N.J. Admin. Code § 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's regulations providing for the delegation to
the State of the Federal wetlands program conducted pursuant to the Federal Act
require a permit for any of these activities, in which case the Department
shall require a permit for those activities so identified by that agency. Any
activity conducted under an exemption that does not meet all standards,
conditions, or limitations of the exemption shall constitute a violation of
this chapter, and shall be subject to enforcement action in accordance 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. The exemptions shall not
apply to any discharge of dredged or fill material into freshwater wetlands or
State open water incidental to any activity which involves bringing an area of
freshwater wetlands or State open waters into a use to which it was not
previously subject, where the flow or circulation patterns of the freshwater
wetlands or waters may be impaired, or the extent or values and functions of
freshwater wetlands or State open waters is reduced;
2. The exemptions apply only as long as the
area is used for the exempted activity. Therefore, if the area stops being used
for farming, ranching, or silviculture, the exemption no longer
applies;
3. The exemptions apply
only to the portion of the property which meets all requirements for the
exemption. For example, if half of a 20-acre property has been actively farmed
since June 30, 1988 and half has not, the half that has been actively farmed
would be considered to be part of an established, ongoing farming operation and
would therefore be eligible for the farming exemption. The remainder would not
be eligible for the farming exemption;
4. Normal silviculture activities must be
part of a forest management plan that conforms to best management practices
(BMPs) and is reviewed and approved by the State Forester before the activities
are undertaken. A woodland management plan prepared for tax purposes but that
does not address wetlands is insufficient to qualify for the exemption;
and
5. If an area with hydric soils
has been drained for farming or other purposes through the use of drainage
structures such as tiles or ditches, the Department shall, in the absence of
compelling scientific information that wetland hydrology has been effectively
removed by factors other than the drainage structures, presume that the area
maintains wetlands hydrology for the purpose of identifying a freshwater
wetland under N.J.A.C. 7:7A-3.1
. To rebut this presumption of wetlands hydrology, all drainage
structures shall be removed or completely disabled and the area shall be left
undisturbed for at least one normal rainfall year, after which the presence or
absence of wetlands hydrology shall be determined through use of technical
criteria, field indicators, and other information, in accordance with the 1989
Federal Manual.
(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
the New Jersey Farmland Assessment Act, N.J.S.A.
54:4-23
.1 et seq., are exempt from
the requirement of a freshwater wetlands 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 this paragraph, "minor
drainage" means:
i. The discharge of material
incidental to connecting upland drainage facilities to adjacent wetlands,
adequate to effect the removal of excess soil moisture from upland
croplands;
ii. The discharge 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
and the discharge occur in wetlands and waters that are in established use for
such agricultural and silvicultural wetlands crop production. Any discharge of
material into wetlands or waters, excavation of wetlands, or draining of
wetlands or waters, that are not in established use for such agricultural and
silvicultural wetlands crop production requires a permit. For example, the
construction of ditches within the confines of an established cranberry bog is
an exempt activity. However, the construction of new ditches in wetlands or
waters located outside of the established cranberry bog requires a
permit;
iii. The discharge of
material for the purpose of manipulating the water levels of, or regulating the
flow or distribution of water within, existing impoundments which have been
constructed in accordance with applicable requirements of the Federal Act and
which are in established use for the production of rice, cranberries, or other
wetland crop species;
iv. The
discharge of material incidental to the emergency removal of sandbars, gravel
bars, or other similar blockages which are formed during flood flows or other
events, where such blockages close or constrict previously existing
drainageways and, if not properly removed, would result in damage to or loss of
existing crops on land in established use for crop production. Such removal
does not include enlarging or extending the dimensions of, or changing the
bottom elevations of, the affected drainageway as it existed prior to the
formation of the blockage. Removal must be accomplished within one year of
formation of such blockages in order to be eligible for exemption under this
paragraph; and
v. Minor drainage in
wetlands is limited to drainage within areas that are part of an established
farming or silvicultural operation. It includes maintenance of existing
drainage tile or other drainage structures. It does not include drainage
associated with the immediate or gradual conversion of a wetland to a
non-wetland (for example, wetlands species to upland 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 maintenance
activities and the discharge occur in wetlands and waters that are in
established use for cranberry or blueberry production, such as:
i. Periodic flooding;
ii. Sanding;
iii. Control or suppression of weeds or brush
in and around the bog or field;
iv.
Pest control or suppression; and
v.
Maintenance, repair, or cleaning of dams, ditches, underdrains, floodgates,
irrigation systems, or other drainage or water 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;
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 it is needed for the structural or environmental integrity of the pond;
i. A pond constructed in an actively farmed
area does not constitute a change in use. A field in which no crops or
pasturing has occurred for five years or more is considered abandoned and is
not considered an actively farmed area. Forest land is not considered an
actively farmed area; however, an area that has been undergoing normal
harvesting of forest products is considered an actively farmed area if it is
part of a forest management plan in accordance with (d) below;
ii. To qualify for this exemption, a farm
pond shall be:
(1) Part of a farm
conservation plan developed in conjunction with the Natural Resources
Conservation Service and approved by the Soil Conservation District, as
appropriate;
(2) Located outside a
watercourse;
(3) Created by
excavation and not by creating an embankment within a watercourse;
(4) Not associated with development as that
term is defined in the Municipal Land Use Law,
40:55D-4;
(5) Intended exclusively for agricultural
purposes. The applicant shall submit a description of the purpose of the pond
with 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 best management
practices (BMPs) to assure that flow and circulation patterns and chemical and
biological characteristics of freshwater wetlands and State open waters are not
impaired and that any adverse effect on the aquatic environment will be
minimized; where the proposed discharge will result in significant discernible
alterations to flow or circulation, the presumption is that flow or circulation
may be impaired by such alteration. Roads constructed for forestry and
silviculture purposes shall be constructed using temporary mats whenever
practicable. Once the land use changes from forestry or farming to another use,
that is, once the property no longer qualifies for a farmland assessment, all
roads employing 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:
(1) The road shall be part of a farm
conservation plan developed in conjunction with the Natural Resources
Conservation Service and approved by the Soil Conservation District, as
appropriate;
(2) The location of
the road shall be selected to minimize disturbance to wetlands, transition
areas and watercourses. If there is an alternative location for a farm road
that will have less impact to wetlands, transition areas, and watercourses, the
alternative location shall be used;
(3) The road shall be necessary to support or
provide access for a farming activity. A road that supports or provides access
to proposed development is not a farm road and requires a permit in accordance
with this chapter;
(4) The farm
road shall not exceed 14 feet in width unless it must be wider to accommodate a
large piece of equipment such as a combine. In the latter case, the road shall
be no wider than 20 feet;
(5) The
farm road shall be built at grade. If not built at grade, the applicant shall
demonstrate to the Department why fill material is necessary for the farming
operation with any application for an exemption letter under N.J.A.C.
7:7A-2.6; and
(6) In
accordance with (c)4i(5) above, if fill material is necessary, it shall be no
more than six inches deep and shall be limited to 0.25 acres of wetland
disturbance. In addition, pipes shall be installed to maintain wetland
hydrology;
ii.
"Maintenance of a farm road" means:
(1) The
existing road remains the same width before and after maintenance
activities;
(2) The placement of
all fill is entirely within the existing footprint of the existing road;
and
(3) A culvert shall be used
only to replace an existing culvert. If it is necessary to install a culvert
for the first time, the Department 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-in sheds, and pole barns and any grading or land contouring
associated therewith, and fencing without foundations on lands that were
actively cultivated on or before July 1, 1988, have been in active agricultural
use since then, were in active 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 before the 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 plan prepared for tax purposes but that does not address
wetlands is insufficient to qualify for the exemption. However, the removal of
stumps results in a discharge of dredged or fill material, and a change in use
and an impairment of flow or circulation. Therefore, under (b)1 above, the
removal of stumps is not exempt and shall require a permit under this
chapter.
(e) Until March 2, 1994,
when the Department assumed responsibility for the Federal 404 program, the
Department issued certain exemptions based on prior local approvals. However,
as of March 2, 1994, these exemptions are void as they apply to freshwater
wetlands permit and open water fill requirements. The exemptions continue to
apply to transition area requirements, and are described at (f)
below.
(f) Subject to the
limitations of this section including (g) below, the following projects, are
exempt from transition area requirements, but are subject to freshwater
wetlands and State open water requirements:
1. A project for which a preliminary site
plan or subdivision application received formal preliminary approvals from
local authorities pursuant to the Municipal Land Use Law,
40:55D-1 et seq., prior to July 1,
1989, provided those approvals remain valid under the Municipal Land Use Law.
This excludes approvals which were given prior to the August 1, 1976 effective
date of the Municipal Land Use Law; and
2. A project for which a preliminary site
plan or subdivision application as defined in
40:55D-1 et seq., was submitted to
the local authorities prior to June 8, 1987 and was subsequently approved. To
qualify for an exemption under this paragraph, an application for preliminary
approval must have been in proper form, must have been accompanied by all
plans, data and information called for by the local land use ordinance and by
statute, and thus must have been in fact complete prior to June 8,
1987.
(g) The following
limits apply to the transition area exemptions at (f) above:
1. To be eligible for a transition area
exemption under (f) above, a project must have preliminary site plan or
subdivision approval. The exemptions do not apply to an application for, or
grant of, any other approval under the Municipal Land Use Law, such as a sketch
plat approval, general development plan, classification determination, building
permit, variance, or conditional use approval;
2. A project listed in (f) above shall no
longer be exempt from transition area requirements if significant changes are
made to the approved site or subdivision plan. A significant change will be
deemed to have been made if either of the following criteria is met:
i. The change would void the preliminary
approval; or
ii. The change would
require submittal to or approval of a new or amended application from the local
authorities and either of the following criteria is met:
(1) The change would result in a change in
land use on the project site, for example, from single family houses to
multi-family units or a golf course; or
(2) The change would increase impacts to
freshwater wetlands, State open waters, or transition areas;
3. A project listed in
(f) above shall no longer be exempt if the municipal approval upon which the
exemption was based becomes invalid for any reason; and
4. For all development determined to be
exempt by the Department, once the development is constructed, the exempted
"project" has been built. If, for example, the owner of a commercial building
decides afterward that it is necessary to construct an addition, and goes back
to the municipal authority for a new or amended site plan or subdivision
approval, the exemption has been "used up" and the addition is subject to the
permitting requirements of this chapter. Similarly, for residential approvals,
once the houses and any accessory structures planned along with the house (for
example, detached garages, barns, storage sheds, pools) are constructed, or the
certificate of occupancy is issued, the exemption has been exhausted and any
later additions or structural improvements are subject to the permitting
requirements of this chapter. If there is an interruption of more than one year
before construction of an accessory structure claimed to have been planned
along with the house, there is a rebuttable presumption that the structure
constitutes a later addition and will require a permit.
(h) If any discharge of dredged or fill
material resulting from the activities exempted by this section contains any
toxic pollutant listed under section 307 of the Federal Act, such discharge
shall be subject to any applicable toxic effluent standard or prohibition, and
shall require a freshwater wetlands or open water fill permit.
(i) A project covered by an individual permit
issued by the USACE prior to July 1, 1988, shall be governed only by the
Federal 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 permit issued prior to July 1, 1988.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.