N.J. Admin. Code § 7:13-24.5

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

Section 7:13-24.5 - Civil administrative penalties for failure to obtain a permit prior to conducting regulated activities

(a) For the failure to obtain a permit prior to conducting regulated activities, the Department may assess a civil administrative penalty pursuant to this section of not more than $ 25,000 for each violation of 7:13-2.1.

(b) Each violation of 7:13-2.1shall constitute an additional, separate, and distinct violation.

(c) Each day during which the violation continues or remains in place without the required permit shall constitute an additional, separate, and distinct offense.

(d) To assess a civil administrative penalty pursuant to this section, the Department shall identify the civil administrative base penalty within Table 24.5A in (f) below by determining the number of points pursuant to (e) below. The civil administrative penalty shall be the amount within Table 24.5A in (f) below, unless adjusted pursuant to (g) and/or (h) below.

(e) The Department shall use the two factors described in (e)1 and 2 below to determine the number of points assigned to each violation.

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

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

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

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

2. The seriousness factor of the violation is assigned points as provided below and shall be based on the type, size, and location of the violation as provided at (e)2i through iv below, whether the activity also constitutes a Tidelands violation as provided at (e)2v below, and whether the activity impacted a resource of concern as provided at (e)2vi below:

i. An impact to a channel, such as a physical alteration including excavation, grading, channelization, channel widening, dredging, and channel relocation, or a change in the channel equilibrium, channel bank stability, or water quality, is assigned points as provided at (e)2i(1) through (3) below and shall be based on the length of the channel impacted. A violation that disturbed:

(1) Greater than 300 linear feet of channel is assigned five points;

(2) Greater than 75 linear feet up to and including 300 linear feet of channel is assigned three points; and

(3) Up to and including 75 linear feet of channel is assigned one point.

ii. An impact to a floodway, such as the construction or placement of structures, fill, or obstruction within the floodway, is assigned points as provided at (e)2ii(1) through (3) below and shall be based on the type and volume of fill or obstruction constructed or placed within the floodway, whether the fill constitutes a habitable building, and the area of the footprint of the structure:

(1) A violation comprised of the placement of fill or obstruction within the floodway:

(A) Greater than 100 cubic yards is assigned five points;

(B) Greater than 25 cubic yards and up to and including 100 cubic yards is assigned three points; and

(C) Up to and including 25 cubic yards is assigned one point;

(2) A violation comprised of the unauthorized construction of a habitable building or addition within the floodway is assigned five points; and

(3) A violation comprised of the unauthorized construction of any other structure having a footprint of greater than 150 square feet is assigned three points.

iii. An impact to a flood fringe, such as the construction or placement of structures, fill, or obstruction within the flood fringe, is assigned points as provided at (e)2iii(1) through (3) below and shall be based on the volume of fill or obstruction constructed or placed within the flood fringe, whether the structure complies with this chapter notwithstanding that a flood hazard area permit was not obtained, and, in the case of a building, the elevation of the lowest floor in relation to the minimum elevation required for the type of building:

(1) A violation comprised of the placement of fill or obstruction within the flood fringe:

(A) Greater than 200 cubic yards is assigned five points;

(B) Greater than 50 cubic yards up to and including 200 cubic yards is assigned three points; and

(C) Greater than five cubic yards up to and including 50 cubic yards is assigned one point;

(2) A violation comprised of the unauthorized construction of a habitable building where the "as-built" lowest floor elevation is:

(A) Below the minimum elevation required for the type of building is assigned five points; and

(B) At or above the minimum elevation required for the type of building is assigned two points; and

(3) A violation comprised of the unauthorized construction of any other structure, where the structure that was constructed without a flood hazard area permit:

(A) Does not comply with this chapter is assigned three points; and

(B) Does comply with this chapter is assigned one point;

iv. An impact to a riparian zone, such as the clearing, cutting, and/or removal of vegetation, the construction, reconstruction, relocation, or enlargement of the footprint of any structure, and all site preparation such as excavation, filling, and grading of any kind within the riparian zone, is assigned points as provided at (e)2iv(1) through (4) below and shall be based on the area disturbed and the type of vegetation that was disturbed:

(1) A violation that disturbed:

(A) Greater than 15,000 square feet is assigned three points;

(B) Greater than 7,000 square feet up to and including 15,000 square feet is assigned two points; and

(C) Greater than 400 square feet up to and including 7,000 square feet is assigned one point;

(2) A violation comprised of activities in which the riparian zone has been clear-cut of existing woody vegetation (trees and shrubs) and stumped, with the removal of the root, or vegetation otherwise destroyed by being buried under fill is assigned three points;

(3) A violation comprised of activities in which the riparian zone has been clear-cut of existing woody vegetation (trees and shrubs), with stumps remaining is assigned two points; and

(4) A violation comprised of activities in which an existing shrub layer within the riparian zone is removed but trees remain is assigned one point;

v. In addition to the points assessed in accordance with (e)2i through iv above, for a violation located in a State-owned Tidelands area for which a current tidelands instrument has not been obtained, or for which payment is in arrears, the Department shall assess one point.

vi. In addition to the points assessed in accordance with (e)2i through v above, for a violation that impacts a resource of concern as described at (e)iv(1) through (6) below, the Department shall assess one point per resource of concern.

(1) A regulated water identified as trout production or trout maintenance, or which contains other fishery resources;

(2) A regulated water designated as Category One;

(3) A regulated water within the Central Passaic Basin;

(4) A regulated water that is a present or documented habitat for threatened or endangered species;

(5) A channel or floodway; and

(6) The portion of the riparian zone within 25 feet of the top of bank of a regulated water.

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

Table 24.5A

Base Penalty Points Table

Points	Base Penalty
1-3	$ 500
4-6	$ 1,000
7-8	$ 2,000
9-10	$ 3,000
11-12	$ 6,000
13-14	$ 8,000
15-16	$ 10,000
17-19	$ 15,000
20-22	$ 20,000
23 or more	$ 25,000

(g) The Department shall adjust the amount of the base penalty assessed pursuant to (f) above based upon the mitigating penalty component as calculated in Table 24.5B below, if applicable.

1. The Department shall multiply the base penalty dollar amount by the multiplier for either of the applicable mitigating factors in Table 24.5B below to obtain the mitigating penalty component. Where neither mitigating factor in Table 24.5B applies, the civil administrative penalty shall be the civil administrative base penalty determined pursuant to (f) above, unless adjusted pursuant to (h) below.

Table 24.5B

Mitigating Penalty Component

Mitigating Factor	Multiplier
Where the nature, timing, and effectiveness of any measures taken by the violator to remove the unauthorized regulated activities and to mitigate the effects of the violation for which the penalty is being assessed results in compliance within 30 calendar days of receipt of the notice of violation from the Department	0.50
Where a complete application is submitted within 30 calendar days of receipt of the notice of the violation from the Department and a permit is subsequently obtained for the unauthorized regulated activities without the need to modify the regulated activities, provide riparian zone mitigation, or restore disturbed regulated areas	0.50

2. To obtain the civil administrative penalty, the Department shall subtract the mitigating penalty component calculated pursuant to (g)1 above, where applicable, from the base penalty.

(h) The Department may, in its discretion, adjust the amount of any penalty assessed pursuant to (f) and, where applicable, (g) above based upon any or all of the factors listed in (h)1 through 4 below. No such factor constitutes a defense to any violation. The factors are:

1. The compliance history of the violator;

2. The frequency with which any violation of any provision of 58:16A-50et seq., or rules, permit, or order adopted or issued pursuant thereto occurred, including environmental impacts;

3. The deterrent effect of the penalty; and/or

4. Any other mitigating, extenuating, or aggravating circumstances.

(i) The total civil administrative penalty shall be the daily civil administrative penalty determined under (d) through (h) above, multiplied by the number of calendar days during which each violation continued or remained in place without the required permit.

(j) Notwithstanding the maximum civil administrative penalty of $ 25,000 pursuant to this subsection, 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.

N.J. Admin. Code § 7:13-24.5

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