N.J. Admin. Code § 7:13-2.5

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

Section 7:13-2.5 - Applicability determinations

(a) A person may request an applicability determination from the Department to determine the applicability of this chapter to a segment of water or to one or more proposed activities, subject to the limitations in (b) below. An applicability determination is optional, but the Department encourages persons to request one if there is uncertainty about whether a particular water or activity is regulated, since conducting unauthorized activities may result in enforcement action.

(b) The Department will not undertake a site inspection or review engineering calculations in the context of an applicability determination.

(c) A person requesting an applicability determination shall submit to the Department, at the address set forth at N.J.A.C. 7:13-1.3, the following:

1. A completed application form as described at N.J.A.C. 7:13-22.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:13-1.3;

2. A copy of a USGS quad map with the segment of water in question indicated and/or the site in question clearly outlined to scale; and

3. A copy of any available Department delineation and FEMA flood mapping, with the segment of water in question indicated and/or the site in question clearly outlined to scale.

(d) In addition to the information listed at (c) above, a request for an applicability determination to determine if a water is regulated shall include a copy of the best available topographic mapping for the drainage area of the water in question, with the limits of the drainage area depicted.

(e) In addition to the information listed at (c) above, a request for an applicability determination to determine if one or more proposed activities is regulated shall include the following:

1. A written description of the site and the proposed activities, including the location, dimension, number, and uses of any proposed structures;

2. Color photographs of the location of the proposed activities; and

3. Site plans, signed and sealed by an engineer, land surveyor, or architect, detailing the proposed activities. If fill or grading is proposed, the site plans shall depict both existing and proposed topography unless the Department determines that topography is not necessary to determine applicability. All topography shall reference NGVD, or include the appropriate conversion factor to NGVD, unless the person requesting the applicability determination demonstrates that such reference is not necessary.

(f) After reviewing a request for an applicability determination, the Department shall:

1. Notify the person requesting the applicability determination that the request did not include all applicable material required at (c), (d), and/or (e) above and request the missing material. Upon receipt of the requested material, the Department shall take one of the actions set forth at (f)2 below. The Department may cancel the request for an applicability determination if the missing material is not provided within 60 calendar days of the date of the Department's request; or

2. Issue an applicability determination in writing, stating that, as of the date of issuance:

i. The Department has determined that this chapter does not apply to the water in question and/or the proposed activities and no flood hazard area permit is required;

ii. The Department has determined that this chapter applies to the water in question and/or proposed activities, and the recipient of the applicability determination is advised to submit an application for a permit unless the proposed activities meet the requirements of a permit-by-rule; or

iii. (No change.)

(g) The applicability determination issued under (f)2 above shall be based on the rules in effect and the information provided in the application regarding the site conditions and the proposed activities as of the date of issuance. The recipient of the applicability determination is on notice that subsequent amendments to this chapter, changes in site conditions, changes to the limits of the flood hazard area, floodway, or riparian zone, and/or changes to proposed activities may result in the water in question or proposed activities becoming regulated. The recipient remains solely responsible for determining whether any such changes have occurred and remains liable for any violation of this chapter resulting from activities conducted in reliance on the applicability determination where such changes have occurred and the determination is no longer accurate.

N.J. Admin. Code § 7:13-2.5

Adopted by 48 N.J.R. 1067(a), effective 6/20/2016

Amended by 53 N.J.R. 514(b), effective 4/5/2021