FRESHWATER WETLANDS PROTECTION ACT RULES

N.J.A.C. 7:7A

SUBCHAPTER 12 DEPARTMENT REVIEW OF APPLICATIONS

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-12.1 Completeness review
7:7A-12.2 USEPA review
7:7A-12.3 Public comment on an application
7:7A-12.4 Hearings on an application for an individual permit or transition area waiver
7:7A-12.5 Final decisions
7:7A-12.6 Cancellation, withdrawal, resubmission and amendment of applications
7:7A-12.7 Resubmittal of a denied application

N.J.A.C. 7:7A-12.1 Completeness review

(a) Within 20 working days, as defined at N.J.A.C. 7:7A-1.4, after receiving an application, the Department shall review the application as follows:

1. If all items required by the application checklist are included, the Department shall declare the application administratively complete. However, if an included item is clearly deficient, the item shall not be considered to be included and the Department shall declare the application administratively incomplete; and

2. If each application item is adequate to allow the Department to determine if the proposed project complies with this chapter, the Department shall declare the application technically complete.

(b) If the application is not administratively complete under (a)1 above, the Department shall return the application to the applicant with a list of the missing items. The applicant may resubmit the application at any time. If the application is resubmitted within one year, the original application fee shall be credited to the fee for the resubmitted application. If the application is not resubmitted, the applicant may obtain a fee refund upon request.

(c) If the application is administratively complete under (a)1 above, the Department shall:

1. Notify the applicant that the application is administratively complete;

2. Transmit a copy of the application to other agencies if required under this chapter. For example, an application for an individual permit for a major discharge must be transmitted to EPA for comment under N.J.A.C. 7:7A-12.2;

3. Publish notice of the application in the DEP Bulletin; and

4. If the application is not technically complete under (a)2 above, request any additional information necessary for technical completeness.

(d) If the Department requests additional information under (c)4 above, the applicant shall provide copies of the additional information to the persons who received a copy of the initial application under N.J.A.C. 7:7A-10.8, and to the reviewing agencies who received a copy under (c)2 above.

(e) If an application is returned for incompleteness under (b) above, the applicant may submit a new application without repeating the public notice requirements of N.J.A.C. 7:7A-10.8 if the new application:

1. Is submitted within 60 days after the date the Department returned the original submittal; and

2. Is sufficiently similar to the original submittal that the original public notice would provide reasonable notice of the characteristics of the new submittal to potential interested parties.

(f) If a person submits an application and does not receive a response from the Department within the deadlines imposed in this subchapter, the person shall not be entitled to assume that the application is approved, except if the application is for authorization of the following activities and complies with the applicable general permit:

1. Maintenance of a stormwater management facility under general permit 1;

2. Repair of a malfunctioning individual subsurface sewage disposal system under general permit 25; or

3. Minor channel or stream cleaning activities under general permit 26.

N.J.A.C. 7:7A-12.2 USEPA review

(a) Because the Department has assumed responsibility for the Federal 404 program in most freshwater wetlands and State open waters in New Jersey, the Federal Act requires that the USEPA oversee the State's administration of the program set forth in this chapter. The procedures in (b) through (j) below explain USEPA's oversight role, and the procedures which the State will follow to facilitate USEPA's oversight. In areas where the Department has assumed the Federal 404 program, the Department's freshwater wetlands or open water fill permit constitutes the permit required under this chapter as well as the Federal 404 permit, unless the permit specifies otherwise.

(b) The Department shall transmit the following items to USEPA for review:

1. Each new proposed draft general permit. In general, an application for authorization to act under an adopted general permit will not require USEPA review, unless the activity proposed under the general permit itself constitutes a major discharge;

2. Each application involving a major discharge, as defined at N.J.A.C. 7:7A-1.4;

3. Any permit application, or category of permit applications, that the Department determines is appropriate for USEPA review;

4. Any permit application that USEPA requests to review;

5. Any additions or changes made to an application listed at (b)2 through 4 above after the application has been submitted to USEPA, as a result of a contested case proceeding in the Office of Administrative Law; and

6. For informational purposes, an initial decision issued by an administrative law judge in a contested case proceeding which involves an application listed at (b)2 through 4 above.

(c) For an item that requires USEPA review under (b) above, the Department shall promptly transmit to the Regional Administrator:

1. A complete copy of the item;

2. Notice of every significant action taken by the Department related to the consideration of the permit application or other item; and

3. A copy of any decision on the application or other item.

(d) If USEPA intends to comment upon, object to, or make recommendations with respect to an item, or with respect to the Department's failure to accept the recommendations of an affected state pursuant to N.J.A.C. 7:7A-12.3(d), USEPA may notify the Department of this intent within 30 days of receipt of the permit application or other item. If the Department has been so notified, the permit or other item shall not be issued until after the receipt of such comments or within 90 days of the USEPA's receipt of the application or other item, or the Department response, whichever comes first. The USEPA may notify the Department within 30 days of receipt that there is no comment but that USEPA reserves the right to object within 90 days of receipt, based on any new information brought out by the public during the comment period or at a hearing.

(e) When the Department has received a USEPA objection or requirement for a permit condition under this section, the State shall not issue the Federal 404 permit unless the steps required by the USEPA to eliminate the objection have been taken. However, the Department may issue a freshwater wetlands permit. Such a permit shall satisfy only the requirements of the New Jersey Freshwater Wetlands Protection Act and the permit shall not constitute a 404 permit. In such a case, the applicant would be responsible for obtaining any necessary 404 program approvals from the ACOE.

(f) Within 90 days after receiving an objection or requirement for a permit condition by the USEPA, the Department or any interested person may request that the USEPA hold a public hearing on the objection or requirement. USEPA shall conduct a public hearing if requested by the Department, or if warranted by significant public interest based on requests received.

(g) If USEPA holds a public hearing under (f) above, USEPA shall, following that hearing, reaffirm, modify or withdraw the objection or requirement for a permit condition. USEPA shall notify the Department of this decision.

(h) If USEPA holds a public hearing, the Department shall have 30 days after USEPA gives the Department notice of its decision under (g) above to take either of the actions at

(i)1 or 2 below. If USEPA does not hold a public hearing, the Department shall have 90 days after receiving USEPA's original objection or requirement for a permit condition to take either of the actions at (i)1 or 2 below.

(i) The Department shall take one of the following actions within the applicable deadline in (g) or (h) above:

1. If the USEPA has withdrawn the objection or requirement for a permit condition, the State may issue the Federal 404 permit; or

2. If the USEPA has not withdrawn the objection or requirement for a permit condition, the Department must do one of the following:

i. Issue a revised permit satisfying the USEPA's objection or including the required permit condition;

ii. Notify USEPA of its intent to deny the permit. If the Department intends to deny the permit it shall notify EPA of this intent within 30 days after receiving USEPA's notification; or

iii. Issue a State freshwater wetlands permit that does not constitute a Federal 404 permit and require the applicant to apply to the appropriate Federal agency for a permit under the Federal 404 program.

(j) No Federal 404 permit shall be issued by the Department in the following circumstances, although the Department may issue a State freshwater wetlands permit that does not constitute a Federal 404 permit:

1. When the Regional Administrator has objected to issuance of the permit and the objection has not been resolved;

2. When the proposed discharges would be in an area which has been prohibited, withdrawn, or denied as a disposal site by the USEPA under Section 404(c) of the Federal Act, or when the discharge would fail to comply with a restriction imposed thereunder; or

3. If the Army Corps of Engineers determines, after consultation with the Secretary of the Department in which the Coast Guard is operating, that anchorage and navigation of any of the navigable waters would be substantially impaired.

(k) The Department shall submit an application to the U.S. Fish and Wildlife Service for review of the potential for impacts on Federally listed threatened or endangered species in accordance with the 1993 Memorandum of Agreement between the Department and the U.S. Fish and Wildlife Service, and all modifications, addenda, and clarifications thereto, executed in order for the Department to assume responsibility for the Federal 404 program.

(l) The Department shall identify all wetland permit applications for proposed projects that may affect properties which are listed, or are eligible for listing, on the New Jersey or National Register of Historic Places. In accordance with N.J.A.C. 7:4-8.1(a), an "effect" on "property which is listed or is eligible for listing on the New Jersey or National Register of Historic Places" can be direct or indirect and occurs whenever any aspect of the project causes or may cause any change, beneficial or adverse, in the quality of the historical, architectural, archaeological, or cultural characteristics that qualified a historic property to meet the criteria of evaluation for inclusion in the New Jersey or National Register. Applications reflecting any of the following characteristics shall be deemed to present a high probability of the presence of historic and archaeological resources, requiring assessment and shall require, with the wetlands permit application, the submittal of a Phase IA historical and archaeological survey, and an architectural survey, defined at N.J.A.C. 7:7A-1.4:

1. Proposed projects containing known historic or archaeological resources, based upon information contained within the application, or as identified on copies of historic property maps prepared by the Department;

2. Proposed projects on sites that exceed 20 acres in size which include a permanent water body (for example wetlands, pond, lake, river or perennial stream) or are located within 250 feet of a permanent water body;

3. Proposed projects for which available maps, photographs, or other information, or observations made during a site visit, indicate the presence of buildings, structures, or ruins over 50 years old that could potentially be affected by the proposed project;

4. Proposed projects including new, replacement, reconstructed, or rehabilitated bridges or culverts; and

5. Proposed projects on which letters are received from concerned citizens or others indicating the possible presence of historic properties within or adjacent to the project.

(m) In order to demonstrate due diligence in identifying historic sites that may be affected by a wetlands permit application, as well as provide the Department with information regarding sites with historic or potentially historic resources, the applicant shall submit with each permit application:

1. Clear color photographs of all buildings, structures, ruins of buildings and structures, and burial grounds on the site;

2. A key map of the site locating all photographs provided in 1. above; and

3. All information and copies of correspondence, known, received or in the possession of project representatives or the applicant, regarding historic districts, buildings, structures, ruins, burial grounds, and archaeological sites on or near the project site.

(n) Applicants who are or will be pursuing Federal financial assistance, permits, licenses, or other approvals for the project that is the subject of the freshwater wetlands permit application, shall supply a copy of the consultation comments provided by the Department's Historic Preservation Office (HPO) in its role as staff to the Federally designated State Historic Preservation Officer (SHPO) under Section 106 of the National Historic Preservation Act (16 U.S.C. § 470(f)), together with a statement detailing how the comments have been incorporated into the project, with the State freshwater wetlands permit application. The Department will consider that information as a part of its review under this chapter.

1. If an applicant is not and will not be pursuing Federal financial assistance as described in (n) above, the applicant shall provide the Department with a statement to that effect.

(o) Public entities that are or will be pursuing a project authorization application, pursuant to N.J.A.C. 7:4-7, for the project that is the subject of the freshwater wetlands permit application shall comply with either (o)1 or 2 below. For the purposes of this subsection, "public entities" means the State, county, municipality, or an agency or instrumentality thereof:

1. If the public entity has received a project authorization from the Department pursuant to N.J.A.C. 7:4-7 prior to applying for a State freshwater wetlands permit, a copy of the project authorization shall be submitted with the permit application. The Department will consider that authorization as a part of its review under this chapter; or

2. If the public entity has not yet begun the process for obtaining a project authorization pursuant to N.J.A.C. 7:4-7 at the time of application for a State freshwater wetlands permit, the applicant shall consult directly with the Department's Historic Preservation Office to initiate the project authorization process at the same time as the permit application is processed.

(p) At sites where activities require a freshwater wetlands and/or State open water permit, the demolition of buildings or structures potentially over 50 years of age, or the disturbance of soils, shall not be undertaken prior to receipt of such permit. Undertaking such activities without a permit shall be considered a violation of this chapter.

N.J.A.C. 7:7A-12.3 Public comment on an application

(a) The Department shall publish notice in the DEP Bulletin of each administratively complete application in accordance with N.J.A.C. 7:7A-12.1, except for an application for a minor modification. The DEP Bulletin is available at www.state.nj.us/dep/bulletin/. This notice shall constitute notice of the application to all interested persons except those who must be notified by the applicant under N.J.A.C. 7:7A-10.8.

(b) The Department shall make copies of all applications available for public inspection by appointment in the offices of the Department in Trenton (see N.J.A.C. 7:7A-1.3 for address) during normal business hours.

(c) The applicant shall transmit a copy of each application to the clerk of the municipality in which the project is located in accordance with N.J.A.C. 7:7A-10.8, to be made available for public inspection.

(d) The public shall have 30 days to comment on an application after the Department publishes notice of the application in the DEP Bulletin under (a) above. The Department shall consider all written public comments submitted within this time. The Department may, in its discretion, consider comments submitted after this date.

(e) If a proposed discharge may affect the biological, chemical, or physical integrity of the waters of any state(s) other than New Jersey, the Department shall provide an opportunity for such state(s) to submit written comments within the public comment period and to suggest permit conditions. If these recommendations are not accepted, the Department shall notify the affected state and the USEPA in writing, prior to permit issuance, of the Department's intent not to accept these recommendations, together with the reasons for so doing. The EPA shall then have the same amount of time provided for applications and draft general permits in N.J.A.C. 7:7A-12.2 to comment upon, object to, or make recommendations regarding the Department's action.

N.J.A.C. 7:7A-12.4 Hearings on an application for an individual permit or transition area waiver

(a) Within 30 days after a notice of an application for an individual permit or transition area waiver is published in the DEP Bulletin, interested persons may request in writing that the Department hold a public hearing on the application. Requests shall state the nature of the issues proposed to be raised at the hearing. The DEP Bulletin is available at www.state.nj.us/dep/bulletin/.

(b) The Department may issue or deny an individual permit or transition area waiver without a public hearing. However, the Department will hold a public hearing if:

1. There is a significant degree of public interest in the application, as manifested by written requests for a hearing within the 30 day hearing request period set forth in (a) above. In considering the degree of public interest, the Department will consider whether the issues raised in the hearing requests are relevant to the application review;

2. A public hearing is requested by USEPA; or

3. The Department determines that the public interest would be served by holding a hearing.

(c) If a hearing is to take place, the Department shall, within 30 days after the end of the 30 day hearing request period set forth in (a) above:

1. Set a date and time for the public hearing;

2. Choose a location for the hearing, in the county where the freshwater wetlands, transition areas, and/or State open waters affected by the application are located;

3. Notify the applicant; and

4. Publish a notice announcing the date, place, and time of the public hearing in the DEP Bulletin.

(d) A public hearing held under this section shall be a non-adversarial proceeding, conducted solely to provide information to the public and the Department regarding the application under review.

(e) The applicant shall give public notice of the public hearing by doing the following, at least 30 days before the hearing:

1. Sending a completed public hearing notice form, obtained from the Department at the address in N.J.A.C. 7:7A-1.3 or the Division of Land Use Regulation website at www.state.nj.us/dep/landuse, to the following:

i. All persons to whom a complete application must be sent under N.J.A.C. 7:7A-10.8(d);

ii. All persons to whom a notice of an application must be sent under N.J.A.C. 7:7A- 10.8(e); and

iii. All persons who submitted comments on the application during the hearing request period set forth in (a) above; and

2. Publishing a display advertisement containing the completed hearing notice form, in accordance with N.J.A.C. 7:7A-10.8 (h).

(f) The applicant shall submit proof that public notice of the hearing has been provided in accordance with this section. This proof of notice shall be submitted to the Department at least three days prior to the public hearing. If proof of publication is unavailable three days prior to the hearing, the applicant may submit a notarized affidavit stating that notice of the hearing has been published, and specifying the date and newspaper in which such notice was published.

(g) The Department shall maintain a copy of the hearing transcript and all written comments received. The transcript and written comments shall be made part of the official record on the application and shall be available for public inspection in the Department's Trenton Office. See N.J.A.C. 7:7A-1.3 for address.

(h) The applicant shall provide a court reporter, bear the cost of the hearing and provide the Department with a transcript.

(i) The presiding official at the non-adversarial public hearing shall have broad discretion with respect to oral and written presentations by interested persons. This discretion shall be exercised to allow every person the opportunity to speak, to reasonably limit the length of individual testimony, and to ensure the maintenance of an orderly forum. At the conclusion of statements by interested persons, the applicant shall be afforded the opportunity to speak on the statements offered by interested persons.

(j) Any interested person may submit information and comments concerning the application. The information and/or comments must be submitted in writing within 15 days after the hearing.

N.J.A.C. 7:7A-12.5 Final decisions

(a) The Department shall issue or deny a permit or waiver within 180 days of submittal of a complete application, provided the Department has satisfied all of the requirements in N.J.A.C. 7:7A-12.2.

(b) If the Department issues or denies a permit, the Department shall send notice thereof to the applicant.

(c) The Department may issue a permit imposing conditions necessary for compliance with the Freshwater Wetlands Protection Act, this chapter, the Federal Act and the New Jersey Water Pollution Control Act. Any regulated activities undertaken under the authority of any issued permit, waiver, or general permit authorization shall constitute an acceptance by the applicant of the entire permit including all conditions therein.

(d) Decisions by the Department shall be published in the DEP Bulletin and a copy of every issued individual permit which requires USEPA review under N.J.A.C. 7:7A-12.2 shall be transmitted to USEPA.

(e) The permit application review process may be extended by mutual agreement between the applicant and the Department.

N.J.A.C. 7:7A-12.6 Cancellation, withdrawal, resubmission and amendment of applications

(a) The Department may cancel an application, whether or not the application has been declared administratively complete. An applicant may withdraw, amend, and/or resubmit its application. This section applies to all applications, including an application for a permit as defined at N.J.A.C. 7:7A-1.4, an application for a letter of interpretation, and a request for an exemption letter.

(b) The Department shall cancel an application if the Department requests additional information regarding the application, and the information is not submitted within 30 days after the date of the request. Before canceling an application, the Department shall send the applicant a letter stating that the application will be cancelled. If, within 15 days of the date of the Department's letter, the applicant submits the information, or a letter providing good cause for the delay, the Department shall extend the time required for submittal of the information. If the applicant does not submit the information or a letter providing good cause, the Department shall cancel the application.

(c) If the Department cancels an application, the application fee shall not be refunded. The Department will purge the cancelled application from its files and a new application, including a new application fee, shall be required if the applicant wishes to pursue the project.

(d) An applicant may withdraw an application at any time in the application review process. If an application is withdrawn, the application fee shall not be refunded. However, if the requirements of (e)2 below are met, the fee may be credited toward a future application.

(e) If the Department cancels an application, or if the applicant withdraws an application, the applicant may resubmit an application for a revised project on the same site. The Department shall treat the resubmitted application as a new application. The fees for the resubmitted application shall be as follows:

1. If the Department cancelled the original application under (b) above, a new fee under N.J.A.C. 7:7A-11 shall be required;

2. If the applicant withdrew the original application under (d) above, and resubmits the application within one year of the date of withdrawal, the original application fee shall be credited to the new application.

(f) An applicant may choose to amend an application at any time as part of the permit review process. If an applicant amends an application:

1. The applicant shall provide a copy of the new or changed information to the same persons who received a complete copy of the initial application under N.J.A.C. 7:7A- 10.8, Public notice requirements for applications. The information need not be provided to persons who received only a notice of the application, unless the Department determines that the change will increase the environmental impact of the project; and

2. The amendments shall constitute a new submission and the Department may, at its discretion, require reinitiation of the entire application and review process.

7:7A-12.7 Resubmittal of a denied application

If the Department denies an application, the applicant may resubmit an application for a revised project on the same site. The Department shall treat the resubmitted application as a new application. The resubmitted application shall include a new fee in accordance with 7:7A-11.