FRESHWATER WETLANDS PROTECTION ACT RULES

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

SUBCHAPTER 13 CONTENTS OF PERMITS AND WAIVERS

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-13.1 Standard conditions that apply to all permits
7:7A-13.2 Establishing permit conditions
7:7A-13.3 Duration of permits
7:7A-13.4 Effect of a permit

N.J.A.C. 7:7A-13.1 Standard conditions that apply to all permits

(a) The following conditions apply to all permits issued under this chapter, including all waivers and general permit authorizations:

1. Duty to comply: The permittee shall comply with all conditions of the permit. Any noncompliance with a permit, including a waiver or general permit authorization, constitutes a violation of the Freshwater Wetlands Protection Act and this chapter, and is grounds for enforcement action, for termination, termination and reissuance, or modification, or for denial of an extension. In some cases, noncompliance with a permit or general permit authorization, may also constitute a violation of the Water Pollution Control Act and/or the Federal Act;

2. Duty to reapply: If the permittee wishes to continue an activity covered by the permit after the expiration date of the permit, the permittee must apply for and obtain a permit extension or a new permit, prior to the permit's expiration;

3. Duty to halt or reduce activity: It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit;

4. Duty to minimize environmental impacts: The permittee shall take all reasonable steps to prevent, minimize or correct any adverse impact on the environment resulting from activities conducted pursuant to the permit, or from noncompliance with the permit. Mitigation consistent with N.J.A.C. 7:7A-15 will also be required for freshwater wetlands permits, open water fill permits and some general permits;

5. Proper operation and maintenance: The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used to achieve compliance with the permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only when necessary to achieve compliance with the permit. This provision requires the proper execution of any approved mitigation proposal designed to mitigate losses caused by the permitted activity. The permittee shall maintain the authorized work areas in good condition and in accordance with the permit;

6. Permit actions: The permit may be modified, suspended, or terminated for cause. The filing of a request by the permittee for a modification, or a notification of planned changes or anticipated noncompliance does not stay any condition of a permit, including a waiver or general permit authorization;

7. Property rights: The permit does not convey any property rights of any sort, or any exclusive privilege;

8. Duty to provide information: The permittee shall furnish to the Department within a reasonable time, any information which the Department requests to determine whether cause exists for modifying, terminating and reissuing, or terminating the permit, or to determine compliance with the permit. The permittee shall also furnish to the Department, upon request, copies of records required to be kept by the permit or waiver;

9. Inspection and entry: The permittee shall allow the Department, or an authorized representative, upon the presentation of credentials, to:

i. Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of the permit;

ii. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;

iii. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under the permit; and

iv. Sample or monitor at reasonable times, for the purposes of assuring compliance or as otherwise authorized by the Federal Act, by the Freshwater Wetlands Protection Act, or by any rule or order issued pursuant thereto, any substances or parameters at any location;

10. Monitoring and records requirements are as follows:

i. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity;

ii. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for the permit, for a period of at least three years from the date of the sample, measurement, report or application. This period may be extended by the Department at any time;

iii. Records of monitoring information shall include:

(1) The date, exact place, and time of sampling or measurements;

(2) The individual(s) who performed the sampling or measurements;

(3) The date(s) analyses were performed;

(4) The individual(s) who performed the analyses;

(5) The analytical techniques or methods used; and

(6) The results of such analyses;

11. Signatory requirement: All applications, reports, or information submitted to the Department shall be signed and certified as required in N.J.A.C. 7:7A-10.9; and

12. Reporting requirements are as follows:

i. Planned changes: The permittee shall give notice to the Department as soon as possible of any planned physical alterations or additions to the permitted project or activity;

ii. Anticipated noncompliance: The permittee shall give advance notice to the Department of any planned changes in the permitted project or activity which may result in noncompliance with permit requirements;

iii. Transfers: The permit is not transferable to any person except after notice to the Department. The Department may require modification or termination and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary to comply with N.J.A.C. 7:7A-14.3. In some cases, modification or termination and reissuance is mandatory;

iv. Monitoring reports: Monitoring results shall be reported at the intervals specified elsewhere in the permit;

v. Twelve hour reporting: The permittee shall report any noncompliance which may endanger health or the environment. Any information shall be provided orally within 12 hours from the time the permittee becomes aware of the potentially dangerous circumstances. A written submission shall also be provided within five days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and, if the noncompliance has not been corrected, the anticipated length of time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance;

vi. Other noncompliance: The permittee shall report all instances of noncompliance not reported pursuant to (a)12i, iv and v above, at the time monitoring reports are submitted. The reports shall contain the information listed in (a)12v above; and

vii. Other information: Where the permittee becomes aware that it failed to submit any relevant facts in an application, or submitted incorrect information in an application or in any report to the Department, it shall promptly submit such facts or information; and

13. Duty to mitigate: The permittee shall perform any mitigation required under the permit prior to or concurrently with regulated activities in accordance with N.J.A.C. 7:7A-15.3(a). If a permittee performs permitted activities without performing required mitigation, the acreage of mitigation required shall be increased by 20 percent each year in accordance with N.J.A.C. 7:7A-15.3(b); and

14. Construction notification: The permittee shall submit written notification to the Bureau of Coastal and Land Use Compliance and Enforcement, NJDEP, P.O. Box 422, 401 East State Street, Trenton, NJ 08625-0422, seven days prior to the commencement of site preparation or of regulated activities, whichever comes first. The notification shall contain proof of recording of a conservation restriction or easement, if one was required as part of the permit.

(b) The permittee need not comply with the conditions of a permit, including a waiver or general permit authorization, to the extent and for the duration that such noncompliance is authorized in an emergency permit approved by the Department under N.J.A.C. 7:7A-8.

(c) If a permit, including a transition area waiver or general permit authorization, is issued, regulated activities are not authorized under the permit, and construction shall not be started, until the Department receives a written acceptance of the all terms and conditions of the permit from the permittee. A permit acceptance form is available from the Department as part of each application checklist. If a permittee begins regulated activities prior to submittal of the written permit acceptance, the permittee shall be deemed to have accepted all terms and conditions of the permit as of the date the activities were begun.

(d) A copy of the permit, including an authorization or transition area waiver, shall be kept on the site and shall be available for public inspection. All projects authorized by an individual or general permit or transition area waiver shall be posted with a sign, prominently displayed at the main entrance to the property or work site, at all times from commencement to completion of the permitted activity. The sign shall contain at least the following information:

1. The work which is authorized by the Department;

2. The type of permit that authorized the work, and the Department's file number;

3. A Department phone number for verification; and

4. The location on the site at which the permit and plans may be inspected.

(e) A permit, including a waiver or general permit authorization, runs with the land and is binding upon the permittee and the permittee's successors in interest in the land or in any part thereof.

(f) A permit, including a waiver and/or a general permit authorization, issued under this chapter does not relieve a permittee from the obligation to obtain any other permits or approvals required by law.

N.J.A.C. 7:7A-13.2 Establishing permit conditions

(a) In addition to the standard conditions required in all permits under N.J.A.C. 7:7A-13.1, the Department shall establish conditions in a permit, including a waiver or general permit authorization, as required on a case-by-case basis, to assure compliance with all applicable requirements of the Federal Act, the Freshwater Wetlands Protection Act, the Water Pollution Control Act, this chapter and other applicable rules or regulations. For the purposes of this subsection, an applicable requirement is a statutory or regulatory requirement which takes effect before the Department's final administrative decision on a permit, or before the modification or termination and reissuance of a permit.

(b) In addition to the standard requirements in N.J.A.C. 7:7A-13.1, each permit shall include information meeting the following requirements, when applicable:

1. A specific identification and description of the authorized activity, including:

i. The name and address of the permittee and the permit application identification number;

ii. The use or purpose of the regulated activity;

iii. The type and quantity of the materials to be discharged or used as fill;

iv. Any structures proposed to be erected;

v. The location and boundaries of the activity site(s), including a detailed sketch and the name and description of affected freshwater wetlands, State open waters, and transition areas, identification of the HUC 11, as defined at N.J.A.C. 7:7A-1.4; and

vi. A reference to the specific site plans depicting the approved regulated activity(ies);

2. Provisions ensuring that the regulated activity will be conducted in compliance with the environmental guidelines issued under section 404(b)(1) of the Federal Act (40 C.F.R. Part 230), the Freshwater Wetlands Protection Act, and this chapter, including conditions to ensure that the regulated activity shall be conducted in a manner which minimizes adverse impacts upon the physical, chemical, and biological integrity of the waters of the United States, such as requirements for restoration or mitigation;

3. Any requirements necessary to comply with water quality standards established under applicable Federal or State law. If an applicable water quality standard is promulgated or modified after the permit or waiver is issued, the permit or waiver shall be modified as provided in N.J.A.C. 7:7A-14;

4. Requirements necessary to comply with any applicable toxic effluent standard or prohibition under section 307(a) of the Federal Act or applicable State or local law. If an applicable toxic effluent standard or prohibition is promulgated or modified after the permit or waiver is issued, the permit or waiver shall be modified as provided in N.J.A.C. 7:7A-14;

5. Applicable best management practices (BMPs) as defined at N.J.A.C. 7:7A-1.4;

6. Any conditions necessary for general permits as required under N.J.A.C. 7:7A-4 or 5;

7. A specific date on which the permit shall automatically expire if the authorized work has not been commenced, unless before the automatic expiration date the permit is terminated and reissued, or modified, or extended; and

8. Reporting of monitoring results. All permits and waivers shall specify:

i. Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate);

ii. Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring; and

iii. Applicable reporting requirements based upon the impact of the regulated activity.

(c) The Department may in some cases include a permit condition requiring a preconstruction meeting on the site of permitted activities. Such a condition shall specify how many days prior to construction the permittee must notify the Department so that the preconstruction meeting can be scheduled.

(d) All permit conditions shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable rules or regulations or requirements shall be given in the permit.

N.J.A.C. 7:7A-13.3 Duration of permits

(a) A permit, including a waiver or general permit authorization, shall be effective for a fixed term not to exceed five years from the date the Department issues the permit. An extension may be available in some cases under N.J.A.C. 7:7A-14.6.

(b) This section does not govern letters of interpretation or exemption letters. Provisions governing the duration and extension of LOIs are found at N.J.A.C. 7:7A-3.6. Provisions governing the duration of exemption letters are found at N.J.A.C. 7:7A-2.10.

N.J.A.C. 7:7A-13.4 Effect of a permit

(a) Compliance with a permit, including a general permit authorization, during its term constitutes compliance, for enforcement purposes, with sections 301, 307, and 403 of the Federal Act, with the Freshwater Wetlands Protection Act, and with this chapter. Because transition areas are not regulated under the Federal Act, compliance with a transition area waiver during its term constitutes compliance, for enforcement purposes, with the Freshwater Wetlands Protection Act and with this chapter. However, a permit may be modified, terminated and reissued, suspended, or terminated during its term for cause as set forth in this chapter.

(b) The issuance of a permit, including a waiver or general permit authorization, does not convey property rights of any sort, or any exclusive privilege.