Proposed New Rules: N.J.A.C. 2:92
Authorized By: State Board of Agriculture and Charles
M. Kuperus, Secretary
Authority: N.J.S.A. 13:20-1 et seq; specifically 13:20-29
Calendar Reference: See Summary below for explanation
of exception to calendar requirement.
Proposal Number: PRN 2005-288
Submit comments by October 14, 2005 to:
Michelle Hammel, Legal and Legislative Affairs Specialist
New Jersey Department of Agriculture
PO Box 330
Trenton, NJ 08625-0330
Email –Highlandsrules@ag.state.nj.us
The agency proposal follows:
Summary
The Highlands Water Protection and Planning Act (Highlands
Act), signed into law on August 10, 2004 as P.L. 2004 c. 120, divided
the 800,000-acre Highlands region into two areas: (1) a Preservation Area,
where development will be strictly regulated, and (2) a Planning Area,
where development will be monitored. A Highlands Water Protection and
Planning Council (Highlands Council) was established and charged with
preparing and implementing a regional master plan for the entire Highlands
region.
The Highlands Act includes a special review process for agricultural and
horticultural activities and related development in the Highlands Preservation
Area. The Department of Agriculture was charged with drafting and implementing
rules for agricultural and horticultural development that would result
in an increase of three percent or more of new impervious cover. These
proposed new rules have been drafted in consultation with the Department
of Environmental Protection, the State Agriculture Development Committee,
Rutgers Cooperative Extension and the Natural Resources Conservation Service.
The purpose of the proposed new rules is to implement the process established
by the Highlands Act for review of new agricultural or horticultural development
within the Highlands Preservation Area. The Act provides that agricultural
and horticultural development will be subject to different levels of review
based upon the percentage of increase in new agricultural impervious cover
that will result from the proposed agricultural or horticultural development.
Any impervious cover that existed within a Farm Management Unit prior
to the enactment of the Highlands Act (August 10, 2004) shall not be considered
new agricultural impervious cover.
Any agricultural or horticultural development in the Preservation Area
that would result in the increase of three percent or more of new agricultural
impervious cover to the total land area of a Farm Management Unit (either
individually or cumulatively) since enactment of the Highlands Act (August
10, 2004) will require the farm owner or operator to develop and obtain
Soil Conservation District (SCD) approval of a Farm Conservation Plan,
prior to the start of the proposed agricultural or horticultural development.
The Farm Conservation Plan will address New Jersey- Field Office Technical
Guide (FOTG) Quality Criteria for soil and water resources as well as
Endangered and Threatened Species Habitat.
The Natural Resources Conservation Service (NRCS) -FOTG is a science based,
national standard for implementing natural resource management practices
that are time tested and proven. United States Environmental Protection
Agency along with other Federal and State agencies recognize these standards.
The FOTG is the basis for all United States Department of Agriculture
Farm Bill conservation programs as well as for New Jersey Department of
Agriculture (NJDA) programs. The NJ-FOTG also requires that conservation
plans follow State and local requirements when applicable. The NRCS-FOTG
meets the goals of the Highlands Act, as these are the practices implemented
to protect not only water and soil but also other natural resources.
Any agricultural or horticultural development in the Preservation Area
that would result in the increase of nine percent or more of agricultural
impervious cover to the total land area of a Farm Management Unit (either
individually or cumulatively) since enactment of the Highlands Act (August
10, 2004) will require the farm owner or operator to develop and obtain
Soil Conservation District (SCD) approval of a Resource Management System
Plan (RMS), prior to the start of the proposed agricultural or horticultural
development. Prior to approval, the SCD will transmit a copy to the DEP,
who must review and approve it with or without conditions or deny it within
60 days of receipt.
The Resource Management System Plan (RMS) is a comprehensive Farm Conservation
Plan that meets the Natural Resource Conversation Service’s (NRCS’s)
highest standards for resource sustainability by addressing all resource
management concerns on the farm, including soil, water, air, plants and
animals.
A copy of the approved Farm Conservation Plan or Resource Management System
Plan shall be transmitted by the SCD to the State Soil Conservation Committee.
If any part of the Farm Management Unit is preserved under any farmland
preservation program, a copy of the plan shall also be transmitted by
the SCD to the State Agriculture Development Committee (SADC).
The Farm Conservation Plan and the Resource Management System Plan shall
be based on the USDA Natural Resources Conservation Service, New Jersey
Field Office Technical Guide. This publication, as amended and supplemented,
is adopted and incorporated by reference in the proposed new rules.
The purpose of requiring a Plan when the three percent or nine percent
trigger is met either individually or cumulatively is to ensure that operations
do not seek to circumvent the requirements of these proposed new rules
by continual, but small expansions that would fall below the designated
trigger. For example, expansion in year one that results in two percent
of new agricultural impervious cover would not require a Plan. However,
an additional two percent expansion in year two or thereafter, would then
require the implementation of a Plan.
Subchapter 1 sets forth the purpose of the proposed new rules.
Subchapter 2 sets forth the definitions necessary to clarify agricultural
development activities from major development as defined in the Highlands
Act. The following terms are defined: “agricultural or horticultural
development”, “agricultural impervious cover.” “DEP,”
“Department, ” “farm conservation plan,” “farm
management unit,” “Highlands Preservation Area,” “Natural
Resources Conservation Service,” “New Jersey Field Office
Technical Guide,” “resource management system plan,”
“soil conservation district,” “ State Soil Conservation
Committee,” “temporary coverings” and “technical
service provider.”
Subchapter 3 outlines the Farm Conservation Plan elements for agricultural
or horticultural development that would result in three percent or more
of new agricultural impervious cover to the total land area of the farm
management unit (either individually or cumulatively) within the Highlands
Preservation Area.
Subchapter 4 outlines the Resource Management System Plan elements for
agricultural or horticultural development that would result in nine percent
or more of new agricultural impervious cover to the total land area of
the farm management unit (either individually or cumulatively) within
the Highlands Preservation Area.
Subchapter 5 sets forth penalty provisions. Penalties up to a maximum
of $5,000 per violation per day may be assessed. Penalties are determined
by the seriousness of the conduct and the amount of new impervious cover
that has been developed. Points are awarded based on the type of conduct
(major, moderate, minor) and the amount of new impervious cover. Other
factors, such as the violator’s previous compliance history and
whether a plan has been implemented are also considered. Persons aggrieved
by a determination under this subchapter are afforded the opportunity
for a hearing thereon in the manner provided for contested cases pursuant
to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and the
Uniform Administrative Procedure Rules, N.J.A.C. 1:1.
As the Department has provided a 60-day comment period on this notice
of proposal, this notice is exempted from the rulemaking calendar requirement
pursuant to N.J.A.C. 1:30-3.3(a)5.
Social Impact
The proposed new rules will have a positive social impact
as they will help ensure the protection of the soil and water resources
of the Highlands preservation area while recognizing that the agricultural
industry is a unique, vital and necessary economic component of the Highlands
region.
Economic Impact
The proposed new rules will have an economic impact on farmers
in the Highlands preservation area who are looking to construct agricultural
or horticultural buildings, structures or facilities that will result
in three percent or more of new agricultural impervious cover to the total
land area of the farm management unit, as Farm Conservation Plans or Resource
Management System Plans will be required. It is anticipated that there
will be little or no costs associated with plan development. Technical
assistance for developing Farm Conservation Plans or Resource Management
System Plans will be available from the USDA Natural Resources Conservation
Service (NRCS) and the NJDA at no cost to the landowner.
There may be costs associated with the implementation of the required
site-specific Farm Conservation Plans or Resource Management System plans.
Costs for conservation practices are based upon cost tables developed
by the NRCS. Some practices may be costly, depending on various factors
such as local costs for construction, size of the structure, topography,
soil type, property location, property size, the complexity of the plan,
the conservation practices implemented, availability of materials, and
other local conditions. Implementation of certain conservation practices,
such as filter strips, waterways and specific farming practices can be
installed or performed at minimal cost. For example, installation of a
grass waterway could cost as little as $4.00 per linear foot ($5,800 per
acre) and installation of stream protection could cost as little as $1.75
per linear food ($2,541 per acre). It is anticipated that the more extensive
plans may qualify for cost-share assistance that is available through
state and federal conservation programs.
The rules will have a net positive economic impact as they do provide
an overall benefit to the agricultural industry since agricultural development
activities are not subject to the stringent rules that other activities,
projects, residential and non-residential development are subject to in
the Highlands preservation area.
Federal Standards Statement
Executive Order No. 27 (1994) and P.L. 1995, c.65 require
State agencies that adopt, re-adopt or amend State rules that exceed any
Federal standards or requirements to include in the rulemaking document
a comparison with Federal law. The proposed new rules are based on the
USDA policy of incentive-based development and implementation of farm
conservation plans, using the Federal technical standards as contained
in the NRCS Field Office Technical Guide. Although the Federal FOTG standards
are not currently mandatory under Federal law, the proposed new rules
nevertheless incorporate standards that are recognized and encouraged
by the NRCS. These rules are, therefore, no more stringent than the Federal
standards and no Federal standards analysis is necessary.
Jobs Impact
These proposed new rules will not result in the generation
or loss of jobs.
Agriculture Industry Impact
The Highlands Act recognizes the agriculture industry in
the Highlands region as vital to the economy and the quality of life to
the citizens of the Highlands and the State. This recognition resulted
in a separate and distinct process for agricultural and horticultural
development in the Highlands preservation area. The Act identifies new
agricultural impervious cover triggers resulting from such development
that, when met, would require the development and implementation of farm
conservation plans. The agricultural community is familiar with these
plans and the process for creating them; however, until now, they have
engaged in the process on a voluntary basis only. The Highlands Act is
the first law to make these plans mandatory.
Regulatory Flexibility Analysis
In the absence of new agricultural or horticultural development
that increases the impervious cover beyond three percent of the Farm Management
Unit, the proposed new rules do not require any compliance, reporting
or recordkeeping requirements. However, for those entities that undertake
the modification or expansion of their operations, the proposed new rules
will impose compliance, reporting and recordkeeping requirements.
The proposed new rules will have an impact on small businesses, primarily
farmers, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16
et seq. The rules require the development and implementation of a Farm
Conservation Plan or Resource Management System plan when agricultural
or horticultural development activities result in three percent or more
of new agricultural impervious cover to the total land area of the farm
management unit (either individually or cumulatively) within the Highlands
preservation area. The plans will be developed by the owner or operator
(applicant) in consultation with NRCS or an appropriate agent, and implemented
by the applicant.
While plan development is likely to require the use of professional services,
it is anticipated that the necessary technical assistance will be available
at no cost from both State and Federal sources. It is anticipated that
in most cases, the plan implementation can be completed without the assistance
of professional services. However, either the NRCS or NJDA will likely
oversee implementation. Capital expenditures may be necessary depending
upon the site-specific plan that is developed. It is anticipated that
the more complex plans may be eligible for cost-share assistance from
State and Federal conservation programs. Since all required plans are
site-specific, lesser or differing standards are applied based upon business
size, operation, and local conditions.
Smart Growth Impact
The proposed new rules will have a positive impact on smart
growth efforts in New Jersey. The Highlands Water Protection and Planning
Act recognized that the agriculture industry is a vital and necessary
economic component of the Highlands region and to the quality of life
to the citizens of the Highlands and the State. That recognition resulted
in a separate process for agricultural and horticultural development in
the Highlands Preservation Area. Unlike the other types of development
activities that will be subject to strict regulations, agricultural and
horticultural development that increases new agricultural impervious cover
by three percent or more will need to be constructed in accordance with
a Farm Conservation Plan or a more comprehensive Resource Management System
Plan. The agricultural community is familiar with these plans and the
process for creating them. These plans will be developed by the owner,
operator or his agent with the assistance of NRCS or appropriate agent
and implemented by the applicant, thereby reducing the regulatory burden
on farmers. It is anticipated that the more complex plans will be eligible
for cost-share assistance. The development and implementation of Farm
Conservation Plans is strongly encouraged in the Agricultural Smart Growth
Plan to address natural resource concerns. The type of analysis required
by these plans is meant to ensure that agricultural development takes
plan in an appropriate manner. Therefore, these proposed new rules will
have a positive impact upon the achievement of smart growth and upon the
State Development and Redevelopment Plan.
Full text of the proposed new rules follows:
CHAPTER 92 AGRICULTRUAL DEVELOPMENT IN THE HIGHLANDS
SUBCHAPTER 1. PURPOSE
2:92-1.1 Purpose
(a) This chapter establishes the standards for Farm Conservation Plans
or Resource Management System Plans for agricultural or horticultural
development which would increase, either individually or cumulatively,
new agricultural impervious cover by three percent or more of the total
land area of a Farm Management Unit, triggering the thresholds in the
Highlands Preservation Area, established in the Highlands Water Protection
and Planning Act, N.J.S.A. 13:20-1 et seq.
(b) Nothing in this chapter shall be construed to alter or compromise
the goals, purposes, policies, and provisions of, or lessen the protections
afforded to farmers by, the Right to Farm Act, P.L. 1983, c. 31 (N.J.S.A.
4:1C-1 et seq.), and any rules or regulations adopted pursuant thereto.
SUBCHAPTER 2. DEFINITIONS
2:92-2.1 Definitions
For the purpose of this chapter, the following terms shall have the meanings
described below, unless the context clearly indicates otherwise:
“Agricultural or horticultural development” means construction
for the purposes of supporting common farmsite activities, including but
not limited to: production, harvesting, storage, grading, packaging, processing,
and the wholesale and retail marketing of crops, plants, animals, and
other related commodities and the use and application of techniques and
methods of soil preparation and management, fertilization, weed, disease,
and pest control, disposal of farm waste, irrigation, drainage and water
management, and grazing.
“Agricultural impervious cover” means agricultural or horticultural
buildings, structures, or facilities with or without flooring, residential
buildings and paved areas, but shall not mean temporary coverings.
“DEP” means the New Jersey Department of Environmental Protection.
“Department” or “NJDA” means the New Jersey Department
of Agriculture. “Farm Conservation Plan” means a site specific
plan that prescribes needed land treatment and related conservation and
natural resource management measures, including forest management practices,
that are determined to be practical and reasonable for the conservation,
protection and development of natural resources, the maintenance and enhancement
of agricultural or horticultural productivity and the control and prevention
of non-point source pollution.
“Farm Management Unit” means a parcel or parcels of land,
whether contiguous or noncontiguous, together with agricultural or horticultural
buildings, structures and facilities, producing agricultural or horticultural
products, and operated as a single enterprise.
“Highlands Act” means the Highlands Water Protection Act,
N.J.S.A. 13:20-1 et seq.
“Highlands Preservation Area” means that portion of the Highlands
region so designated by subsection b of section 7 of the Highlands Water
Protection and Planning Act (N.J.S.A. 13:20-7).
“Natural Resources Conservation Service (NRCS)” means the
technical agency of the USDA, authorized by Public Law 46 of the 74th
Congress for the conservation of agricultural and related natural resources.
“New Jersey Field Office Technical Guide (NJ-FOTG)” means
the USDA-NRCS technical reference, customized for the State of New Jersey,
prescribing practices and standards for the conservation and management
of soil, water and related natural resources.
“Resource Management System Plan” means a site-specific farm
conservation plan that:
1. Prescribes needed land treatment and related conservation and natural
resources management measures, including forest management practices,
for the conservation, protection, and development of natural resources,
the maintenance and enhancement of agricultural or horticultural productivity,
and the control and prevention of non-point source pollution; and
2. Establishes criteria for resources sustainability of soil, water, air,
plants, and animals.
“Soil Conservation District” means a soil conservation district
established in accordance with the Soil Conservation Act, N.J.S.A. 4:24-1
et seq.
“ State Soil Conservation Committee” means the committee established
pursuant to the Soil Conservation Act, N.J.S.A. 4:24-1 et seq.
“Technical Service Provider (TSP)” means NRCS certified professionals
outside of the U.S. Department of Agriculture that help agricultural producers
apply conservation practices on the land.
“Temporary coverings” mean permeable, woven and non-woven
geotextile fabrics that allow for water infiltration or impermeable materials
that are in contact with the soil and are used for no more than two consecutive
years.
“USDA” means the United States Department of Agriculture.
SUBCHAPTER 3. FARM CONSERVATION PLAN
2:92-3.1 Farm Conservation Plan Requirements
(a) Agricultural or Horticultural Development that results, individually
or cumulatively, in at least three percent but less than nine percent
increase in new agricultural impervious cover to the total land area of
the Farm Management Unit since enactment of the Highlands Act (August
10, 2004) requires the development and implementation of a Farm Conservation
Plan approved in accordance with this section.
1. Prior to any development activity, the owner or operator of a farm
management unit or his agent shall develop a farm conservation plan with
the assistance of the NRCS, TSP or an appropriate agent in conformance
with the June 1, 2005 NRCS NJ-FOTG, as amended and supplemented, which
is hereby adopted and incorporated by reference.
i. Copies of the NJ-FOTG are available from the NRCS Field Offices and
the State Office at 220 Davidson Ave, 4th Floor, Somerset, NJ 08873.
ii. An electronic copy of the NJ-FOTG is available at http://www.nrcs.usda.gov/technical/efotg/.
iii. A copy of this document is on file in the NJDA office of the Director,
Division of Agricultural and Natural Resources, Health and Agriculture
Building, Market and Warren Streets, Trenton, NJ 08625.
2. The following shall be contained in the Farm Conservation Plan submitted
for approval:
i. The name, address, block(s) and lot(s) of the operation and the emergency
contact;
ii. The owner or operator’s signature and date;
iii. A soil map;
iv. An aerial photograph or diagram of the field;
v. Identification of soil and water resources and endangered and threatened
species;
vi. A list of management decisions;
vii. The location and schedule for applying new practices;
viii. Records of plan implementation activities;
ix. A plan for operation and maintenance; and
x. Any other site-specific information necessary for plan certification.
3. The Farm Conservation Plan shall be reviewed, and if appropriate, approved
by the local Soil Conservation District. Plans developed in consultation
with entities other than the NRCS or TSP must be reviewed by NRCS for
approval prior to submission to the Soil Conservation District for review.
4. The Soil Conservation District shall transmit a copy of an approved
plan to the State Soil Conservation Committee. If any part of the Farm
Management Unit is preserved under any farmland preservation program,
the Soil Conservation District shall also transmit a copy of the plan
to the State Agriculture Development Committee.
5. The Soil Conservation District shall approve the Farm Conservation
Plan if it finds that the plan meets the New Jersey FOTG Quality Criteria
and Standards for soil and water resources and, where applicable, fish
and wildlife and threatened and endangered species.
6. The Farm Conservation Plan shall be executed in accordance with the
prescribed schedule contained in the approved plan.
7. Anyone aggrieved by a decision of the Soil Conservation District shall
have an opportunity to appeal in accordance with N.J.A.C. 2:90-1.6.
8. Anyone who is aggrieved by the determination made in accordance with
(a)7 above shall, upon written request transmitted to the Department within
20 days of that determination, be afforded the opportunity for a hearing
thereon in the manner provided for contested cases pursuant to the Administrative
Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative
Procedure Rules, N.J.A.C. 1:1.
i. Requests for hearings shall be sent to Director, Division of Agriculture
and Natural Resources, N.J. Department of Agriculture, P.O. Box 330, Trenton,
New Jersey 08625?0330
SUBCHAPTER 4. RESOURCE MANAGEMENT SYSTEM PLAN
2:92-4 Resource Management System Plan Requirements
(a) Agricultural or horticultural development that results, individually
or cumulatively, in at least nine percent or more of new agricultural
impervious cover to the total land area of the Farm Management Unit since
enactment of the Highlands Act (August 10, 2004) requires the development
and implementation of a Resource Management System Plan in accordance
with this section.
. Prior to any development activity, the owner or operator of a farm management
unit or his agent shall develop a Resource Management System Plan with
the assistance of the NRCS, TSP or appropriate agent in conformance with
the June 1, 2005 NRCS NJ-FOTG, as amended and supplemented, which is hereby
adopted and incorporated by reference.
i. Copies of the NJ-FOTG are available from the NRCS Field Offices and
the State Office at 220 Davidson Ave, 4th Floor, Somerset, NJ 08873.
ii. An electronic copy of the NJ-FOTG is available at http://www.nrcs.usda.gov/technical/efotg/.
iii. A copy of this document is on file in the NJDA office of the Director,
Division of Agricultural and Natural Resources, Health and Agriculture
Building, Market and Warren Streets, Trenton, NJ 08625.
2. The following shall be contained in the RMS plan submitted for approval:
i. The name, address, block(s) and lot(s) of the operation and the emergency
contact;
ii. The owner or operator’s signature and date;
iii. A soil map;
iv. An aerial photograph or diagram of the field;
v. Identification of soil, water, air, plant and animal resources including
endangered and threatened species;
vi. A list of management decisions;
vii. The location and schedule for applying new practices;
viii. Records of plan implementation activities;
ix. A plan for operation and maintenance; and
x. Any other site-specific information necessary for plan certification.
3. Upon receipt and prior to approval, the Soil Conservation District
will transmit a copy of the Resource Management System Plan to the DEP,
who must review and approve it with or without conditions or deny it within
60 days of receipt.
4. The Resource Management System Plan shall be reviewed, and if appropriate,
approved by the Soil Conservation District. Plans developed by entities
other than the NRCS or TSP must be reviewed by NRCS for approval prior
to submission to the Soil Conservation District for review.
5. The soil conservation district shall transmit a copy of the approved
plan to the State Soil Conservation Committee. If any part of the Farm
Management Unit is preserved under any farmland preservation program,
the soil conservation district shall also transmit a copy of the plan
to the State Agriculture Development Committee.
6. The Soil Conservation District shall approve the RMS plan if it finds
that it meets the New Jersey-FOTG Quality Criteria and Standards for soil,
water, air, plants and animal resources.
7. The Resource Management System Plan shall be executed in accordance
with the prescribed schedule contained in the approved plan.
8. Anyone aggrieved by a decision of the District shall have an opportunity
to appeal in accordance with N.J.A.C. 2:90-1.6.
9. Anyone who is aggrieved by the determination made in accordance with
(a)8 above shall, upon written request transmitted to the Department within
20 days of the determination, be afforded the opportunity for a hearing
thereon in the manner provided for contested cases pursuant to the Administrative
Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative
Procedure Rules, N.J.A.C. 1:1.
i. Requests for hearings shall be sent to Director, Division of Agriculture
and Natural Resources, N.J. Department of Agriculture, P.O. Box 330, Trenton,
New Jersey 08625?0330.
SUBCHAPTER 5. PENALTIES AND ENFORCEMENT
2:92-5 Penalty and enforcement provisions
(a) Any person who violates N.J.S.A. 13:20-29(a), or any provision of
these rules, or the requirements of a Farm Conservation Plan or Resource
Management System Plan developed pursuant to these rules, shall be liable
to a civil administrative penalty of up to $5,000 for each violation pursuant
to the procedures set forth in this section to determine the amount of
the penalty.
(b) Pursuant to N.J.S.A. 13:20-29(b) (1), the Department or the local
Soil Conservation District may institute a civil action in the Superior
Court for injunctive relief to prohibit and prevent the violation(s) and
the court may proceed in a summary manner.
(c) If the violation is of a continuing nature, each day during which
it continues shall constitute an additional, separate, and distinct offense.
(d) The Department shall use the factors described below to determine
the amount of a civil administrative penalty under this section. The standards
below assign each violation a point value. The total number of points
is used to determine the penalty amount per day for each violation. The
factors, and the point values assigned to them, are as follows:
1. The seriousness 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 three
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 (c)1i or
ii above and is assigned one point.
2. The percentage of impervious cover factor shall be assigned points
as follows:
i. A violation impacting nine percent or more new impervious cover is
assigned two points; and
ii. A violation impacting at least three percent but less than nine percent
new impervious cover is assigned one point.
(e) The Department shall sum the total points assigned according to the
factors in (d) above, and shall determine the penalty amount per day using
the following table:
Penalty points table
Total Points Penalty Amount
Per Day
5 $5,000
4 $4,000
3 $3,000
2 $2,000
(f) The Department shall investigate alleged violations of the rules and
take appropriate action, which may include, but is not limited to the
following:
1. If a Farm Conservation Plan or Resource Management Plan has been developed,
but not fully implemented, the Department shall determine the status of
compliance with the plan. Where non-compliance is found, the Department
may allow 60 days before imposing a civil administrative penalty.
(g) For a violation under this section, the Department may adjust the
daily civil administrative penalty amount based on the following factors:
1. The violator’s compliance history;
2. The nature, timing and effectiveness of measures the violator takes
to mitigate the effects of the violation;
The nature, timing and effectiveness of measures the violator takes to
prevent future similar violations;
4. Any unusual or extraordinary costs or impacts directly or indirectly
imposed on the public or the environment as a result of the violation;
and/or
5. Other specific circumstances of the violator or violation.
(h) No assessment shall be levied until after the party has been notified
by certified mail or personal service and has been provided an opportunity
for a hearing.
(i) Any amount assessed shall take into account the seriousness and duration
of the violation and whether the violation involves the failure to prepare
or to implement a farm conservation plan or resource management systems
plan and shall also provide for an enhanced penalty if the violation causes
an impairment to water quality. Any civil administrative penalty assessed
under this may be compromised by the Secretary of Agriculture upon the
posting of a performance bond by the violator, or upon such terms and
conditions as the Secretary may establish by regulation.
Any person who fails to pay a civil administrative penalty in full shall
be subject, upon order of a court, to a civil penalty of up to $5,000
for each violation. If the violation is of a continuing nature, each day
during which it continues shall constitute an additional, separate, and
distinct offense. Any such civil penalty imposed may be collected with
costs in a summary proceeding pursuant to the Penalty Enforcement Law
of 1999, P.L. 1999, c.274 (N.J.S.A. 2A:58-10 et seq.).
(k) All penalties collected pursuant to this chapter shall either be used,
as determined by the Highlands Water Protection and Planning Council (Highlands
Council), by the State Agriculture Development Committee for the preservation
of farmland in the preservation area or by the State development transfer
bank used or established by the Highlands Council to purchase development
easements/credits in the preservation area.
1. The Department will forward quarterly reports to the Highlands Council
and the State Agriculture Development Committee detailing any civil penalties
collected pursuant to these rules.
(l) Anyone who is aggrieved by a determination pursuant to this section
shall, upon written request transmitted to the Department within 20 days
of that determination, be afforded the opportunity for a hearing thereon
in the manner provided for contested cases pursuant to the Administrative
Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative
Procedure Rules, N.J.A.C. 1:1.
(1) Requests for hearings shall be sent to Director, Division of Agriculture
and Natural Resources, N. J. Department of Agriculture, P.O. Box 330,
Trenton, New Jersey 08625-0330.
_________________________
Charles M. Kuperus
Secretary, New Jersey Department of Agriculture
May 25, 2005
