N.J. Admin. Code § 7:7A-19.5 - USEPA review

(a) Because the Department has assumed responsibility for the Federal 404 program in most freshwater wetlands and State open waters in New Jersey, the Federal Act requires that the USEPA oversee the State's administration of the program set forth in this chapter. The procedures in (b) through (j) below explain USEPA's oversight role, and the procedures which the State will follow to facilitate USEPA's oversight. In areas where the Department has assumed the Federal 404 program, the Department's freshwater wetlands or open water fill permit constitutes the permit required under this chapter as well as the Federal 404 permit, unless the permit specifies otherwise.

(b) The Department shall transmit the following items to the USEPA for review:

1. Each new proposed draft general permit. In general, an application for authorization to act under an adopted general permit will not require USEPA review, unless the activity proposed under the general permit itself constitutes a major discharge;

2. Each application involving a major discharge;

3. Any permit application, or category of permit applications, that the Department determines is appropriate for USEPA review;

4. Any permit application that USEPA requests to review;

5. Any additions or changes made to an application listed at (b)2 through 4 above after the application has been submitted to USEPA, as a result of a contested case proceeding in the Office of Administrative Law; and

6. For informational purposes, an initial decision issued by an administrative law judge in a contested case proceeding which involves an application listed at (b)2 through 4 above.

(c) For an item that requires USEPA review under (b) above, the Department shall promptly transmit to the Regional Administrator:

1. A complete copy of the item;

2. Notice of every significant action taken by the Department related to the consideration of the permit application or other item; and

3. A copy of any decision on the application or other item.

(d) If the USEPA intends to comment upon, object to, or make recommendations with respect to an item, or with respect 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 or other item. If the Department has been so notified, the permit or other item shall not be issued until after the receipt of such 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 but that the USEPA reserves the right to object within 90 days of receipt, based on any new information brought out by the public during the comment period or at a fact-finding meeting.

(e) When the Department has received a USEPA objection or requirement for a permit condition under this section, the State shall not issue the Federal 404 permit unless the steps required by the USEPA to eliminate the objection have been taken. However, the Department may issue a freshwater wetlands permit. Such a permit shall satisfy only the requirements of the New Jersey Freshwater Wetlands Protection Act and the permit shall not constitute a 404 permit. In such a case, the applicant would be responsible for obtaining any necessary 404 program approvals from the ACOE.

(f) Within 90 days after receiving an objection or requirement for a permit condition by the USEPA, the Department or any interested person may request that the USEPA hold a public hearing on the objection or requirement. USEPA shall conduct a public hearing if requested by the Department, or if warranted by significant public interest based on requests received.

(g) If USEPA holds a public hearing under (f) above, USEPA shall, following that hearing, reaffirm, modify or withdraw the objection or requirement for a permit condition. USEPA shall notify the Department of this decision.

(h) If USEPA holds a public hearing, the Department shall have 30 days after USEPA gives the Department notice of its decision under (g) above to take either of the actions at (i)1 or 2 below. If USEPA does not hold a public hearing, the Department shall have 90 days after receiving USEPA's original objection or requirement for a permit condition to take either of the actions at (i)1 or 2 below.

(i) The Department shall take one of the following actions within the applicable deadline in (g) or (h) above:

1. If the USEPA has withdrawn the objection or requirement for a permit condition, the State may issue the Federal 404 permit; or

2. If the USEPA has not withdrawn the objection or requirement for a permit condition, the Department must do one of the following:

i. Issue a revised permit satisfying the USEPA's objection or including the required permit condition;

ii. Notify USEPA of its intent to deny the permit. If the Department intends to deny the permit it shall notify EPA of this intent within 30 days after receiving USEPA's notification; or

iii. Issue a State freshwater wetlands permit that does not constitute a Federal 404 permit and require the applicant to apply to the appropriate Federal agency for a permit under the Federal 404 program.

(j) No Federal 404 permit shall be issued by the Department in the following circumstances, although the Department may issue a State freshwater wetlands permit that does not constitute a Federal 404 permit:

1. When the Regional Administrator has objected to issuance of the permit and the objection has not been resolved;

2. When the proposed discharges would be in an area which has been prohibited, withdrawn, or denied as a disposal site by the USEPA under Section 404(c) of the Federal Act, or when the discharge would fail to comply with a restriction imposed thereunder; or

3. If the Army Corps of Engineers determines, after consultation with the Secretary of the Department in which the Coast Guard is operating, that anchorage and navigation of any of the navigable waters would be substantially impaired.

(k) The Department shall submit an application to the U.S. Fish and Wildlife Service for review of the potential for impacts on Federally listed threatened or endangered species in accordance with the 1993 Memorandum of Agreement between the Department and the U.S. Fish and Wildlife Service, and all modifications, addenda, and clarifications thereto, executed in order for the Department to assume responsibility for the Federal 404 program.

(l) The Department shall identify all wetland permit applications for proposed projects that may affect properties which are listed, or are eligible for listing, on the New Jersey or National Register of Historic Places. In accordance with N.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 National Register of Historic Places" can be direct or indirect and occurs whenever any aspect of the project causes or may cause any change, beneficial or adverse, in the quality of the historical, architectural, archaeological, or cultural characteristics that qualified a historic property to meet the criteria of evaluation for inclusion in the New Jersey or National Register. Applications reflecting any of the following characteristics shall be deemed to present a high probability of the presence of 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. Proposed projects containing known historic or archaeological resources, based upon information contained within the application, or as identified on copies of historic property maps prepared by the Department;

2. Proposed projects on sites that exceed 20 acres in size which include a permanent water body (for example wetlands, pond, lake, river or perennial stream) or are located within 250 feet of a permanent water body;

3. Proposed projects for which available maps, photographs, or other information, or observations made during a site visit, indicate the presence of buildings, structures, or ruins over 50 years old that could potentially be affected by the proposed project;

4. Proposed projects including new, replacement, reconstructed, or rehabilitated bridges or culverts; and

5. Proposed projects on which letters are received from concerned citizens or others indicating the possible presence of historic properties within or adjacent to the project.

(m) In order to demonstrate due diligence in identifying historic sites that may be affected by a wetlands permit application, as well as provide the Department with information regarding sites with historic or potentially historic resources, the applicant shall submit with each permit application:

1. Clear color photographs of all buildings, structures, ruins of buildings and structures, and burial grounds on the site;

2. A key map of the site locating all photographs provided in (m)1 above; and 3. All information and copies of correspondence, known, received or in the possession of project representatives or the applicant, regarding historic districts, buildings, structures, ruins, burial grounds, and archaeological sites on or near the project site.

(n) Applicants who are or will be pursuing Federal financial assistance, permits, licenses, or other approvals for the project that is the subject of the freshwater wetlands permit application, shall supply a copy of the consultation comments provided by the Department's Historic Preservation Office (HPO) in its role as staff to the Federally designated State Historic Preservation Officer (SHPO) under Section 106 of the National Historic Preservation Act (16 U.S.C. § 470(f)), together with a statement detailing how the comments have been incorporated into the project, with the State freshwater wetlands permit application. The Department will consider that information as a part of its review under this chapter.

1. If an applicant is not and will not be pursuing Federal financial assistance as described in (n) above, the applicant shall provide the Department with a statement to that effect.

(o) Public entities that are or will be pursuing a project authorization application, pursuant to N.J.A.C. 7:4-7, for the project that is the subject of the freshwater wetlands permit application shall comply with either (o)1 or 2 below. For the purposes of this subsection, "public entities" means the State, county, municipality, or an agency or instrumentality thereof:

1. If the public entity has received a project authorization from the Department pursuant to N.J.A.C. 7:4-7 prior to applying for a State freshwater wetlands permit, a copy of the project authorization shall be submitted with the permit application. The Department will consider that authorization as a part of its review under this chapter; or

2. If the public entity has not yet begun the process for obtaining a project authorization pursuant to N.J.A.C. 7:4-7 at the time of application for a State freshwater wetlands permit, the applicant shall consult directly with the Department's Historic Preservation Office to initiate the project authorization process at the same time as the permit application is processed.

(p) At sites where activities require a freshwater wetlands and/or State open water permit, the demolition of buildings or structures potentially over 50 years of age, or the disturbance of soils, shall not be undertaken prior to receipt of such permit. Undertaking such activities without a permit shall be considered a violation of this chapter.

Notes

N.J. Admin. Code § 7:7A-19.5

Recodify from 7:7A-12.2 by 49 N.J.R. 3849(a), effective 12/18/2017