N.J. Admin. Code § 7:38-14.1

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

Section 7:38-14.1 - Highlands general permit 1 - habitat creation and enhancement activities

(a) Highlands general permit 1 authorizes habitat creation and enhancement activities in Highlands open waters, which is sponsored or substantially funded by a Federal or State agency or other entity described in (b) below and that are necessary to implement a plan for the restoration, creation or enhancement of the habitat and water quality functions and values of Highlands open waters. For the purposes of this general permit, a "sponsor" shall be an active participant in or substantial financial contributor to the activities, and shall approve the activities in writing.

(b) Highlands general permit 1 authorizes any of the following:

1. A fish and/or wildlife management plan created or approved by the Department's Division of Fish and Wildlife;

2. A project plan approved under the Partners for Fish and Wildlife program, administered by the U.S. Fish and Wildlife Service;

3. A project plan created by the U.S. Department of Agriculture's Natural Resources Conservation Service under the Wetlands Reserve program, the Conservation Reserve program, the Conservation Reserve Enhancement program, the wildlife habitat incentive program (WHIP), or a similar program, and approved by the local Soil Conservation District;

4. A plan approved by the Department's Office of Natural Resource Damages for the restoration, creation or enhancement of natural resources injured as the result of an oil spill or release of a hazardous substance;

5. A mitigation project required by and approved by a government agency, such as the U.S. Army Corps of Engineers;

6. A habitat creation or enhancement plan carried out by the New Jersey Water Supply Authority;

7. A habitat creation or enhancement plan carried out by one of the Federal or State agencies at (b)1 through 6 above or by a government resource protection agency such as a parks commission; or

8. A habitat creation or enhancement plan carried out by a charitable conservancy, as defined at 7:7A-15.1, provided that the plan is part of a program listed at (b)2 through 5 above.

(c) To be eligible for authorization under Highlands general permit 1, an applicant shall demonstrate that the proposed project:

1. Is part of a comprehensive plan for the restoration, creation or enhancement of the habitat and water quality functions and values of Highlands open waters and their buffers;

2. Is sponsored or partially funded by an appropriate entity in accordance with (b) above;

3. Is consistent with the goals of the Highlands Act;

4. Will improve the values and functions of the ecosystem; and

5. Will have a reasonable likelihood of success.

(d) Highlands general permit 1 does not authorize an activity unless the sole purpose of the activity is habitat creation or enhancement. For example, Highlands general permit 1 does not authorize construction of a detention basin in wetlands for stormwater management, even if the detention basin or the project of which the basin is a part will also result in habitat creation or enhancement. Similarly, Highlands general permit 1 does not authorize a flood control project that may also result in creation or enhancement of some wildlife habitat.

(e) Habitat creation and enhancement activities that are authorized by Highlands general permit 1 include, but are not limited, to the following:

1. Altering hydrology to restore or create wetlands conditions, such as by blocking, removing, or disabling a human-made drainage ditch or other drainage structure such as a tile, culvert or pipe;

2. Breaching a structure such as a dam, dike or berm in order to allow water into an area;

3. Placing habitat improvement structures such as:

i. Nesting islands;

ii. Fencing to contain, or to prevent intrusion by, livestock or other animals; and

iii. Fish habitat enhancement devices or fish habitat improvement structures such as placed boulders, stream deflectors, or brush piles;

4. Regrading to provide proper elevation or topography for wetlands restoration, creation, or enhancement; and

5. Cutting, burning or otherwise managing vegetation in order to increase habitat diversity or control nuisance flora.

(f) Activities under Highlands general permit 1 shall meet the following requirements:

1. The activities shall disturb the minimum amount of Highlands open waters and buffers necessary to successfully implement the project plan and shall result in an improvement to aquatic habitat or buffer quality above existing conditions. The removal of a dam to relocate or alter the character of a Highlands open water is permitted so long as there are net gains in habitat functions and values;

2. The activities shall not decrease the total combined area of Highlands open waters and/or buffers on a site. However, the Department may approve such a decrease if the Department determines that the activities causing the decrease are sufficiently environmentally beneficial to outweigh the negative environmental effects of the decrease. In addition, the Department may approve conversion of different types of Highlands open waters such as wetlands to open water areas or buffer, conversion of open water areas to wetlands or buffers, or the conversion of buffers to freshwater wetlands or open water area, if the Department determines that such conversion is environmentally beneficial;

3. The area of habitat enhancement or creation shall be protected from any future development by a recorded conservation restriction;

4. The activities shall not disturb upland forested areas as described at 7:38-3.9;

5. The activities shall not reduce the stability of any steep slopes as described in 7:38-3.8;

6. The activities shall meet all of the applicable standards at 7:38-3.7;

7. The activities shall not disturb or degrade unique or irreplaceable land types, historical or archeological areas, and existing public scenic attributes as set forth in 7:38-3.12;

8. The activities shall not result in the likelihood of the destruction or adverse modification of rare, threatened or endangered animal or plant species habitat; and

9. If the activities involve the removal of a dam:

i. The activities shall be conducted in accordance with a permit issued pursuant to N.J.A.C. 7:20 by the Department's Dam Safety Section in the Division of Engineering and Construction; and

ii. If a dam is removed and the dam owner also owns or controls any of the property containing the lake bottom, the Department may require the owner to execute and record a conservation restriction covering the lake bottom area. The conservation restriction shall prohibit any development or regulated activity for five years from the date the dam is removed, in order to allow the stream corridor and associated wetlands in the lake bottom area to revert to their natural state. The conservation restriction shall include the land covered by the lake bottom, and all associated wetlands, as they exist at the time the dam is removed. When the conservation restriction expires, the Department's jurisdiction under this chapter shall be based on existing conditions on the site.

(g) There is no fee for an application for authorization under Highlands general permit 1.

(h) If a project complies with Highlands general permit 1 and also includes an activity covered under another Highlands general permit, the entire project shall be authorized through Highlands general permit 1 and shall not require authorization under the other general permit, provided that each activity covered by another general permit complies with that general permit's requirements and limits. For example, if a habitat creation project includes bank stabilization activities, and meets all requirements of Highlands general permit 2, the Department may authorize the project under Highlands general permit 1 alone.

(i) If an activity is exempt under this chapter pursuant to 7:38-2.3, it shall not require authorization under Highlands general permit 1 solely by virtue of being conducted as part of a program included in (b) above. For example, if a farmer proposes a habitat enhancement project that is eligible for authorization under Highlands general permit 1, but some of the proposed activities meet the definition of agricultural or horticultural use and are thereby not considered major Highlands development, those activities do not lose their exempt status merely by virtue of being part of a project authorized under Highlands general permit 1.

N.J. Admin. Code § 7:38-14.1