N.J. Admin. Code § 7:13-11.2

Current through Register Vol. 56, No. 24, December 18, 2024

Section 7:13-11.2 - Requirements for a regulated activity in a riparian zone

(a) This section sets forth the design and construction standards under which the Department will issue an individual permit for any regulated activity proposed in a riparian zone.

(b) The Department shall issue an individual permit for any regulated activity or project that results in clearing, cutting, and/or removal of vegetation in a riparian zone only if:

1. The basic purpose of the regulated activity or project cannot be accomplished onsite without clearing, cutting, and/or removal of vegetation in the riparian zone;

2. Clearing, cutting, and/or removal of riparian zone vegetation is minimized through methods including:

i. Situating the regulated activity or project as far from any regulated water as feasible; and

ii. Limiting construction to actively disturbed areas and/or areas wherein the benefits and functions of a riparian zone are considerably deteriorated and impaired as a result of previous development, such as:

(1) Areas devoid of vegetation, including areas covered with structures or other impervious surface;

(2) Abandoned pavement that has partially revegetated;

(3) Areas of dirt and gravel that are primarily devoid of vegetation;

(4) Eroded embankments; and

(5) Landscape islands within a paved parking area;

3. All existing onsite impervious surface located within 25 feet of the top of bank is removed and the riparian zone is replanted with vegetation in accordance with (z) below, except in the following cases:

i. The regulated activity lies within an actively disturbed area adjacent to a lawfully existing bulkhead, retaining wall, or revetment along a tidal water or impounded fluvial water;

ii. The applicant demonstrates that removing and/or preventing the replacement of the existing impervious surface under this paragraph would likely exacerbate flooding or erosion, expose hazardous substances or solid waste, or otherwise threaten public health, safety, welfare, and/or the environment. In such a case, all other portions of the riparian zone within 25 feet of the top of bank shall, to the extent feasible and protective of public health, safety, and welfare, and the environment, be replanted with vegetation in accordance with (z) below; or

iii. The applicant demonstrates that removing and/or preventing the replacement of the existing impervious surface under this paragraph would prevent reasonable use or access to the site and/or cause an unreasonable burden upon the applicant. For example, lawfully existing pavement around a building, which is located within 25 feet of a top of bank, may provide essential access to and around the building and the removal of such impervious surface would result in noncompliance with local building or fire codes and/or disrupt normal access to and throughout the facility. In such a case, all other portions of the riparian zone within 25 feet of the top of bank shall, to the extent feasible, be replanted with vegetation in accordance with (z) below;

4. The requirements for each specific regulated activity described in (g) through (y) below are satisfied, including mitigation in accordance with N.J.A.C. 7:13-13, as applicable;

5. All areas from which riparian zone vegetation is temporarily cleared, cut, or removed are replanted in accordance with (z) below; and

6. All additional requirements for each specific regulated activity described elsewhere in this chapter are satisfied.

(c) The Department shall issue an individual permit for a regulated activity that results in clearing, cutting, and/or removal of vegetation within 25 feet of any top of bank only in the following circumstances:

1. The regulated activity lies within an actively disturbed area adjacent to a lawfully existing bulkhead, retaining wall, or revetment along a tidal water or impounded fluvial water;

2. Clearing, cutting, and/or removal of riparian zone vegetation within 25 feet of a top of bank is necessary to undertake riparian zone, freshwater wetlands, and/or habitat restoration and enhancement activities;

3. Clearing, cutting, and/or removal of riparian zone vegetation within 25 feet of a top of bank is necessary to undertake sediment removal activities in accordance with N.J.A.C. 7:13-12.15; or

4. Clearing, cutting, and/or removal of riparian zone vegetation within 25 feet of a top of bank is necessary to construct, reconstruct, or improve a structure that crosses a regulated water or requires proximity to a regulated water.

i. For the purposes of this paragraph, examples of structures that cross a regulated water include new and reconstructed infrastructure projects such as roadways, railroads, utility lines, and footbridges.

ii. For the purposes of this paragraph, examples of structures that require proximity to a regulated water include stormwater discharges, bank stabilization projects, public trails and boardwalks, and improvements to existing infrastructure that are necessary to maintain public safety and which cannot feasibly be improved at a location greater than 25 feet from any top of bank.

iii. The construction of buildings, parking areas, stormwater management facilities, and all other non-water dependent activities, as well as clearing, cutting, and/or removal of vegetation to store vehicles and equipment, does not satisfy this paragraph, except for the reconstruction of a lawfully existing structure currently situated within 25 feet of the top of bank, which cannot feasibly be relocated further from the top of bank.

(d) The Department shall issue an individual permit for a regulated activity that results in clearing, cutting, and/or removal of vegetation within 150 feet of the top of bank along a regulated water with a 300-foot riparian zone, only if the applicant demonstrates that:

1. There is no practicable alternative to the regulated activity that would have less adverse impacts on regulated areas and which would not significantly compromise other environmental resources;

2. The regulated activity results in the minimum feasible alteration or impairment of the riparian or aquatic ecosystem; and

3. The regulated activity is in the public interest, as determined by the Department in consideration of the following:

i. The public interest in preservation of natural resources and the interest of the property owners in reasonable economic development;

ii. The extent of the public and private need for the proposed regulated activity;

iii. The practicability of using reasonable alternative locations and methods to accomplish the purpose of the proposed regulated activity;

iv. The extent and permanence of the beneficial or detrimental effects that the proposed regulated activity may have on the public and private uses for which the property is suited;

v. The functions and values provided by the riparian zone proposed to be impacted; and

vi. The probable individual and cumulative impacts of the regulated activity on public health, safety, and welfare, and the environment.

(e) Table 11.2 below establishes the maximum allowable area of riparian zone vegetation that can be temporarily or permanently cleared, cut, and/or removed associated with the regulated activities identified at (g) through (y) below without Department approval based upon additional justification as set forth in (g)1, (h)1, (i)2, (j)1, (k)1, (q)1, (t), (u)1, (v), or (w)1 below or Department approval of a hardship exception. Where the regulated activity located within a 300-foot riparian zone, is an activity identified at (r), (s), or (y) below, or the total amount of clearing, cutting, and/or removal of riparian zone vegetation exceeds the limits in Table 11.2, mitigation is required in accordance with N.J.A.C. 7:13-13.4. Activities within riparian zones that are not subject to the limits set forth in Table 11.2 are identified in (f) below.

1. Except as provided in (f) below, the total area of riparian zone vegetation cleared, cut, and/or removed for a given regulated activity is calculated by adding the following:

i. The area of any vegetation within the project's limit of disturbance shown on the site plans submitted by the applicant;

ii. The area under the canopy of any trees to be cleared, cut, or removed; and

iii. All other areas not included under (e)1i or ii above, from which vegetation is to be temporarily or permanently cleared, cut, and/or removed to conduct the regulated activity. Areas containing vegetation for a portion of the year, such as agricultural areas that are periodically plowed and cultivated, are considered vegetated for the purposes of this chapter;

2. A person may undertake more than one regulated activity subject to the individual permit requirements identified in Table 11.2 on a single site, provided the requirements in this section for each separate regulated activity are met.

3. Except for the construction of an addition to an existing single-family home or duplex or the construction of an accessory structure under (n) below, the limits listed in Table 11.2 apply to each individual occurrence of a proposed regulated activity on a site or as part of a project. For example, Table 11.2 establishes limits on the amount of vegetation that can be cleared, cut, and/or removed for the construction of a stormwater outfall structure within a riparian zone. A person can obtain an individual permit for multiple stormwater outfall structures on a single site, provided the limits in Table 11.2 and all other requirements of this section are met for each individual outfall structure.

(f) The following regulated activities are not subject to the limits set forth in Table 11.2 below, and shall not be included when calculating the total area of vegetation to be cleared, cut, and/or removed under (e)1 above:

1. Any regulated activity that will not result in clearing, cutting, and/or removal of riparian zone vegetation, such as construction on a lawfully existing impervious surface, or within a lawfully existing gravel roadway or parking area;

2. Converting riparian zone vegetation within an actively disturbed area from one type to another, such as converting an actively farmed area into a lawn or garden, provided there is no net loss in the area of riparian zone vegetation;

3. Any temporary clearing, cutting, and/or removal of riparian zone vegetation within an actively disturbed area, provided all disturbed areas are adequately stabilized and replanted with vegetation in accordance with (z) below;

4. Relocating a lawfully existing structure, which is situated within a riparian zone, to an actively disturbed area on the same site, provided the area formerly occupied by the structure is stabilized and replanted with vegetation in accordance with (z) below;

5. Any disturbance to riparian zone vegetation that is completely submerged during normal flow conditions in a regulated water;

6. Any regulated activity along a lawfully existing public roadway that results in a net loss of less than one acre of riparian zone vegetation, provided the activity is:

i. Located within an actively disturbed area;

ii. Located within an existing right-of-way or easement;

iii. Undertaken by a public entity;

iv. Necessary for the continued, safe use of the roadway; and

v. Situated on a lawfully existing roadway embankment, or within an area adjacent to a lawfully existing roadway, which was disturbed for the initial construction of the roadway; and

7. Any clearing, cutting, and/or removal of riparian zone vegetation within a truncated portion of a riparian zone. For the purposes of this paragraph, an area is considered to be a truncated portion of a riparian zone if:

i. The area is separated from a regulated water by a lawfully existing railroad or public roadway;

ii. The area does not slope toward the regulated water; and

iii. Stormwater runoff from the area does not drain into the regulated water.

(g) The Department shall issue an individual permit for the construction of a new railroad or public roadway, or the expansion, reconstruction, or improvement of a lawfully existing railroad or public roadway, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The total area of riparian zone vegetation to be cleared, cut, and/or removed does not exceed the limits set forth in Table 11.2 above, unless the applicant demonstrates that compliance with all Federal, State, and local requirements governing railroads and public roadways cannot be achieved, and that public safety cannot be adequately ensured, without exceeding these limits;

2. The width of disturbance associated with the construction, expansion, reconstruction, or improvement of the railroad or public roadway is minimized;

3. Any new crossing of a regulated water is designed and constructed to be as nearly perpendicular to the channel as possible; and

4. If the project impacts a 150-foot or 300-foot riparian zone, the applicant demonstrates that there is a compelling public need for the project, which cannot be satisfied without impacting the riparian zone. This demonstration shall include an analysis of alternate routes and other alternative projects that would avoid impacting the riparian zone.

(h) The Department shall issue an individual permit for the construction of a new private roadway, or the expansion, reconstruction, or improvement of a lawfully existing private roadway, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The total area of riparian zone vegetation to be cleared, cut, and/or removed does not exceed the limits set forth in Table 11.2 above, unless the applicant demonstrates that safe, adequate access into the site, which meets all Federal, State and local requirements governing roadways, cannot be provided without exceeding these limits;

2. The width of disturbance associated with the construction, expansion, reconstruction, or improvement of the roadway is minimized;

3. The applicant demonstrates that any proposed expansion, reconstruction, or improvement to the roadway is necessary for the continued safe access to the site;

4. For the construction of a new roadway that serves or accesses a lot that was created or subdivided after November 5, 2007, the applicant demonstrates that:

i. None of the lots created in the subdivision are currently served or accessed by a roadway;

ii. None of the lots created in the subdivision possess a valid authorization from the Department to construct a new roadway in the riparian zone; and

iii. The area of riparian zone vegetation to be cleared, cut, and/or removed to construct the roadway does not exceed the area of riparian zone vegetation that would have been allowed by this chapter to be cleared, cut, and/or removed to construct a roadway to serve or access the original parcel prior to its subdivision;

5. For the construction of a new roadway that does not cross a regulated water, the applicant demonstrates that there is no other means of constructing a roadway to access the developable area onsite, which would reduce or eliminate the impact to the riparian zone; and

6. For the construction of a new roadway that crosses a regulated water, the applicant demonstrates that

i. There is developable land onsite that cannot feasibly be accessed without crossing the regulated water, including accessing the site through neighboring properties; and

ii. The crossing is designed and constructed to be as nearly perpendicular to the channel as possible.

(i) The Department shall issue an individual permit for the restoration to a stable condition of a bank or channel that has become eroded, unstable, ecologically degraded, and/or enclosed within a structure, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. For a project to stabilize and/or restore a bank and/or channel with vegetation in accordance with N.J.A.C. 7:13-12.14(c)1 and /or using soil bioengineering in accordance with N.J.A.C. 7:13-12.14(c)2, the applicant demonstrates that the area of vegetation cleared, cut, and/or removed within the riparian zone is the minimum necessary to successfully implement the project;

2. For a project to stabilize a bank and/or channel using revetments, retaining walls, or other armoring in accordance with N.J.A.C. 7:13-12.14(c)3, the total area of vegetation cleared, cut, and/or removed within the riparian zone does not exceed the limits set forth in Table 11.2 above, unless the applicant demonstrates that the bank or channel cannot feasibly be stabilized without exceeding these limits. In such a case, the applicant shall provide mitigation, in accordance with N.J.A.C. 7:13-13, for the area of vegetation that is cleared, cut, and/or removed in excess of the limits set forth in Table 11.2; and

3. For a project to restore a regulated water that is enclosed by a structure to a natural condition in accordance with N.J.A.C. 7:13-12.14(d), only the limits set forth in Table 11.2 for access to the project shall apply.

(j) The Department shall issue an individual permit for the construction or reconstruction of a stormwater discharge, including the stormwater pipe leading to the discharge, as well as any associated conduit outlet protection and/or conveyance swale, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The total area of riparian zone vegetation to be cleared, cut, and/or removed does not exceed the limits set forth in Table 11.2 above, unless the Soil Conservation District having jurisdiction over the site determines that exceeding these limits is necessary to meet the requirements of the Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90;

2. Where the stormwater discharge, conduit outlet protection, and/or conveyance swale is located within a 150-foot or 300-foot riparian zone, the applicant demonstrates that situating the stormwater discharge and associated disturbance outside the riparian zone is likely to result in greater erosion or other deleterious environmental impacts than situating the stormwater discharge and associated disturbance within the riparian zone; and

3. Where the stormwater discharge, conduit outlet protection, and/or conveyance swale is located within a 300-foot riparian zone, and the stormwater discharge is associated with a major development, as defined at N.J.A.C. 7:8-1.2, the applicant demonstrates that all runoff from the water quality design storm, as defined at N.J.A.C. 7:8-5.5, is infiltrated outside the riparian zone and/or discharged outside the riparian zone, to the maximum extent practicable.

i. Where all runoff from the water quality design storm cannot practicably be infiltrated outside the riparian zone and/or discharged outside the riparian zone, all runoff from the water quality design storm that is discharged within the riparian zone shall be treated, in accordance with the methods set forth at N.J.A.C. 7:8-5.5, to reduce the post-construction load of total suspended solids by 95 percent of the anticipated load from the developed site, expressed as an annual average.

(k) The Department shall issue an individual permit to construct a new aboveground or underground utility line, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The total area of riparian zone vegetation to be cleared, cut, and/or removed does not exceed the limits set forth in Table 11.2 above, unless the applicant demonstrates that there is a compelling public need to construct the utility line that cannot feasibly be accomplished without exceeding these limits;

2. The applicant demonstrates, pursuant to N.J.A.C. 7:13-12.8(c)1 through 4, that clearing, cutting, and/or removal of riparian zone vegetation is unavoidable;

3. The area of riparian zone vegetation that is cleared, cut, and/or removed is the minimum necessary to meet the applicable requirements of the New Jersey Board of Public Utilities and all other State and Federal requirements governing the construction of the utility line;

4. Staging, storing, and stockpiling materials and equipment shall, to the maximum extent practicable, be accomplished outside the riparian zone. Where it is necessary to conduct these activities in the riparian zone, these activities, as well as access to the utility line during construction, shall, to the maximum extent practicable, be undertaken in actively disturbed areas;

5. To the maximum extent practicable, forested areas are not disturbed; and

6. No trees within 25 feet of any top of bank are cleared, cut or removed, unless the applicant demonstrates that such disturbance cannot feasibly be avoided to conduct the project.

(l) The Department shall issue an individual permit to reconstruct, replace, repair, or maintain an existing aboveground or underground utility line, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. Clearing, cutting, and/or removal of riparian zone vegetation is limited to the utility line's existing easement or right-of-way. Any disturbance to riparian zone vegetation proposed outside the existing easement or right-of-way of the utility line is subject to the requirements of (k) above;

2. Clearing, cutting, and/or removal of riparian zone vegetation is limited to actively disturbed areas, unless the applicant demonstrates that there is a compelling public need to reconstruct, replace, repair, or maintain the line that cannot feasibly be accomplished without clearing, cutting, and/or removal of riparian zone vegetation outside of these areas;

5. To the maximum extent practicable, forested areas are not disturbed; and

6. No trees within 25 feet of any top of bank are cleared, cut, or removed, unless the applicant demonstrates that such disturbance cannot feasibly be avoided to conduct the project.

(m) The Department shall issue an individual permit for the construction of a new single-family home or duplex, or the reconstruction of a lawfully existing single-family home or duplex, including the creation of any lawn or landscaped area around the building, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The total area of riparian zone vegetation to be cleared, cut, and/or removed within the riparian zone does not exceed the limits set forth in Table 11.2 above;

2. For the construction of a new single-family home or duplex on a lot that was created or subdivided after November 5, 2007, the applicant demonstrates that none of the lots created in the subdivision contain a habitable building or possess a valid authorization from the Department to construct a habitable building in the riparian zone; and

3. The single-family home or duplex is not being constructed as part of a residential subdivision or multi-unit development.

(n) The Department shall issue an individual permit for the construction of an addition to a lawfully existing single-family home or duplex, or the construction of an accessory structure to an existing single-family home or duplex, such as a barn, deck, detached garage, fence, pool, or shed, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if the total area of riparian zone vegetation to be cleared, cut, and/or removed within the riparian zone does not exceed the limits set forth in Table 11.2 above, cumulatively since November 5, 2007.

(o) The Department shall issue an individual permit for the construction of a public access area along a tidal water, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The public access area is designed in accordance with the public access to the waterfront rule, N.J.A.C. 7:7-16.9; and

2. For any proposed public access parking area, the applicant demonstrates that there is no other feasible location onsite to construct the parking area that would reduce or eliminate the clearing, cutting, and/or removal of riparian zone vegetation.

(p) The Department shall issue an individual permit for the construction of a water dependent development, as defined in the Coastal Zone Management Rules at N.J.A.C. 7:7-1.5, along a tidal water, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The water dependent development is designed in accordance with the Coastal Zone Management Rules at N.J.A.C. 7:7; and

2. For any proposed water dependent development, the applicant demonstrates that there is no other feasible location onsite to construct the development that would reduce or eliminate the area of riparian zone vegetation to be cleared, cut, and/or removed.

(q) The Department shall issue an individual permit to construct an individual subsurface sewage disposal system that serves one new single-family home or duplex, or to repair or alter a lawfully existing, malfunctioning individual subsurface sewage disposal system that serves any building, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The total area of vegetation cleared, cut, and/or removed within the riparian zone does not exceed the limits set forth in Table 11.2 above, unless the applicant demonstrates all State and local requirements governing the construction, repair, or alteration of an individual subsurface sewage disposal system, as applicable, cannot feasibly be satisfied without exceeding these limits;

2. The area of riparian zone vegetation to be cleared, cut, and/or removed is the minimum necessary to comply with the Department's Standards for Individual Subsurface Sewage Disposal Systems at N.J.A.C. 7:9A;

3. For the construction of a new individual subsurface sewage disposal system under N.J.A.C. 7:9A, the applicant demonstrates that:

i. The system serves one new single-family home or duplex;

ii. No disturbance is located within 50 feet of any top of bank; and

iii. If the new individual subsurface sewage disposal system is proposed to serve a single-family home or duplex being constructed on a lot that was created or subdivided after November 5, 2007, the applicant demonstrates that none of the lots created in the subdivision contain a habitable building or possess a valid authorization from the Department to construct a habitable building in the riparian zone; and

4. For the repair or alteration of a malfunctioning individual subsurface sewage disposal system that serves any building, the applicant demonstrates that:

i. The need for repair or alteration is not directly or indirectly caused by an expansion of the building footprint or square footage of habitable space that the individual subsurface sewage disposal system serves;

ii. The repair or alteration is to a system that was authorized in accordance with N.J.A.C. 7:9A or the standards applicable at the time the system was constructed and the repair or alteration does not increase the estimated volume of sanitary sewage necessary for the structure the authorized system was originally designed to serve, calculated in accordance with N.J.A.C. 7:9A-7.4;

iii. The use of the building is not being changed, including a change from disuse or abandonment to any type of use; and

iv. No disturbance is located within 50 feet of any top of bank unless the malfunctioning system is located within this area. In such a case, the repaired or altered system shall be relocated, where feasible, so that it is located more than 50 feet from any top of bank and as far from the regulated water as possible.

(r) The Department shall issue an individual permit for the investigation, cleanup, or removal of hazardous substances as defined in the Department's Discharges of Petroleum and other Hazardous Substances rules, N.J.A.C. 7:1E, Appendix A, and/or pollutants, as defined in the New Jersey Pollutant Discharge Elimination System (NJPDES) Rules, N.J.A.C. 7:14A, which is conducted in accordance with the Department's rules governing the remediation of contaminated site at N.J.A.C. 7:26C, and which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The applicant demonstrates, or provides a certification from a licensed site remediation professional pursuant to the Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C, that the area of riparian zone vegetation to be cleared, cut, and/or removed is the minimum necessary for compliance with the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and the Administrative Requirements for the Remediation of Contaminated Sites rules, N.J.A.C. 7:26C.

2. The demonstration or certification under (r)1 above shall include:

i. An exploration of all feasible alternative remediation methods acceptable under N.J.A.C. 7:26E and 7:26C; and

ii. The identification of any remediation methods that would result in less area of riparian zone vegetation to be cleared, cut, and/or removed, with an explanation for why these remediation methods were not chosen.

(s) The Department shall issue an individual permit for regulated activities authorized under a solid waste landfill closure and post-closure plan or disruption approval issued by the Department pursuant to N.J.A.C. 7:26-2A.8 or 2A.9, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The Department determines that clearing, cutting, and/or removal of riparian zone vegetation is necessary to undertake the solid waste landfill closure and post-closure plan or disruption approval and to properly maintain and monitor the site after closure;

2. The applicant demonstrates that the area of riparian zone vegetation to be cleared, cut, and/or removed is the minimum necessary to adequately close and/or maintain the landfill.

3. The demonstration under (s)2 above shall include:

i. An exploration of alternative methods acceptable under N.J.A.C. 7:26; and

ii. An identification of any methods that would result in less area of riparian zone vegetation to be cleared, cut, and/or removed, with an explanation for why these methods were not chosen.

(t) The Department shall issue an individual permit to construct a trail and/or boardwalk for use by pedestrians, bicycles, and other non-motorized methods of transport, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if the total area of vegetation cleared, cut, and/or removed does not exceed the limits set forth in Table 11.2 above, unless the applicant demonstrates that there is a compelling public need to construct the trail or boardwalk that cannot feasibly be accomplished without exceeding these limits.

(u) The Department shall issue an individual permit to construct a footbridge, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The total area of vegetation cleared, cut, and/or removed within the riparian zone does not exceed the limits set forth in Table 11.2 above, unless the applicant demonstrates that there is a compelling public need to construct the footbridge that cannot feasibly be accomplished without exceeding these limits;

2. The width of the area of riparian zone vegetation to be cleared, cut, and/or removed for the construction of the footbridge is minimized; and

3. The crossing of the regulated water is designed and constructed as perpendicular to the channel as possible.

(v) The Department shall issue an individual permit for the construction of a flood control project, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if the total area of vegetation cleared, cut, and/or removed within the riparian zone does not exceed the limits set forth in Table 11.2 above, unless the applicant demonstrates that there is a compelling public need to construct the flood control project that cannot feasibly be accomplished without exceeding these limits.

(w) The Department shall issue an individual permit to remove sediment and/or debris from a regulated water, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The total area of vegetation cleared, cut, and/or removed within the riparian zone does not exceed the limits set forth in Table 11.2 above, unless the applicant demonstrates that there is a compelling public need to remove sediment and/or debris from the regulated water that cannot feasibly be accomplished without exceeding these limits;

2. The number of proposed access points is the minimum necessary to conduct the project;

3. Where possible, the project is conducted within actively disturbed areas and from only one bank;

4. The use of heavy equipment in the regulated water is avoided unless the applicant demonstrates that there is no feasible alternative that would result in less environmental damage;

5. Vegetation and tree canopy on the more southerly or westerly bank is preserved in order to shade the regulated water; and

6. All proposed access points to the regulated water are described in writing and with color photographs.

(x) The Department shall issue an individual permit to remove existing fill or an existing structure, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if the total area of vegetation cleared, cut, and/or removed within the riparian zone does not exceed the limits set forth in Table 11.2 above.

(y) The Department shall issue an individual permit for a regulated activity that is not listed in (g) through (x) above, which results in clearing, cutting, and/or removal of riparian zone vegetation, only if:

1. The total area of vegetation cleared, cut, and/or removed within the riparian zone does not exceed the limits set forth in Table 11.2 above;

2. Where clearing, cutting, and/or removal of riparian zone vegetation is located within an actively disturbed area, the applicant demonstrates the following:

i. There is no other reasonable means of accomplishing the project that would reduce or eliminate the impact to the riparian zone; and

ii. There is no other feasible location onsite to undertake the project that would reduce or eliminate the impact to the riparian zone; and

3. Where clearing, cutting, and/or removal of riparian zone vegetation is located outside of an actively disturbed area, the applicant demonstrates that there is no other feasible use of the site that would reduce or eliminate the area of riparian zone vegetation to be cleared, cut, and/or removed, such as constructing a different type of project onsite, reducing the size or scope of the project, or relocating the project to a different portion of the site.

(z) All riparian zone vegetation that is cleared, cut, and/or removed to conduct a regulated activity, access an area where regulated activities will be conducted, or otherwise accommodate a regulated activity shall be replanted immediately after completion of the regulated activity, unless prevented by seasonal weather, in which case the vegetation shall be replanted as soon as conditions permit. Portions of the riparian zone occupied by an authorized structure need not be replanted.

1. Except as provided in (z)2 below, the vegetation replanted shall:

i. Consist of vegetation of equal or greater ecological function and value as the vegetation that was cleared, cut, or removed. For example, herbaceous vegetation may be replaced with the same type of vegetation or with trees, but the trees in forested areas must be replaced with trees of equal or greater density and ecological function and value; and

ii. Consist of native, non-invasive vegetation, except in an actively disturbed area. In an actively disturbed area, the vegetation may be replaced with the same type of vegetation that was cleared, cut, or removed, or with another kind of vegetation typical of an actively disturbed area. For example, lawn grass may be replaced with garden plants or agricultural crops.

2. In cases where replanting in accordance with (z)1 above would interfere with continued access to or maintenance of a structure that is required by Federal, State, or local law, the vegetation replanted shall meet the requirements of (z)1 above to the extent feasible.

N.J. Admin. Code § 7:13-11.2

New Rule, R.2016 d.055, effective 6/20/2016.
See: 47 N.J.R. 1041(a), 48 N.J.R. 1067(a).
Former N.J.A.C. 7:13-11.2, Requirements for stormwater management, recodified to N.J.A.C. 7:13-12.2.
Amended by R.2017 d.141, effective 7/17/2017.
See: 48 N.J.R. 1014(a), 49 N.J.R. 2246(a).
Rewrote the section.
Administrative correction.
See: 50 N.J.R. 1147(a).
Amended by R.2020 d.003, effective 3/2/2020 (operative March 2, 2021).
See: 50 N.J.R. 2375(a), 52 N.J.R. 402(a).
In the introductory paragraph of (j), inserted a comma following the second occurrence of "discharge" and in (j)3, updated the reference to "N.J.A.C. 7:8-5.5".