The following words and terms, when used in this chapter,
shall have the following meanings unless the context clearly indicates
otherwise. Additional definitions specifically applicable to N.J.A.C. 7:7A-11,
Mitigation, are set forth at
N.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 field was used for
agriculture, but has not been used to produce a crop or product, or maintained
or improved for agricultural purposes, for five years or more. If an
agricultural field has been abandoned for 40 or more years, it shall no longer
be considered an abandoned agricultural field. The lack of a commercial harvest
or production of a crop on or from a cranberry 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 or permit being sought
is included in the application.
"Agency of the State" means each of the principal departments
in the executive branch of the State Government, and all boards, divisions,
commissions, agencies, departments, councils, authorities, offices or officers
within any such departments.
"Applicant" means a person who submits an application for a
permit, waiver, or any other Department decision pursuant to N.J.A.C.
7:7A.
"Aquatic ecosystem" means waters of the United States,
including wetlands, that serve as habitat for interrelated and interacting
communities and populations of plants and animals.
"Architectural survey" means an intensive-level historic
architectural survey completed by an architectural historian whose
qualifications meet the Secretary of the Interior's Professional Qualifications
Standards and related guidance as part of the larger Secretary of the
Interior's Standards and Guidelines for Archaeology and Historic Preservation
as referenced in 36 CFR 61, as amended and supplemented, incorporated herein by
reference.
"Atlantic white-cedar wetlands" means a type of forested
freshwater wetlands where Atlantic white-cedar tree is the dominant vegetation,
as described in the Federal Manual.
"Best Management Practices" or "BMPs" means methods,
measures, designs, performance standards, maintenance procedures, and other
management practices which prevent or reduce adverse impacts upon or pollution
of freshwater wetlands, State open waters, and adjacent aquatic habitats, which
facilitate compliance with the Federal Section 404(b)(1) guidelines (40 CFR
Part 230), New Jersey Department of Environmental Protection Flood Hazard Area
Control 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 State
Soil Conservation Committee at N.J.A.C. 2:90; and effluent
limitations or prohibitions under Section 307(a) of the Federal Act and the
Department's Surface Water Quality Standards, N.J.A.C. 7:9B.
Examples include practices found at
33 CFR
330.6,
40 CFR
233.35(a)6, the Department's
Flood Hazard Area Technical Manual, and "A Manual of Freshwater Wetland
Management Practices for Mosquito Control in New Jersey." The manuals included
in this definition are only a partial listing, and interested persons should
contact the Department for the most up to date list.
"Category One waters" means waters designated as such in the
Department's Surface Water Quality Standards at N.J.A.C. 7:9B.
"Charitable conservancy" means a corporation or trust that
meets the definition of a charitable conservancy at N.J.S.A.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 a corporation or trust whose purposes include the acquisition and
preservation of land or water areas or of a particular land or water area, or
either thereof, in a natural, scenic or open condition, no part of the net
earnings of which insures to the benefit of any private shareholder or
individual, and which has received tax exemption under section 501(c)
of the 1954 Internal Revenue Code.)
"Commissioner" means the Commissioner of the Department, or
his or her designated representative.
"Compelling public need" means that based on specific facts,
the proposed regulated activity will serve an essential health or safety need
of the municipality in which the proposed regulated activity is located, that
the public health and safety benefit from the proposed use and that the
proposed use is required to serve existing needs of the residents of the State,
and that there is no other means available to meet the established public
need.
"Complete for review" means that an application for a letter
of interpretation or a permit is both administratively and technically complete
and is ready to be evaluated by the Department for compliance with the
applicable requirements of this 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 areas predominantly in their natural state, scenic or
open or wooded condition, or for conservation of soil or wildlife, or for
outdoor recreation or park use, or as suitable habitat for fish or wildlife, to
forbid or limit any or all of the following:
1. Construction or placing of buildings, roads, signs,
billboards or other advertising, or other structures on or above the
ground;
2. Dumping or placing of soil or other substance or material
as landfill, or dumping or placing of trash, waste or unsightly or offensive
materials;
3. Removal or destruction of trees, shrubs or other
vegetation;
4. Excavation, dredging or removal of loam, peat, gravel,
soil, rock or other mineral substance;
5. Surface use except for purposes permitting the land or
water area to remain predominantly in its natural condition;
6. Activities detrimental to drainage, flood control, water
conservation, erosion control or soil conservation, or fish and wildlife
habitat preservation; and/or
7. Other acts or uses detrimental to the retention of land or
water areas according to the purposes of this chapter.
"Contiguous" means adjacent properties, even if they are
separated by human-made barriers or structures or legal boundaries. Contiguous
properties shall include, but are not limited to: land areas which directly
abut or are separated by a general access roadway or other right-of-way,
including waterways; and properties which are part of a subdivision that was
under common ownership on July 1, 1988.
"Critical habitat for fauna or flora" means:
1. For fauna, areas which serve an essential role in
maintaining wildlife, particularly for wintering, breeding, spawning and
migrating activities;
2. For flora, areas supporting rare or unique plant species
or uncommon vegetational communities in New Jersey.
"Cultivating" means physical methods of soil treatment,
employed upon planted farm, ranch or forest crops to aid and improve the
growth, quality or yield of the crops.
"Degraded wetland" means a wetland in which there is impaired
surface water flow or groundwater hydrology, or excessive drainage; a wetland
which has been partially filled or excavated, contaminated with hazardous
substances, or which has an ecological function substantially less than that of
undisturbed wetlands in the region.
"Delegable waters" means all waters of the United States, as
defined in this section, within New Jersey, except waters which are presently
used, or are susceptible to use in their natural condition or by reasonable
improvement, as a means to transport interstate or foreign commerce, shoreward
to their ordinary high water mark. This term includes all waters which are
subject to the ebb and flow of the tide, shoreward to their mean high water
mark, including wetlands that are partially or entirely located within 1,000
feet of their ordinary high water mark or mean high tide. Waters that are not
delegable waters include, but are not limited to:
1. The entire length of the Delaware River within the State
of New Jersey;
2. Waters of the United States under the jurisdiction of the
New Jersey Sports and Exposition Authority (formerly the New Jersey Meadowlands
Commission); and
3. Greenwood Lake.
"Department" means the Department of Environmental
Protection.
"Detention basin" or "detention facility" means a human-made
impoundment area made by constructing an embankment, or excavating a pit, or
both, for the purpose of temporarily storing stormwater.
"Developable upland" means an upland area that could be
developed under the laws that apply to the site.
"Discharge of dredged material" means any addition of dredged
material into State open waters or freshwater wetlands. The term includes the
addition of dredged material into State open waters or freshwater wetlands and
the runoff or overflow from a contained land or water dredge material disposal
area. Discharges of pollutants into State open waters resulting from the
subsequent onshore processing of dredged material are not included within this
term. Such discharges of pollutants may, however, be subject to the New Jersey
Pollutant Discharge Elimination System (NJPDES) rules at N.J.A.C. 7:14A.
"Discharge of fill material" means the addition of fill into
State open waters or freshwater wetlands. The term includes, but is not limited
to, the following activities:
1. Placement of fill that is necessary for the construction
of any structure;
2. The building of any structure or impoundment requiring
rock, sand, dirt, or other materials for its construction;
3. Site-development fill for recreational, industrial,
commercial, residential, and other uses;
4. Causeways or road fills;
5. Dams and dikes;
6. Artificial islands;
7. Property protection or reclamation devices, or both, such
as riprap, groins, seawalls, breakwaters, and revetments;
8. Beach nourishment;
9. Levees;
10. Fill for structures such as sewage treatment facilities,
intake and outfall pipes associated with power plants and underground utility
lines;
11. Artificial reefs; and
12. Stump removal.
"Ditch" means a linear topographic depression with bed and
banks of human construction, which conveys water to or from a site, which is
surrounded by uplands and which is not located within a wetland. This does not
include channelized or redirected natural water courses.
"Documented habitat for threatened or endangered species"
means areas for which:
1. There is recorded evidence of past use by a threatened or
endangered species of flora or fauna for breeding, resting, or feeding.
Evidence of past use by a species may include, but is not limited to, sightings
of the species, or of its sign (for example, skin, scat, shell, track, nest,
herbarium records, etc.), as well as identification of its call; and
2. The Department makes the finding that the area remains
suitable for use by the specific documented threatened or endangered species
during the normal period(s) the species would use the habitat.
"Drainage" means active or passive methods for changing the
hydrologic conditions of wetlands or State open water, such as lowering
groundwater or surface water levels through pumping, ditching, or otherwise
altering water flow patterns.
"Dredging" means removal of wetlands or State open water
soils or sediments through use of mechanical, hydraulic, or pneumatic tools or
other means.
"Dredged material" means material that is excavated or
dredged from waters of the United States.
"Dumping" means the discharge, placement or abandonment of
solid, semi-solid or liquid materials.
"Electronic LOI" or "E-LOI" means an application for a letter
of interpretation submitted to the Department electronically.
"Environmental commission" means a municipal advisory body
created pursuant to
N.J.S.A. 40:56A-1 et seq.
"EPA priority wetlands" or "USEPA priority wetlands" means
wetlands that are designated as priority wetlands by the USEPA, and are listed
on the "Priority Wetlands List for the State of New Jersey," which is available
from the Department 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 an established
operation. Activities that bring an area into farming, silviculture, or
ranching use are not part of an established operation. An operation ceases to
be established when the area on which it was conducted has been converted to
another use or has lain idle for so long that modifications to the hydrological
regime are necessary to resume 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 which 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 shall be considered an established,
ongoing farming operation and shall not be deemed abandoned. The lack of a
commercial harvest or production of a crop on or from the lands shall not be a
determining factor as to whether the agricultural use has been
abandoned.
"Excavation" means the removal of soil, rocks, or other
material resulting in a change in site elevation.
"Fair market value" or "market value" means the most probable
price for which land will sell in a competitive and open market under all
conditions requisite to a fair sale, the buyer and seller each acting prudently
and knowledgeably, and assuming the price is not affected by any unusual
benefit to the purchaser.
"Farmed wetland" means a freshwater wetland, as defined in
this section, which was both manipulated and cropped before December 23, 1985,
and has been in active agricultural use continuously since then. This term also
includes a wetland that was manipulated and used for pasture or hayland before
December 23, 1985, which has been in active use for pasture or hayland
continuously since then. An area that lies fallow as part of a conventional
rotational cycle that does not exceed five years is considered to be in active
agricultural use.
"Federal act" means the Federal Water Pollution Control Act,
33 U.S.C.
§§
1251 et seq., including any
amendments and supplements, and implementing regulations. This statute is
sometimes referred to as the Federal Clean Water Act.
"Federal 404 program" means the program regulating the
discharge of dredged or fill materials pursuant to Section 404 of the Federal
Act.
"Fill" means the deposition or placement of material such as
soil, sand, earth, rock, concrete, pavement, or solid material of any kind, so
as to change the ground elevation in relation to surface water or groundwater
level. "Fill" also means the material deposited.
"Forested" means that tree species with an average height
greater than 20 feet are the predominant vegetation present.
"FW" means the general surface water classification applied
to fresh waters in the Department's Surface Water Quality Standards, N.J.A.C.
7:9B.
"FW1 waters" means waters designated as FW1 waters in the
Department's Surface Water Quality Standards, N.J.A.C.
7:9B.
"FW2 waters" means waters designated as FW2 waters in the
Department's Surface Water Quality Standards, N.J.A.C. 7:9B.
"Freshwater wetland" or "wetland" means an area that is
inundated or saturated by surface water or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances does
support, a prevalence of vegetation typically adapted for life in saturated
soil conditions, commonly known as hydrophytic vegetation; provided, however,
that the Department, in designating a wetland, shall use the three-parameter
approach (that is, hydrology, soils and vegetation) enumerated in the 1989
Federal Manual as defined in this section. These include tidally influenced
wetlands which have not been included on a promulgated map pursuant to the
Wetlands Act of 1970,
N.J.S.A. 13:9A-1 et seq.
"Freshwater wetlands permit" means a permit or authorization
to engage in a regulated activity in a freshwater wetland issued pursuant to
the Freshwater Wetlands Protection Act and this chapter.
"Gabion" means a shore or stream bank protection structure,
that is made of wire mesh basket(s) or mattress(es) filled with rocks and
usually used in multiples as a structural unit installed to withstand the
forces of waves and currents.
"General permit-by-certification" means a permit to undertake
a regulated activity for which the terms and conditions are established in
rules promulgated under this chapter at N.J.A.C. 7:7A-5 and 6, and which may be
conducted upon Department approval through the electronic permitting process
set forth at
N.J.A.C.
7:7A-16.6.
"Government agency" means any department, division,
authority, board, commission, office, bureau, agency, committee or other
instrumentality of the United States, or of the State or any political
subdivision thereof.
"Grace period" means the period of time afforded under the
Grace Period Law,
N.J.S.A. 13:1D-125 et seq., for a person to correct a
minor violation in order to avoid imposition of a penalty that would otherwise
be applicable for such violation.
"Harvesting" means physical measures employed directly upon
farm, forest, or ranch crops within established agricultural and silvicultural
lands to bring about their removal from farm, forest, or ranch land, but does
not include the construction of farm, forest, or ranch roads or other
engineering practices such as drainage which would alter the existing character
of the farm, forest or ranch land.
"Historic preservation restriction or easement" means an
interest in land less than fee simple absolute, stated in the form of a right,
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 preserving a structure or site which is historically
significant for its architecture, archeology or associations, to forbid or
limit any or all:
1. Alteration in exterior or interior feature of such
structure;
2. Changes in appearance or condition of such site;
3. Uses of such structure or site which are not historically
appropriate; and/or
4. Other acts or uses detrimental to the appropriate
preservation of such structure or site.
"Hoophouse" or "polyhouse" means a temporary pipe-frame
structure covered with plastic sheeting, with a dirt or fabric floor, that
provides for a controlled growing environment to create more favorable growing
conditions for crops grown within the covered space. For the purposes of this
chapter, a "hoophouse" or "polyhouse" shall not include permanent
footings.
"HUC" means the hydrologic unit code system developed by the
United States Geological Service for delineating and identifying drainage
areas. The system starts with the largest possible drainage areas and
progressively smaller subdivisions of the drainage area are delineated and
numbered in a nested fashion. As used in this chapter, "HUC 14" indicates a
drainage area with a hydrologic unit code designation with 14 numbers. "HUC 11"
indicates a larger subwatershed that is composed of several HUC 14
subwatersheds. There are 921 HUC 14 subwatersheds in New Jersey that range in
size from 0.1 to 42 square miles. The boundaries are included in the United
States Geological Survey, Water Resources Investigations Report 95-4134, 1995,
entitled "Development of a 14-digit Hydrologic Coding Scheme and Boundary Data
Set for New Jersey." The HUC codes for New Jersey can be downloaded from
http://www.nj.gov/dep/gis. The
HUC 11 data is entitled "subwatersheds." Software designed for use with
Geographic Information Systems (GIS) will be required to view the downloaded
data.
"Hydric soil" means a soil that in its undrained condition is
saturated, flooded, or ponded long enough during the growing season to develop
anaerobic conditions that favor the growth and regeneration of hydrophytic
vegetation. These soils may be described in several places, including New
Jersey's Official List of Hydric Soils, developed by the Natural Resources
Conservation Service; the National Wetlands Inventory, entitled "The Wetlands
of New Jersey," published in 1985 by the United States Fish and Wildlife
Service; or in the 1989 Federal manual. Alluvial land, as mapped on soil
surveys, or other soils exhibiting hydric characteristics identified through
field investigation as described in Part III of the 1989 Federal Manual may
also be considered a hydric soil for the purposes of wetland classification.
Also, wet phases of somewhat poorly drained soils not on New Jersey's Official
List of Hydric Soils may be associated with a wetland and therefore for the
purposes of this chapter shall be considered a hydric soil.
"Hydrophyte" means plant life adapted to growth and
reproduction under periodically saturated root zone conditions during at least
a portion of the growing season. A listing of these plants can be found in the
"National List of Plant Species 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 infiltration by
water.
"Individual permit" means a freshwater wetlands permit or
open water fill permit that is issued by the Department after an alternatives
analysis and other site-specific and project-specific reviews required at
N.J.A.C. 7:7A-10.
"Intermittent stream" means surface water drainage channels
with definite bed and banks in which there is not a permanent flow of water.
Most intermittent streams are shown on Soil Conservation Service county soil
surveys.
"Isolated wetlands" means a freshwater wetland that is not
"part of a surface water tributary system," as defined in this section.
"Lake, pond, or reservoir" means any impoundment of water,
whether naturally occurring or created in whole or in part by the building of
structures for the retention of surface water.
"Letter of interpretation" or "LOI" means the document issued
by the Department under N.J.A.C. 7:7A-4, indicating the presence or absence of
wetlands, State open waters, or transition areas; verifying or delineating the
boundaries of freshwater 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 industrial
buildings, improvements within a development, such as utility lines or pipes,
or internal circulation roads.
"Loss" means, with respect to freshwater wetlands or State
open waters, an alteration of a wetland or water to the extent that the wetland
or water, or portion thereof, no longer retains the functions and
characteristics of a wetland or water.
"Major discharge" means a discharge or activity that the
Department must transmit to USEPA for review in accordance with the
Department's 1993 MOA with the USEPA regarding assumption of the Federal 404
program. Provisions regarding USEPA review of major discharges are found at
N.J.A.C.
7:7A-19.5. The following are major
discharges:
1. A draft general permit;
2. A discharge with reasonable potential to affect Federally
listed or proposed endangered or threatened species as determined by the
USFWS;
3. A discharge of dredged or fill material which has the
potential for adverse impacts on the waters of a state other than New
Jersey;
4. A discharge known or suspected to contain:
i. Toxic pollutants as identified by Section 307(a)(1) of the
Federal act;
ii. Hazardous substances identified pursuant to Section 311
of the Federal act and Section 101(14) of the Comprehensive Environmental
Response Compensation and Liability Act,
42
U.S.C. §§
9601 et seq.;
iii. Toxic substances as defined by Section 3 of the Toxic
Substances Control Act,
15 U.S.C. §§
2601 et seq.; or
iv. Hazardous waste as defined by Section 1004(5) of the
Resource Conservation and Recovery Act,
42 U.S.C. §§
6901 et seq.;
5. A discharge located in the proximity of a public water
supply intake;
6. A discharge within a critical area established under State
or Federal law, including but not limited to a National or State park; fish or
wildlife sanctuary or refuge; National or historical monument; wilderness area
or preserve; a site identified or proposed under the National Historic
Preservation Act; or a component of the National Wild and Scenic Rivers
system;
7. The filling of five or more acres of freshwater wetlands
and/or State open waters;
8. Any regulated activity that results in a significant
reduction in the ecological, commercial, or recreational values of five or more
acres of freshwater wetlands or State open waters;
9. A culvert enclosure longer than 100 feet; or
10. Channelization of more than 500 feet of a river or
stream.
"Maximum extent practicable" means to the maximum extent
after weighing, evaluating and interpreting alternatives to protect the
ecological integrity of a wetland or State open water.
"Mitigation" means activities carried out pursuant to
N.J.A.C. 7:7A-11in or der to compensate for freshwater wetlands or 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, enhanced, or
preserved by a mitigation bank operator for the purpose of providing
compensatory mitigation for disturbances to freshwater wetlands and/or State
open waters.
"Natural Resources Conservation Service" or "NRCS" means the
arm of the U.S. Department of Agriculture (USDA) that provides technical
assistance with USDA conservation programs associated with soil, water, and
other related natural resources. The Natural Resources Conservation Service was
previously known as the Soil Conservation Service.
"1989 Federal Manual" means the Federal Manual for
Identifying and Delineating Jurisdictional Wetlands, published in 1989 by the
USEPA, USACE, USFWS, and the U.S. Department of Agriculture's Natural Resources
Conservation Service (formerly the Soil Conservation Service), as amended
and/or supplemented, which Manual is incorporated herein by reference.
"Non-delegable waters" mean waters that are not delegable
waters.
"Normal rainfall year" means a 12 month period in which the
precipitation at a location is within 10 percent of the average annual
precipitation for that location, calculated using the standard averaging period
for "normals," established by the World Meteorological Organization, except
that the Department may determine normal rainfall on a case-by-case basis in
unusual situations, such as where the sampling period begins immediately
following prolonged drought conditions. As of September 4, 2001, the World
Meteorological Organization has defined the standard averaging period as 1961
through 1990. Information regarding the standard averaging period can be found
in the USDA's Natural Resources Conservation Service website at
http://www.wcc.nrcs.usda.gov/climate.
"Offsite" means the area not onsite.
"Onsite" means the area located within the site, as defined
in this section.
"Open water fill permit" means the type of New Jersey
Pollution Discharge Elimination System permit or authorization issued pursuant
to this chapter and N.J.S.A. 58:10A-1 et seq., which governs the discharge of
dredged or fill material into State open waters.
"Ordinary high water mark" means that line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as clear, natural line impressed on the bank, shelving,
changes in the character of soil, destruction of terrestrial vegetation,
presence of litter and debris, or other appropriate means that consider the
characteristics of the surrounding areas.
"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.
"Part of a surface water tributary system" means connected to
a surface water that discharges into a lake, pond, river, stream or other
surface water feature. The connection may be through any surface water feature,
whether regulated or not, including a stormwater or drainage pipe. The
connection may be through a secondary flow channel or other feature. However,
the connection may be through overland flow only if there is evidence of
scouring, erosion, or concentrated flows. The connection may not be through
groundwater alone. Wetlands adjacent to a surface water are connected to the
surface water and are part of the surface water tributary system.
"Permit" means a permit or authorization issued under this
chapter pursuant to the Freshwater Wetlands Protection Act or the Water
Pollution Control Act to engage in a regulated activity in a freshwater
wetland, State open water, or transition area.
"Permittee" means a person to whom the Department has issued
a permit or a waiver under this chapter.
"Person" means an individual, corporation, corporate officer
or official, partnership, association, the Federal government, the State,
municipality, commission or political subdivision of the State or any
interstate body.
"Phase IA historical and archaeological survey" means an
archaeological survey the purpose of which is to identify resources completed
by an archaeologist whose qualifications meet the Secretary of the Interior's
Professional Qualifications Standards and related guidance as part of the
larger Secretary of the Interior's Standards and Guidelines for Archaeology and
Historic Preservation as referenced in 36 CFR 61, as amended and supplemented,
incorporated herein by reference.
"Pilings" means timber, metal, concrete or other similar
structures driven, dropped, poured, or placed to support a vertical
load.
"Plowing" means all forms of primary tillage, including
moldboard, chisel, or wide-blade, plowing, discing, harrowing, and similar
physical means utilized on farm, forest or ranch land for the breaking up,
cutting, turning over, or stirring of soil to prepare it for the planting of
crops. The term does not include the redistribution of dredged material, rock,
sand, or other surface materials in a manner which changes any area of wetlands
to dry land. For example, the redistribution of surface materials by blading,
grading, or other means to fill in wetland areas is not plowing. Rock crushing
activities which result in the loss of natural drainage characteristics, the
reduction of water storage and recharge capabilities, or the overburden of
natural water filtration capacities do not constitute plowing. Plowing will
never involve a discharge of material.
"Practicable alternative" means other choices available and
capable of being carried out after taking into consideration cost, existing
technology, and logistics in light of overall project purposes, and may require
an area not owned by the applicant which could reasonably have been or be
obtained, utilized, expanded, or managed in order to fulfill the basic purpose
of the proposed activity.
"Preliminary approval" means the conferral of certain rights
pursuant to the Municipal Land Use Law at
N.J.S.A. 40:55D-46, 48 and 49 prior to final approval
after specific elements of a development plan have been agreed upon by the
planning board and the applicant.
"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 of a preliminary site plan approval:
i. All buildings, structures, pavements, and other
improvements specifically depicted on the site plans referenced in the
resolution approving the site plan; and
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 a preliminary subdivision approval:
i. Where subdivision approval is the last stage of municipal
review before the owner/applicant may apply for a building permit to begin
construction, the "project" is the development of the subdivision consistent
with the lot coverage, use, and density restrictions of the zoning ordinance in
effect at the time of the subdivision approval; or
ii. Where site plan approval is required prior to
construction, "project" means the proposed economic development, whether
commercial, industrial or residential, intended to be constructed on that
portion of a tract of land that is the focus of the qualifying approval.
Although "project" is not limited to specific structures shown on the
subdivision plans, it is limited to development on those portions of a tract of
land that were the focus of the qualifying subdivision application or approval.
Development on other lands, such as development on the remainder of a larger
tract or on a contiguous property in common ownership, are not included within
a "project."
In order to determine if an applicant qualifies for an
exemption under this definition, the Department will determine the existence of
a proposed economic development at the time of the subdivision application.
Because the purpose of the exemption is to protect that degree of investment in
planning and development that the preliminary site plan or subdivision
application normally represents, where the subdivision is merely a division of
land and no substantial investment was made in planning or development, there
can be no exempted project. Therefore, an application for the subdivision of
lands simply for future development, yet to be planned, or simply for resale
shall not qualify for an exemption. To determine the existence of a proposed
economic development and to determine which portion of a tract was the focus of
subdivision approval or application, the Department will examine the resolution
granting approval and any documentation submitted with the application,
including, but not limited to, drainage, engineering, traffic, utility,
landscaping, soil and environmental plans and reports as well as the
subdivision plan. In cases where the above information is unclear, the
Department may consider money spent or obligated on engineering and design in
the preparation of the subdivision application to determine if a substantial
investment has been made in an economic development. Money spent or obligated
for the initial purchase, carrying costs, or legal services will not be
considered in determining the existence of a proposed economic
development.
iii. The following are examples of how the Department will
determine the "project" exempted on the basis of the application for or grant
of preliminary subdivision approval:
(1) Where a project was to be developed in three sections but
a complete application for preliminary approval was submitted, accepted and
subsequently approved for only one section, only the development planned for
that section is exempt and the development envisioned for sections two and
three is not exempt. This is not altered by the fact that some depiction of
that future development on the remainder of the parcel might be required by a
local planning board in concept or sketch form;
(2) Where an entire parcel is subdivided into five conforming
residential lots, the residential development planned on all five lots is
exempt. However, where the focus of the subdivision application and approval is
on less than the entire tract of land, which lesser portion is divided into
five single family house lots, and the remainder of the tract is left as a bulk
parcel for further subdivision or other planning board approval, only
development on the five lots is exempt. It is irrelevant that the configuration
of the remainder lot has been changed by the subdivision or that the remainder
lot has been renumbered;
(3) Where the land to be divided for a commercial industrial
park straddles two townships and the developer received approval to subdivide
the land in township A and sold the unsubdivided portion in township B to
another developer, only the development on the land in township A could be
considered the subject of township A's subdivision approval. Therefore, only
the development on the land in township A is exempt. It is irrelevant that the
original developer had, from the start, contemplated a commercial industrial
park for the property in both townships or that the office building
contemplated on the land in township B did not require further
subdivision;
(4) Where land is divided for the sole purpose of bequeathing
it sometime in the future to one's children to be developed as they wish, no
economic development was contemplated when the application was made or approval
granted. After the land passes to the children and one of them decides to
build, that development is not exempt. The purpose of the exemption is to
protect that degree of investment in planning and development that the
preliminary site plan or subdivision application normally represents. Where the
subdivision is merely a division of land and no investment was made in the
planning or development, there can be no exempted project; and
(5) Where land is subdivided but requires further
subdivision, other than de minimis changes for road
rights-of-way or other infrastructure, before the applicant can proceed to the
next step of municipal approval (either building permits or site plan
approvals), there is no evidence of intended economic development at the time
of initial subdivision application or approval, because the proposed economic
development only comes into being with the subsequent, untimely subdivision.
Therefore, there is no basis for exemption.
"Property as a whole" means all property assembled as one
investment or to further one development plan. The property as a whole may
include more than one municipal tax block or lot. The property as a whole may
also include blocks or lots that were previously sold or developed, if those
blocks or lots and the remaining unsold or undeveloped blocks or lots were part
of one investment or development plan. In determining the property as a whole
in a particular case, the Department shall consider existing legal precedent
regarding what constitutes "property as a whole" at the time of the
determination.
"Public hearing" means an administrative non-adversarial type
hearing before a representative or representatives of the Department providing
the opportunity for public comment, but does not include
cross-examination.
"Redevelopment" means the construction of structures or
improvements on or below impervious surfaces, as defined in this section, or
other significantly disturbed area.
"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.
"Seeding" means the sowing of seed and placement of seedlings
to produce farm, ranch, or forest crops and includes the placement of soil beds
for seeds or seedlings on established farm and forest lands.
"Silviculture" means the art and science of controlling the
establishment, growth, composition, health, and quality of forests and
woodlands to meet the diverse needs and values of landowners and society on a
sustainable basis. The normal harvesting of forest products is a part of some
silviculture operations. Orchards, tree farms and nurseries are not
silviculture but are farming.
"Site plan" or "plan" means a graphic depiction of land,
vegetation, water, structures, and other physical features on paper, such as a
blueprint, construction plan, cross-section, topographic map, architectural
rendering, or other similar illustration, 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 Jersey Department of Agriculture programs for one or
more counties. Soil Conservation Districts are overseen by the New Jersey State
Soil Conservation Committee in the New Jersey Department of Agriculture, which
promulgates the Standards 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 Soil Erosion and Sediment Control by
ordinance pursuant to
N.J.S.A. 4:24-48.
"Special aquatic site" means a site described in subpart E of
the 404(b)1 guidelines ( 40 C.F.R. 230 et seq.), except freshwater wetlands
which, for the purposes of this chapter, shall not be considered special
aquatic sites. In general, special aquatic sites are geographic areas, large or
small, possessing special ecological characteristics of productivity, habitat,
wildlife protection, or other important and easily disrupted functions and
values. These areas are generally recognized as significantly influencing or
positively contributing to the general overall environmental health or vitality
of the entire ecosystem of a region. As of September 4, 2001, the following
special aquatic sites are described in subpart E of the 404(b)1 guidelines ( 40
C.F.R. 230 et seq.): sanctuaries and refuges, wetlands (note: while freshwater
wetlands are excluded from the definition of a special aquatic site for
purposes of this chapter, other wetlands, such as most coastal wetlands, would
be considered special aquatic sites), mud flats, vegetated shallows, coral
reefs, and riffle and pool complexes.
"State Forester" means the chief forester employed by the
Department.
"State open waters" means all waters of the State as defined
in this section, including waters of the United States as defined in this
section, but excluding ground water as defined at N.J.A.C. 7:14A, and excluding
freshwater wetlands as defined in this section. The following waters will
generally not be considered State open waters for the purposes of this chapter.
However, the Department shall determine, on a case-by-case basis, if a
particular watercourse or water body listed below is a State open water:
1. Non-tidal drainage and irrigation ditches excavated on dry
land;
2. Artificially irrigated areas which would revert to upland
if the irrigation ceased;
3. Artificial lakes or ponds created by excavating and/or
diking dry land to collect and retain water and which are used exclusively for
such purposes as stock watering, irrigation, settling basins, or rice
growing;
4. Artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating and/or diking dry land to
retain water for primarily aesthetic reasons;
5. Water-filled depressions created in dry land incidental to
construction or remediation activity and pits excavated in dry land for the
purpose of obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of water meets the
definition of "waters of the United States";
6. Waste treatment systems, including treatment ponds or
lagoons designed to meet the requirements of the Federal act (other than
cooling ponds);
7. Erosional channels less than two feet wide and six inches
deep in upland areas resulting from poor soil management practices; and
8. Stormwater management facilities created in uplands.
"Stormwater management facility" means a facility which
receives, stores, conveys or discharges stormwater runoff and is designed in
accordance with applicable local, county and State regulations. These
facilities may include retention basins, detention basins, infiltration
structures, grassed swales, rip-rap channels and/or stormwater outfalls.
"Swale" means a linear topographic depression, either
naturally occurring or of human construction, which meets all of the following
criteria:
1. It is surrounded by uplands except where runoff flows out
of it.
i. A depression is not a swale if it is located within a
larger wetland or if it is merely an undulation in a wetland boundary;
ii. A depression is not a swale if it is naturally occurring,
contains palustrine forest, and is located within an upland forest;
2. It has formed or was constructed in uplands to convey
surface water runoff from the surrounding upland areas;
3. It drains less than 50 acres;
4. It is not a seep or spring;
5. It is not an intermittent stream;
6. It has no definite bed and banks; and
7. At its widest point, it is generally 50 feet wide or
narrower.
"Technically complete" means that each item included in an
application for a letter of interpretation or a permit provides sufficient
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 six months. Where
a disturbance associated with certain regulated activities, such as hazardous
substance remediation or solid waste facility closure, is intended to be
temporary, but will exceed six months in duration because of the nature of the
activity, the Department will consider the disturbance to be temporary for
purposes of this subchapter provided the disturbed areas are restored to their
original topography, and all necessary measures are implemented to ensure that
the original vegetative cover onsite is restored to its previous (or an
improved) condition.
"Threatened or endangered species" means a species identified
pursuant to the Endangered and Nongame Species Conservation Act,
N.J.S.A. 23:2A-1 et seq., or those identified pursuant
to the Endangered Species Act of 1973,
16
U.S.C. §§
1531 et seq., and
subsequent amendments thereto.
"Tidal waters" means fresh or saline waters under tidal
influence, up to the head of the tide.
"Transition area" means an area of upland adjacent to a
freshwater wetland which minimizes adverse impacts on the wetland or serves as
an integral component of the wetlands ecosystem.
"Transition area waiver" or "waiver" means a waiver issued by
the Department under this chapter, authorizing any of the regulated activities
enumerated at
N.J.A.C.
7:7A-2.3 in a transition area.
"Tree" means a woody plant which is five inches or greater in
diameter at a height of four and one half feet above the ground.
"Trout production waters" means waters designated in the
Department's Surface Water Quality Standards, N.J.A.C. 7:9B, for use by trout
for spawning or nursery purposes during their first summer.
"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" means the United States Geological Survey.
"USGS quad map" means a topographic quadrangle map issued by
the USGS, 7.5 minute series, drawn at a scale of 1:24,000.
"Utility line" means a pipe, cable, line, or wire for the
transport or transmission of gases, liquids, electrical energy, or
communications. This term includes a pole or tower required to support a
utility line, but does not include a tower that only transmits or receives
electromagnetic waves through the air, such as for radio, television, or
telephone transmission. The term "utility line" does not include a stormwater
pipe, or a pipe that drains a wetland or State open 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 this section that meets all of the criteria at 1 through 4 below.
Evidence of breeding by an obligate species under 2i below creates a rebuttable
presumption that the criteria at 3 and 4 below are met:
1. Occurs in or contains a confined basin depression without
a permanent flowing outlet;
2. Features evidence of breeding by one or more species of
fauna adapted to reproduce in ephemeral aquatic conditions, identified in
N.J.A.C. 7:7A, Appendix 1, incorporated herein by reference. The following
shall constitute evidence of breeding by such a species:
i. One or more obligate species listed in Appendix 1, or
evidence of such a species, is found in or immediately adjacent to the area of
ponded water; or
ii. Two or more facultative species listed in Appendix 1, or
evidence of the presence of such a species, are found in or immediately
adjacent to the area of ponded water;
3. Maintains ponded water for at least two continuous months
between March and September of a normal rainfall year; and
4. Is free of reproducing fish populations throughout the
year, or dries up at some time during a normal rainfall year.
"Water dependent activity" means an activity that cannot
physically function without direct access to the body of water along which it
is proposed. Uses, or portions of uses, that can function on sites not adjacent
to the water are not considered 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 water dependency shall
assess both the need of the proposed use for access to the water and the
capacity of the proposed water body to satisfy the requirements and absorb the
impacts of the proposed use. A proposed use will not be considered water
dependent if either the use can function away from the water or if the water
body proposed is unsuitable for the use. For example, in a maritime operation,
a dock or quay and associated unloading area would be water dependent, but an
associated warehouse would not be water dependent.
1. Examples of water dependent uses include: docks, piers,
marina activities requiring access to the water, such as commissioning and
decommissioning new and used boats, boat repairs and short-term parking for
boaters, storage for boats that are too large to be feasibly transported by car
trailer (generally greater than 24 feet), rack systems for boat storage,
industries, such as fish processing plants and other commercial fishing
operations, port activities requiring the loading 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 be transported by car trailer, long-term parking,
parking for persons not participating in a water dependent activity, boat
sales, automobile junk yards, and non-water oriented recreation, such as roller
rinks and racquetball courts.
"Water Pollution Control Act" means the New Jersey Water
Pollution Control Act,
N.J.S.A. 58:10A-1 et seq.
"Water quality certificate" means a determination by the
Department of the consistency with this chapter of an activity that proposes a
discharge to waters of the United States that requires a Federal license or
permit pursuant to Section 401 of the Federal Clean Water Act,
33
U.S.C. §
1341. Federal licenses and
permits for which water quality certificates are issued 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 Clean Water 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 9 and 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 the Federal Power
Act, 16 U.S.C. §§
796(11), 797(e), and 808.
"Waters of the State" means the ocean and its estuaries, all
springs, streams, wetlands, and bodies of surface or ground water, whether
natural or artificial, within the boundaries of the State of New Jersey or
subject to its jurisdiction.
"Waters of the United States" means:
1. All waters which are currently used, were used in the
past, or may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate
wetlands;
3. All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), wetlands, mudflats, sandflats, sloughs, wet
meadows, or natural ponds the use, degradation, or destruction of which would
affect or could affect interstate or foreign commerce including any such
waters:
i. Which are or could be used by interstate or foreign
travelers for recreational or other purposes;
ii. From which fish or shellfish are or could be taken and
sold in interstate or foreign commerce;
iii. Which are used or could be used for industrial purposes
by industries in interstate commerce;
iv. Which are or would be used as habitat by birds protected
by Migratory Bird Treaties;
v. Which are or would be used as habitat by other migratory
birds which cross state lines;
vi. Which are or would be used as habitat for endangered and
threatened species; or
vii. Which are used to irrigate crops sold in interstate
commerce;
4. All impoundments of waters otherwise defined as waters of
the United States under this definition;
5. Tributaries of waters identified in paragraphs 1 through 4
of this definition;
6. The territorial seas; and
7. Wetlands adjacent to waters identified in paragraphs 1
through 6 of this definition other than those that are themselves wetlands.
The following waters are generally not considered "waters of
the United States." However, the right is reserved to determine on a case by
case basis, if particular watercourses or waterbodies are "waters of the United
States":
1. Non-tidal drainage and irrigation ditches excavated on dry
land;
2. Artificially irrigated areas which would revert to upland
if the irrigation ceased;
3. Artificial lakes or ponds created by excavating and/or
diking dry land to collect and retain water and which are used exclusively for
such purposes as stock watering, irrigation, settling basins, or rice
growing;
4. Artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating and/or diking dry land to
retain water for primarily aesthetic reasons;
5. Waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel unless and until the construction or excavation
operation is abandoned and the resulting body of water meets the above
definition of "waters of the United States";
6. Waste treatment systems, including treatment ponds or
lagoons designed to meet the requirements of the CWA (other than cooling
ponds); and
7. Erosional channels less than two feet wide and six inches
deep in upland areas resulting from poor soil management practices.
"Working day" means a day on which the offices of the New
Jersey Department of Environmental Protection are open for
business.
