A Ditchs and Swales have different meanings and are handled differently by each rule. Activities, including construction or disturbance of a ditch or swale, may require an approval from the Division prior to the start of these activities. A n area containing sensitive and endangered plant species for example, may be irreparably damaged by such activities. It is important therefore to closely examine a proposed project relative to these sensitive areas which may be impacted.
Regulated activities in a ditch or swale may require multiple approvals from the Division, depending on the special areas impacted by the project. Please check out the before you buy, before you build section of this website for guidance on determining if your site has one of these regulated special areas on it.
For information on Land Use permit requirements for any disturbance within a ditch or swale, please click on each of the tabs above.*
*For impacts to Streams, Rivers, Lakes, Ponds, Flood Plains, Flood Way, Riparian Zones and other water body related areas, please click on the "Flood Hazard" tab. For impacts to special coastal areas, please click on the "Coastal" tab. For impacts to Freshwater Wetlands, click on the "Freshwater Wetlands" tab. Information on Tidelands can be found in the "Tidelands" tab
The Freshwater Wetlands rules have specific definitions for a Ditch and a Swale. Please refer to these links for more information.
With regards to regulated activities within these areas, there is a Freshwater Wetlands General Permit (No. 7) for "Human-made ditches or swales in headwaters". This permit allows for activities ONLY in a headwater area. In addition, if the wetlands is of exceptional resource value, within a USEPA priority wetlands, over an acre or would result in a distruption of a surface water connection that would isolate a wetland, it is not permitted under this general permit.
If the project does not comply with the criteria for a GP1, a GP10A, or a GP10B, the applicant would need to apply for an (Individual Permit (IP)) [link to N.J.A.C. 7:7A-7.1]. An IP application would need to include a description as to why the project cannot be minimized to satisfy the General Permit criteria described in the links above.
The construction of a ditch/swale in regulated areas requires authorization of some type under the Flood Hazard Area Control Act rules. This depends upon whether or not the project area is regulated under the Coastal Zone Management (CZM) rules. Specifically, if regulated under CZM, then no separate flood hazard approval is required. In this case, the applicant need only submit a report and plans demonstrating compliance with the Flood Hazard Area Control Act rules as part of the CZM permit application.
Assuming there is no jurisdiction under CZM, authorization may be granted under a Flood Hazard Area Verification and Individual Permit. The technical standards are described in Subchapters 9, 10 and 11 of the Rules.
There are no Flood Hazard Permit by Rules and Flood Hazard General Permits available to permit the construction of Ditch/Swales.
The Coastal Permit Program rules, N.J.A.C. 7:7-1.1 et seq. and the Coastal Zone Management rules N.J.A.C. 7:7E-1.1 et seq. require compliance with wetlands, wetland buffers, flood hazard areas and riparian zones. Ditches and swales may be wetlands and ditches and swales convey floodwaters and often lie in riparian zones. There are no exemptions, permits-by-rule, or general permits specifically for work in a ditch or swale in the coastal zone. If a project requires a coastal permit, proposes to impact a ditch or a swale, and the feature is regulated by the Flood Hazard Area Control Act, then the flood hazard aspects are reviewed during the projects coastal permit review. If the feature is regulated by the Freshwater wetlands then a separate freshwater wetlands permit may be required.
See the “Jurisdiction” section of the "Coastal Permitting" webpage to determine which areas regulated under the Coastal Permit Program rules N.J.A.C. 7:7-1.1 et seq. and the Coastal Zone Management rules N.J.A.C. 7:7E-1.1 et seq occur on your site. Which permits are available for a project depends on where your project is sited.
If the project does not comply with an exemption, permit-by-rule or general permit it generally will require a Waterfront Development, CAFRA, and /or Coastal Wetland Individual Permit. Additional information regarding the coastal program can be found on the Coastal Areas section of this website. Please contact us for further assistance.
Tidelands, also known as riparian lands, are all those lands now or formerly flowed by the mean high tide of a natural waterway; that is to say any land that is currently or was previously covered by tidal waters. The State of New Jersey, and therefore the people of New Jersey, owns all Tidelands except for those to which it has already sold its interest in the form of a riparian grant. It is important to note that the State generally does not own artificial waterways such as lagoons however, the State does claim those lands within a lagoon that were flowed by the mean high tide of a natural waterway which existed prior to the creation of the lagoon.
The construction of a ditch/swale that is proposed in an area that is currently landward of the mean high water line but was, at some point, flowed by the tide may require a tidelands grant.
A riparian grant, or tidelands grant, is a deed from the State of New Jersey selling its tidelands. Tidelands grants are generally only issued for lands that have already been filled in and are no longer flowed by the tide.
For more information on tidelands instruments, please see the tidelands section of this website.
For information and instruction on how to determine whether you are in an area that may require either a license or a grant, or for information how to apply for Tideland instruments please see the "Before you Build, Before you Buy" webpage.