by the Department.

7:7A-19.3 Department review and decision on an application for authorization for maintenance of a stormwatermanagement facility, including a wetland constructed in uplands for stormwater management purposes, under generalpermit 1 and repair of a malfunctioning individual subsurface sewage disposal system under general permit 24

(a) Within 20 working days after receiving an application for authorization under general permit 1 for maintenance of astormwater management facility, including a wetland constructed in uplands for stormwater management purposes, oran application for authorization under a general permit 24 for repair of a malfunctioning individual subsurface sewagedisposal system, where day one of the 20-working day period is the date the application is received, the Departmentshall take one of the following actions:

1. Determine the application is administratively and technically complete and declare the application complete forreview effective as of the date the Department received the application; or

2. Determine the application is not administratively and technically complete and notify the applicant that theapplication is incomplete. If the Department so notifies the applicant, the time period in (b) below shall not begin to run.If the Department does not so notify the applicant, the application shall be deemed administratively complete.

(b) If the application is administratively complete, the Department shall have 30 days after receipt of the completeapplication to notify the applicant that the activities are not authorized under general permit 1 or general permit 24, orthat the activities may be authorized but require a full application review under N.J.AC. 7:7A-19.2. If the Departmentdoes not so notify the applicant, the application for authorization under general permit 1 or general permit 24 shall bedeemed approved, subject to conditions applicable to all general permits in accordance with N.J.A.C. 7:7A-5.7 and theconditions applicable to all permits at N.J.A.C. 7:7A-*[20.3]**20.2*.

(c) The Department shall provide notice of the decision on an application for authorization under a general permit 1 andgeneral permit 24 in the DEP Bulletin and to any person who specifically requested notice of the decision on aparticular application.

7:7A-19.4 Department review and decision on an application for authorization under general permit 25 for minorchannel or stream cleaning for local government agencies

(a) Within 15 calendar days after receiving an application for authorization under a general permit 25 for activities thatdo not include the removal of sediment, or within 60 calendar days after receiving an application for activities thatinclude the removal of sediment, where day one of the 15- or 60-calendar-day period is the date the application isreceived, the Department shall take one of the following actions:

1. Determine the application is both administratively and technically complete, and declare the application complete forreview effective as of the date the Department received the application, and approve or deny the application inaccordance with the following:

i. Determine that the application meets the requirements of this chapter and issue an authorization approving theapplication in writing. The authorization shall include any conditions necessary to ensure compliance with this chapter;or

ii. Determine that the application does not meet the requirements of this chapter and deny the application in writing. Thedecision denying the application shall include the reasons for the denial;

49 N.J.R. 3849(a)

2. Determine the application is administratively complete but technically incomplete and notify the applicant that theapplication is technically incomplete. This notification shall specify the additional [page=3968] information requiredand the deadline by which the information must be submitted; or

3. Determine the application is administratively incomplete and return the application.

(b) If the Department does not make a decision to approve or deny an application for an authorization under a generalpermit 25 by the applicable deadline set forth in (a) above, the applicant is authorized to commence stream cleaningactivities to the extent that the project does not violate other laws then in effect.

1. An authorization issued under this subsection shall include the standard conditions set forth in N.J.A.C. 7:7A-20.2.

2. An authorization issued under this subsection shall not prevent the Department from taking enforcement actionpursuant to N.J.A.C. 7:7A-22 for any activity undertaken in violation of this chapter.

(c) The Department shall provide notice of the decision on an application for authorization under general permit 25 inthe DEP Bulletin and to any person who specifically requested notice of the decision on a particular application.

7:7A-19.5 USEPA review

(a) (No change.)

(b) The Department shall transmit the following items to the USEPA for review:

1. (No change.)

2. Each application involving a major discharge;

3.-6. (No change.)

(c) (No change.)

(d) If the USEPA intends to comment upon, object to, or make recommendations with respect to an item, or withrespect to the Department's failure to accept the recommendations of an affected state pursuant to N.J.A.C.7:7A-19.6(e), the USEPA may notify the Department of this intent within 30 days of receipt of the permit application orother item. If the Department has been so notified, the permit or other item shall not be issued until after the receipt ofsuch comments or within 90 days of the USEPA's receipt of the application or other item, or the Department response,whichever comes first. The USEPA may notify the Department within 30 days of receipt that there is no comment butthat the USEPA reserves the right to object within 90 days of receipt, based on any new information brought out by thepublic during the comment period or at a fact-finding meeting.

(e)-(k) (No change.)

(l) The Department shall identify all wetland permit applications for proposed projects that may affect properties whichare listed, or are eligible for listing, on the New Jersey or National Register of Historic Places. In accordance withN.J.A.C. 7:4-8.1(a), an "effect" on "property which is listed or is eligible for listing on the New Jersey or NationalRegister of Historic Places" can be direct or indirect and occurs whenever any aspect of the project causes or may causeany change, beneficial or adverse, in the quality of the historical, architectural, archaeological, or cultural characteristicsthat qualified a historic property to meet the criteria of evaluation for inclusion in the New Jersey or National Register.

49 N.J.R. 3849(a)

Applications reflecting any of the following characteristics shall be deemed to present a high probability of the presenceof historic and archaeological resources, requiring assessment and shall require, with the wetlands permit application,the submittal of a Phase IA historical and archaeological survey, and an architectural survey:

1.-5. (No change.)

(m)-(p) (No change.)

7:7A-19.6 Public comment on an application

(a) The Department shall publish notice in the DEP Bulletin of each administratively complete application inaccordance with N.J.A.C. 7:7A-19.1, except for an application for an administrative modification or a minor technicalmodification. The DEP Bulletin is available at www.nj.gov/dep/bulletin/. This notice shall constitute notice of theapplication to all interested persons except those who must be notified by the applicant under N.J.A.C. 7:7A-17.3.

(b) The Department shall make copies of all applications available for public inspection by appointment in the offices ofthe Department in Trenton (see N.J.A.C. 7:7A-1.4 for address) during normal business hours.

(c) The applicant shall transmit a copy of each application to the clerk of the municipality in which the project is locatedin accordance with N.J.A.C. 7:7A-17.3, to be made available for public inspection.

(d) (No change.)

(e) If a proposed discharge may affect the biological, chemical, or physical integrity of the waters of any state(s) otherthan New Jersey, the Department shall provide an opportunity for such state(s) to submit written comments within thepublic comment period and to suggest permit conditions. If these recommendations are not accepted, the Departmentshall notify the affected state and the USEPA in writing, prior to permit issuance, of the Department's intent not toaccept these recommendations, together with the reasons for so doing. The USEPA shall then have the same amount oftime provided for applications and draft general permits in N.J.A.C. 7:7A-19.5 to comment upon, object to, or makerecommendations regarding the Department's action.

7:7A-19.7 Department decision on an application that is complete for review

(a) The Department shall issue an LOI within the applicable time period below:

1. If the Department does not request additional information regarding an LOI application under N.J.A.C.7:7A-19.2(b)1, within 30 days after receiving the application;

2. If the Department requests additional information regarding an LOI application under N.J.A.C. 7:7A-19.2(b)2, within45 days after receipt of information sufficient to declare the application complete;

3. If the applicant chooses to wait for a determination of resource value classification under N.J.A.C. 7:7A-3.2, as soonas the Department determines that the resource classification of the wetlands can be definitively determined; and

4. If the Department conducts a site inspection, the time set forth in this subsection for issuance of the letter ofinterpretation shall be extended by 45 days.

(b) Within 90 calendar days after an application for an authorization under a general permit, application for transitionarea waiver, or application for an individual permit is declared complete for review in accordance with N.J.A.C.7:7A-19.2, the Department shall:

49 N.J.R. 3849(a)

1. Determine that the application meets the requirements of this chapter and issue an authorization, waiver, or individualpermit approving the application in writing. The authorization, waiver, or individual permit shall include any conditionsnecessary to ensure compliance with this chapter; or

2. Determine that the application does not meet the requirements of this chapter and deny the application in writing. Thedecision denying the application shall include the reasons for the denial.

(c) The 90-calendar day deadline set forth in (b) above may be extended for 30 calendar days by mutual agreementbetween the applicant and the Department. An applicant consenting to an extension shall do so in writing. The deadlineshall not be extended by less than or greater than 30 calendar days.

(d) If the Department does not make a decision to approve or deny an application for an authorization of a generalpermit, an individual permit, a transition area waiver, or a water quality certificate by the applicable time period setforth in (b) above, the person shall not be entitled to assume that the application is approved.

(e) The review time set forth in (b) above does not apply to applications that require USEPA review in accordance withN.J.A.C. 7:7A-19.5.

(f) (No change in text.)

(g) Decisions by the Department shall be published in the DEP Bulletin and a copy of every issued individual permitwhich requires USEPA review under N.J.A.C. 7:7A-19.5 shall be transmitted to USEPA.

7:7A-19.8 Cancellation of an application

(a) The Department shall cancel an application for any of the following reasons:

[page=3969] 1. An applicant does not submit additional information within the time frame prescribed by theDepartment under this subchapter for an application that has been determined to be technically incomplete;

2. The applicant does not submit a fee required under N.J.A.C. 7:7A-18, or the Department cannot collect the fee forany reason (for example, if a check is returned for insufficient funds); or

3. The applicant does not comply with the applicable public notice requirements at N.J.A.C. 7:7A-17.

(b) To cancel an application, the Department shall:

1. Send the applicant a written notice of its intent to cancel the application and notifying the applicant that the fee and/oradditional information identified pursuant to (a) above must be provided to the Department within 15 calendar days.

2. If, by the 15-calendar-day deadline, the applicant submits a written statement providing good cause for the delay inproviding the fee and/or additional information, the Department shall extend the time required for submittal.

3. If the applicant does not submit the fee and/or additional information, or a statement of good cause for delay under(b)2 above, the Department shall cancel the application and send the applicant a written notice of the cancellation.

7:7A-19.9 Withdrawal of an application

An applicant may withdraw an application in writing at any time during the Department's review of the application. The

49 N.J.R. 3849(a)

Department shall promptly acknowledge the withdrawal in writing.

7:7A-19.10 Re-submittal of an application after denial, cancellation, or withdrawal

If an application for a letter of interpretation, an application for an authorization under a general permit, an applicationfor a transition area waiver, an application for an individual permit, or an application for a water quality certificate isdenied or cancelled by the Department, or is withdrawn by the applicant, the applicant may re-submit the application inaccordance with N.J.A.C. 7:7A-16. The Department shall treat a re-submitted application as a new application and shallreview it in accordance with this subchapter.

7:7A-19.11 Fee refund or credit when an application is returned, withdrawn, or cancelled

(a) Except as provided in (b) below, the Department shall, upon written request of an applicant, fully refund thesubmitted application fee in the following circumstances:

1. The application is returned because it is not administratively complete;

2. The application is withdrawn within 60 calendar days of its submittal to the Department and is not technicallycomplete; or

3. The application is withdrawn within 20 working days of its submittal to the Department, whether or not theapplication is administratively or technically complete.

(b) The Department shall not refund a fee for an application that has been approved or denied or a fee that has beenpreviously credited under (c) below.

(c) If an application is withdrawn by the applicant under circumstances other than those identified at (a)2 and 3 above,or is cancelled under N.J.A.C. 7:7A-19.8, any application fee that was paid to the Department shall be credited towardthe application fee for one new application, provided the new application is submitted:

1. Within one year of cancellation or withdrawal;

2. By the same applicant;

3. For the same site; and

4. For the same project.

SUBCHAPTER 20. PERMIT AND WAIVER CONDITIONS; MODIFICATION, TRANSFER, SUSPENSION,AND TERMINATION OF AUTHORIZATIONS AND PERMITS


(a) This subchapter sets forth the conditions that apply to all permits.

(b) This subchapter sets forth the procedures for:

1. Extending the term of: a transition area waiver, the duration of which is governed by N.J.A.C. 7:7A-8.5; anauthorization under a general permit, the duration of which is governed by N.J.A.C. 7:7A-5.6; or an individual permit,the duration of which is governed by N.J.A.C. 7:7A-9.2;

49 N.J.R. 3849(a)

2. Transferring an emergency authorization, a transition area waiver, an authorization under a general permit, or anindividual permit to a new owner of the site where the regulated activity or project authorized under the authorization orpermit is taking place;

3. Modifying a transition area waiver, an authorization under a general permit, or an individual permit;

4. Suspending a transition area waiver, an authorization under a general permit, an individual permit, or an emergencyauthorization; and

5. Terminating a transition area waiver, an authorization under a general permit, an individual permit, or an emergencyauthorization.

7:7A-20.2 Conditions that apply to all permits

(a) The Department places conditions on a permit to ensure that the approved project complies with this chapter. Theconditions that apply to all permits are set forth in (c) below.

(b) If a permittee undertakes any regulated activity authorized under a permit, such action shall constitute the permittee'sacceptance of the permit in its entirety, as well as the permittee's agreement to abide by the permit and all conditionstherein.

(c) The following conditions apply to all permits, including all waivers and general permit authorizations:

1. The issuance of a permit shall in no way expose the State of New Jersey or the Department to liability for thesufficiency or correctness of the design of any construction or structure(s). Neither the State nor the Department shall, inany way, be liable for any loss of life or property that may occur by virtue of the activity or project conducted asauthorized under a permit;

2. The issuance of a permit does not convey any property rights or any exclusive privilege;

3. The permittee shall obtain all applicable Federal, State, and local approvals prior to commencement of regulatedactivities authorized under a permit;

4. A permittee conducting an activity involving soil disturbance, the creation of drainage structures, or changes innatural contours shall obtain any required approvals from the Soil Conservation District having jurisdiction over thesite;

5. The permittee shall take all reasonable steps to prevent, minimize, or correct any adverse impact on the environmentresulting from activities conducted pursuant to the permit, or from noncompliance with the permit;

6. The permittee shall immediately inform the Department of any unanticipated adverse effects on the environment notdescribed in the application or in the conditions of the permit. The Department may, upon discovery of suchunanticipated adverse effects, and upon the failure of the permittee to submit a report thereon, notify the permittee of itsintent to suspend the permit, pursuant to N.J.A.C. 7:7A-20.8;

7. The permittee shall immediately inform the Department by telephone at (877) 927-6337 (WARN DEP hotline) of anynoncompliance that may endanger public health, safety, and welfare, or the environment. The permittee shall inform theDivision of Land Use Regulation by telephone at (609) 292-0060 of any other noncompliance within two working daysof the time the permittee becomes aware of the noncompliance, and in writing within five working days of the time the

49 N.J.R. 3849(a)

permittee becomes aware of the noncompliance. Such notice shall not, however, serve as a defense to enforcementaction if the project is found to be in violation of this chapter. The written notice shall include:

i. A description of the noncompliance and its cause;

ii. The period of noncompliance, including exact dates and times;

iii. If the noncompliance has not been corrected, the anticipated length of time it is expected to continue; and

iv. The steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance;

8. Any noncompliance with a permit constitutes a violation of this chapter and is grounds for enforcement action underN.J.A.C. 7:7A-22, [page=3970] as well as, in the appropriate case, suspension and/or termination of the permit;

9. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reducethe authorized activity in order to maintain compliance with the conditions of the permit;

10. The permittee shall employ appropriate measures to minimize noise where necessary during construction, asspecified in N.J.S.A. 13:1G-1 et seq., and N.J.A.C. 7:29;

11. The issuance of a permit does not relinquish the State's tidelands ownership or claim to any portion of the subjectproperty or adjacent properties;

12. The issuance of a permit does not relinquish public rights to access and use tidal waterways and their shores;

13. The permittee shall allow an authorized representative of the Department, upon the presentation of credentials, to:

i. Enter upon the permittee's premises where a regulated activity is located or conducted, or where records must be keptunder the conditions of the permit;

ii. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;

iii. Inspect, at reasonable times, any facilities, equipment, practices, or operations regulated or required under thepermit. Failure to allow reasonable access under this paragraph shall be considered a violation of this chapter andsubject the permittee to enforcement action under N.J.A.C. 7:7A-22; and

iv. Sample or monitor at reasonable times, for the purposes of assuring compliance or as otherwise authorized by theFederal Act, by the Freshwater Wetlands Protection Act, or by any rule or order issued pursuant thereto, any substancesor parameters at any location;

14. The permittee shall not cause or allow any unreasonable interference with the free flow of a regulated water byplacing or dumping any materials, equipment, debris or structures within or adjacent to the channel while the regulatedactivity(ies) is being undertaken. Upon completion of the regulated activity(ies), the permittee shall remove and disposeof in a lawful manner all excess materials, debris, equipment, and silt fences and other temporary soil erosion andsediment control devices from all regulated areas;

15. The permittee and its contractors and subcontractors shall comply with all conditions, site plans, and supportingdocuments approved by the permit;

16. All conditions, site plans, and supporting documents approved by a permit shall remain in full force and effect, so

49 N.J.R. 3849(a)

long as the regulated activity or project, or any portion thereof, is in existence, unless the permit is modified pursuant toN.J.A.C. 7:7A-20.6;

17. The permittee shall record the permit, including all conditions listed therein, with the Office of the County Clerk(the Registrar of Deeds and Mortgages, if applicable) of each county in which the site is located. The permit shall berecorded within 30 calendar days of receipt by the permittee, unless the permit authorizes activities within two or morecounties, in which case the permit shall be recorded within 90 calendar days of receipt. Upon completion of allrecording, a copy of the recorded permit shall be forwarded to the Division of Land Use Regulation at the address setforth at N.J.A.C. 7:7A-1.4;

18. The permittee shall perform any mitigation required under the permit in accordance with N.J.A.C. 7:7A-11;

19. If any condition or permit is determined to be legally unenforceable, modifications and additional conditions may beimposed by the Department as necessary to protect public health, safety, and welfare, or the environment;

20. Any permit condition that does not establish a specific timeframe within which the condition must be satisfied (forexample, prior to commencement of construction) shall be satisfied within six months of the effective date of thepermit;

21. A copy of the permit and all approved site plans and supporting documents shall be maintained at the site at alltimes and made available to Department representatives or their designated agents immediately upon request;

22. The permittee shall provide monitoring results to the Department at the intervals specified in the permit;

23. A permit shall be transferred to another person only in accordance with N.J.A.C. 7:7A-20.5;

24. A permit can be modified, suspended, or terminated by the Department for cause;

25. The submittal of a request to modify a permit by the permittee, or a notification of planned changes or anticipatednoncompliance, does not stay any condition of a permit;

26. Where the permittee becomes aware that it failed to submit any relevant facts in an application, or submittedincorrect information in an application or in any report to the Department, it shall promptly submit such facts orinformation; and

27. The permittee shall submit written notification to the Bureau of Coastal and Land Use Compliance andEnforcement, 401 East State Street, 4th Floor, PO Box 420, Mail Code 401-04C, Trenton, NJ 08625, at least threeworking days prior to the commencement of regulated activities.

7:7A-20.3 Establishing permit conditions

(a) In addition to the standard conditions required in all permits under N.J.A.C. 7:7A-20.2, the Department shallestablish conditions in a permit, including a waiver or general permit authorization, as required on a case-by-case basis,to assure compliance with all applicable requirements of the Federal Act, the Freshwater Wetlands Protection Act, theWater Pollution Control Act, this chapter and other applicable rules or regulations. For the purposes of this subsection,an applicable requirement is a statutory or regulatory requirement which takes effect before the Department's finaladministrative decision on a permit, or before the modification or termination and reissuance of a permit.

(b) In addition to the standard requirements in N.J.A.C. 7:7A-20.2, each permit shall include information meeting thefollowing requirements, when applicable:

49 N.J.R. 3849(a)

1. A specific identification and description of the authorized activity, including:

i.-iv. (No change.)

v. The location and boundaries of the activity site(s), including a detailed sketch and the name and description ofaffected freshwater wetlands, State open waters, and transition areas, identification of the HUC 11 and watershedmanagement area; and

vi. (No change.)

2. Provisions ensuring that the regulated activity will be conducted in compliance with the findings and/orenvironmental guidelines issued under section 404(b)(1) of the Federal Act at 40 CFR Part 230, the FreshwaterWetlands Protection Act, and this chapter, including conditions to ensure that the regulated activity shall be conductedin a manner which minimizes adverse impacts upon the physical, chemical, and biological integrity of the waters of theUnited States and/or waters of the State, such as requirements for restoration or mitigation;

3. Any requirements necessary to comply with water quality standards established under applicable Federal or Statelaw. If an applicable water quality standard is promulgated or modified after the permit or waiver is issued, the permitor waiver shall be modified as provided in N.J.A.C. 7:7A-20.6.

4. Requirements necessary to comply with any applicable toxic effluent standard or prohibition under section 307(a) ofthe Federal Act or applicable State or local law. If an applicable toxic effluent standard or prohibition is promulgated ormodified after the permit or waiver is issued, the permit or waiver shall be modified as provided in N.J.A.C. 7:7A-20.6;

5. Applicable best management practices (BMPs);

6. Any conditions necessary for general permits as required under N.J.A.C. 7:7A-5 or 7;

7.-8. (No change.)


7:7A-20.4 Extension of an authorization under a general permit, a transition area waiver, and an individual permit

(a) A person may request one five-year extension of an authorization under a general permit, the duration of which isgoverned by N.J.A.C. 7:7A-5.6, an individual permit, the duration of which is governed by N.J.A.C. 7:7A-9.2, and atransition area waiver, the duration of which is governed by N.J.A.C. 7:7A-8.5.

[page=3971] (b) The Department shall issue an extension only if:

1. A person submits a request for extension that meets the requirements of (c) below and that is received by theDepartment *at least 90 calendar days* prior to the expiration of an *[authorization,]* individual permit*[,]* ortransition area waiver*, and at least 30 calendar days prior to the expiration of a general permit authorization*.The Department shall not accept a request for extension received more than one year prior to the expiration of anauthorization, transition area waiver, or individual permit;

2. The person requesting the extension demonstrates that there has been no significant change in the overall condition ofthe site*, including the wetlands boundary and resource value classification*;

49 N.J.R. 3849(a)

3. The person requesting the extension demonstrates that regulated activities approved under any authorization, waiver,or individual permit for which an extension is sought have not been revised or amended, unless the permittee hasobtained a modification of the authorization, waiver, or individual permit under N.J.A.C. 7:7A-20.6; and

4. For an individual permit, the person requesting the extension demonstrates that the rules in this chapter governing theregulated activities authorized under the permit for which an extension is sought have not been amended such that theactivities do not meet the rules as amended. In this instance, the individual permit shall expire on the date set forththerein, and the permittee shall comply with the requirements of N.J.A.C. 7:7A-9.2.

(c) A request for an extension of a transition area waiver, an authorization under a general permit, or an individualpermit shall include:


2. The appropriate application fee as set forth at N.J.A.C. 7:7A-18; and

3. A narrative demonstrating that the requirements of (b) above are met.

(d) Within 15 calendar days after receiving a request for an extension of an authorization under a general permit orwithin 30 calendar days after a request for an extension of a waiver or individual permit, the Department shall take oneof the actions identified in (d)1 or 2 below. During the Department's review of the extension request, regulated activitiessubject to the authorization or individual permit may continue.

1. The Department shall determine that the request meets the requirements of this section and issue an extension inaccordance with (g) below; or

2. The Department shall determine that the request meets the criteria for denial at (e) below and deny the extensionrequest.

(e) The Department shall deny a request for an extension for any of the following reasons:

1. The waiver, authorization, or individual permit for which the extension is sought is not one specified in (a) above;

2. The Department receives the request more than one year prior to the expiration date of the waiver, authorization, orindividual permit for which the extension is sought;

3. The Department receives the request after the expiration date of the waiver, authorization, or individual permit forwhich the extension is sought;

4. The term of the waiver, authorization, or individual permit for which the extension is sought has been extendedbefore;

5. The applicant does not demonstrate that all of the requirements at (b) above are met;

6. The request does not include all of the information required to be submitted under (c) above; or

7. The waiver, authorization, or individual permit for which the extension is sought has been terminated in accordancewith N.J.A.C. 7:7A-20.9.

49 N.J.R. 3849(a)

(f) If the Department denies a request for an extension under (e) above:

1. The waiver, authorization, or individual permit shall expire on its original expiration date or on the date of receipt ofthe denial by the permittee, whichever is later, unless already terminated in accordance with N.J.A.C. 7:7A-20.9; and

2. All regulated activities authorized under any authorization under a general permit, transition area waiver, orindividual permit shall cease on the expiration date of the authorization, waiver, or individual permit specified in (f)1above, and shall not commence again unless and until a new authorization, waiver, or individual permit is obtained inaccordance with N.J.A.C. 7:7A-16.

(g) If the Department determines that the requirements of this section have been met, the Department shall issue anextension of the waiver, authorization under a general permit, or individual permit for one five-year period, beginningon the original expiration date of the waiver, authorization under a general permit, or individual permit. The extensionshall be in writing, and shall include any conditions the Department determines are necessary to ensure the requirementsof this chapter are met.

7:7A-20.5 Transfer of an emergency authorization, authorization under a general permit, a transition area waiver, oran individual permit

(a) If the site for which the Department has issued an emergency authorization, an authorization under a general permit,a transition area waiver, or an individual permit, is transferred to a new owner, the authorization, waiver, or individualpermit, including all conditions, shall be automatically transferred to the new owner, provided the authorization, waiver,or individual permit is valid on the date that the site is transferred to the new owner.

(b) The authorization, waiver, or individual permit transferred under (a) above shall continue in effect provided that,within 30 calendar days after the transfer of ownership of the site, the new owner submits the following information tothe Department:

1. The name, address, and contact information of the new owner; and

2. Documentation that the transfer will not alter any condition on which the original authorization, waiver, or individualpermit was based and will not otherwise circumvent any requirement of this chapter.

7:7A-20.6 Modification of an authorization under a general permit, a transition area waiver, or an individual permit

(a) A transition area waiver that is valid in accordance with N.J.A.C. 7:7A-8.5, an authorization under a general permitthat is valid in accordance with N.J.A.C. 7:7A-5.6, or an individual permit that is valid in accordance with N.J.A.C.7:7A-9.2, may be modified in accordance with this section through an administrative modification, a minor technicalmodification, or a major technical modification. An authorization under a general permit-by-certification shall not bemodified. A modification of an authorization under a general permit, a transition area waiver, or an individual permitmay be requested by a permittee or, in the cases set forth at (h) below, the Department may modify a permit on its owninitiative.

(b) The term of a waiver, an authorization under a general permit, or an individual permit shall not be extended by amodification.

(c) An administrative modification of a waiver, an authorization under a general permit, or an individual permit appliesto a change to a site plan or other document on which the original waiver, authorization under a general permit, orindividual permit was based, but which does not alter the design or layout of the project or affect the wetland limits. An

49 N.J.R. 3849(a)

administrative modification may include:

1. Correcting a drafting or typographical error on a site plan or report;

2. Improving topographical or other data in order to make the waiver, authorization under a general permit, orindividual permit more accurately reflect the site, the extent of regulated areas, and/or the permitted activities; or

3. Adding notes, labels, or other clarifying information to the approved site plan, if required to do so by the Departmentor another government entity.

(d) A minor technical modification of a waiver, an authorization under a general permit, or an individual permit appliesto a change in the design or layout of a project, including any associated change to an approved site plan or otherdocument, that the applicant demonstrates does not result in new or additional impacts to the wetland or transition area.A minor technical modification may include:

1. A change in materials or construction techniques;

[page=3972] 2. A reduction in the amount of development on the site, such as deletion of a permitted structure oractivity, or a reduction in the footprint of a regulated activity or project;

3. A change in the size, shape, or location of the regulated activities or project, provided the total area of disturbancedoes not increase.

(e) A major technical modification of a waiver, an authorization under a general permit, or an individual permit appliesto any change in regulated activities or project authorized pursuant to the waiver, authorization, or individual permit,including any associated change to an approved site plan or other document, which is not addressed under (c) or (d)above and that does not require a new permit in accordance with (f) below.

(f) Notwithstanding any other provision in this section, the Department shall not issue a modification of a waiver, anauthorization under a general permit, or an individual permit if the Department determines that the person requesting themodification proposes changes that will constitute a substantial redesign of the regulated activities or project or that willsignificantly increase the environmental impact of the regulated activities. In such a case, the applicant shall submit anew application for a waiver, an authorization, or an individual permit in accordance with N.J.A.C. 7:7A-16 and theDepartment shall review the application in accordance with N.J.A.C. 7:7A-19. Changes for which a new applicationshall be submitted include:

1. A change to the basic purpose or use of a regulated activity or project, such as a change from the construction of ahospital to the construction of an apartment complex;

2. An expansion of a regulated activity or project beyond that which was described in the public notice of theapplication provided in accordance with N.J.A.C. 7:7A-17;

3. A substantial redesign of the regulated activity or project such that the Department determines a new engineeringanalysis of the site and/or regulated activity or project is necessary;

4. A significant change in the size or scale of the regulated activity or project, including the addition of structures;

5. A significant change in the impact of the regulated activity or project on any wetland or transition area; or

6. A change that would result in impacts to a site not owned or controlled by the permittee.

49 N.J.R. 3849(a)

(g) The modified transition area waiver, modified authorization under a general permit, or modified individual permit,including all conditions listed therein, shall be recorded within 30 calendar days of receipt by the person requesting suchmodification, with the Office of the County Clerk (the Registrar of Deeds and Mortgages, if applicable) of each countyin which the site is located. Where the site subject to the modified waiver, modified authorization under a generalpermit, or modified individual permit is located within two or more counties, the modified waiver, authorization, orpermit shall be recorded within 90 calendar days of receipt. Upon completion of all recording, a copy of the recordedmodified verification, authorization, or permit shall be forwarded to the Division of Land Use Regulation at the addressset forth at N.J.A.C. 7:7A-1.4.

(h) The following are causes for which the Department may modify an authorization under a general permit, a transitionarea waiver, or an individual permit, on its own initiative:

1.-3. (No change.)

4. Cause exists for the Department to terminate the permit under N.J.A.C. 7:7A-20.9, but the Department determinesthat a modification will ensure that the project complies with this chapter;

5. (No change.)

6. The ownership or operational control of the site has been transferred to a person other than the permittee, thepermitted activities are not completed, and the permittee has not applied for a transfer as required under N.J.A.C.7:7A-20.5.

(i) If the Department intends to modify a permit, the Department shall notify the permittee in writing. The notice shall:

1.-2. (No change.)

3. Notify the permittee of the right to request a meeting with the Department within 10 days of the permittee's receipt ofthe notice.

7:7A-20.7 Application for a modification

(a) This section sets forth requirements for an application to modify a transition area waiver, an authorization under ageneral permit, or an individual permit. The general application requirements at N.J.A.C. 7:7A-16.2 apply toapplications for modifications in addition to the application requirements in this section.

(b) To apply for an administrative modification to a waiver, an authorization under a general permit, or an individualpermit under N.J.A.C. 7:7A-20.6(c), the person requesting the modification shall submit:

1. A description of the proposed change to the site plan or other document on which the original waiver, authorization,or individual permit was based;

2. The site plans approved as part of the waiver, authorization, or individual permit with revisions illustrating theproposed change;

3. A copy of the waiver, authorization, or individual permit for which the modification is requested; and

4. Any information necessary to ensure compliance with State and/or Federal law.

49 N.J.R. 3849(a)

(c) To apply for a minor technical modification of a waiver, an authorization under a general permit, or an individualpermit under N.J.A.C. 7:7A-20.6(d), the person requesting the modification shall submit:


2. The appropriate application fee set forth at N.J.A.C. 7:7A-18;

3. A description of the scope and purpose of the proposed change to the regulated activity or project authorized underthe authorization or individual permit;

4. The site plans approved as part of the waiver, authorization, or individual permit with revisions illustrating theproposed change in the regulated activity or project;

5. A copy of the waiver, authorization, or individual permit for which the modification is requested;

6. Other visual representations, such as photographs, graphs, and tables, that illustrate the proposed change to theregulated activity or project, as applicable;

7. A revised environmental report if the proposed modification is of an individual permit. The revised environmentalreport shall address the aspects of the regulated activity or project that are proposed to be changed and demonstrate thatthe regulated activity or project for which the modification is requested continues to comply with all requirements ofthis chapter; and


(d) To apply for a major technical modification of a waiver, an authorization under a general permit, or an individualpermit under N.J.A.C. 7:7A-20.6(e), the person requesting the modification shall submit:


2. Documentation that public notice of the application for the major technical modification was provided in accordancewith N.J.A.C. 7:7A-17;

3. The appropriate application fee set forth at N.J.A.C. 7:7A-18;

4. A description of the scope and purpose of the proposed change to the regulated activity or project authorized underthe waiver, authorization, or individual permit;

5. The site plans approved as part of the waiver, authorization, or individual permit with revisions illustrating theproposed change;

6. A copy of the waiver, authorization, or individual permit for which the modification is requested;

7. Other visual representations, such as photographs, graphs, and tables, that illustrate the proposed change to theregulated activity or project, as applicable;

8. Calculations, analyses, data, and supporting materials necessary to demonstrate that the regulated activity or projectas proposed to be changed meets the requirements of this chapter, if applicable;

49 N.J.R. 3849(a)

[page=3973] 9. For a modification of an individual permit, a revised environmental report addressing the aspects of theregulated activity or project that are proposed to be changed and a demonstration that the regulated activity or projectfor which the modification is requested continues to comply with all requirements of this chapter; and


7:7A-20.8 Suspension of a waiver, an authorization under a general permit, an individual permit, or an emergencyauthorization

(a) The Department shall suspend an individual permit, a waiver, general permit authorization, or an emergencyauthorization for good cause, including, but not limited to, the following:

1. The waiver, authorization under a general permit, individual permit, or emergency authorization was based on falseor inaccurate information;

2. The permittee or person to whom an emergency authorization was issued has not complied with a condition of thewaiver, authorization under a general permit, individual permit, or emergency authorization;

3. The permittee or person to whom an emergency authorization was issued has undertaken activities onsite that violatethis chapter;

4. The permittee or person to whom an emergency authorization was issued has misrepresented or failed to fullydisclose all relevant facts pertaining to the waiver, authorization under a general permit, individual permit, oremergency authorization;

5. The permittee or person to whom an emergency authorization was issued has failed to fully and correctly identifyimpacts of the regulated activity or project in the application for the waiver, authorization under a general permit,individual permit, or emergency authorization;

6. The regulated activities conducted pursuant to the waiver, authorization under a general permit, individual permit, oremergency authorization have caused unanticipated environmental impacts;

7. The permittee or person to whom an emergency authorization was issued has made a change in the project that, underN.J.A.C. 7:7A-20.6, would require a modification to the waiver, authorization under a general permit, or individualpermit, but the permittee did not first obtain the required modification; or

8. The Department determines that suspension of the waiver, authorization under a general permit, individual permit, oremergency authorization is necessary for emergency reasons or to protect public health, safety, and welfare, or theenvironment.

(b) The Department shall provide written notice of a suspension by certified mail to the permittee or person to whom thewaiver, permit, or authorization was issued in accordance with (c) below, except if the waiver, authorization under ageneral permit, individual permit, or emergency authorization is suspended for emergency reasons, in which case theDepartment shall contact the permittee or person to whom the waiver was issued by telephone or by any practicalmethod, and will follow up with written notice.

(c) A notice of suspension shall:

1. State that the waiver, authorization under a general permit, individual permit, or emergency authorization is

49 N.J.R. 3849(a)

suspended upon the receipt of the notice by the permittee;

2. Include the reasons for the suspension;

3. State that all regulated activities authorized under the suspended transition area waiver, authorization under a generalpermit, individual permit, or emergency authorization shall cease immediately upon receipt of the notice by thepermittee; and

4. Notify the permittee of the right to, within 10 calendar days after the permittee receives the notice, request:

i. A meeting with the Department to discuss the suspension; and/or

ii. An adjudicatory hearing in accordance with N.J.A.C. 7:7A-21.

(d) Within 30 calendar days after receiving a notice of suspension under (b) above, the permittee shall provide theDepartment with a written strategy to remedy the cause(s) of the suspension. The written strategy shall include:

1. A description of how the strategy will remedy the cause(s) of the suspension;

2. A demonstration that the strategy will bring the regulated activity or project into compliance with this chapter; and

3. A proposed timeframe within which the permittee will execute the strategy.

(e) Within 30 calendar days after the Department receives the written strategy required under (d) above, the Departmentshall take one of the following actions:

1. Accept the strategy, reinstate the transition area waiver, authorization under a general permit, individual permit, oremergency authorization, and require the permittee to implement the strategy within a prescribed timeframe. TheDepartment may add conditions or revisions as necessary to ensure that the strategy achieves compliance with thischapter;

2. Determine that the strategy is insufficient and request additional detail, information, and/or changes to the strategy, inorder to remedy the non-compliance. Within 15 calendar days after the Department receives the requested information,the Department shall take either the action described at (e)1 above or the action described at (e)3 below; or

3. Determine that the strategy is unacceptable to achieve compliance with this chapter, and notify the permittee of itsintent to terminate the transition area waiver, authorization under a general permit, individual permit, or emergencyauthorization pursuant to N.J.A.C. 7:7A-20.9

(f) Noncompliance with any of the requirements of this section shall constitute cause for the Department to terminatethe transition area waiver, authorization under a general permit, individual permit, or emergency authorization underN.J.A.C. 7:7A-20.9.

7:7A-20.9 Termination of an authorization under a general permit, an individual permit, a transition area waiver, oran emergency authorization

(a) The Department shall terminate, for good cause, an authorization under a general permit, an individual permit, atransition area waiver, or an emergency authorization that has been suspended pursuant to N.J.A.C. 7:7A-20.8. Goodcause for termination includes, but is not limited to, the following:

49 N.J.R. 3849(a)

1. The permittee has not ceased all regulated activities as required in the notice of suspension pursuant to N.J.A.C.7:7A-20.8(c)3;

2. The permittee has not complied with the requirement at N.J.A.C. 7:7A-20.8(d) to submit a strategy to remedy thecauses of the suspension; or

3. The Department has determined that the strategy submitted is unacceptable to achieve compliance with this chapter.

(b) The Department shall provide written notice of its intent to terminate an authorization under a general permit,individual permit, transition area waiver, or emergency authorization by certified mail to the permittee.

(c) The permittee may request an adjudicatory hearing on the notice of intent to terminate in accordance with N.J.A.C.7:7A-21. The hearing request shall be submitted within 10 calendar days after receipt of the notice of intent toterminate.

(d) If the permittee does not request an adjudicatory hearing under (c) above, or if the adjudicatory hearing request isdenied, the transition area waiver, authorization under a general permit, individual permit, or emergency authorizationshall automatically terminate, effective 10 calendar days after the permittee received the notice of intent to terminateunder (b) above.

(e) If the Department terminates an authorization under a general permit, individual permit, transition area waiver, oremergency authorization, the permittee shall take all of the actions at (e)1, 2, and 3 below. Failure to do so shallconstitute a violation of this chapter and shall subject the permittee to enforcement action pursuant to N.J.A.C. 7:7A-22:

1. Remedy any changes to the site made in violation of this chapter;

2. Remedy any adverse impacts to wetlands, transition areas, State open waters, and the environment caused by theregulated activities on the site; and

3. Restore, to the maximum extent practicable, the site to its condition prior to the start of the activities authorized underthe transition area waiver, authorization under a general permit, individual permit, or emergency authorization.

[page=3974] SUBCHAPTER 21. REQUESTS FOR ADJUDICATORY HEARINGS

7:7A-21.1 Procedure to request an adjudicatory hearing; decision on the request

(a) This subchapter sets forth the process by which a person may request an adjudicatory hearing to contest aDepartment decision to approve or deny an application under this chapter. A person seeking to contest an administrativeorder and/or a civil administrative penalty assessment shall do so in accordance with the adjudicatory hearing requestprovisions applicable to Department enforcement actions under this chapter at N.J.A.C. 7:7A-22.

(b) To contest a Department decision on an application under this chapter, a person shall submit an adjudicatory hearingrequest within 30 calendar days after public notice of the decision is published in the DEP Bulletin. If a person submitsthe adjudicatory hearing request after this time, the Department shall deny the request.

(c) A person requesting an adjudicatory hearing shall provide the following information on an adjudicatory hearingrequest form, available from the Department at the address set forth at N.J.A.C. 7:7A-1.4:

1. The name, address, daytime telephone number, fax number, and e-mail address of the person requesting the hearing,and of the person's authorized representative.

49 N.J.R. 3849(a)

2. A copy of the Department decision on which a hearing is being requested;

3. The date that the Department decision on which a hearing is being requested was received by the person requestingthe hearing;

4. A specific admission, denial, or explanation of each fact appearing in the Department decision, or a statement that theperson is without knowledge thereof;

5. A concise statement of the facts or principles of law asserted to constitute any factual or legal defense;

6. Where the person submitting the hearing request is not the person to whom the decision that is being contested wasissued, evidence that a copy of the hearing request has been mailed or delivered to the person to whom the decision wasissued.

(d) A person requesting an adjudicatory hearing shall:

1. Submit the original hearing request to:

New Jersey Department of Environmental ProtectionOffice of Legal AffairsAttention: Adjudicatory Hearing RequestsMail Code 401-04L, PO Box 402401 East State Street, 7th FloorTrenton, NJ 08625-0402; and

2. Submit a copy of the hearing request to the Director of the Division of Land Use Regulation at the address set forth atN.J.A.C. 7:7A-1.4.

(e) Nothing in this subchapter shall be construed to provide a right to an adjudicatory hearing in contravention of theAdministrative Procedure Act, N.J.S.A. 52:14B-3.1, 3.2, and 3.3.

(f) The Department shall notify the requester that the hearing request is granted or denied. If the hearing request isdenied, the denial shall provide the reason(s) for the denial. If the hearing request is granted, the Department shall referthe matter to the Office of Administrative Law for a contested case hearing in accordance with the AdministrativeProcedure Act, N.J.S.A. 52:14B-1 et seq., and 52:14F-1 et seq., and the Uniform Administrative Procedure Rules,N.J.A.C. 1:1.

(g) (No change in text.)

(h) The Commissioner's action under (g) above shall be considered final agency action for the purposes of theAdministrative Procedure Act, and shall be subject to judicial review in the Appellate Division of the Superior Court, asprovided in the Rules of Court.

7:7A-21.2 Procedure to request dispute resolution

As part of a request for an adjudicatory hearing, a person may request that the Department determine whether the matteris suitable for mediation by the Department's Office of Dispute Resolution. The Department shall promptly notify therequester of its determination. If the Department determines the matter is suitable for mediation, the Department shallalso notify the requester of the procedures and schedule for mediation.

49 N.J.R. 3849(a)

7:7A-21.3 Effect of request for hearing on operation of permit or authorization

(a) When a permittee requests an adjudicatory hearing to appeal any portion of a permit or an authorization, theoperation of the permit or authorization shall be automatically stayed in its entirety, unless the permittee shows goodcause in writing why the permit or authorization should continue in effect while being contested. All permitted activitiesshall stop as of the date the hearing request is submitted, and shall not be started again until the matter is resolved,unless the Department grants an exception in writing.

(b) When a person other than the permittee requests an adjudicatory hearing on a permit or authorization, the operationof the permit or authorization is not automatically stayed. The Department shall stay operation of the permit orauthorization only if it determines that good cause to do so exists. If a stay is imposed, all permitted activities shall stopas of the date the stay is imposed, and shall not be started again until the matter is resolved, unless the Departmentgrants an exception in writing.

7:7A-21.4 Notice of settlement agreement

(a) If the Department and the person requesting an adjudicatory hearing agree to a settlement that may result in theissuance of a freshwater wetland permit or waiver for a regulated activity, notice of the opportunity to comment on thesettlement shall be provided as follows:

1. The person who requested the adjudicatory hearing shall send by certified mail a "notice of intent to settle" thematter, using the notice form available from the Department at the address set forth at N.J.A.C. 7:7A-1.4, to thefollowing:

i. Each person who was provided specific notice of the application that resulted in the decision that is the subject of theadjudicatory hearing request; and

ii. Each person who commented on the application;

2. The Department shall publish in the DEP Bulletin the notice of intent to settle, and shall accept comments on thenotice for at least 30 calendar days; and

3. If, after the 30-calendar-day comment period under (a)2 above, the settlement is finalized, the Department shallpublish a notice of the final settlement in the DEP Bulletin.

SUBCHAPTER 22. ENFORCEMENT

7:7A-22.1 General provisions

(a) Whenever the Department finds that a person has violated any provision of N.J.S.A. 13:9B-1 et seq. or 58:10A-1 etseq., or any regulation, rule, letter of interpretation, permit, agreement, transition area waiver, order, settlement,exemption letter, or mitigation proposal adopted or issued by the Department pursuant thereto, the Department may,singly or in combination, and in accordance with the grace period requirements set forth at N.J.A.C. 7:7A-22.20, pursuethe remedies specified in (a)1 through 5 below. Pursuit of any of the remedies specified under this section shall notpreclude the Department from seeking any other remedy specified.

1. Issue an order requiring the person found to be in violation to comply in accordance with N.J.A.C. 7:7A-22.3;

2. Bring a civil action for injunctive and other relief in accordance with N.J.A.C. 7:7A-22.14;

49 N.J.R. 3849(a)

3. Levy a civil administrative penalty in accordance with N.J.A.C. 7:7A-22.7 through 22.12;

4. Bring an action for a civil penalty in accordance with N.J.A.C. 7:7A-22.13; and/or

5. Petition the Attorney General to bring a criminal action in accordance with N.J.A.C. 7:7A-22.15.

(b) The Department has the power, as enumerated in N.J.S.A. 13:1D-9, and consistent with constitutional requirements,to enter and inspect any property, facility, building, premises, site, or place for the purpose of investigating an actual orsuspected source of pollution of the environment and conducting inspections, collecting samples, copying orphotocopying documents or records, and for otherwise ascertaining compliance or noncompliance with any laws,permits, orders, codes, rules, and regulations of the Department.

[page=3975] (c) Each applicant or permittee shall provide, upon request of the Department, any information required todetermine compliance with the provisions of N.J.S.A. 13:9B-1 et seq., or 58:10A-1 et seq., or any rule or regulationadopted, or permit or order issued pursuant thereto.

(d) For the purposes of this subchapter, a permit shall mean an authorization under a general permit-by-certification, anauthorization under a general permit, an individual permit, a transition area waiver, an exemption letter, an emergencyauthorization, a letter of authorization, a memorandum of agreement, or other written authorization, or other approvalissued pursuant to N.J.S.A. 13:9B-1 et seq. and/or 58:10A-1 et seq.

(e) The burden of proof and degrees of knowledge or intent required to establish a violation of N.J.S.A. 13:9B-1 et seq.,or of any permit, order, rule, or regulation promulgated pursuant thereto shall be no greater than the burden of proof ordegree of knowledge or intent that the USEPA must meet in establishing a violation of the Federal Act or implementingregulations.

7:7A-22.2 USEPA review

The Department shall make available without restriction any information obtained or used in the enforcement ofN.J.S.A. 13:9B-1 et seq., and/or 58:10A-1 et seq., and/or this chapter, to the USEPA upon request.

7:7A-22.3 Issuance of an administrative order

Whenever the Department finds that a person has violated any provision of N.J.S.A. 13:9B-1 et seq., or 58:10A-1 etseq., or any regulation, rule, permit, or order adopted or issued by the Department pursuant thereto, the Department mayissue an order specifying the provision or provisions of the act, regulation, rule, permit, or order of which the person isin violation, citing the action that constituted the violation, ordering abatement of the violation, and giving notice to theperson of his or her right to a hearing on the matters contained in the order. The ordered party shall have 35 calendardays from receipt of the order within which to deliver to the Department a written request for a hearing in accordancewith N.J.A.C. 7:7A-22.6. After the hearing and upon a finding that a violation has occurred, the Department may issue afinal order. If a hearing is not requested within 35 calendar days of receipt of the order, then the order shall become finalon the 36th calendar day following receipt. A request for hearing shall not automatically stay the effect of the order.

7:7A-22.4 Civil administrative penalty

(a) Whenever, on the basis of available information, the Department finds a person in violation of any provision of theFreshwater Wetlands Protection Act, or of any permit, transition area waiver, letter of interpretation, agreement, order,settlement, exemption letter, mitigation proposal, or rule promulgated or approved pursuant thereto, the Departmentmay assess a civil administrative penalty of no more than $ 25,000 for each violation, not including any amount

49 N.J.R. 3849(a)

assessed for economic benefit as determined under N.J.A.C. 7:7A-22.12. The amount of the civil administrative penaltyfor each such violation shall be determined under N.J.A.C. 7:7A-22.7 through 22.12.

(b) (No change.)

(c) The Department may, in its discretion, settle a civil administrative penalty assessed under this subchapter, inaccordance with N.J.A.C. 7:7A-22.5(d). However, if the Department settles a penalty for a violation of the WaterPollution Control Act, the settlement is subject to N.J.A.C. 7:14-8.

7:7A-22.5 Assessment, settlement, and payment of a civil administrative penalty

(a) To assess a civil administrative penalty under N.J.S.A. 13:9B-1 et seq. or 58:10A-1 et seq., the Department shallnotify the violator by certified mail (return receipt requested) or by personal service. This Notice of CivilAdministrative Penalty Assessment (NOCAPA) shall:

1. Identify the section of the statute, rule, administrative order, or permit violated;

2. Concisely state the alleged facts that constitute the violation;

3. Specify the amount of the civil administrative penalty to be imposed and the fact that interest may be due inaccordance with (c) below; and

4. Advise the violator of the right to request an adjudicatory hearing pursuant to the procedures in N.J.A.C. 7:7A-22.6.

(b) Payment of the civil administrative penalty is due when a notice of civil administrative penalty assessment becomesa final order, as follows:

1. If no hearing is requested pursuant to N.J.A.C. 7:7A-22.6, a notice of civil administrative penalty assessmentbecomes a final order on the 36th calendar day following receipt of the notice of civil administrative penalty assessmentby the violator;

2. If the Department denies an untimely submitted hearing request pursuant to N.J.A.C. 7:7A-22.6(d), a notice of civiladministrative penalty assessment becomes a final order on the 36th calendar day following receipt of the notice of civiladministrative penalty assessment by the violator;

3. If the Department denies a hearing request pursuant to N.J.A.C. 7:7A-22.6(e) because it does not include all therequired information, a notice of civil administrative penalty assessment becomes a final order upon receipt of notice ofsuch denial by the violator; or

4. If the Department grants a hearing request, a notice of civil administrative penalty assessment becomes a final orderupon receipt by the violator of a final order in the contested case.

(c) In addition to the amount of the civil administrative penalty that is due and owing pursuant to (b) above, the violatorshall also pay to the Department interest on the amount of the penalty, at the rate established by the New JerseySupreme Court for interest rates on judgments as set forth in the Rules Governing the Courts of the State of New Jersey,R. 4:42-11(a). Interest shall accrue on the amount of the civil administrative penalty due and owing from the date thepayment is due and continuing until the civil administrative penalty is paid in full with interest if:

1. A violator does not pay a civil administrative penalty imposed pursuant to a final order within 90 calendar days of thedate that payment is due; or

49 N.J.R. 3849(a)

2. A violator fails to make a civil administrative penalty payment pursuant to a payment schedule entered into with theDepartment within 90 calendar days of the date that payment is due.

(d) The Department may, in its discretion, settle any civil administrative penalty assessed pursuant to N.J.A.C.7:7A-22.7 through 22.12 according to the factors at (d)1 through 4 below. As provided at N.J.A.C. 7:7A-22.4(c), thissubsection does not apply to penalties assessed for violations of N.J.S.A. 58:10A-1 et seq.:

1. (No change.)

2. The timely implementation of measures leading to compliance not previously considered in the assessment ofpenalties, including measures to clean up, reverse, or repair environmental damage caused by the violation, or to removethe violation;

3. The full payment by the violator of a specified part of a civil administrative penalty assessed if made within a timeperiod established by the Department in an administrative order and provided that the violator waives the right torequest an adjudicatory hearing on the civil administrative penalty; or

4. (No change.)

7:7A-22.6 Procedures to request and conduct an adjudicatory hearing to contest an administrative order and/or noticeof civil administrative penalty assessment

(a) To request an adjudicatory hearing to contest an administrative order and/or a notice of civil administrative penaltyassessment issued pursuant to N.J.S.A. 13:9B-1 et seq., and/or 58:10A-1 et seq., the violator shall submit a hearingrequest in writing within 35 calendar days after receipt by the violator of the administrative order and/or notice of a civiladministrative penalty assessment being contested. If a violator submits the hearing request after this time, theDepartment shall deny the request.

(b) A violator requesting an adjudicatory hearing shall provide the following information on an adjudicatory hearingrequest form, available from the Department at the address set forth at N.J.A.C. 7:7A-1.4:

1. The name, address, daytime telephone number, fax number, and e-mail address of the violator requesting the hearingand the violator's authorized representative;

[page=3976] 2. A copy of the Department's administrative order and/or notice of a civil administrative penaltyassessment for which a hearing is being requested;

3. The date that the administrative order and/or notice of a civil administrative penalty assessment was received by theviolator;

4. A specific admission or denial of each of the facts appearing in the Department's administrative order and/or notice ofcivil administrative penalty assessment or a statement that the person is without knowledge thereof. If the violator iswithout knowledge or information sufficient to form a belief as to the truth of a finding, the violator shall so state andthis shall have the effect of a denial. A denial shall fairly meet the substance of the findings denied. When the violatorintends in good faith to deny only a part or a qualification of a finding, the violator shall specify so much of it as is trueand material and deny only the remainder. The violator may not generally deny all the findings but shall make alldenials as specific denials of designated findings. For each finding the violator denies, the violator shall allege the factor facts as the violator believes it or them to be;

49 N.J.R. 3849(a)

5. A statement as to whether the violator agrees to allow the Department to delay the transfer of a granted hearingrequest to the Office of Administrative Law for the purposes of engaging in settlement negotiations as provided by theUniform Administrative Procedure Rules at N.J.A.C. 1:1-8.1(b);

Recodify existing 4.-6. as 6.-8. (No change in text.)

(c) A person requesting an adjudicatory hearing shall:

1. Submit the original hearing request to:

New Jersey Department of Environmental ProtectionOffice of Legal AffairsATTENTION: Adjudicatory Hearing RequestsMail Code 401-04L, PO Box 402401 East State Street, 7th FloorTrenton, New Jersey 08625-0402; and

2. Submit a copy of the hearing request to:

New Jersey Department of Environmental ProtectionBureau of Coastal and Land Use Compliance and EnforcementPO Box 420Mail Code 401-04C401 East State Street, 4th FloorTrenton, New Jersey 08625-0420

(d) If the violator fails to include all the information required by (b) above, the Department may deny the hearingrequest.

(e) All adjudicatory hearings held pursuant to this section shall be conducted in accordance with the AdministrativeProcedure Act, N.J.S.A. 52:14B-1 et seq., 52:14F-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C.1:1.

7:7A-22.7 Civil administrative penalties for failure to obtain a permit prior to conducting regulated activities

(a) For the failure to obtain a permit prior to conducting regulated activities, the Department may assesses a civiladministrative penalty for the failure to obtain a permit prior to conducting regulated activities, the Department shall usethe procedures in this section to determine the amount of the penalty if the violation pertains to freshwater wetlandsand/or freshwater wetland transition areas, except if the violation type is listed at N.J.A.C. 7:7A-22.8, 22.9, 22.10, or22.11, in which case the penalty amount shall be determined under whichever of those sections applies. For thepurposes of this section, permit shall mean an authorization under a general permit-by-certification, an authorizationunder a general permit, an individual permit, a transition area waiver, an exemption letter, an emergency authorization,a letter of authorization, a memorandum of agreement, or other written authorization, or other approval issued pursuantto N.J.S.A. 13:9B-1 et seq., and/or 58:10A-1 et seq.

(b) Each violation of N.J.A.C. 7:7A-2.1 shall constitute an additional, separate, and distinct violation.

(c) Each day during which the violation continues or remains in place without the required permit shall constitute anadditional, separate, and distinct offense.

49 N.J.R. 3849(a)

(d) (No change in text.)

(e) To assess a civil administrative penalty pursuant to this section, the Department shall identify the civil administrativebase penalty within Table 22.7A in (g) below by determining the number of points pursuant to (f) below. The civiladministrative penalty shall be the amount within Table 22.7A in (g) below, unless adjusted pursuant to (h) and/or (i)below.

(f) The Department shall use the two factors described at (f)1 and 2 below to determine the number of points assigned toeach violation.

1. The conduct factor of the violation shall be classified as major, moderate, or minor and assigned points as follows:

i.-ii. (No change.)

iii. Minor conduct shall include any conduct not identified in (f)1i or ii above and is assigned one point.

2. The seriousness factor of the violation is assigned points as provided in (f)2i and ii below and shall be based on thetype, size, and location of the violation as provided at (f)2i and ii below and the acreage of wetlands and/or transitionareas impacted and the resource value of the freshwater wetlands.

i. The acreage of wetlands and/or transition areas impacted shall be assigned points in accordance with (f)2i(1) through(7) below:


ii. The resource value classification shall be assigned points in accordance with (f)2ii(1) through (5) below. If the site ofa violation contains regulated areas of more than one resource value classification, the points assigned to a violation forthe highest resource classification on the site shall apply for the entire site:


(g) The Department shall sum the total points assigned according to the two factors in (f) above, and shall determine thebase penalty amount per day using the following table:

Table 22.7A

(No change in table.)

(h) The Department shall adjust the amount of the base penalty assessed pursuant to (g) above based upon themitigating penalty component as calculated in Table 22.7B below, if applicable.

1. The Department shall multiply the base penalty dollar amount by the multiplier for either of the applicable mitigatingfactors in Table 22.7B below to obtain the mitigating penalty component. Where neither mitigating factor in Table22.7B applies, the civil administrative penalty shall be the civil administrative base penalty determined pursuant to (g)above, unless adjusted pursuant to (i) below.

Table 22.7B

Mitigating Penalty Component

Mitigating Factor Multiplier

49 N.J.R. 3849(a)

Where the nature, timing, and effectiveness of any

measures taken by the violator to remove the unauthorized

regulated activities and to mitigate the effects of the 0.50

violation for which the penalty is being assessed results in

compliance within 30 calendar days of receipt of the notice

of violation from the Department

Where a complete application is submitted within 30

calendar days after receipt of the notice of the violation

from the Department and a permit is subsequently obtained 0.50

for the unauthorized regulated activities without the need to

modify the regulated activities, provide mitigation, or

restore disturbed regulated areas

2. To obtain the civil administrative penalty, the Department shall subtract the mitigating penalty component calculatedpursuant to (h)1 above, where applicable, from the base penalty.

(i) The Department may, in its discretion, adjust the amount of a penalty assessed pursuant to (g) and, where applicable,(h) above based upon any or all of the factors listed in (i)1 through 4 below. No such factor constitutes a defense to anyviolation. The factors are:

1. The compliance history of the violator;

2. The frequency with which a violation has occurred;

[page=3977] 3. The deterrent effect of the penalty; and/or

4. Any other mitigating, extenuating, or aggravating circumstances.

(j) The total civil administrative penalty shall be the daily civil administrative penalty determined under (g) and (h)above, multiplied by the number of calendar days during which each violation continued or remained in place withoutthe required permit.

(k) Notwithstanding the maximum civil administrative penalty of $ 25,000 pursuant to this subsection, the Departmentmay add to a civil administrative penalty assessed under this subchapter, the amount of economic benefit in dollars thatthe violator has realized as the result of not complying with, or by delaying compliance with, any applicable law and/orcondition.

7:7A-22.8 Civil administrative penalties for violations other than failure to obtain a permit prior to conductingregulated activities

(a) For violations other than failure to obtain a permit prior to conducting regulated activities, the Department shall usethe procedures in this section to determine the amount of the penalty, except if the violation type is listed at N.J.A.C.7:7A-22.9, 22.10, or 22.11, in which case the penalty amount shall be determined under whichever of those sectionsapplies.

49 N.J.R. 3849(a)

(b) Each violation of N.J.S.A. 13:9B-1 et seq. or 58:10A-1 et seq., or any regulation, rule, letter of interpretation,permit, agreement, transition area waiver, order, settlement, exemption letter, or mitigation proposal adopted or issuedby the Department pursuant thereto, shall constitute an additional, separate, and distinct violation.

(c) Where any requirement of N.J.S.A. 13:9B-1 et seq. or 58:10A-1 et seq., or any regulation, rule, permit, condition, ororder adopted or issued by the Department pursuant thereto, may pertain to more than one act, condition, or occurrence,the failure to comply with such requirement as it pertains to each such act, condition, or occurrence shall constitute anadditional, separate, and distinct violation.

(d) To assess a civil administrative penalty pursuant to this section, the Department shall use the two factors describedat (e) and (f) below, seriousness and conduct, to determine the amount of the base daily civil administrative penalty. Theapplicable daily penalty amount is determined using the base daily penalty matrix in the table below, based on theseriousness of the violation determined pursuant to (e) below and the conduct of the violator determined pursuant to (f)below.

Table 22.8

Base Daily Penalty Matrix

SERIOUSNESS

MAJOR MODERATE MINOR

MAJOR $ 25,000 $ 15,000 $ 10,000

CONDUCT MODERATE $ 15,000 $ 7,500 $ 5,000

MINOR $ 10,000 $ 5,000 $ 1,000

(e) The seriousness of the violation shall be classified as major, moderate, or minor as follows:

1. Major seriousness shall apply to any violation which has caused or has the potential to cause serious harm to humanhealth, safety, property, the Freshwater Wetlands Protection Act regulatory program, or the environment, or seriouslydeviates from the applicable law and/or condition. "Serious deviations" include, but are not limited to, those violationsthat are in complete contravention of the applicable law, requirement, and/or condition, and/or that severely impair orundermine the protection, operation, or intent of the law, requirement, or condition. Violations of major seriousnessinclude, but are not limited to:

i.-viii. (No change.)

49 N.J.R. 3849(a)

2. Moderate seriousness shall apply to any violation that has caused or has the potential to cause substantial harm tohuman health, safety, property, the Freshwater Wetlands Protection Act regulatory program, or the environment, or is asubstantial deviation from the applicable law and/or condition. "Substantial deviations" include, but are not limited to,violations that are in substantial contravention of the law and/or condition, and/or that substantially impair or underminethe protection, operation, or intent of N.J.S.A. 13:9B-1 et seq., or 58:10A-1 et seq., or any regulation, rule, or permitcondition issued by the Department pursuant thereto. The Department shall consider a violation that is limited solely tothe transition area but is not associated with a permit to be of moderate seriousness. Violations of moderate seriousnessinclude, but are not limited to:

i.-iii. (No change.)

3. Minor seriousness shall apply to any violation not included in (e)1 or 2 above.

(f) The conduct of the violator shall be determined as major, moderate, or minor as follows:

1. Major conduct shall include any intentional, deliberate, purposeful, knowing, or willful act or omission by theviolator. There is a rebuttable presumption that any violation of a Department permit, transition area waiver, letter ofinterpretation, agreement, order, settlement, exemption letter, or mitigation proposal or the conditions thereof is aknowing violation;

2. Moderate conduct shall include any unintentional but foreseeable act or omission by the violator; and

3. Minor conduct shall include any other conduct not included in (f)1 or 2 above.

(g) The total civil administrative penalty shall be the daily civil administrative penalty determined under (d), (e), and (f)above, multiplied by the number of calendar days during which each violation continued or remained in place prior toremoval or restoration.

Recodify existing N.J.A.C. 7:7A-16.10 and 16.11 as 22.9 and 22.10 (No change in text.)

7:7A-22.11 Civil administrative penalty for failure to pay a civil administrative penalty

(a) (No change.)

(b) The daily civil administrative penalty amount assessed under this section shall be equal to the unpaid civiladministrative penalty, but shall not exceed the maximum allowed at N.J.A.C. 7:7A-22.4(a) and (b).


7:7A-22.12 Economic benefit factor

(a) Notwithstanding the maximum civil administrative penalty of $ 25,000 pursuant to N.J.A.C. 7:7A-22.4(a), theDepartment may add to a civil administrative penalty assessed under this subchapter the amount of economic benefit indollars that the violator has realized as the result of not complying, or by delaying compliance with, an applicable lawand/or condition.

(b) (No change.)

7:7A-22.13 Civil penalties

49 N.J.R. 3849(a)

(a) Any person who violates N.J.S.A. 13:9B-1 et. seq., or 58:10A-1 et. seq., or any regulation, rule, permit, order, orcourt order pursuant thereto, or who fails to pay a civil administrative penalty in full pursuant to N.J.A.C. 7:7A-22.4, orwho knowingly makes any false or misleading statement on any application, record, report, or other document requiredto be submitted to the Department shall be subject, upon order of a court, to a civil penalty of not more than $ 25,000for each violation, and each calendar day during which a violation continues shall constitute an additional, separate, anddistinct offense. In addition to any penalties, the court may assess against the violator the amount of economic benefitaccruing to the violator from the violation.

(b) Any penalty established pursuant to this section may be imposed and collected with costs in a summary proceedingpursuant to the Penalty Enforcement Law of 1999, N.J.S.A. 2A:58-10 et seq. The Superior Court shall have jurisdictionto enforce the provisions of the Penalty Enforcement Law of 1999 in connection with the Freshwater WetlandsProtection Act and the Water Pollution Control Act.

7:7A-22.14 Civil actions

(a) The Department may institute an action or proceeding in the Superior Court for injunctive and other relief, includingthe appointment of a receiver, for any violation of N.J.S.A. 13:9B-1 et seq., or any regulation, rule, permit, or orderadopted or issued by the Department [page=3978] pursuant to this act, and the court may proceed in the action in asummary manner. Such relief may include, singly or in combination:

1. (No change.)

2. Recovery of reasonable costs of any investigation, inspection, or monitoring survey that led to the discovery of theviolation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;

3. Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effectsresulting from any violation for which a civil action has been commenced and brought under this subsection;

4. Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited towildlife, fish, aquatic life, habitat, plants, or historic or archaeological resources and for any other actual damagescaused by any violation for which a civil action has been commenced and brought under this subsection; and /or

5. An order requiring the violator to restore the site of the violation to the maximum extent practicable and feasible or,in the event that restoration of the site of the violation is not practicable or feasible, provide for an off-site restorationalternative as approved by the Department.

(b) Recovery of damages and costs under (a) above shall be paid to the State Treasurer.

7:7A-22.15 Criminal actions

(a) The Department, upon petition to the Attorney General, may bring a criminal action in court for certain violations ofN.J.S.A. 13:9B-1 et seq. or any regulation, rule, permit, or order adopted or issued by the Department pursuant thereto.

(b) (No change.)

(c) A person who knowingly, purposely, or recklessly violates N.J.S.A. 13:9B-1 et seq. or any regulation, rule, permit,or order adopted or issued by the Department pursuant thereto, shall be guilty, upon conviction, of a crime of the thirddegree and shall be subject to a fine of no less than $ 5,000 and not more than $ 50,000 per day of violation, orimprisonment, or both.

49 N.J.R. 3849(a)

(d) A person shall be guilty, upon conviction, of a crime of the third degree and shall be subject to a fine of not morethan $ 50,000 per day of violation, or imprisonment, or both, if the person:

1. Knowingly, purposely, or recklessly makes a false statement, representation, or certification in any application,record or other document filed or required to be maintained under N.J.S.A. 13:9B-1 et seq., or any regulation, rule,permit, or order adopted or issued by the Department pursuant thereto; or

2. Falsifies, tampers with, or purposely, recklessly or knowingly renders inaccurate, any monitoring device or methodrequired to be maintained under N.J.S.A. 13:9B-1 et seq. or any regulation, rule, permit, or order adopted or issued bythe Department pursuant thereto.


7:7A-22.17 Recording a notice concerning violation with the deed for the property

(a) On order of the Commissioner, the clerk or registrar of deeds and mortgages of the county where the property onwhich the violation occurred is located shall record a notice concerning the violation of N.J.S.A. 13:9B-1 et seq., withthe deed for the property. Any fees or other charges that are incurred by the Department for the recording of the noticeconcerning the violation shall be paid by the owner of the affected property or the violator.

(b) The notice concerning the violation shall remain attached to the property deed until the violation has been remediedand the Commissioner has ordered the clerk to remove the notice concerning the violation. The Commissioner shallimmediately order the notice removed once the violation is remedied, or upon other conditions set forth by theCommissioner.

7:7A-22.18 "After the fact" permit

(a) The Department may issue an "after the fact" permit for a regulated or prohibited activity that has already occurredand that does not meet the standards for approval in this chapter only if all of the following are true:

1. (No change.)

2. The Department has assessed and collected the costs or damages enumerated in N.J.A.C. 7:7A-22.14 from theviolator;

3.-5. (No change.)

(b)-(c) (No change.)

7:7A-22.19 Public participation

(a) To provide for public participation in the Department's enforcement process, the Department shall:

1.-2. (No change.)

3. Publish notice of any proposed settlement of a Department enforcement action in the DEP Bulletin and provide atleast 30 calendar days for public comment on the settlement.

7:7A-22.20 Grace period applicability; procedures

49 N.J.R. 3849(a)

(a) Each violation identified in Table 22.20 at (f) below by an "M" in the Type of Violation column for which theconditions of (d)1 through 6 below are satisfied, and each violation determined under (c) below as minor for which theconditions of (d)1 through 9 below are satisfied, is a minor violation and is subject to a 30-calendar-day grace period asdescribed at (e) below.

(b) Each violation identified in Table 22.20 at (f) below by an "NM" in the Type of Violation column is a non-minorviolation and is not subject to a grace period.

(c) If a violation is not listed in Table 22.20 at (f) below, the designation of the violation as minor or non-minor isdetermined as follows:

1. If the violation is not listed in Table 22.20 at (f) below but is comparable to a violation designated as "M" in Table22.20 and the violation meets all of the criteria of (d)1 through 6 below, then the violation is minor. The minor violationshall be subject to a grace period of 30 calendar days as described at (e) below.

2. If the violation is not listed in Table 22.20 at (f) below and is not comparable to a violation listed in Table 22.20 butthe violation meets all of the criteria of (d)1 through 9 below, then the violation is minor. The minor violation shall besubject to a grace period of 30 calendar days as described at (e) below.

3. If the violation is not listed in Table 22.20 at (f) below but is comparable to a violation designated as "NM" in Table22.20, then the violation is a non-minor violation and is not subject to a grace period.

4. If the violation is not listed in Table 22.20 at (f) below and is not comparable to a violation listed in Table 22.20, andthe violation does not meet all of the criteria at (d)1 through 9 below, the violation is non-minor and is not subject to thegrace period.

5. Comparability of a violation to a violation in Table 22.20 at (f) below is based on the nature of the violation (forexample, recordkeeping, accuracy of information provided to the Department, amount and type of impacts to theprotected resources). A violation shall not be considered comparable to any violation designated as "M" in Table 22.20unless the violation also meets the criteria at (d)7 through 9 below.

(d) The Department shall provide a grace period of 30 calendar days for any violation identified as minor provided thefollowing conditions are met:

1.-4. (No change.)

5. In the case of a violation of N.J.S.A. 13:9B-1 et seq., or any rule or regulation promulgated thereunder, or permitissued pursuant thereto, the person responsible for the violation has not been identified in a previous enforcement actionby the Department or a local government agency as responsible for the same or a substantially similar violation at thesame site or any other site within the preceding 12-month period;

6.-9. (No change.)

(e) For a violation determined to be minor under (a) or (c) above, the following provisions apply:

1. The Department shall issue a notice of violation to the person responsible for the minor violation that:

i. (No change.)

ii. Specifies that a penalty may be imposed unless the minor violation is corrected and compliance is achieved within

49 N.J.R. 3849(a)

the specified grace period of 30 calendar days.

2.-3. (No change.)

[page=3979] 4. If the person responsible for the minor violation seeks additional time beyond the specified grace periodto achieve compliance, the person shall request an extension of the specified grace period in writing no later than oneweek before the expiration of the specified grace period. The request shall include the anticipated time needed toachieve compliance, the specific cause or causes of the delay, and any measures taken or to be taken to minimize thetime needed to achieve compliance. The request shall be signed and certified to be true by the responsible party or theirdesignee. The Department may, in its discretion, approve in writing an extension which shall not exceed 90 calendardays, to accommodate the anticipated delay in achieving compliance. In exercising its discretion to approve a requestfor an extension, the Department may consider the following:

i.-iv. ( No change.)

5.-6. (No change.)

(f) The designations of violations of the Freshwater Wetlands Protection Act Rules as minor (M) or non-minor (NM)are set forth in Table 22.20 below. The violation descriptions are provided for informational purposes only. In the eventthat there is a conflict between a violation description in Table 22.20 and the rule to which the violation descriptioncorresponds, the rule shall govern.

Table 22.20

Type of

Rule Citation Violation Description Violation

______________ _____________________ __________

N.J.A.C. 7:7A-2. Conducting regulated or prohibited NM

1(a), 2.2(a) and activities in a freshwater wetland,

(b), 3.3(e), 2.3(a) transition area and/or State open water

without prior Department approval.

N.J.A.C. 7:7A-5.7 Failure to comply with conditions of a NM

and 9.2 Department permit or authorization not

related to submission of documentation

to the Department.

N.J.A.C. 7:7A-5.7 Failure to submit to the Department M

and 9.2 documentation as required by a permit

condition.

N.J.A.C. 7:7A-8. Failure to execute and record the NM

49 N.J.R. 3849(a)

2(f) and 12 required conservation restriction prior

to the beginning of activities

authorized under a transition area

waiver, or transfer of the site.

N.J.A.C. 7:7A-16 Failure to provide in the application NM

all information required in this chapter

of which the applicant, its consultants,

engineers, surveyors, or agents is or

should be aware

N.J.A.C. 7:7A-17 Failure to provide appropriate public NM

notice during the permit application

process

N.J.A.C. 7:7A-20.2 Failure to comply with conditions of a NM

and 20.3 Department permit or authorization not

related to submission of documentation

to the Department.

N.J.A.C. 7:7A-20.2 Failure to submit to the Department M

and 20.3 documentation as required by a permit

condition.

N.J.A.C. 7:7A-20.8 Failure to comply with a permit NM

suspension order

N.J.A.C. 7:7A-20.9 Failure to comply with a permit NM

termination order.

N.J.A.C. 7:7A-11. Failure to conduct mitigation as NM

2(e) required by a Department approval or

administrative order

N.J.A.C. 7:7A-11. Failure to conduct mitigation as NM

3(a) required by a Department approval or

administrative order

49 N.J.R. 3849(a)

N.J.A.C. 7:7A-11. Failure to submit a mitigation proposal NM

6(a) to the Department as required by a

Department approval or order

N.J.A.C. 7:7A-11. Failure to execute and record the NM

12(g)5 conservation restriction that meets the

requirements of N.J.A.C. 7:7A-12 prior

to the start of mitigation activities

N.J.A.C. 7:7A-11. Failure to submit a construction M

12(d) completion report within the required

timeframe of completion of construction

and planting of a restoration, creation

or enhancement project

N.J.A.C. 7:7A-11. Failure to submit an annual M

12(e) and (f) post-construction monitoring report at

the required intervals following the

completion of the construction and

planting associated with mitigation

N.J.A.C. 7:7A-11. Failure to demonstrate to the M

12(g) Department at the end of the

post-construction monitoring period

that the mitigation project is

successful

N.J.A.C. 7:7A-11. Failure to transfer the mitigation area NM

13(d)2 in fee simple to a government agency or

charitable conservancy within 60 days

after the Department declares

mitigation through upland preservation

successful

N.J.A.C. 7:7A-11. Failure to provide the government NM

13(e) agency or charitable conservancy with a

maintenance fund for the mitigation

area transferred to the government

49 N.J.R. 3849(a)

agency or charitable conservancy

N.J.A.C. 7:7A-11. Failure to apply to the Wetlands NM

16(b)1 Mitigation Council for approval of the

amount of monetary contribution

following the Department's determination

that monetary contribution is an

appropriate mitigation alternative

N.J.A.C. 7:7A-11. Failure to apply to the Wetlands NM

15(a) Mitigation Council for approval of the

particular parcel of land to be donated

following the Department's determination

that land donation is an appropriate

mitigation alternative

APPENDIX 1

OBLIGATE AND FACULTATIVE FAUNA SPECIES FOUND IN VERNAL HABITATS

APPENDIX 1

OBLIGATE AND FACULTATIVE FAUNA SPECIES FOUND IN VERNAL HABITATS

Obligate Species Facultative Species

_________________ _____________________

Marbled Salamander (Ambystoma opacum) Common Snapping Turtle (Chelydra

serpentina serpentine)

Blue-spotted Salamander* (Ambystoma Eastern Mud Turtle (Kinosternon

laterale) subrubrum subrubrum)

Jefferson Salamander (Ambystoma Spotted Turtle (Clemmys guttata)

jeffersonianum)

Eastern Tiger Salamander* (Ambystoma Eastern Painted Turtle (Chrysemys

tigrinum tigrinum) picta picta)

49 N.J.R. 3849(a)

Wood Frog (Lithobates sylvaticus) Red-spotted Newt (Notophthalmus

viridescens viridescens)

Spotted Salamander (Ambystoma maculatum) American Toad (Anaxyrus americanus)

Eastern Spadefoot Toad (Scaphiopus Fowler's Toad (Anaxyrus fowleri)

holbrookii)

Fairy shrimp (order Anostraca) Pine Barrens Treefrog* (Hyla andersonii)

Northern Gray Treefrog (Hyla versicolor)

Cope's (Southern Gray) Treefrog* (Hyla

chrysoscelis)

Northern Cricket Frog (Acris crepitans)

New Jersey Chorus Frog (Pseudacris

kalmi)

American Bull Frog (Lithobates

catesbieanus)

Northern Green Frog (Lithobates

clamitans)

Southern Leopard Frog (Lithobates

sphenocephalus)

Four-toed Salamander (Hemidactylium

scutatum)

Northern Spring Peeper (Pseudacris

crucifer)

Long-tailed Salamander** (Eurycea

longicauda longicauda)

Wood Turtle** (Glyptemys insculpta)

Carpenter Frog (Lithobates virgatipes)

Pickerel Frog (Lithobates palustris)

Atlantic Coast Leopard Frog (Rana

kauffeldi)

Green Treefrog (Hyla cinerea)

Eastern Box Turtle (Terrapene carolina

carolina)

Eastern Musk Turtle (Sternotherus

49 N.J.R. 3849(a)

odoratus)

* Listed as a New Jersey State endangered species

** Listed as a New Jersey State threatened species

CHAPTER 13FLOOD HAZARD AREA CONTROL ACT RULES

SUBCHAPTER 2. APPLICABILITY AND ACTIVITIES FOR WHICH A PERMIT OR AUTHORIZATION ISREQUIRED

7:13-2.1 When a permit or authorization is required


(c) Undertaking a regulated activity in a regulated area does not require an approval listed at (b) above in the cases listedin (c)1 through 4 below. For the purpose of this subsection, each distinct construction activity in a project, such as eachbuilding, road, or utility crossing, is considered a distinct regulated activity.

1.-2. (No change.)

3. The regulated activity is part of a project that was subject to neither the requirements of this chapter, nor N.J.A.C.7:7, prior to November 5, 2007, and both of the following apply:

i. The regulated activity is located within the *[Hackensack]* Meadowlands District; and

ii. The regulated activity is authorized under a valid zoning certificate issued by the New Jersey MeadowlandsCommission *(predecessor to the New Jersey Sports and Exposition Authority)* prior to November 5, 2007,pursuant to N.J.A.C. 19:4-4.2; or

4. (No change.)


[page=3981] SUBCHAPTER 9. GENERAL PERMITS

7:13-9.1 General permit 1 - channel cleaning under the Stream Cleaning Act

(a) General permit 1 authorizes a county, municipality, or a designated agency thereof to desnag a channel and/orremove accumulated sediment, debris, and garbage under the "Stream Cleaning Act" at N.J.S.A. 58:16A-67, providedthe conditions at N.J.A.C. 7:13-6.7 are met and:

1.-6. (No change.)

7. If the project involves sediment removal from a channel with a natural bed, the following requirements are satisfied:

i. If the project is undertaken by a municipality, or a designated agency thereof, it is located wholly within thatmunicipality;

49 N.J.R. 3849(a)

ii. If the project is undertaken by a county, or designated agency thereof, the project is located wholly within onemunicipality or, if located within more than one municipality, the channel reach is less than 500 feet in length;

iii. The average width of the channel bed does not exceed 30 feet;

iv. The channel is not classified as a Pinelands water or Category One water;

v. The channel is not a present or documented habitat for threatened or endangered species; and

vi. The timing restrictions set forth at N.J.A.C. 7:13-11.5(d) are observed.

(b)-(f) (No change.)


7:13-19.3 Contents and recipients of public notice of an application


(c) If the application is for a delineation, regulated activity, or project listed at (c)1 through 6 below, the applicant shallprovide the notice required at (b)6 above by publishing newspaper notice in accordance with N.J.A.C. 7:13-19.4 and, inaddition, sending the notice at (d) below, in the manner set forth in the Municipal Land Use Law at N.J.S.A.40:55D-12.b, to all owners of real property, including easements, within 200 feet of any proposed above groundstructure that is part of the proposed regulated activity or project, excluding any conveyance lines suspended above theground or small utility support structures such as telephone poles.

1.-3. (No change.)

4. A public project on a site of 50 acres or more;

5. An industrial or commercial project on a site of 100 acres or more; or

6. A project to remove sediment or debris from a channel of one-half mile or longer.

(d)-(f) (No change.)

49 N.J.R. 3849(a)