N.J. Admin. Code § 7:13-12.1

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:13-12.1 - Requirements that apply to all regulated activities

(a) This section sets forth design and construction standards that apply to any regulated activity proposed in any regulated area.

(b) The Department shall issue an individual permit for a regulated activity only if it determines that the regulated activity is not likely to cause significant and adverse effects on the following:

1. Water quality;

2. Aquatic biota;

3. Water supply;

4. Flooding;

5. Drainage;

6. Channel stability;

7. Threatened and endangered species or their current or documented historic habitats;

8. Navigation;

9. Energy production; and

10. Fishery resources.

(c) A permittee shall obtain all necessary approvals from the local Soil Conservation District prior to commencing any activity approved in an individual permit issued under this chapter.

(d) A permittee shall obtain all necessary approvals from the USDA Natural Resource Conservation Service prior to commencing any activity designed or overseen by the NRCS, which is approved in an individual permit issued under this chapter.

(e) If neither the Soil Conservation District nor the USDA Natural Resource Conservation Service has jurisdiction over an activity approved in an individual permit issued under this chapter, the permittee shall commence the activity only if the following requirements are met:

1. Sediment control measures shall be installed around the proposed construction sufficient to prevent sediment from entering any riparian zone or channel outside the construction area;

2. If construction is proposed in a channel, sediment control measures, such as coffer dams, shall be installed around the activity sufficient to prevent flowing water from coming in contact with construction for the duration of the project where feasible;

3. All slopes shall be graded and stabilized to prevent post-construction erosion; and

4. Permanent, native, non-invasive plant species shall be established on all exposed soils immediately following construction. The applicant shall monitor and maintain all such vegetation for at least three growing seasons to ensure proper establishment and survival.

(f) The Department shall issue an individual permit for a regulated activity that adversely impacts a property not owned by an applicant as set forth in (g) below, only if the applicant demonstrates that one or more of the following requirements are satisfied for each adversely impacted property:

1. The applicant is a public entity that intends to appropriate the adversely impacted property through its power of eminent domain;

2. The applicant has entered into a contract to purchase the adversely impacted property;

3. The applicant has obtained an easement that encompasses the entire area that will be adversely impacted by the proposed activity, which specifically allows the applicant to undertake the proposed activity; or

4. The applicant has obtained written permission from the owners of the adversely impacted property. Written permission shall include the following:

i. An explanation of the nature and purpose of the project;

ii. An estimate of the length of time regulated activities will occur;

iii. An estimate of the extent to which the adversely impacted property will be affected by flooding or stormwater discharges and the frequency at which these impacts are expected to occur; and

iv. The notarized signature of all owners of the adversely impacted property.

(g) The Department shall consider a regulated activity to adversely impact a property not owned by an applicant if the activity meets one or more of the following. For the purpose of determining compliance with (g)4 and 5 below, calculations shall be rounded to the nearest 0.1 feet:

1. The regulated activity is situated, in whole or in part, on property that is not owned by the applicant;

2. A stormwater discharge is directed overland onto property that is not owned by the applicant and the Department determines that the discharge will significantly increase or concentrate overland flow and/or cause erosion or increased flooding on the property not owned by the applicant;

3. The applicant relocates a regulated water or otherwise alters its top of bank such that the limit of the riparian zone encroaches further onto an offsite property;

4. The applicant proposes to undertake one or more of the following regulated activities:

i. The construction of a new bridge or culvert, which does not meet the offsite flood requirements of N.J.A.C. 7:13-12.7(d)1;

ii. The reconstruction of an existing bridge or culvert, which does not meet the offsite flood requirements of N.J.A.C. 7:13-12.7(e)1; or

iii. The restoration of a regulated water to a natural condition, which does not meet the offsite flood requirements of N.J.A.C. 7:13-12.14(d);

5. The applicant proposes to undertake a regulated activity not listed in (g)4 above, and the regulated activity will result in one or more of the following offsite impacts during any flood event described in (i) below:

i. The regulated activity subjects any offsite habitable building, railroad, roadway, or parking area to increased depth or frequency of flooding;

ii. The regulated activity increases offsite flood depths by more than 0.2 feet, in cases where the applicant owns or has development rights on both sides of a regulated water; or

iii. The regulated activity increases offsite flood depths by more than 0.1 feet, in cases where the applicant owns or has development rights on only one side of a regulated water.

(h) If a project results in a significant change in the cross-sectional area and/or hydraulic capacity of a channel or floodway, the Department shall presume that the project has the potential to adversely impact a property not owned by the applicant, as described at (g) above. In such a case, the Department shall require the applicant to provide hydrologic and/or hydraulic calculations that identify the properties that would be adversely impacted, or which demonstrate that such impacts will not in fact occur. Examples of projects that may require such an analysis include a channel modification, flood control project, the construction or removal of a water control structure, and the placement of a significant volume of fill in a floodway.

(i) Where this chapter requires consideration of potential offsite flooding impacts, the following flood events shall be analyzed:

1. The flood hazard area design flood;

2. The 100-year flood;

3. The 50-year flood;

4. The 25-year flood;

5. The 10-year flood; and

6. The two-year flood.

N.J. Admin. Code § 7:13-12.1

Amended and recodified from 7:13-11.1 by 48 N.J.R. 1067(a), effective 6/20/2016

Administrative Change, 50 N.J.R. 1147(a).