N.J. Admin. Code § 7:38-11.6 - Procedures for review of an HPAA with waiver

(a) The applicant shall demonstrate to the Department that the proposed project or activity meets the requirements for all waivers at 7:38-6.4(e) and complies with the special standards applicable to the waiver being sought: 7:38-6.5 (health and safety), 6.6 (brownfields redevelopment), 6.7 (70 percent impervious surface redevelopment), 6.8 (taking without just compensation) or 6.9 (construction of 100 percent affordable housing).
(b) If the Department determines that the project or activity satisfies the criteria for a waiver in accordance with (a) above, the Department shall process the Water Quality Management Plan (WQMP) amendment request that applies to the project, if applicable, in accordance with the procedures at (c) through (i) below.
(c) Once the Department decides to proceed with a request to amend a WQMP, the Department shall advise the applicant and the applicable designated planning agency, if any, in writing of its decision. This notification shall include a public notice that shall be given for the proposed amendment. This public notice shall announce a non-adversarial public hearing, shall provide at least 30 days notice of the hearing and will be published in the New Jersey Register. The public comment period will be extended until 15 days after the hearing.
(d) At the applicant's expense, the applicant shall:
1. Mail the public notice and request written statements of consent under (e) below;
2. Provide a copy of the public notice to each affected municipality;
3. Provide for publication of the public notice in two newspapers of general circulation in the affected area;
i. The newspaper notices shall be published on a date to coincide with the publication of the New Jersey Register;
ii. The Department shall maintain a list identifying at least one of the newspapers in general circulation that shall be used for publication of the public notice in each Water Quality Management planning area; and
iii. The applicant shall provide proof of publication of the notice in the newspapers to the Department. The Department shall not act on the amendment decision until such proof of publication is received;
4. Secure a court stenographer; and
5. Provide three copies of a verbatim transcript of the hearing to the Division of Watershed Management within 30 days of the hearing.
(e) The following requirements concern written statements of consent for plan amendments:
1. The Department shall provide a list to an applicant identifying the governmental entities, sewerage agencies and BPU-regulated sewer or water utilities that may be affected by, or otherwise have a substantial interest in, approval of the proposed WQMP amendment in accordance with (c) above. Within 15 days of receiving the list, the applicant shall submit by certified mail (return receipt requested) a copy of the proposed amendment to these parties, asking each entity on the list to issue written consent to the proposed WQMP amendment within 60 days of receipt of the request;
2. A written statement of consent shall include a statement that the party concurs with, or does not object to, the proposed WQMP amendment. Failure to reply or tentative, preliminary, or conditional approval shall not be considered consent. A statement of consent by a governmental unit shall be in the form of a resolution by that unit's governing body. Resolutions older than one year shall not be accepted. If the party objects to the proposed WQMP amendment, the party shall state all reasons for objection in writing;
3. The applicant shall promptly forward to the Division of Watershed Management a copy of all written statements of consent and other written responses received, and a copy of all requests for consent (with return receipts) sent to parties that did not respond at all; and
4. Where a party denies a request for a written statement of consent or does not reply, the reasons, therefore, if known on the basis of reasonably reliable information, shall be considered in making decisions under (g) below.
(f) Interested persons, including, but not limited to, those from whom written consent is requested under (e)1 above, may submit written comments on the proposed WQMP amendment to the Division of Watershed Management within 15 days after the date of the public hearing.
(g) The Department shall prepare a written summary of public comments and responses to those comments including the Department's decision. The Department shall either:
1. Adopt the amendment, in whole or in part, as proposed in the New Jersey Register or with changes that do not effectively destroy the value of the public notice; or
2. Deny the proposed amendment, in whole or in part.
(h) The Department shall provide written notification of the decision to the applicant and the designated planning agency, where applicable. Notice of the final decision shall also be published in the New Jersey Register and the DEP Bulletin.
(i) Applicants with projects requiring NJPDES permits will be advised at the time of public notice, in accordance with (c) above whether or not to submit an application for a NJPDES permit to the Division of Water Quality.


N.J. Admin. Code § 7:38-11.6
Recodified from N.J.A.C. 7:38-11.5 and amended by R.2006 d.420, effective 12/4/2006.
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
In (a), substituted a comma for "or" preceding "6.8", and inserted "or 6.9 (construction of 100 percent affordable housing)".
Former N.J.A.C. 7:38-11.6, Final decisions, recodified to N.J.A.C. 7:38-11.7.

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