N.J. Admin. Code § 7:38-13.8 - Civil administrative penalty amount for failure to obtain a HPAA prior to conducting regulated activities pursuant to the Act

Current through Register Vol. 54, No. 7, April 4, 2022

(a) To assess a civil administrative penalty pursuant to this section, the Department shall identify the civil administrative base penalty from Table A at (c) below by determining the number of points pursuant to (b) below. The civil administrative penalty shall be the amount within Table A at (c) below, unless adjusted pursuant to 7:38-13.7 or this section.
(b) The Department shall determine the number of points assigned to each violation by totaling the points according to (b)1 through 3 below.
1. Conduct of violator:
i. Major: Four points. Major conduct shall include any intentional, deliberate, purposeful, knowing or willful act or omission by the violator. Violations committed by persons who have applied for a permit, authorization, or approval pursuant to a land use statute or rule, or members of the professional community including, but not limited to, builders, developers, nurserymen, consultants, who knew or should have known about the adoption of the Act due to the nature of their profession, or who otherwise meet the criteria identified in this Section, shall be considered Major conduct;
ii. Moderate: Two points. Moderate conduct shall include any unintentional but foreseeable act or omission by the violator; or
iii. Minor: One point. Minor conduct shall include any other conduct not included in (b)1i or ii above;
2. Area of disturbance or impact in square feet (sf) shall be assigned points as in (b)2i through vii below:

The Department shall determine the area of disturbance as that area in which impervious surface was placed, soil was exposed, moved or cleared, and vegetation and/or trees were cut or removed;

i. Less than or equal to 750 sf: one point;
ii. 751 sf to 2,000 sf: two points;
iii. 2,001 sf to 5,000 sf: three points;
iv. 5,001 sf to 10,000 sf: four points;
v. 10,001 sf to 20,000 sf: five points;
vi. 20,001 sf to 40,000 sf: six points;
vii. Greater than 40,000 sf: seven points;
3. Unauthorized activity conducted in a special resource area:
i. The Department shall assess one point for each of the following, including, but not limited to, those areas identified or defined at 7:38-3.4 through 3.10 in which the unauthorized activity occurred or which was adversely affected by the violation:
(1) Waters of the Highlands (which includes groundwater);
(2) Septic systems;
(3) Impervious surface;
(4) Highlands open waters (surface waters and wetlands);
(5) Flood hazard area;
(6) Steep slopes;
(7) Upland forest area;
(8) Historical or archeological site;
(9) Rare, threatened and endangered plant or animal species; and
(10) Unique or irreplaceable land types.
(c) Table A: Base penalty based upon total points from (b) above:
Total Points Penalty Amount Per Day
2 $ 500
3 $ 1,000
4 $ 2,000
5 $ 3,000
6 $ 6,000
7 $ 8,000
8 $ 10,000
9 $ 15,000
Greater than 10 $ 25,000
(d) The Department shall adjust the amount of the daily base penalty assessed pursuant to (c) above based upon the mitigating penalty component as calculated in this subsection, if applicable.
1. The Department shall multiply the daily base penalty dollar amount from Table A at (c) above by the multiplier for either of the applicable mitigating factors in (d)1i and/or ii below to obtain the mitigating penalty component. Where neither mitigating factor applies, the civil administrative penalty shall be the civil administrative daily base penalty determined pursuant to Table A at (c) above, unless adjusted pursuant to 7:38-13.7;
i. Where the nature, timing and effectiveness of any measures taken by the violator to remove the violation and to restore the site to its predisturbance condition or to otherwise mitigate the effects of the violation for which the penalty is being assessed results in compliance within 30 days of receipt of the notice of violation from the Department, the mitigating factor multiplier is 0.50; or
ii. Where a complete application for an HPAA is submitted within 30 days of receipt of the notice of the violation from the Department and an HPAA is subsequently obtained for the unauthorized development without the need of any modification of the project or restoration of the violation, the mitigating factor multiplier is 0.25.
2. To calculate the civil administrative penalty, the Department shall subtract the mitigating penalty component calculated pursuant to (d) above, if any, from the base penalty.
(e) The total civil administrative penalty shall be the amount obtained from Table A at (c) above, as adjusted pursuant to (d) above, multiplied by the number of days during which the violation existed.


N.J. Admin. Code § 7:38-13.8

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