FRESHWATER WETLANDS PROTECTION ACT RULES

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

SUBCHAPTER 14 CHANGES TO ISSUED PERMITS OR WAIVERS

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7:7A-14.1 General provisions for changing an issued permit
7:7A-14.2 Transfer of a permit
7:7A-14.3 Modification of a permit
7:7A-14.4 Suspension of a permit, waiver, or general permit authorization
7:7A-14.5 Termination of a permit
7:7A-14.6 Permit extensions

N.J.A.C. 7:7A-14.1 General provisions for changing an issued permit

(a) The Department may modify a permit, including a waiver or general permit authorization for cause, or may approve a modification in response to a modification application from the permittee. The Department shall process a modification in accordance with N.J.A.C. 7:7A-14.3.

(b) The Department shall suspend a permit for cause in accordance with N.J.A.C. 7:7A-14.4, or in response to a request from the permittee.

(c) The Department shall terminate a permit for cause in accordance with N.J.A.C. 7:7A-14.5, or in response to a request from the permittee.

(d) The Department may extend a permit in accordance with N.J.A.C. 7:7A-14.6.

(e) Each modification, suspension, or termination that would require EPA review under N.J.A.C. 7:7A-12.2 if it were an application for a new permit shall be transmitted to EPA for review.

(f) The Department shall not modify, suspend, or terminate a Federal 404 permit if USEPA objects under N.J.A.C. 7:7A-12.2.

(g) The Department need not modify, suspend or terminate a permit prior to taking enforcement action under N.J.A.C. 7:7A-16.

N.J.A.C. 7:7A-14.2 Transfer of a permit

If a permittee wishes to transfer ownership of a site to another person or ownership of permitted activities on a site to another person, the permittee shall submit an application for a modification, which meets the requirements at N.J.A.C. 7:7A-14.3 prior to transferring the permit. If all permitted activities are completed, including any required mitigation, a modification is not required. Unless a permit modification has been issued to the new permittee, only the original permittee may conduct regulated activities on the site.

N.J.A.C. 7:7A-14.3 Modification of a permit

(a) With the exception of a modification due to a change in ownership or operational control of a project, as described in (c)3 below, which is mandatory, a modification of a permit, including a transition area waiver or general permit authorization, may be requested by a permittee or, in the cases set forth at (f) below, the Department may modify a permit on its own initiative.

(b) A permittee shall apply for a change to an existing permit through one of the following:

1. A minor modification under (c) below. A minor modification may be made to any permit, including a transition area waiver or general permit authorization;

2. A major modification under (d) below. A major modification may only be made to an individual freshwater wetlands permit, open water fill permit, or transition area waiver; and

3. A general permit authorization modification under (e) below.

(c) The following changes are minor modifications that may be made to any permit or in the case of a change in ownership or operational control shall be made to any permit, including a general permit authorization or transition area waiver:

1. Correction of a typographical error that does not materially affect the terms of the permit or waiver;

2. An increase in the frequency of monitoring or reporting by the permittee;

3. A change in ownership or operational control of a project, where no other change in the original permit or waiver is necessary. If any other change in the permit is necessary, the change shall be made through a major modification;

i. A permit may be transferred to another person, provided:

(1) The permit is valid;

(2) The permit is not an emergency permit;

(3) The permit is transferred to a person who currently owns the site, or who is under contract to purchase the site, on which activities authorized under the permit are to be conducted. A transfer of a permit to a contract purchaser shall become valid only upon the actual transfer of the site to the new owner;

(4) The Department determines that the transfer will not alter a basic condition upon which the original permit was granted or otherwise circumvent a requirement of this chapter as described in (A) below;

(A) The Department shall not approve the transfer of a permit if doing so would alter a basic condition or premise upon which the original permit was granted or would otherwise circumvent a requirement of this chapter. For example, a permit issued to a public entity may be granted in consideration of the fact that the public entity has powers of eminent domain or is acting in the public interest. Since such factors would not exist if the applicant were a private party, the basic premise upon which the permit was approved may be invalid and therefore the Department would not approve the transfer. In another example, if an applicant receives a permit based upon the Department’s finding of no alternative to the proposed activity, but the person to whom the permittee proposes to transfer the site has an alternative, the basic premise upon which the permit was approved no longer exists. In such cases, the Department would not approve the transfer of the permit to the new owner; and

(5) The permittee to whom the permit was transferred notifies the Department before conducting site preparation or regulated activities, in accordance with N.J.A.C. 7:7A-13.1(a)14; and

(6) The original permittee, who wants to transfer the permit, provides to the Department proof of recording of any conservation restriction or easement that was a requirement of the permit being transferred.

4. A change in materials, construction techniques, or the minor relocation of an activity on a site, if the change is required by another permitting agency. However, this change is not a minor modification if the change would result in additional wetland, State open water or transition area impacts over those of the original permit or waiver.

(d) Any change not listed at (c) above as a minor modification, if affecting a project covered by an individual freshwater wetlands permit, open water fill permit, or transition area waiver, shall constitute a major modification. To obtain approval for a major modification, an applicant shall meet the same substantive and procedural standards that would apply to an application for a new individual permit, except that the application need only address the portions of the permit affected by the proposed modification. Portions of the permit that are not affected by the proposed modification are not subject to public notice, public hearing, Department review, or other procedures that would apply to an application for a new individual permit.

(e) Any change not listed at (c) above as a minor modification, if affecting a project covered by a general permit authorization, shall meet the following requirements:

1. The changed project would continue to be authorized under the same general permit; and

2. The proposed change would not result in a significant change in the scale, use or environmental impact of the project as approved. A change that will result in a reduction in environmental impact shall not constitute a significant change. Examples of significant changes include, but are not limited to, increased clearing, grading, filling or impervious surfaces, a change in stormwater management technique, and movement of the project to a different wetland or location.

(f) The following are causes for which the Department may modify a permit, including a transition area waiver or general permit authorization, on its own initiative:

1. The permittee proposes substantial changes or additions to the permitted activity, and these changes or additions justify conditions that are not in the existing permit or waiver;

2. The Department receives information that was not available at the time the permit was issued (other than revised regulations, guidance, or test methods), which would have justified different conditions at the time of issuance. This includes information indicating that cumulative environmental effects of issued permits are unacceptable;

3. Circumstances relating to the permitted activity have changed since the permit was issued and justify changed conditions;

4. Cause exists for the Department to terminate the permit under N.J.A.C. 7:7A-14.5, but the Department determines that a modification will ensure that the project complies with this chapter;

5. The standards or rules on which the permit was based have been amended, or changed by judicial decision, after the permit was issued; or

6. The ownership or operational control of the site has been transferred to a person other than the permittee, the permitted activities are not completed, and the permittee has not applied for a minor modification reflecting the transfer as required under (c) above.

(g) If the Department intends to modify a permit, the Department shall notify the permittee in writing. The notice shall:

1. State the reasons for the modification;

2. Order the permittee to immediately stop the activities that had been authorized under the permit; and

3. Notify the permittee of the right to request a meeting with the Department, or a public hearing, within ten days of the permittee's receipt of the notice.

(h) An applicant for a modification shall follow the procedures at N.J.A.C. 7:7A-10.7. An application for a modification to a general permit authorization does not require public notice in accordance with N.J.A.C. 7:7A-10.8. An application for a minor modification does not require a fee under N.J.A.C. 7:7A-11, or public notice under N.J.A.C. 7:7A-10.8.

(i) An application for a modification shall be reviewed in accordance with the applicable provisions of N.J.A.C. 7:7A-12, Department review of applications.

N.J.A.C. 7:7A-14.4 Suspension of a permit, waiver, or general permit authorization

(a) When the Department suspends a permit, including a waiver or general permit authorization, any work that is being conducted under the authority of the permit shall stop immediately upon receipt of the notice required under (c) below.

(b) The Department shall suspend a permit if:

1. The Department makes a written determination that immediate suspension would be in the public interest; or

2. Cause exists for the Department to terminate the permit under N.J.A.C. 7:7A-14.5, but the Department determines that suspension is more appropriate.

(c) The Department shall notify the permittee of a suspension in writing. The notice shall:

1. State the reasons for the suspension, including the written determination of public interest, if one was prepared under (b)1 above;

2. Order the permittee to immediately stop the activities that had been authorized under the suspended permit; and

3. Notify the permittee of the right to request a meeting with the Department, or a public hearing, within ten days of the permittee's receipt of the notice.

(d) If the permittee requests a public hearing regarding the suspension, the Department and permittee shall follow the procedures at N.J.A.C. 7:7A-12.4.

(e) The Department shall reinstate, modify or terminate the permit after the hearing or meeting or, if no hearing or meeting is held, within a reasonable amount of time after the notice required under (c) above.

N.J.A.C. 7:7A-14.5 Termination of a permit

(a) The following are causes for the Department to terminate a permit, including a waiver or general permit authorization, during its term, or to deny a permit extension:

1. Noncompliance by the permittee with any portion or condition of the permit, including pursuing land uses other than those authorized by an individual permit. For example, if an individual permit authorizes construction of a 10,000 square foot preschool, construction of a 10,000 square foot retail store on the same footprint would constitute noncompliance with the permit;

2. The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;

3. A Department determination that the issuance of the permit was based on false or inaccurate information; or

4. The permit has unanticipated negative environmental impacts such as, but not limited to, excessive erosion and subsequent siltation, destruction of vegetation not covered by the permit, or die-off of aquatic biota, which become apparent during the performance of the permitted activities.

(b) Prior to a termination, the Department shall furnish written notice to the permittee by certified mail. The permittee shall stop all regulated activities immediately upon receiving the notice. Within 10 days after receiving the notice, the permittee shall:

1. Remedy the violation or unanticipated negative environmental impacts;

2. Submit a plan for bringing the activities back into compliance or correcting the unanticipated impacts; or

3. Request a hearing under N.J.A.C. 7:7A-1.7.

(c) If the permittee has not taken one of the actions required at (b) above within 10 days after receiving the Department's notice, the permit, waiver, or general permit authorization shall automatically terminate and the permittee shall remedy the unanticipated negative environmental impacts or violations. Once the impacts or violations are remedied, the Department may reinstate the permit or require the applicant to apply for a new permit.

(d) If a permittee submits a plan under (b)2 above, the permittee shall begin implementation of the plan immediately upon the Department's approval of the plan, and shall remedy the violations or unanticipated impact within 60 days.

(e) If a permit, including a waiver or general permit authorization, is terminated, the permittee shall restore the site to its pre-activity condition to the maximum extent practicable and feasible, or otherwise compensate for any loss in resource value through mitigation under N.J.A.C. 7:7A-15. This restoration or compensation shall be completed within 90 days after the permit is terminated, unless the Department authorizes in writing a longer period of time.

N.J.A.C. 7:7A-14.6 Permit extensions

(a) This section governs the extension of a permit, including a waiver or a general permit authorization. This section does not apply to LOIs 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.

(b) The Department shall issue one five-year extension of a permit only if:

1. The permittee applies for the extension at least 90 days prior to the expiration of an individual permit or individual transition area waiver, and at least 30 days prior to the expiration of a general permit authorization; and

2. The permittee demonstrates that there has been no significant change in any of the following between the date the permit was issued and the date the application for extension is submitted:

i. The project and activities that were approved in the original permit;

ii. The rules governing the site; and

iii. The conditions on the site, including the wetlands boundary and resource classification.

(c) The Department shall deny a permit extension if the permittee has violated the terms of the original permit, or if any of the other causes for termination at N.J.A.C. 7:7A-14.5 exist.

(d) If the requirements in this section for an extension are not met, the permit shall expire and regulated activities shall stop until a new permit is obtained.

(e) An application for an extension of a permit shall meet the application requirements at N.J.A.C. 7:7A-10, including the public notice requirements at N.J.A.C. 7:7A-10.8.