SUBCHAPTER 2. EXTENT OF REGULATORY AUTHORITY

7:13-2.1 Permit requirement
7:13-2.2 Regulated waters
7:13-2.3 Regulated areas
7:13-2.4 Regulated activities


7:13-2.1 Permit requirement

(a)        No person shall engage in a regulated activity in a regulated area without a flood hazard area permit as required by this chapter, or a coastal permit as required by N.J.A.C. 7:7 and 7:7E, as set forth in (b) and (c) below. Initiation of a regulated activity in a regulated area without a flood hazard area or coastal permit as set forth at (b) below (except as provided in (c) below) shall be considered a violation of this chapter and shall subject the party or parties responsible for the regulated activity to enforcement action, as set forth at N.J.A.C. 7:13-19. Regulated areas are set forth at N.J.A.C. 7:13-2.3 and regulated activities are set forth at N.J.A.C. 7:13-2.4.

(b)        Except as provided in (c) or (e) below, a person undertaking any regulated activity in a regulated area shall do so only in accordance with one of the following:

1.    A permit-by-rule, pursuant to N.J.A.C. 7:13-7;

2.    An authorization under a general permit, pursuant to N.J.A.C. 7:13-8;

3.    An individual permit, pursuant to N.J.A.C. 7:13-9, 10 and 11;

4.    An emergency permit, pursuant to N.J.A.C. 7:13-12; or

5.    A CAFRA or waterfront development permit, pursuant to N.J.A.C. 7:7 and N.J.A.C. 7:7E, provided:

i.     The CAFRA or waterfront development permit was declared by the Department as complete for final review on or after November 5, 2007; and

ii.     If activities are proposed in a fluvial flood hazard area, the applicant meets one of the four conditions at N.J.A.C. 7:13-9.6(a) regarding the need for a verification of the flood hazard area and/or floodway onsite.

(c)        Undertaking a regulated activity in a regulated area does not require an approval listed at (b) above in the cases listed below. For the purpose of this subsection, each distinct construction activity in a project, such as each building, road or utility crossing, is considered a distinct regulated activity.

1.    The regulated activity is part of a project for which all elements that were subject to the Flood Hazard Area Control rules in effect prior to November 5, 2007, have been approved under a permit issued pursuant to those rules, provided:

i.     The regulated activity is specifically approved under the permit, or was not subject to the requirements of this chapter prior to November 5, 2007;

ii.     The application for the permit was received by the Department and was complete for review prior to November 5, 2007; and

iii.      The permit is valid when the regulated activity is undertaken;

2.    The regulated activity is part of a project for which all elements in a tidal flood hazard area that were subject to N.J.A.C. 7:7 and N.J.A.C. 7:7E in effect prior to November 5, 2007, have been approved under a valid CAFRA or waterfront development permit, provided:

i.     The regulated activity is specifically approved under the permit, or was not subject to the requirements of N.J.A.C. 7:7 and N.J.A.C. 7:7E prior to November 5, 2007;

ii.     The application for the permit was received by the Department and was declared complete for final review prior to November 5, 2007; and

3.    The regulated activity is part of a project that was subject to neither the requirements of this chapter, nor N.J.A.C. 7:7 and N.J.A.C. 7:7E, prior to November 5, 2007, and both of the following apply:

i.     The regulated activity is located within the Hackensack Meadowlands District; and

ii.     The regulated activity is authorized under a valid zoning certificate issued by the New Jersey Meadowlands Commission prior to November 5, 2007, pursuant to N.J.A.C. 19:4-4.2; or

4.    The regulated activity is part of a project that was subject to neither the requirements of this chapter, nor N.J.A.C. 7:7 and N.J.A.C. 7:7E, prior to November 5, 2007, and one of the following applies:

i.     The regulated activity is authorized under a valid municipal approval, issued prior to November 5, 2007, which enables commencement of construction of the regulated activity on a specific lot and/or easement; or

ii.     The regulated activity does not require an approval identified in (c)4i above, and one or more of the following construction activities were completed onsite prior to November 5, 2007:

(1)   The foundation for at least one building or structure;

(2)   All of the subsurface improvements for a roadway; or

(3)   The installation of all of the bedding materials for a utility line.

(d)        If a regulated activity is approved under a qualifying approval listed at (c) above, and the regulated activity is subsequently revised by the issuing entity, the original approval continues to satisfy the requirements of (c) above provided the Department determines that the revision will not result in one or more of the following:

1.    An increase in the area of vegetation disturbed in a riparian zone;

2.    An increase in flood storage displacement in a flood hazard area;

3.    For regulated activities under a qualifying approval under (c)1 or 2 above, additional regulated activities within a regulated area that have not been previously reviewed by the Department under N.J.A.C. 7:7, 7:7E and/or this chapter, as applicable; and/or

4.    A change in land use and/or an alteration of the basic purpose and intent of the project, such as converting a residential development into a commercial development.

(e) If railroad activities proposed in a flood hazard area or riparian zone are exempt from State regulation under Federal law, no permit shall be required under this chapter for that activity. However, the railroad shall provide the Department with the application material normally required for the proposed activity at least 90 calendar days prior to the railroad commencing the activity. For emergency activities, the information described at N.J.A.C. 7:13-12.1(c) shall be provided to the Department via telephone and/or fax, as listed at N.J.A.C. 7:13-1.1(f), as soon as possible after the emergency is discovered, and in no event later than the day the activity is authorized or commences, whichever occurs first.

 

7:13-2.2 Regulated waters

(a)        All waters in New Jersey are regulated under this chapter except for the following:

1.    Any manmade canal;

2.    In accordance with N.J.S.A. 58:16A-60, any coastal wetland regulated under the Wetlands Act of 1970 (N.J.S.A. 13:9A-1 et seq.); and

3.    Any segment of water that has a drainage area of less than 50 acres, provided one or more of the following applies:

i.     The water has no discernible channel;

ii.     The water is confined within a lawfully existing, manmade conveyance structure or drainage feature, such as a pipe, culvert, ditch, channel or basin (not including any water that historically possessed a naturally-occurring, discernible channel, which has been piped, culverted, ditched or similarly modified); and/or

iii.    The water is not connected to a regulated water by a channel or pipe, such as an isolated pond or depression that has no outlet.

 

7:13-2.3 Regulated areas

(a)        For each regulated water, as described at N.J.A.C. 7:13-2.2, the Department identifies and regulates the water and the area surrounding it in two different ways, resulting in the regulated areas described at (a)1 and 2 below:

1.    A flood hazard area exists along every regulated water that has a drainage area of 50 acres or more. If a regulated water has a drainage area of less than 50 acres, the water does not have a flood hazard area that is regulated under this chapter. The flood hazard area is comprised of a flood fringe and a floodway, except for the Atlantic Ocean and other non-linear tidal waters such as bays and inlets, which do not have a floodway. Therefore, the entire flood hazard area along these tidal waters is considered to be a flood fringe for the purposes of this chapter. The methods for determining the limits of the flood fringe and floodway are described at N.J.A.C. 7:13-3; and

2.    A riparian zone exists along every regulated water, except there is no riparian zone along the Atlantic Ocean nor along any manmade lagoon, stormwater management basin, or oceanfront barrier island, spit or peninsula. The regulated water itself is also part of the riparian zone. The methods for determining the limits of the riparian zone are described at N.J.A.C. 7:13-4.1.

(b)        The flood hazard area and riparian zone described at (a)1 and 2 above generally overlap. Figures A and B below (not drawn to scale) illustrate a typical water and each of these regulated areas. This chapter sets forth the specific requirements applicable to activities in each regulated area.

 

7:13-2.4 Regulated activities
(a)    Any action that includes or results in one or more of the following constitutes a regulated activity under this                    chapter if undertaken in a regulated area, as described at N.J.A.C. 7:13-2.3:
        1.    The alteration of topography through excavation, grading and/or placement of fill;
        2.    The clearing, cutting and/or removal of vegetation in a riparian zone;
        3.    The creation of impervious surface;
        4.    The storage of unsecured material;
        5.    The construction, reconstruction and/or enlargement of a structure; and
        6.    The conversion of a building into a private residence or a public building.