FRESHWATER WETLANDS PROTECTION ACT RULES

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

SUBCHAPTER 16 ENFORCEMENT

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-16.1 General provisions
7:7A-16.2 USEPA review
7:7A-16.3 Administrative order
7:7A-16.4 Civil action
7:7A-16.5 Civil administrative penalty
7:7A-16.6 Assessment, settlement and payment of a civil administrative penalty
7:7A-16.7 Appeal of an administrative order and/or notice of civil administrative penalty assessment
7:7A-16.8 Civil administrative penalty amount for failure to obtain a permit prior to conducting regulated activities
7:7A-16.9 Civil administrative penalty amount for any violation other than failure to obtain a permit prior to conducting regulated activities, submittal of inaccurate or false information, failure to allow entry, or failure to pay a civil administrative penalty
7:7A-16.10 Civil administrative penalty amount for submitting inaccurate or false information
7:7A-16.11 Civil administrative penalty amount for failure to allow entry and inspection
7:7A-16.12 Civil administrative penalty for failure to pay a civil administrative penalty
7:7A-16.13 Economic benefit factor
7:7A-16.14 Civil penalty
7:7A-16.15 Criminal action
7:7A-16.16 Forfeiture of conveyances
7:7A-16.17 Notice of violation recorded on deed to property
7:7A-16.18 "After the fact" permit
7:7A-16.19 Public participation
7:7A-16.20 Grace period applicability; procedures


N.J.A.C. 7:7A-16.1 General provisions

(a) For the purposes of this subchapter (N.J.A.C. 7:7A-16), the term "applicable law and/or condition" means one or more applicable provisions or conditions of the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 et seq.; the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; and/or any letter of interpretation, permit, agreement, transition area waiver, order, settlement, exemption letter, mitigation proposal, or rule promulgated or approved pursuant thereto.

(b) The burden of proof and degrees of knowledge or intent required to establish a violation of the Freshwater Wetlands Protection Act or of any permit, order, rule or regulation promulgated pursuant thereto shall be no greater than the burden of proof or degree of knowledge or intent which USEPA must meet in establishing a violation of the Federal Act or implementing regulations.

(c) If the Department finds that a person is or has been violating any applicable law and/or condition, the Department may take one or more of the following actions:

(d) For each violation under this chapter, each day during which each violation continues shall constitute an additional, separate, and distinct violation for which a separate penalty may be assessed.

(e) Each violation of any applicable law and/or condition shall constitute an additional, separate, and distinct violation for which a separate penalty may be assessed.

(f) The Department's pursuit of any of the remedies available under this subchapter shall not preclude the Department's pursuit of any of the other remedies for the same or another violation. Compliance with any Department enforcement order, including payment of a penalty, shall not preclude the Department from pursuing any of the other remedies available under this subchapter in connection with the violation for which the order was issued.

(g) Each applicant and/or permittee shall provide, upon the request of the Department, any information the Department requires to determine compliance with any applicable law and/or condition.

N.J.A.C. 7:7A-16.2 USEPA review

The Department shall make available without restriction any information obtained or used in the enforcement of the Freshwater Wetlands Protection Act, the Water Pollution Control Act, and/or this chapter, to USEPA upon request.

N.J.A.C. 7:7A-16.3 Administrative order

(a) Whenever, on the basis of available information, the Department finds a person in violation of any applicable law and/or condition, the Department may issue an order:

N.J.A.C. 7:7A-16.4 Civil action

(a) Whenever, on the basis of available information, the Department finds a person in violation of any applicable law and/or condition, the Department may institute a civil action in Superior Court for appropriate relief. Such relief may include, singly or in combination:

N.J.A.C. 7:7A-16.5 Civil administrative penalty

(a) Whenever, on the basis of available information, the Department finds a person in violation of any provision of the Freshwater Wetlands Protection Act, or of any permit, transition area waiver, letter of interpretation, agreement, order, settlement, exemption letter, mitigation proposal, or rule promulgated or approved pursuant thereto, the Department may assess a civil administrative penalty of no more than $25,000 for each violation, not including any amount assessed for economic benefit as determined under N.J.A.C. 7:7A-16.13. The amount of the civil administrative penalty for each such violation shall be determined under N.J.A.C. 7:7A-16.8 through 16.13.

(b) Whenever, on the basis of available information, the Department finds a person in violation of any provision of the Water Pollution Control Act, or of any permit, approval, agreement, transition area waiver, order, settlement, exemption, or rule promulgated or approved pursuant thereto, the Department may assess a civil administrative penalty of no more than $50,000 for each violation. The amount of the civil administrative penalty for each such violation shall be determined under the Department's rules implementing the enforcement provisions of that law at N.J.A.C. 7:14-8.

(c) The Department may, in its discretion, settle a civil administrative penalty assessed under this subchapter, in accordance with N.J.A.C. 7:7A-16.6(d). However, if the Department settles a penalty for a violation of the Water Pollution Control Act, the settlement is subject to N.J.A.C. 7:14-8.


N.J.A.C. 7:7A-16.6 Assessment, settlement and payment of a civil administrative penalty

(a) To assess a civil administrative penalty, the Department shall notify the violator by certified mail (return receipt requested) or by personal service. This notice of civil administrative penalty assessment shall:

(b) The violator shall pay a civil administrative penalty immediately upon receipt of the Department's final order in a contested case, or as soon as a notice of civil administrative penalty assessment becomes a final order as follows:

(c) A civil administrative penalty assessed, including any portion thereof required to be paid pursuant to a payment schedule approved by the Department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.

(d) The Department may, in its discretion, settle any civil administrative penalty assessed under this subchapter, based on an evaluation of the factors at (d)1 through 4 below. As provided at N.J.A.C. 7:7A-16.5(c), this subsection does not apply to penalties assessed for violations of the Water Pollution Control Act:

N.J.A.C. 7:7A-16.7 Appeal of an administrative order and/or notice of civil administrative penalty assessment

(a) A violator may request an adjudicatory hearing to contest an administrative order, and/or a notice of civil administrative penalty assessment issued under this chapter. To request an adjudicatory hearing, the violator shall submit the following information in writing to the Department at the addresses in (b) below:

(b) A request for an adjudicatory hearing under this subchapter shall be submitted as follows:

1. Submit the original request to:

Office of Legal Affairs

ATTENTION: Adjudicatory Hearing Requests

Department of Environmental Protection

401 East State Street, 4th Floor

P.O. Box 402

Trenton, New Jersey 08625-0402

2. Submit a copy of the request to:

Bureau of Coastal and Land Use Compliance and Enforcement

Department of Environmental Protection

401 East State Street, 4th Floor

P.O. Box 422

Trenton, New Jersey 08625-0422

(c) If the Department does not receive the hearing request within 35 days after the violator receives the notice of civil administrative penalty assessment and/or the administrative order which is being contested, the Department shall deny the hearing request.

(d) If the violator fails to include all the information required by (a) above, the Department may deny the hearing request.

(e) Any adjudicatory hearing shall be conducted 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

N.J.A.C. 7:7A-16.8 Civil administrative penalty amount for failure to obtain a permit prior to conducting regulated activities

(a) When the Department assesses a civil administrative penalty for the failure to obtain a permit prior to conducting regulated activities, the Department shall use the procedures in this section to determine the amount of the penalty if the violation pertains to freshwater wetlands and/or freshwater wetland transition areas, except if the violation type is listed at N.J.A.C. 7:7A-16.9, 16.10, 16.11, or 16.12, in which case the penalty amount shall be determined under whichever of those sections applies. For the purposes of this section, permit shall have the meaning set forth at N.J.A.C. 7:7A-1.4.

(b) If a violation of this chapter pertains to State open waters, the Department shall not determine the amount of the civil administrative penalty under this subchapter, but shall determine the penalty under the Department's rules implementing the enforcement provisions of the Water Pollution Control Act at N.J.A.C. 7:14-8.

(c) The Department shall use the two factors described at (c)1 and 2 below, conduct and seriousness, to determine the amount of the base daily civil administrative penalty under this section. Using the standards below, the Department assigns each violation a point value for each factor. The total number of points is used in Table D at (d) below to determine the base penalty amount per day for each violation. The factors, and the point values assigned to them, are as follows:

1. The conduct factor of the violation shall be classified as major, moderate or minor and assigned points as follows:

i. Major conduct shall include an intentional, deliberate, purposeful, knowing or willful act or omission by the violator and is assigned five points;

ii. Moderate conduct shall include any unintentional but foreseeable act or omission by the violator and is assigned two points; and

iii. Minor conduct shall include any conduct not identified in (c)1i or ii above and is assigned one point.

based on the acreage of wetlands and/or transition areas impacted and the resource value of the freshwater wetlands.

(d) The Department shall sum the total points assigned according to the two factors in (c) above, and shall determine the base penalty amount per day using the following table:

Table D

Base penalty points table

Base Penalty Amount
Total Points Per Day
17 $25,000
16 23,000
15 21,000
14 19,000
13 17,000
12 15,000
11 13,000
10 11,000
9 10,000
8 9,000
7 8,000
6 6,000
5 5,000
4 4,000
3 3,000

(e) The Department shall subtract from the daily base penalty determined pursuant to (d) above a penalty mitigation amount calculated by multiplying the daily base penalty times the penalty mitigating factor multiplier pursuant to (e)1 or 2 below, if applicable.

(f) The total civil administrative penalty shall be the daily civil administrative penalty determined as provided under (c) through (e) above, multiplied by the number of days during which each violation continued.

N.J.A.C. 7:7A-16.9 Civil administrative penalty amount for any violation other than failure to obtain a permit prior to conducting regulated activities, submittal of inaccurate or false information, failure to allow entry, or failure to pay a civil administrative penalty

(a) When the Department assesses a civil administrative penalty for a violation other than the failure to obtain a permit prior to conducting regulated activities, the Department shall use the procedures in this section to determine the amount of the penalty, except if the violation type is listed at N.J.A.C. 7:7A-16.10, 16.11, or 16.12, in which case the penalty amount shall be determined under whichever of those sections applies.

(b) The Department shall use the two factors described at (c) and (d) below, seriousness and conduct, to determine the amount of the base daily civil administrative penalty under this section. The applicable daily penalty amount is determined using the base daily penalty matrix in Table E below, based on the seriousness of the violation determined pursuant to (c) below and the conduct of the violator determined pursuant to (d) below.

Table E

Base daily penalty matrix

MAJOR MODERATE MINOR

MAJOR $25,000 $15,000 $10,000
CONDUCT MODERATE $15,000 $ 7,500 $ 5,000
MINOR $10,000 $ 5,000 $ 1,000


(c) The seriousness of the violation shall be classified as major, moderate, or minor as follows:

(d) The conduct of the violator shall be determined as major, moderate, or minor as

follows:

(e) The Department shall subtract from the daily base penalty determined using Table E at (b) above a penalty mitigation amount calculated by multiplying the daily base penalty times the penalty mitigating factor multiplier pursuant to (e)1 or 2 below, if applicable.

(f) The total civil administrative penalty shall be the daily civil administrative penalty determined as provided under (b) through (e) above, multiplied by the number of days during which each violation continued.

N.J.A.C. 7:7A-16.10 Civil administrative penalty amount for submitting inaccurate or false information

(a) When the Department assesses a civil administrative penalty for submittal of inaccurate information or submittal of a false statement, representation, or certification in an application, record, or other document required to be submitted or maintained under the Freshwater Wetlands Protection Act or under a permit, transition area waiver, order, exemption letter, mitigation proposal, or rule promulgated or approved pursuant thereto, the Department shall use the procedures in this section to determine the amount of the civil administrative penalty. This section applies with regard to information including, but not limited to, the presence of a historic resource and/or the presence of regulated areas such as freshwater wetlands and freshwater wetlands transition areas on a site.

(b) If a violation described in this section pertains to State open waters, the Department shall not determine the amount of the civil administrative penalty under this section, but shall determine the penalty under the Department's rules implementing the enforcement provisions of the Water Pollution Control Act at N.J.A.C. 7:14-8.

(c) Each day, from the day that a violator submits inaccurate or false information to the Department, to the day the Department receives a written correction from the violator, shall be an additional, separate, and distinct violation.

(d) The daily civil administrative penalty for each intentional, deliberate, purposeful, knowing, or willful act or omission under this section shall be assessed at the midpoint between $ 10,000 and $ 8,000 unless adjusted under (f) below.

(e) The daily civil administrative penalty for each violation under this section that is not listed in (d) above shall be assessed at the midpoint between $ 1,000 and $ 0 unless adjusted under (f) below.

(f) For a violation under this section, the Department may adjust the civil administrative penalty amount from the midpoint within the range listed in (d) or (e) above, based on the following factors:

(g) A violation under this section is non-minor and, therefore, not subject to a grace period.

N.J.A.C 7:7A-16.11 Civil administrative penalty amount for failure to allow entry and inspection

(a)The Department shall have the authority to enter any property, facility, premises or site for the purpose of conducting inspections, sampling of soil or water, copying or photocopying documents or records, and for otherwise determining compliance with any applicable law and/or condition.

(b) When the Department assesses a civil administrative penalty under the FWPA against a person who refuses, inhibits or prohibits immediate lawful entry and inspection of any premises, building or place by any authorized Department representative, the Department shall use the procedures in this section to determine the amount of the civil administrative penalty. The amount of a civil administrative penalty for refusal of entry and inspection under the WPCA shall be determined under N.J.A.C. 7:14-8.7.

(c) Each day that a person refuses, inhibits or prohibits immediate lawful entry and inspection shall be an additional, separate, and distinct violation.

(d) The daily civil administrative penalty for a violation under this section shall be assessed at the midpoint of the following ranges, except as adjusted under (e) below:

(e) The Department may adjust the daily civil administrative penalty amount, within the applicable range at (d) above, based on the following factors:

(f) A violation under this section is non-minor and, therefore, not subject to a grace period.

N.J.A.C 7:7A-16.12 Civil administrative penalty for failure to pay a civil administrative penalty

(a) The Department may assess a civil administrative penalty under this section against each violator who fails to pay a civil administrative penalty when due under this chapter.

(b) The daily civil administrative penalty amount assessed under this section shall be equal to the unpaid civil administrative penalty, but shall not exceed the maximum allowed at N.J.A.C. 7:7A-16.5(a) and (b).

(c) Each day that a civil administrative penalty assessed under this subchapter is not paid after it is due shall constitute an additional, separate and distinct violation.

N.J.A.C 7:7A-16.13 Economic benefit factor

(a) Notwithstanding the maximum civil administrative penalty of $25,000 pursuant to N.J.A.C. 7:7A-16.5(a), the Department may add to a civil administrative penalty assessed under this subchapter the amount of economic benefit in dollars that the violator has realized as the result of not complying, or by delaying compliance with, an applicable law and/or condition.

(b) If the total economic benefit was derived from more than one violation, the Department may apportion the total economic benefit amount among the violations from which it was derived.

N.J.A.C 7:7A-16.14 Civil penalty

(a) Each person who does any of the following shall be subject, upon the order of a court, to a civil penalty not to exceed $25,000 per day of the violation, not including any amount assessed for economic benefit as determined under N.J.A.C. 7:7A-16.13:

(b) A civil penalty imposed under this section may be collected, with costs, in a summary proceeding pursuant to the Penalty Enforcement Law, N.J.S.A. 2A:58-1 et seq. The Superior Court shall have jurisdiction to enforce the penalty enforcement law in conjunction with the Freshwater Wetlands Protection Act, the Water Pollution Control Act, and this chapter.

N.J.A.C 7:7A-16.15 Criminal action

(a) The Department, upon petition to the Attorney General, may bring a criminal action in court for certain violations of the Freshwater Wetlands Protection Act, or of a permit, waiver, order, exemption letter, mitigation proposal, or rule promulgated or approved pursuant thereto.

(b) If a violation described in this section pertains to State open waters, the criminal penalty shall not be governed by this section, but shall be governed by the Water Pollution Control Act at N.J.S.A. 58:10A-10(f).

(c) A person who knowingly, purposely, or recklessly violates the Freshwater Wetlands Protection Act, or any permit, approval, transition area waiver, order, exemption, or rule promulgated or approved pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall be subject to a fine of no less than $5,000 nor more than $50,000 per day of violation, or imprisonment, or both.

(d) A person shall be guilty, upon conviction, of a crime of the third degree and shall be subject to a fine of not more than $50,000 per day of violation, or imprisonment, or both, if the person:

N.J.A.C 7:7A-16.16 Forfeiture of conveyances

All conveyances used or intended for use in the purposeful or knowing discharge into State open waters of any pollutant or toxic pollutant, in violation of the Water Pollution Control Act, are subject to forfeiture to the State under N.J.S.A. 58:10A-10(g) and N.J.S.A. 13:1K-1 et seq. A hearing shall be held prior to any forfeiture under this section. For the purposes of this section, the term "conveyance" means an aircraft, vessel, vehicle, or other equipment or container.

N.J.A.C 7:7A-16.17 Notice of violation recorded on deed to property

(a) On order of the Commissioner:

(b) The notice of violation shall remain attached to the property deed and shall remain recorded at the Superior Court until the violation has been remedied and the Commissioner has ordered the clerk to remove the notice of violation. The Commissioner shall immediately order the notice removed once the violation is remedied, or upon other conditions set forth by the Commissioner.

N.J.A.C 7:7A-16.18 "After the fact" permit

(a) The Department may issue an "after the fact" permit for a regulated or prohibited activity that has already occurred and that does not meet the standards for approval in this chapter only if all of the following are true:

(b) The issuance of an "after the fact" permit or waiver under this section shall not limit the Department's ability to pursue any other enforcement action for the violation that is the subject of the "after the fact" permit or waiver.

(c) Any person violating an "after the fact" permit issued under this section shall be subject to enforcement under this chapter.

N.J.A.C 7:7A-16.19 Public participation

(a) To provide for public participation in the Department's enforcement process, the Department shall:

N.J.A.C. 7:7A-16.20 Grace period applicability; procedures

(a) Each violation identified in Table F at (f) below by an "M" in the Type of Violation column, for which the conditions of (d)1 through 6 below are satisfied, and each violation determined under (c) below as minor for which the conditions of (d)1 through 9 below are satisfied, is a minor violation and is subject to a 30-day grace period as described at (e) below.

(b) Each violation identified in Table F at (f) below by an "NM" in the Type of Violation column is a non-minor violation and is not subject to a grace period.

(c) If a violation is not listed in Table F at (f) below, the designation of the violation as minor or non-minor is determined as follows:

(d) The Department shall provide a grace period of 30 days for any violation identified as minor provided the following conditions are met:

(e) For a violation determined to be minor under (a) or (c) above, the following provisions apply:

(f) The designations of violations of the Freshwater Wetlands Protection Act Rules as minor (M) or non-minor (NM) are set forth in Table F below. The violation descriptions are provided for informational purposes only. In the event that there is a conflict between a violation description in Table F and the rule to which the violation description corresponds, the rule shall govern.

Table F
Rule Citation Violation Description Type of Violation
N.J.A.C. 7:7A-2.1(a), 2.2(a) and (b), 2.5(f), 2.6(a) Conducting regulated or prohibited activities in a freshwater wetland, transition area and/or State open water without prior Department approval. NM
N.J.A.C. 7:7A-4.3 Failure to comply with conditions of a Department permit or authorization not related to submission of documentation to the Department. NM
N.J.A.C. 7:7A-4.3 Failure to submit to the Department documentation as required by a permit condition. M
N.J.A.C. 7:7A-6.1(h) Failure to execute and record the required conservation restriction prior to the beginning of activities authorized under a transition area waiver, or transfer of the site. NM
N.J.A.C. 7:7A-10.1(f) Failure to provide in the application all information required in this chapter of which the applicant, its consultants, engineers, surveyors, or agents is or should be aware NM
N.J.A.C. 7:7A-10.9 Failure to provide appropriate public NM
notice during the permit application
process
N.J.A.C. 7:7A-13.1 Failure to comply with conditions of a Department permit or authorization not related to submission of documentation to the Department. NM
N.J.A.C. 7:7A-13.1 Failure to submit to the Department documentation as required by a permit condition. M
N.J.A.C. 7:7A-14.4(a) Failure to comply with a permit suspension order NM
N.J.A.C. 7:7A-14.5(b) Failure to comply with a permit termination order. NM
N.J.A.C. 7:7A-15.2(b) Failure to conduct mitigation as required by a Department approval or administrative order NM
N.J.A.C. 7:7A-15.3(a) Failure to conduct mitigation as required by a Department approval or administrative order NM
N.J.A.C. 7:7A-15.11(a) Failure to submit a mitigation proposal to the Department as required by a Department approval or order NM
N.J.A.C. 7:7A-15.16(a) Failure to execute and record the conservation restriction that meets the requirements of N.J.A.C. 7:7A-15.14 prior to the start of mitigation activities NM
N.J.A.C. 7:7A-15.16(b) Failure to submit a construction completion report within the required timeframe of completion of construction and planting of a restoration, creation or enhancement project M
N.J.A.C. 7:7A-15.16(c) Failure to submit an annual post-planting report at the required intervals following the completion of the construction and planting associated with mitigation M
N.J.A.C. 7:7A-15.16(d) Failure to demonstrate to the Department at the end of the post-planting monitoring period that the mitigation project is successful M
N.J.A.C. 7:7A-15.17(c)1 Failure to transfer the mitigation area in fee simple to a government agency or charitable conservancy within 60 days after the Department declares mitigation through upland preservation successful NM
N.J.A.C. 7:7A-15.17(c)2 Failure to provide the government agency or charitable conservancy with a maintenance fund for the mitigation area transferred to the government agency or charitable conservancy NM
N.J.A.C. 7:7A-15.18(a) Failure to apply to the Wetlands Mitigation Council for approval of the amount of monetary contribution following the Department's determination that monetary contribution is an appropriate mitigation alternative NM
N.J.A.C. 7:7A-15.19(a) Failure to apply to the Wetlands Mitigation Council for approval of the particular parcel of land to be donated following the Department's determination that land donation is appropriate mitigation alternative NM