N.J. Admin. Code § 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 civil administrative penalty for the failure to obtain a permit prior to conducting regulated activities, the Department shall use the procedures in this section to determine the amount of the penalty if the violation pertains to freshwater wetlands and/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, or 22.11, in which case the penalty amount shall be determined under whichever of those sections applies. For the purposes of this section, permit shall mean an authorization under a general permit-by-certification, an authorization under 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 pursuant to N.J.S.A. 13:9B-1 et seq., and/or N.J.S.A. 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 an additional, separate, and distinct offense.

(d) If a violation of this chapter pertains to State open waters, the Department shall not determine the amount of the civil administrative penalty under this subchapter, but shall determine the penalty under the Department's rules implementing the enforcement provisions of the Water Pollution Control Act at N.J.A.C. 7:14-8.

(e) To assess a civil administrative penalty pursuant to this section, the Department shall identify the civil administrative base penalty within Table 22.7A in (g) below by determining the number of points pursuant to (f) below. The civil administrative 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 to each violation.

1. The conduct factor of the violation shall be classified as major, moderate, or minor and assigned points as follows:

i. Major conduct shall include an intentional, deliberate, purposeful, knowing or willful act or omission by the violator and is assigned five points;

ii. Moderate conduct shall include any unintentional but foreseeable act or omission by the violator and is assigned two points; and

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 the type, size, and location of the violation as provided at (f)2i and ii below and the acreage of wetlands and/or transition areas 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:

(1) A violation impacting greater than seven acres of wetlands and/or transition areas is assigned seven points;

(2) A violation impacting greater than four acres up to and including seven acres of wetlands and/or transition areas is assigned six points;

(3) A violation impacting greater than two acres up to and including four acres of wetlands and/or transition areas is assigned five points;

(4) A violation impacting greater than one acre up to and including two acres of wetlands and/or transition areas is assigned four points;

(5) A violation impacting greater than 0.5 acre up to and including one acre of wetlands and/or transition areas is assigned three points;

(6) A violation impacting greater than 0.25 acre up to and including 0.5 acre of wetlands and/or transition areas is assigned two points; and

(7) A violation impacting up to and including 0.25 acre of wetlands and/or transition areas is assigned one point; and

ii. The resource value classification shall be assigned points in accordance with (f)2ii (1) through (5) below. If the site of a violation contains regulated areas of more than one resource value classification, the points assigned to a violation for the highest resource classification on the site shall apply for the entire site:

(1) A violation impacting exceptional resource classification wetlands is assigned five points;

(2) A violation impacting intermediate resource classification wetlands is assigned four points;

(3) A violation impacting ordinary resource classification wetlands is assigned three points;

(4) A violation impacting only exceptional resource classification transition areas is assigned two points; and

(5) A violation impacting only intermediate resource classification transition areas is assigned one point.

(g) The Department shall sum the total points assigned according to the two factors in (f) above, and shall determine the base penalty amount per day using the following table:

Table 22.7A

Base penalty points table
Total Points	Base Penalty Amount Per Day
17	$ 25,000
16	23,000
15	21,000
14	19,000
13	17,000
12	15,000
11	13,000
10	11,000
9	10,000
8	9,000
7	8,000
6	6,000
5	5,000
4	4,000
3	3,000

(h) The Department shall adjust the amount of the base penalty assessed pursuant to (g) above based upon the mitigating 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 mitigating factors in Table 22.7B below to obtain the mitigating penalty component. Where neither mitigating factor in Table 22.7B 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
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 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	0.50
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 for the unauthorized regulated activities without the need to modify the regulated activities, provide mitigation, or restore disturbed regulated areas	0.50

2. To obtain the civil administrative penalty, the Department shall subtract the mitigating penalty component calculated pursuant 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 any violation. The factors are:

1. The compliance history of the violator;

2. The frequency with which a violation has occurred;

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 without the required permit.

(k) Notwithstanding the maximum civil administrative penalty of $ 25,000 pursuant to this subsection, the Department may add to a civil administrative penalty assessed under this subchapter, the amount of economic benefit in dollars that the violator has realized as the result of not complying with, or by delaying compliance with, any applicable law and/or condition.

Notes

N.J. Admin. Code § 7:7A-22.7

Amended and recodified from N.J.S.A. 16:55-16.8 by 49 N.J.R. 3849(a), effective 12/18/2017