FRESHWATER WETLANDS PROTECTION ACT RULES
SUBCHAPTER 1 GENERAL INFORMATION
Please Note: The Department has made every effort to ensure that the text of this regulation is identical to the official, legally effective version set forth in the New Jersey Register. However, should there be any discrepancies between the text on this web site and the official version of the rule, the official version will govern. For more information on obtaining official versions of the rules, see "How To Get a Paper Copy of Department Rules".
7:7A-1.1 Scope and authority
7:7A-1.2 Construction of this chapter
7:7A-1.3 Forms and information, internet web site
7:7A-1.6 Other statutes and regulations
7:7A-1.7 Hearings and appeals
7:7A-1.1 Scope and authority
This chapter constitutes the
rules governing the implementation of the Freshwater Wetlands Protection
Act, N.J.S.A. 13:9B-1 et seq.; and the New Jersey Water Pollution Control
Act, N.J.S.A. 58:10A-1 et seq. Certain violations of the New Jersey
Water Pollution Control Act are also subject to enforcement provisions
at N.J.A.C. 7:14.
7:7A-1.2 Construction of
This chapter shall be liberally
construed to allow the Department to implement fully its statutory functions
pursuant to the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1
et seq., and pursuant to the Water Pollution Control Act, N.J.S.A. 58:10A-1
7:7A-1.3 Forms and information,
internet web site
(a) Forms or other information
related to this chapter may be obtained from the Division of Land Use
Regulation as follows:
1. Through the Division of Land Use Regulation website at www.state.nj.us/dep/landuse; or
2. By contacting the Division of Land Use Regulation at:
Division of Land Use Regulation
New Jersey Department of Environmental Protection
P.O. Box 439
Trenton, New Jersey 08625 - 0439
Fax: (609) 292-8115
(b) Applications, fees, and correspondence shall be submitted to the address in (a) above, except that courier and hand deliveries shall be delivered to:
Division of Land Use Regulation
New Jersey Department of Environmental Protection
5 Station Plaza
501 East State Street
Trenton, New Jersey 08609
(c) Applications or other materials
sent or delivered to a Department address other than those in (a) and
(b) shall not be deemed to have been received for the purposes of calculating
application review deadlines or other time periods under this chapter.
(d) Other sources of information
referred to in this chapter are available on the Division of Land Use
Regulation website at www.state.nj.us/dep/landuse, or from the Office
of Maps and Publications, located at 428 State Street, Trenton, New
Jersey 08625, (609) 777-1038.
N. J.A.C. 7:7A-1.4
The following words and terms,
when used in this chapter, shall have the following meanings unless
the context clearly indicates otherwise. Additional definitions specifically
applicable to N.J.A.C. 7:7A-15, Mitigation, are set forth at N.J.A.C.
with respect to an agricultural field, including a blueberry field or
a cranberry bog, that the field was used for agriculture, but has not
been used to produce a crop or product for five years or more. If an
agricultural field has been abandoned for 40 or more years, it shall
no longer be considered an abandoned agricultural field.
"ACOE" or "Corps"
means the United States Army Corps of Engineers.
"Acid producing soils
means soils that contain geologic deposits of iron sulfide minerals
(pyrite or marcasite) which, when exposed to oxygen from the air or
from surface waters, oxidize to produce sulfuric acid. Acid producing
soils, upon excavation, generally have a pH of 4.0 or lower. After exposure
to oxygen, these soils generally have a pH of 3.0 or lower. Information
regarding the location of acid producing soils in New Jersey can be
obtained from local Soil Conservation District offices.
"Agency of the State"
means each of the principal departments in the executive branch of the
State Government, and all boards, divisions, commissions, agencies,
departments, councils, authorities, offices or officers within any such
a person who submits an application for a permit, waiver, or any other
Department decision pursuant to N.J.A.C. 7:7A.
means waters of the United States, including wetlands, that serve as
habitat for interrelated and interacting communities and populations
of plants and animals.
means an intensive-level historic architectural survey completed by
an architectural historian whose qualifications meet the Secretary of
the Interior’s Professional Qualifications Standards and related guidance
as part of the larger Secretary of the Interior’s Standards and Guidelines
for Archaeology and Historic Preservation as referenced in 36 CRF 61,
as amended and supplemented, incorporated herein by reference.
wetlands" means a type of forested freshwater wetlands where Atlantic
white-cedar tree is the dominant vegetation, as described in the Federal
"Best Management Practices"
or "BMPs" means methods, measures, designs, performance standards,
maintenance procedures, and other management practices which prevent
or reduce adverse impacts upon or pollution of freshwater wetlands,
State open waters, and adjacent aquatic habitats, which facilitate compliance
with the Federal Section 404(b)(1) guidelines (40 C.F.R. Part 230),
New Jersey Department of Environmental Protection Flood Hazard Area
Control rules, N.J.A.C. 7:13; the Department's Storm Water Management
Regulations, N.J.A.C. 7:8; the Standards for Soil Erosion and Sediment
Control in New Jersey, promulgated by the New Jersey State Soil Conservation
Committee at N.J.A.C. 2:90; and effluent limitations or prohibitions
under Section 307(a) of the Federal Act and the Department's Surface
Water Quality Standards, N.J.A.C. 7:9B. Examples include practices found
at 33 C.F.R. 330.6, 40 C.F.R. 233.35(a)6, the Department's Technical
Manual for Stream Encroachment, and "A Manual of Freshwater Wetland
Management Practices for Mosquito Control in New Jersey."
The manuals included in this definition are only a partial listing,
and interested persons should contact the Department for the most up
to date list.
"Category one waters"
means waters designated as category one waters in the Department's Surface
Water Quality Standards at N.J.A.C. 7:9B. As of September 4, 2001, N.J.A.C.
7:9B-1.15 defines category one waters as those waters designated in
the tables in N.J.A.C. 7:9B-1.15(c) through (h), for purposes of implementing
the antidegradation policies set forth at N.J.A.C. 7:9B-1.5(d), for
protection from measurable changes in water quality characteristics
because of their clarity, color, scenic setting, other characteristics
of aesthetic value, exceptional ecological significance, exceptional
recreational significance, exceptional water supply significance, or
exceptional fisheries resource(s). These waters may include, but are
not limited to:
1. Waters originating wholly
within Federal, interstate, State, county, or municipal parks, forests,
fish and wildlife lands, and other special holdings that have not been
designated as FW1 at N.J.A.C. 7:9B-1.15(h) Table 6;
2. Waters classified at
N.J.A.C. 7:9B-1.15(c) through (g) as FW2 trout production waters and
3. Surface waters classified
in this subchapter as FW2 trout maintenance or FW2 nontrout that are
upstream of waters classified in this subchapter as FW2 trout production;
4. Shellfish waters of
exceptional resource value; or
5. Other waters and their
tributaries that flow through, or border, Federal, State, county, or
municipal parks, forests, fish and wildlife lands, and other special
the Commissioner of the Department of Environmental Protection.
"Compelling public need"
means that based on specific facts, the proposed regulated activity
will serve an essential health or safety need of the municipality in
which the proposed regulated activity is located, that the public health
and safety benefit from the proposed use and that the proposed use is
required to serve existing needs of the residents of the State, and
that there is no other means available to meet the established public
or easement" means a restriction, easement, covenant, or condition,
in any deed, will or other instrument, other than a lease, executed
by or on behalf of the owner of the land, appropriate to retaining land
or water areas predominantly in their natural, scenic or open or wooded
conditions, or for conservation of soil or wildlife, or for outdoor
recreation or park use, or as suitable habitat for fish or wildlife,
to forbid or limit any or all:
1. Construction or placing
of buildings, roads, signs, billboards or other advertising, or other
structures on or above the ground;
2. Dumping or placing of
soil or other substance or material as landfill, or dumping or placing
of trash, waste or unsightly or offensive materials;
3. Removal or destruction
of trees, shrubs or other vegetation;
4. Excavation, dredging
or removal of loam, peat, gravel, soil, rock or other mineral substance;
5. Surface use except for
purposes permitting the land or water area to remain predominantly in
its natural condition;
6. Activities detrimental
to drainage, flood control, water conservation, erosion control or soil
conservation, or fish and wildlife habitat preservation; and/or
7. Other acts or uses detrimental
to the retention of land or water areas according to the purposes of
adjacent properties, even if they are separated by human-made barriers
or structures or legal boundaries. Contiguous properties shall include,
but are not limited to, land areas which directly abut or are separated
by a general access roadway or other right-of way, including waterways;
and properties which are part of a subdivision that was under common
ownership on July 1, 1988.
"Council" means the
Wetlands Mitigation Council established pursuant to Section 14 of the
"Critical habitat for
fauna or flora" means:
1. For fauna, areas which
serve an essential role in maintaining wildlife, particularly for wintering,
breeding, spawning and migrating activities;
2. For flora, areas supporting
rare or unique plant species or uncommon vegetational communities in
physical methods of soil treatment, employed upon planted farm, ranch
or forest crops to aid and improve the growth, quality or yield of the
means a wetland in which there is impaired surface water flow or groundwater
hydrology, or excessive drainage; a wetland which has been partially
filled or excavated, contaminated with hazardous substances, or which
has an ecological value substantially less than that of undisturbed
wetlands in the region.
means all waters of the United States, as defined in this section, within
New Jersey, except waters which are presently used, or are susceptible
to use in their natural condition or by reasonable improvement, as a
means to transport interstate or foreign commerce, shoreward to their
ordinary high water mark. This term includes all waters which are subject
to the ebb and flow of the tide, shoreward to their mean high water
mark, including wetlands that are partially or entirely located within
1000 feet of their ordinary high water mark or mean high tide. Waters
that are not delegable waters include, but are not limited to:
1. The entire length of
the Delaware River within the State of New Jersey;
2. Waters of the United
States under the jurisdiction of the Hackensack Meadowlands Development
3. Greenwood Lake.
the Department of Environmental Protection.
or "detention facility" means a human-made impoundment area
made by constructing an embankment, or excavating a pit, or both, for
the purpose of temporarily storing stormwater.
means an upland area that could be developed under the laws that apply
to the site.
"Discharge of dredged
material" means any addition of dredged material into State open
waters or freshwater wetlands. The term includes the addition of dredged
material into State open waters or freshwater wetlands and the runoff
or overflow from a contained land or water dredge material disposal
area. Discharges of pollutants into State open waters resulting from
the subsequent onshore processing of dredged material are not included
within this term. Such discharges of pollutants may, however, be subject
to the New Jersey Pollutant Discharge Elimination System (NJPDES) rules
at N.J.A.C. 7:14A.
"Discharge of fill material"
means the addition of fill into State open waters or freshwater wetlands.
The term includes, but is not limited to, the following activities:
1. Placement of fill that
is necessary for the construction of any structure;
2. The building of any
structure or impoundment requiring rock, sand, dirt, or other materials
for its construction;
3. Site-development fill
for recreational, industrial, commercial, residential, and other uses;
4. Causeways or road fills;
5. Dams and dikes;
6. Artificial islands;
7. Property protection
or reclamation devices, or both, such as riprap, groins, seawalls, breakwaters,
8. Beach nourishment;
10. Fill for structures
such as sewage treatment facilities, intake and outfall pipes associated
with power plants and underground utility lines;
11. Artificial reefs; and
12. Stump removal.
"Ditch" means a linear
topographic depression with bed and banks of human construction, which
conveys water to or from a site, which is surrounded by uplands and
which is not located within a wetland. This does not include channelized
or redirected natural water courses.
"Documented habitat for
threatened or endangered species" means areas for which:
1. There is recorded evidence
of past use by a threatened or endangered species of flora or fauna
for breeding, resting, or feeding. Evidence of past use by a species
may include, but is not limited to, sightings of the species, or of
its sign (for example, skin, scat, shell, track, nest, herbarium records,
etc.), as well as identification of its call; and
2. The Department makes
the finding that the area remains suitable for use by the specific documented
threatened or endangered species during the normal period(s) the species
would use the habitat.
active or passive methods for changing the hydrologic conditions of
wetlands or State open water, such as lowering groundwater or surface
water levels through pumping, ditching, or otherwise altering water
removal of wetlands or State open water soils or sediments through use
of mechanical, hydraulic, or pneumatic tools or other means.
means material that is excavated or dredged from waters of the United
"Dumping" means the
discharge, placement or abandonment of solid, semi-solid or liquid materials.
means a municipal advisory body created pursuant to N.J.S.A. 40:56A-1
"EPA priority wetlands"
means wetlands which are designated as priority wetlands by EPA, and
are listed on the "Priority Wetlands List for the State of New
Jersey," which is available from the Department's Office of Maps
and Publications at the address listed at N.J.A.C. 7:7A-1.3.
farming, ranching or silviculture operation" means activities on
areas subject to a farming, ranching, or silviculture use as of June
30, 1988, which use has been pursued continuously since June 30, 1988.
Activities on areas lying fallow as part of a conventional rotational
cycle that does not exceed five years are part of an established operation.
Activities which bring an area into farming, silviculture, or ranching
use are not part of an established operation. An operation ceases to
be established when the area on which it was conducted has been converted
to another use or has lain idle for so long that modifications to the
hydrological regime are necessary to resume operations, or for more
than five years, whichever is shorter.
“Fair market value” or
“market value” means the most probable price for which land will
sell in a competitive and open market under all conditions requisite
to a fair sale, the buyer and seller each acting prudently and knowledgeably,
and assuming the price is not affected by any unusual benefit to the
means a freshwater wetland, as defined in this section, which was both
manipulated and cropped before December 23, 1985, and has been in active
agricultural use continuously since then. This term also includes a
wetland that was manipulated and used for pasture or hayland before
December 23, 1985, which has been in active use for pasture or hayland
continuously since then. An area that lies fallow as part of a conventional
rotational cycle that does not exceed five years is considered to be
in active agricultural use.
"Federal act" means
the Federal Water Pollution Control Act, 33 U.S.C. §§1251 et seq.,
including any amendments and supplements, and implementing regulations.
This statute is sometimes referred to as the Federal Clean Water Act.
to dig or remove soil, rocks, etc., resulting in a change in site elevation.
"Federal 404 program"
means the program regulating the discharge of dredged or fill materials
pursuant to Section 404 of the Federal Act.
"Fill" means the
deposition or placement of material such as soil, sand, earth, rock,
concrete, pavement, or solid material of any kind; so as to change the
ground elevation in relation to surface water or groundwater level.
"Fill" also means the material deposited.
that tree species with an average height greater than 20 feet are the
predominant vegetation present.
"FW" means the general
surface water classification applied to fresh waters in the Department's
Surface Water Quality Standards, N.J.A.C. 7:9B.
"FW1 waters" means
waters designated as FW1 waters in the Department's Surface Water Quality
Standards, N.J.A.C. 7:9B. As of September 4, 2001, N.J.A.C. 7:9B-1.15
defines FW1 waters as those fresh waters wholly within Federal or State
lands or special holdings, that are preserved for posterity, and are
not subject to wastewater discharges of human origin.
"FW2 waters" means
waters designated as FW2 waters in the Department's Surface Water Quality
Standards, N.J.A.C. 7:9B.
or "wetland" means an area that is inundated or saturated
by surface water or groundwater at a frequency and duration sufficient
to support, and that under normal circumstances does support, a prevalence
of vegetation typically adapted for life in saturated soil conditions,
commonly known as hydrophytic vegetation; provided, however, that the
Department, in designating a wetland, shall use the three-parameter
approach (that is, hydrology, soils and vegetation) enumerated in the
1989 Federal Manual as defined in this section. These include tidally
influenced wetlands which have not been included on a promulgated map
pursuant to the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq.
"Freshwater wetlands permit"
means a permit to engage in a regulated activity in a freshwater wetland
issued pursuant to the Freshwater Wetlands Protection Act and this chapter.
"Gabion" means a
shore or stream bank protection structure, that is made of wire mesh
basket(s) or mattress(es) filled with rocks and usually used in multiples
as a structural unit installed to withstand the forces of waves and
means a permit, adopted as a rule, under which the Department issues
authorizations. A general permit may authorize regulated activities
in freshwater wetlands, State open waters, and/or transition areas.
An authorization issued under a general permit satisfies the requirement
for a freshwater wetlands permit, open water fill permit, and/or transition
area waiver, as applicable.
means any department, division, authority, board, commission, office,
bureau, agency, committee or other instrumentality of the United States,
or of the State or any political subdivision thereof.
physical measures employed directly upon farm, forest, or ranch crops
within established agricultural and silvicultural lands to bring about
their removal from farm, forest, or ranch land, but does not include
the construction of farm, forest, or ranch roads or other engineering
practices such as drainage which would alter the existing character
of the farm, forest or ranch land.
“Historic preservation restriction
or easement” means an interest in land less than fee simple absolute,
stated in the form of a right, restriction, easement, covenant, or condition,
in any deed, will or other instrument, other than a lease, executed
by or on behalf of the owner of the land, appropriate to preserving
a structure or site which is historically significant for its architecture,
archeology or associations, to forbid or limit any or all:
1. Alteration in exterior or interior feature of such structure;
2. Changes in appearance or condition of such site;
3. Uses of such structure or site which are not historically appropriate; and/or
4. Other acts or uses detrimental to the appropriate preservation of such structure or site.
“HUC” means the hydrologic
unit code system developed by the United States Geological Service for
delineating and identifying drainage areas. The system starts with the
largest possible drainage areas and progressively smaller subdivisions
of the drainage area are delineated and numbered in a nested fashion.
As used in this chapter, “HUC 14” indicates a drainage area with
a hydrologic unit code designation with 14 numbers. “HUC 11” indicates
a larger subwatershed that is composed of several HUC 14 subwatersheds.
There are 921 HUC 14 subwatersheds in New Jersey that range in size
from 0.1 to 42 square miles. The boundaries are included in the United
States Geological Survey, Water Resources Investigations Report 95-4134,
1995, entitled "Development of a 14-digit Hydrologic Coding Scheme
and Boundary Data Set for New Jersey." The HUC codes for New Jersey
can be downloaded from http.//www.nj.gov/dep/gis/. The HUC 11
data is entitled "subwatersheds." Software designed for use
with Geographic Information Systems (GIS) will be required to view the
"Hydric soil" means
a soil that in its undrained condition is saturated, flooded, or ponded
long enough during the growing season to develop anaerobic conditions
that favor the growth and regeneration of hydrophytic vegetation. These
soils may be described in several places, including New Jersey's Official
List of Hydric Soils, developed by the Natural Resources Conservation
Service; the National Wetlands Inventory, entitled "The Wetlands
of New Jersey", published in 1985 by the United States Fish and
Wildlife Service; or in the 1989 Federal manual. Alluvial land, as mapped
on soil surveys, or other soils exhibiting hydric characteristics identified
through field investigation as described in Part III of the 1989 Federal
manual may also be considered a hydric soil for the purposes of wetland
classification. Also, wet phases of somewhat poorly drained soils not
on New Jersey's Official List of Hydric Soils may be associated with
a wetland and therefore for the purposes of this chapter shall be considered
a hydric soil.
plant life adapted to growth and reproduction under periodically saturated
root zone conditions during at least a portion of the growing season.
A listing of these plants can be found in the "National List of
Plant Species that Occur in Wetlands: 1988-New Jersey" and amendments
thereto, compiled by the USFWS, ACOE, EPA and the Natural Resources
means any structure or surface which prevents absorption of stormwater
into land. Examples of impervious surfaces are pavement, rooftops, sidewalks,
driveways, tennis courts and swimming pools.
means a freshwater wetlands permit or open water fill permit that is
issued by the Department after an alternatives test and other site-specific
and project-specific reviews required at N.J.A.C. 7:7A-7.
means surface water drainage channels with definite bed and banks in
which there is not a permanent flow of water. Most intermittent streams
are shown on Soil Conservation Service county soil surveys.
"Isolated wetlands "
means a freshwater wetland that is not "part of a surface water
tributary system," as defined in this section.
"Lake, pond, or reservoir"
means any impoundment of water, whether naturally occurring or created
in whole or in part by the building of structures for the retention
of surface water.
"Letter of interpretation"
or "LOI" means the document issued by the Department under
N.J.A.C. 7:7A-3, indicating the presence or absence of wetlands, State
open waters, or transition areas; verifying or delineating the boundaries
of freshwater wetlands, State open waters, and/or transition areas;
or assigning a wetland a resource value classification.
means land uses such as roads, drives, railroads, sewerage and stormwater
management pipes, gas and water pipelines, electric, telephone and other
transmission lines and the rights-of-way therefor, the basic function
of which is to connect two points. Linear development shall not mean
residential, commercial, office, or industrial buildings, improvements
within a development such as utility lines or pipes, or internal circulation
means a discharge or activity that the Department must transmit to EPA
for review in accordance with the Department's 1993 MOA with EPA regarding
assumption of the Federal 404 program. Provisions regarding EPA review
of major discharges are found at N.J.A.C. 7:7A-12.2. The following are
1. A draft general permit;
2. A discharge with reasonable
potential to affect Federally listed or proposed endangered or threatened
species as determined by the U.S. Fish and Wildlife Service;
3. A discharge of dredged
or fill material which has the potential for adverse impacts on the
waters of a state other than New Jersey;
4. A discharge known or
suspected to contain:
Toxic pollutants as identified by Section 307(a)(1) of the Federal act;
Hazardous substances identified pursuant to Section 311 of the Federal
act and Section 101(14) of the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. §§9601 et seq.;
Toxic substances as defined by Section 3 of the Toxic Substances Control
Act, 15 U.S.C. §§2601 et seq.; or
Hazardous waste as defined by Section 1004(5) of the Resource Conservation
and Recovery Act, 42 U.S.C. §§6901 et seq.;
5. A discharge located
in the proximity of a public water supply intake;
6. A discharge within a
critical area established under State or Federal law, including but
not limited to a National or State park; fish or wildlife sanctuary
or refuge; National or historical monument; wilderness area or preserve;
a site identified or proposed under the National Historic Preservation
Act; or a component of the National Wild and Scenic Rivers system;
7. The filling of five
or more acres of freshwater wetlands and/or State open waters;
8. Any regulated activity
that results in a significant reduction in the ecological, commercial,
or recreational values of five or more acres of freshwater wetlands
or State open waters;
9. A culvert enclosure
longer than 100 feet; or
10. Channelization of more
than 500 feet of a river or stream.
"Maximum extent practicable"
means to the maximum extent after weighing, evaluating and interpreting
alternatives to protect the ecological integrity of a wetland or State
activities carried out pursuant to N.J.A.C. 7:7A-15 in order to compensate
for freshwater wetlands or State open waters loss or disturbance caused
by regulated activities.
"Natural Resources Conservation
Service" or "NRCS" means the arm of the U.S. Department
of Agriculture (USDA) that provides technical assistance with USDA conservation
programs associated with soil, water, and other related natural resources.
The Natural Resources Conservation Service was previously known as the
Soil Conservation Service.
"1989 Federal Manual"
means the Federal Manual for Identifying and Delineating Jurisdictional
Wetlands, published in 1989 by the EPA, U.S. Army Corps of Engineers,
U.S. Fish and Wildlife Service, and the U.S. Department of Agriculture's
Natural Resources Conservation Service (formerly the Soil Conservation
Service), as amended and/or supplemented, which Manual is incorporated
herein by reference.
mean waters that are not delegable waters.
"Normal rainfall year"
means a 12 month period in which the precipitation at a location is
within 10% of the average annual precipitation for that location, calculated
using the standard averaging period for "normals," established
by the World Meteorological Organization, except that the Department
may determine normal rainfall on a case-by-case basis in unusual situations,
such as where the sampling period begins immediately following prolonged
drought conditions. As of September 4, 2001, the World Meteorological
Organization has defined the standard averaging period as 1961 through
1990. Information regarding the standard averaging period can be found
in the USDA's Natural Resources Conservation Service website at www.nrcs.usda.gov/water/
"Offsite" means the
area not onsite.
"Onsite" means the
area located within the site, as defined in this section.
"Open water fill permit"
means the type of New Jersey Pollution Discharge Elimination System
permit issued pursuant to this chapter and N.J.S.A. 58:10A-1 et seq.,
which governs the discharge of dredged or fill material into State open
"Ordinary high water mark"
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as clear, natural line
impressed on the bank, shelving, changes in the character of soil, destruction
of terrestrial vegetation, presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.
means a wetlands vegetation pattern in which persistent and nonpersistent
grasses, rushes, sedges, forbs and other herbaceous or grass-like plants
are the dominant vegetation.
"Part of a surface water
tributary system" means connected to a surface water that discharges
into a lake, pond, river, stream or other surface water feature. The
connection may be through any surface water feature, whether regulated
or not, including a stormwater or drainage pipe. The connection may
be through a secondary flow channel or other feature. However, the connection
may be through overland flow only if there is evidence of scouring,
erosion, or concentrated flows. The connection may not be through groundwater
alone. Wetlands adjacent to a surface water are connected to the surface
water and are part of the surface water tributary system.
"Permit" means an
approval to engage in a regulated activity in a freshwater wetland,
State open water, or transition area, issued by the Department under
this chapter. The Department issues the following permits under this
1. Freshwater wetlands permits including general permit authorizations;
2. Open water fill permits; and
3. Transition area waivers.
a person to whom the Department has issued a permit or a waiver under
"Person" means an
individual, corporation, corporate officer or official, partnership,
association, the Federal government, the State, municipality, commission
or political subdivision of the State or any interstate body.
“Phase IA historical and
archaeological survey” means an archaeological survey the purpose
of which is to identify resources completed by an archaeologist whose
qualifications meet the Secretary of the Interior’s Professional Qualifications
Standards and related guidance as part of the larger Secretary of the
Interior’s Standards and Guidelines for Archaeology and Historic Preservation
as referenced in 36 CFR 61, as amended and supplemented, incorporated
herein by reference.
"Pilings" means timber,
metal, concrete or other similar structures driven, dropped, poured,
or placed to support a vertical load.
"Plowing" means all
forms of primary tillage, including moldboard, chisel, or wide-blade,
plowing, discing, harrowing, and similar physical means utilized on
farm, forest or ranch land for the breaking up, cutting, turning over,
or stirring of soil to prepare it for the planting of crops. The term
does not include the redistribution of dredged material, rock, sand,
or other surface materials in a manner which changes any area of wetlands
to dry land. For example, the redistribution of surface materials by
blading, grading, or other means to fill in wetland areas is not plowing.
Rock crushing activities which result in the loss of natural drainage
characteristics, the reduction of water storage and recharge capabilities,
or the overburden of natural water filtration capacities do not constitute
plowing. Plowing will never involve a discharge of material.
means other choices available and capable of being carried out after
taking into consideration cost, existing technology, and logistics in
light of overall project purposes, and may require an area not owned
by the applicant which could reasonably have been or be obtained, utilized,
expanded, or managed in order to fulfill the basic purpose of the proposed
means the conferral of certain rights pursuant to N.J.S.A. 40:55D-46,
48 and 49 prior to final approval after specific elements of a development
plan have been agreed upon by the planning board and the applicant.
"Project" means the
1. For the purpose of a
transition area exemption under N.J.A.C. 7:7A-2.8(f) based on the application
for or the grant of a preliminary site plan approval:
All buildings, structures, pavements, and other improvements specifically
depicted on the site plans referenced in the resolution approving the
site plan; and
For the purpose of a transition area exemption under N.J.A.C. 7:7A-2.8(f)
based on the application for or the grant of a preliminary subdivision
Where subdivision approval is the last stage of municipal review before
the owner/applicant may apply for a building permit to begin construction,
the "project" is the development of the subdivision consistent
with the lot coverage, use, and density restrictions of the zoning ordinance
in effect at the time of the subdivision approval; or
ii. Where site plan
approval is required prior to construction, "project" means
the proposed economic development, whether commercial, industrial or
residential, intended to be constructed on that portion of a tract of
land that is the focus of the qualifying approval. Although "project"
is not limited to specific structures shown on the subdivision plans,
it is limited to development on those portions of a tract of land that
were the focus of the qualifying subdivision application or approval.
Development on other lands, such as development on the remainder of
a larger tract or on a contiguous property in common ownership, are
not included within a "project." In order to determine if
an applicant qualifies for an exemption under this definition, the Department
will determine the existence of a proposed economic development at the
time of the subdivision application. Because the purpose of the exemption
is to protect that degree of investment in planning and development
that the preliminary site plan or subdivision application normally represents,
where the subdivision is merely a division of land and no substantial
investment was made in planning or development, there can be no exempted
project. Therefore, an application for the subdivision of lands simply
for future development, yet to be planned, or simply for resale shall
not qualify for an exemption. To determine the existence of a proposed
economic development and to determine which portion of a tract was the
focus of subdivision approval or application, the Department will examine
the resolution granting approval and any documentation submitted with
the application, including, but not limited to, drainage, engineering,
traffic, utility, landscaping, soil and environmental plans and reports
as well as the subdivision plan. In cases where the above information
is unclear, the Department may consider money spent or obligated on
engineering and design in the preparation of the subdivision application
to determine if a substantial investment has been made in an economic
development. Money spent or obligated for the initial purchase, carrying
costs, or legal services will not be considered in determining the existence
of a proposed economic development.
iii. The following
are examples of how the Department will determine the "project"
exempted on the basis of the application for or grant of preliminary
(1) Where a project was to be developed
in three sections but a complete application for preliminary approval
was submitted, accepted and subsequently approved for only one section,
only the development planned for that section is exempt and the development
envisioned for sections two and three is not exempt. This is not altered
by the fact that some depiction of that future development on the remainder
of the parcel might be required by a local planning board in concept
or sketch form;
(2) Where an entire parcel is subdivided
into five conforming residential lots, the residential development planned
on all five lots is exempt. However, where the focus of the subdivision
application and approval is on less than the entire tract of land, which
lesser portion is divided into five single family house lots, and the
remainder of the tract is left as a bulk parcel for further subdivision
or other planning board approval, only development on the five lots
is exempt. It is irrelevant that the configuration of the remainder
lot has been changed by the subdivision or that the remainder lot has
(3) Where the land to be divided for
a commercial industrial park straddles two townships and the developer
received approval to subdivide the land in township A and sold the unsubdivided
portion in township B to another developer, only the development on
the land in township A could be considered the subject of township A's
subdivision approval. Therefore, only the development on the land in
township A is exempt. It is irrelevant that the original developer had,
from the start, contemplated a commercial industrial park for the property
in both townships or that the office building contemplated on the land
in township B did not require further subdivision;
(4) Where land is divided for the sole
purpose of bequeathing it sometime in the future to one's children to
be developed as they wish, no economic development was contemplated
when the application was made or approval granted. After the land passes
to the children and one of them decides to build, that development is
not exempt. The purpose of the exemption is to protect that degree of
investment in planning and development that the preliminary site plan
or subdivision application normally represents. Where the subdivision
is merely a division of land and no investment was made in the planning
or development, there can be no exempted project; and
(5) Where land is subdivided but requires
further subdivision, other than de minimis changes for road right of
ways or other infrastructure, before the applicant can proceed to the
next step of municipal approval (either building permits or site plan
approvals), there is no evidence of intended economic development at
the time of initial subdivision application or approval, because the
proposed economic development only comes into being with the subsequent,
untimely subdivision. Therefore, there is no basis for exemption.
"Property as a whole"
means all property assembled as one investment or to further one development
plan. The property as a whole may include more than one municipal tax
block or lot. The property as a whole may also include blocks or lots
that were previously sold or developed, if those blocks or lots and
the remaining unsold or undeveloped blocks or lots were part of one.
means an administrative non-adversarial type hearing before a representative
or representatives of the Department providing the opportunity for public
comment, but does not include cross-examination.
the construction of structures or improvements on or below impervious
surfaces, as defined in this section, or other significantly disturbed
means any of the activities described at N.J.A.C. 7:7A-2.2 or at N.J.A.C.
"Seeding" means the
sowing of seed and placement of seedlings to produce farm, ranch, or
forest crops and includes the placement of soil beds for seeds or seedlings
on established farm and forest lands.
the art and science of controlling the establishment, growth, composition,
health, and quality of forests and woodlands to meet the diverse needs
and values of landowners and society on a sustainable basis. The normal
harvesting of forest products is a part of some silviculture operations.
Orchards, tree farms and nurseries are not silviculture but are farming.
"Site" means the
area within the legal boundary of the property(ies) or right-of-way
for which a letter of interpretation is requested, or upon which a regulated
activity is proposed, is occurring, or has occurred, plus any contiguous
land owned or controlled by the same person(s). This term also includes
an area which is the subject of an application for a letter of interpretation
or which is the location of a proposed mitigation bank. For the purposes
of this definition, the legal boundary of a property or right-of-way
shall be the boundary as it existed on July 1, 1988, except that if
additional contiguous lots and/or blocks were acquired after July 1,
1988, or if lots were merged after July 1, 1988, these lots are included
in the site, and the legal boundary of the property or right-of-way
shall be the boundary of all contiguous land owned or controlled by
the same person(s), as it exists on the date an application is submitted
under this chapter. The legal boundary of a property is set forth in
the deed(s) for the property or other legally binding document that
sets forth a boundary. The legal boundary of a right-of-way is set forth
in the document creating the right-of-way.
"Soil Conservation District"
means a local subdivision of the New Jersey Department of Agriculture
(NJDA), established pursuant to N.J.S.A. 4:24-1 et seq. Generally, each
Soil Conservation District administers NJDA programs for a single county,
although some administer programs for more than one county. The Soil
Conservation Districts are overseen by the New Jersey State Soil Conservation
Committee in the NJDA, which promulgates the Standards for Soil Erosion
and Sediment Control in New Jersey, N.J.A.C. 2:90.
"Special aquatic site" means a site described in subpart E of the 404(b)1 guidelines (40 C.F.R. 230 et seq.), except freshwater wetlands which, for the purposes of this chapter, shall not be considered special aquatic sites. In general, special aquatic sites are geographic areas, large or small, possessing special ecological characteristics of productivity, habitat, wildlife protection, or other important and easily disrupted functions and values. These areas are generally recognized as significantly influencing or positively contributing to the general overall environmental health or vitality of the entire ecosystem of a region. As of September 4, 2001, the following special aquatic sites are described in subpart E of the 404(b)1 guidelines (40 C.F.R. 230 et seq.): sanctuaries and refuges, wetlands (note: while freshwater wetlands are excluded from the definition of a special aquatic site for purposes of this chapter, other wetlands, such as most coastal wetlands, would be considered special aquatic sites), mud flats, vegetated shallows, coral
reefs, and riffle and pool
means the chief forester employed by the Department.
"State open waters"
means all waters of the State as defined in this section, including
waters of the United States as defined in this section, but excluding
ground water as defined at N.J.A.C. 7:14A, and excluding freshwater
wetlands as defined in this section. The following waters will generally
not be considered State open waters for the purposes of this chapter.
However, the Department shall determine, on a case-by-case basis, if
a particular watercourse or water body listed below is a State open
1. Non-tidal drainage and
irrigation ditches excavated on dry land;
2. Artificially irrigated
areas which would revert to upland if the irrigation ceased;
3. Artificial lakes or
ponds created by excavating and/or diking dry land to collect and retain
water and which are used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing;
4. Artificial reflecting
or swimming pools or other small ornamental bodies of water created
by excavating and/or diking dry land to retain water for primarily aesthetic
5. Water-filled depressions
created in dry land incidental to construction or remediation activity
and pits excavated in dry land for the purpose of obtaining fill, sand,
or gravel unless and until the construction or excavation operation
is abandoned and the resulting body of water meets the definition of
"waters of the United States";
6. Waste treatment systems,
including treatment ponds or lagoons designed to meet the requirements
of the Federal act (other than cooling ponds);
7. Erosional channels less
than two feet wide and six inches deep in upland areas resulting from
poor soil management practices; and
8. Stormwater management
facilities created in uplands.
facility" means a facility which receives, stores, conveys or discharges
stormwater runoff and is designed in accordance with applicable local,
county and State regulations. These facilities may include retention
basins, detention basins, infiltration structures, grassed swales, rip-rap
channels and/or stormwater outfalls.
"Swale" means a linear
topographic depression, either naturally occurring or of human construction,
which meets all of the following criteria:
1. It is surrounded by
uplands except where runoff flows out of it.
A depression is not a swale if it is located within a larger wetland
or if it is merely an undulation in a wetland boundary;
A depression is not a swale if it is naturally occurring, contains palustrine
forest, and is located within an upland forest;
2. It has formed or was
constructed in uplands to convey surface water runoff from the surrounding
3. It drains less than
4. It is not a seep or
5. It is not an intermittent
6. It has no definite bed
and banks; and
7. At its widest point,
it is generally 50 feet wide or narrower.
means a disturbance caused by permitted regulated activities that are
permanently discontinued within six months after they are begun.
"Threatened or endangered
species" means a species identified pursuant to the Endangered
and Nongame Species Conservation Act, N.J.S.A. 23:2A-1 et seq., or those
identified pursuant to the Endangered Species Act of 1973, 16 U.S.C.
§§1531 et seq., and subsequent amendments thereto.
"Tidal waters" means
fresh or saline waters under tidal influence, up to the head of the
means an area of upland adjacent to a freshwater wetland which minimizes
adverse impacts on the wetland or serves as an integral component of
the wetlands ecosystem.
"Transition area waiver"
or "waiver" means a waiver issued by the Department under
this chapter, authorizing any of the regulated activities enumerated
at N.J.A.C. 7:7A-2.6 in a transition area.
"Tree" means a woody
plant which is five inches or greater in diameter at a height of four
and one half feet above the ground.
"Trout production waters"
means waters designated in the Department's Surface Water Quality Standards,
N.J.A.C. 7:9B, for use by trout for spawning or nursery purposes during
their first summer.
"USEPA" or "EPA"
means the United States Environmental Protection Agency.
"USFWS" means the
United States Department of the Interior, Fish and Wildlife Service.
"USGS" means the
United States Geological Survey.
"USGS quad map" means
a topographic quadrangle map issued by the USGS, 7.5 minute series,
drawn at a scale of 1:24,000, available from the Department's Maps and
Publications Office at the address listed in N.J.A.C. 7:7A-1.3.
"Utility line" means
a pipe, cable, line, conduit, or wire for the transport or transmission
of gases, liquids, electrical energy or communications. This term includes
a tower or pole required to support a utility line, but does not include
a tower or pole that only transmits waves through the air, such as for
radio, television, or telephone transmission. The term "utility
line" does not include a stormwater pipe, or a pipe that drains
a wetland or State open water, such as a drainage tile.
means a wetland as identified at N.J.A.C. 7:7A-2.3, or State open water,
as defined at N.J.A.C. 7:7A-1.4 above that meets all of the criteria
at 1 through 4 below. Evidence of breeding by an obligate species under
2i below creates a rebuttable presumption that the criteria at 3 and
4 below are met:
1. Occurs in or contains
a confined basin depression without a permanent flowing outlet;
2. Features evidence of
breeding by one or more species of fauna adapted to reproduce in ephemeral
aquatic conditions, identified in N.J.A.C. 7:7A, Appendix 1, incorporated
herein by reference. The following shall constitute evidence of breeding
by such a species:
One or more obligate species listed in Appendix 1, or evidence of such
a species, is found in or immediately adjacent to the area of ponded
Two or more facultative species listed in Appendix 1, or evidence of
the presence of such a species, are found in or immediately adjacent
to the area of ponded water;
3. Maintains ponded water
for at least two continuous months between March and September of a
normal rainfall year; and
4. Is free of reproducing
fish populations throughout the year, or dries up at some time during
a normal rainfall year.
means an activity that cannot physically function without direct access
to the body of water along which it is proposed. An activity that can
function on a site not adjacent to the water is not considered water
dependent regardless of the economic advantages that may be gained from
a waterfront location.
"Water Pollution Control
Act" means the New Jersey Water Pollution Control Act, N.J.S.A.
58:10A-1 et seq.
"Waters of the State"
means the ocean and its estuaries, all springs, streams, wetlands, and
bodies of surface or ground water, whether natural or artificial, within
the boundaries of the State of New Jersey or subject to its jurisdiction.
"Waters of the United
1. All waters which are
currently used, were used in the past, or may be susceptible to use
in interstate or foreign commerce, including all waters which are subject
to the ebb and flow of the tide;
2. All interstate waters
including interstate wetlands;
3. All other waters such
as intrastate lakes, rivers, streams (including intermittent streams),
wetlands, mudflats, sand flats, sloughs, wet meadows, or natural ponds
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters:
Which are or could be used by interstate or foreign travelers for recreational
or other purposes;
From which fish or shellfish are or could be taken and sold in interstate
or foreign commerce;
are used or could be used for industrial purposes by industries in interstate
Which are or would be used as habitat by birds protected by Migratory
Which are or would be used as habitat by other migratory birds which
cross state lines;
Which are or would be used as habitat for endangered and threatened
are used to irrigate crops sold in interstate commerce;
4. All impoundments of
waters otherwise defined as waters of the United States under this definition;
5. Tributaries of waters
identified in paragraphs 1 through 4 of this definition;
6. The territorial seas;
7. Wetlands adjacent to
waters identified in paragraphs 1 through 6 of this definition, other
than those that are themselves wetlands.
"Water quality certificate"
means a Department determination issued for a proposed activity which
requires a Federal license or permit, pursuant to 33 U.S.C. §1341 of
the Federal Act and N.J.S.A. 58:10A-1 et seq.
"Working day" means
a day upon which the offices of the New Jersey Department of Environmental
Protection are open for business.
If any subchapter, section, subsection, provision, clause, or portion of this chapter, or the
application thereof to any
person, is adjudged unconstitutional or invalid by a court of competent
jurisdiction, such judgment shall be confined in its operation to the
subchapter, section, subsection, provision, clause, portion, or application
directly involved in the controversy in which the judgment was rendered
and it shall not affect or impair the remainder of this chapter or the
application thereof to other persons.
7:7A-1.6 Other statutes
(a) The powers, duties and functions
vested in the Department under this chapter shall not limit in any manner
the powers, duties and functions vested therein under any other law
except as specifically set forth in this chapter.
(b) The Freshwater Wetlands
Protection Act, on and subsequent to July 1, 1988, shall supersede any
law or ordinance enacted by any municipality, county, or political subdivision
thereof, regulating freshwater wetlands or freshwater wetlands transition
areas except that the Pinelands Commission may provide for more stringent
regulation of activities in and around freshwater wetland areas within
its jurisdiction. No municipality, county, or political subdivision
thereof shall enact any law, ordinance, or rule or regulation requiring
a transition area adjacent to a freshwater wetland, except that the
Pinelands Commission may provide for more stringent regulation of activities
in and around freshwater wetland areas within its jurisdiction.
(c) This section shall not,
however, preclude municipal advice to the Department concerning letters
of interpretation or other matters.
(d) This chapter shall not preempt
State regulatory programs which affect regulated activities in freshwater
wetlands, including but not limited to Coastal Area Facility Review
Act (CAFRA), N.J.S.A. 13:19-1 et seq., the Flood Hazard Area Control
Act, N.J.S.A. 58:16A-50 et seq., and State approved municipal water
quality management plans. These programs will continue to regulate based
on the concerns covered by their respective enabling statutes and rules,
and may, through such regulation, have some impact on projects in freshwater
wetlands. However, those programs will not use freshwater wetlands concerns
as a basis for regulation, and any regulation by these programs of projects
in freshwater wetlands will be limited to that based on other (for example,
flood danger) concerns.
(e) If a proposed project does
not involve a freshwater wetland or State open water, does not constitute
a regulated activity, or is exempt under this chapter, the final decision
on the application shall be based solely on the requirements of other
applicable permit programs.
Hearings and appeals
(a) Subject to the limits on
third party hearings at (k) below, a person may request an administrative
hearing to contest a decision under this chapter on any of the following
An exemption letter request;
An application for a letter of interpretation;
An application for authorization to act under a general permit;
An application for a transition area waiver;
An application for an individual freshwater wetlands permit;
An application for an individual open water fill permit; or
An application for a modification or extension of any Department issued
(b) A person seeking to contest
an administrative order or a penalty assessment arising from an enforcement
matter under this chapter shall do so under N.J.A.C. 7:7A-16.7.
(c) A request for an administrative
Be in writing;
2. Contain all information
required by the administrative hearing request checklist, available
from the Department at the address in N.J.A.C. 7:7A-1.3;
3. Explain in what way
the person submitting the request believes the Department has acted
4. Explain what issues
the person submitting the request will raise if a hearing is held; and
5. Be submitted to the
Department at the following address, with a copy to the Division of
Land Use Regulation at the address at N.J.A.C. 7:7A-1.3(b) above:
Office of Legal Affairs
Attention: Administrative Hearing Requests
Department of Environmental Protection
401 East State Street, 4th Floor
PO Box 402
Trenton, New Jersey 08625-0402
(d) To contest a decision listed
at (a) above, a person shall submit a hearing request within 30 days
after notice of the decision is published in the DEP Bulletin. If a
person submits the hearing request after this time, the Department shall
deny the request. The DEP bulletin is available through the Department's
website at www.state.nj.us/dep.
(e) As part of a request for
an administrative hearing, a person may request that the Department
determine whether the matter for which the administrative hearing is
requested is suitable for mediation by the Department's Office of Dispute
Resolution. The Department shall promptly notify the person who submitted
the request of its determination. If the Department determines the matter
is suitable for mediation, it shall also notify the person who submitted
the request of the procedures and schedule for mediation.
(f) A request by a permittee
for a hearing shall automatically stay operation of a permit, including
a transition area waiver or general permit authorization, unless the
permittee shows good cause why the permit should continue in effect
while being contested. If a hearing is requested by a permittee, all
permitted activities shall stop upon the date the hearing request is
submitted, and shall not be started again until the matter is resolved,
unless the Department grants an exception in writing. If a person other
than the permittee requests a hearing, the requester may also request
a stay of the permit. The Department shall grant the request for a stay
of the permit if the requester shows good cause why the permit should
(g) When the Department receives
an administrative hearing request, the Commissioner may refer the matter
to the Office of Administrative Law for an administrative hearing in
accordance with 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,
or may deny the request for a hearing. If the Commissioner refers the
matter to the Office of Administrative Law, the Department shall so
notify the person who submitted the request and the applicant.
(h) If the Department agrees
to settle a matter for which a hearing request has been submitted under
this section, and the settlement will result in Department approval
of a regulated activity, public notice of the settlement shall be provided
1. The person who requested
the hearing shall send by certified mail a notice of intent to settle
the matter. A form for the notice may be obtained from the Department
at the address in N.J.A.C. 7:7A-1.3. The notice shall be sent to:
Each person provided notice of the application for the permit or approval
which is the subject of the appeal; and
Each person who commented on the application;
2. The Department shall
publish a notice of intent to settle in the DEP Bulletin, and shall
accept comments on the notice for at least 30 days;
3. After the 30 day comment
period provided for in (h)2 above, the person who requested the hearing
shall send by certified mail a notice of settlement. A form for the
notice may be obtained from the Department at the address in N.J.A.C.
7:7A- 1.3. The notice shall be sent to:
Each person provided notice of intent to settle under (h)1 above; and
Each person who commented on the notice of intent to settle provided
under (h)2 above; and
4. The Department shall
publish a notice of the final settlement in the DEP Bulletin.
(i) After a hearing, the administrative
law judge will submit an initial decision to the Commissioner. Within
forty five days of receiving the initial decision, the Commissioner
shall affirm, reject, or modify the decision, in accordance with 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.
(j) The Commissioner's action
under (i) above shall be considered final agency action for the purposes
of the Administrative Procedure Act, and shall be subject only to judicial
review in the Appellate Division of the Superior Court, as provided
in the Rules of Court.
(k) Nothing in this section shall be construed to provide a right to an administrative hearing in contravention of the Administrative Procedure Act, N.J.S.A. 52:14B-3.1 through 3.3.