N.J. Admin. Code § 7:7-10.2

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

Section 7:7-10.2 - Standards applicable to routine beach maintenance

(a) Routine beach maintenance includes debris removal and clean-up; mechanical sifting and raking; maintenance of accessways; removal of sand accumulated beneath a boardwalk; removal of sand from street ends, boardwalks/promenades, and residential properties; the repair or reconstruction of existing boardwalks, gazebos, and dune walkover structures; and limited sand transfers from the lower beach to the upper beach or alongshore (shore parallel). Sand transfers from the lower beach profile to the upper beach profile are specifically designed to restore berm width and elevation, to establish/enhance dunes, and to repair dune scarps. Activities which preclude the development of a stable dune along the back beach are not considered to be routine beach maintenance activities, pursuant to this section. Specifically, the bulldozing of sand from the upper beach (berm) to the lower beach (beach face), for the purpose of increasing the berm width or flattening the beach profile, is not considered to be routine maintenance, except as provided at (a)9 below.

1. All routine beach maintenance activities shall be conducted in a manner that does not destroy, jeopardize, or adversely modify endangered or threatened wildlife or plant species habitat; and shall not jeopardize the continued existence of any local population of an endangered or threatened wildlife or plant species.

2. If the activities in (a) above are proposed to be conducted by a municipal or county agency on property owned by that governing body, then the municipal or county engineer must certify that the activities will be conducted in accordance with these standards. The appropriate municipal or county engineer is responsible for ensuring compliance with these requirements. If these activities are proposed to be conducted on privately owned property, then the property owner is responsible for ensuring that the activities will be conducted in accordance with these standards. If these activities are proposed to be conducted on State owned properties, then the DEP, Bureau of Construction and Engineering must certify that the activities will be conducted in accordance with these standards.

3. All guidelines and specifications of this section must be incorporated into any contract documents or work orders related to proposed beach and dune activities, as described in this section. The Division of Land Use Regulation is available to assist in the development of specific maintenance plans for oceanfront locations, upon request.

4. In areas documented by the Department as habitat for threatened or endangered beach nesting shorebirds such as Piping Plovers (Charadrius melodus), Least Terns (Sternula antillarum), and Black Skimmers (Rynchops niger), no beach raking, other mechanical manipulation of the beach, or use of non-emergency vehicles, shall take place between March 15 and August 31.

i. The Department's Division of Fish and Wildlife shall develop a list of specific areas where this restriction shall apply, based on documented habitat during the most recent nesting seasons. The list of restricted areas shall be updated annually by the Division of Fish and Wildlife, at the end of each nesting season and will be available from the Division of Land Use Regulation at the address set forth at 7:7-1.6. The updated list shall be provided by the Department to each permittee prior to March 1 of each year.

ii. If a particular beach area is identified on the updated list as described in (a)4i above as habitat for threatened or endangered beach nesting shorebirds, regardless of the habitat classification of the previous nesting season, no beach raking, other mechanical manipulation of the beach, or the use of non-emergency vehicles shall take place between March 15 and August 31 in those areas.

iii. If a particular beach area is not identified on the updated list as described in (a)4i above, but is subsequently found to contain a nest or unflighted chick of a threatened or endangered beach nesting shorebird, the Department shall notify the permittee and no beach raking, other mechanical manipulation of the beach, or use of non-emergency vehicles shall take place between March 15 and August 31 in those areas.

iv. The restrictions contained in (a)4 above may be waived if the Department's Division of Fish and Wildlife determines that the identified areas do not represent suitable threatened or endangered beach nesting shorebird habitat, due to beach erosion or other causes. Requests for such a waiver shall be made in writing to the Division of Land Use Regulation at the address set forth at 7:7-1.6.

5. In areas documented by the Department as supporting known occurrences of Federally listed endangered or threatened plant species such as seabeach amaranth (Amaranthus pumilus), or known occurrences of State listed endangered plant species, such as sea-beach knotweed (Polygonum glaucum), no beach raking, other mechanical manipulation of the beach, or use of non-emergency vehicles, shall take place between May 15 and November 30.

i. The Department, in cooperation with the USFWS, shall develop a list of present and documented habitat areas where this restriction shall apply based on occurrence locations during the previous seasons. The list of restricted areas shall be updated annually and will be available from the Division of Land Use Regulation at the address set forth at 7:7-1.6. The updated list shall be provided by the Department to each permittee prior to May 1 of each year.

ii. If a particular beach area is not identified on the updated list as described in (a)5i above, but is subsequently found to contain an occurrence of a Federally listed endangered or threatened plant species, or a State listed endangered plant species, the Department shall notify the permittee and no beach raking, other mechanical manipulation of the beach, or use of non-emergency vehicles shall take place between May 15 and November 30 in those areas.

iii. The restrictions contained in (a)5 above may be waived if the Department determines that the identified areas do not support occurrences of Federally listed endangered or threatened plant species, or occurrences of State listed endangered plant species. Requests for such a waiver shall be made in writing to the Division of Land Use Regulation at the address set forth at 7:7-1.6.

6. Mechanical sifting and beach raking shall be limited to recreational beach areas only. For the purposes of this subsection, "recreational beach area" means all areas within 100 yards of a staffed lifeguard stand.

7. The excavation of sand accumulated beneath a boardwalk is conditionally acceptable provided:

i. The elevation of the area after the excavation is completed is not lower than either the upper beach berm design template for an engineered beach, or, for a non-engineered beach, the elevation of the existing beach berm;

ii. The excavated sand is relocated to the seaward toe of the existing dune, if present, or on the upper beach berm;

iii. Where breaching of an existing dune is necessary to allow for sand excavation, the following apply:

(1) The area of the dune breached shall be minimized; and

(2) The dune shall be restored to pre-existing conditions immediately upon excavation of the sand; and

iv. Where sand is removed from the landward dune slope, the slope must be:

(1) Restored to the preexisting conditions and in no case be steeper than three horizontal to one vertical; and

(2) Revegetated in accordance with 7:7-10.4(b) and (c).

8. Any sand excavated from boardwalks, street ends, and single-family lots shall be placed on the seaward toe of the existing dune, if present, or on the upper beach berm.

9. Placement of temporary sand fencing during the winter months, which results in the accumulation of sand that is later redistributed on the beach berm, is conditionally acceptable, provided:

i. The sand fencing is:

(1) Placed a minimum of 15 feet waterward of the seaward toe of any existing dune or, if no dune is present, from the waterward side of any structure;

(2) Installed no earlier than October 15 and removed prior to the Memorial Day weekend, unless threatened and endangered species timing restrictions apply;

(3) Installed in a manner that does not prevent public access along the tidal water and does not restrict public access to the beach from existing public access points; and

ii. The accumulated sand that is redistributed:

(1) Is placed on the beach;

(2) Does not result in the grading of the beach below the beach berm design template for an engineered beach or, for a non-engineered beach, below the elevation of the beach berm elevation existing prior to the redistribution; and

(3) Where feasible, does not result in the grading of the beach face to a slope steeper than 10 horizontal to one vertical.

(b) Projects involving the transfer of sand from the lower beach profile to the upper beach profile, or alongshore, are acceptable, in accordance with the following standards:

1. All sand transfer activities shall be conducted in a manner that does not destroy, jeopardize, or adversely modify endangered or threatened wildlife or plant species habitat; and shall not jeopardize the continued existence of any local population of an endangered or threatened wildlife or plant species.

2. The amount of sand transferred at any one time shall be limited to one foot scraping depth at the borrow zone. This borrow zone may not be rescraped until the sand volume from the previous scraping activities has been fully restored.

3. The borrow zone shall be limited to the area between the low water line and the inland limit of the berm. It is strongly recommended that a program of beach profiling be utilized to monitor the condition of the beaches and to ensure compliance with the standards of this section.

4. If the purpose of the sand transfers is to repair eroded dunes (dune scarps), all filled areas shall be stabilized with sand fencing and planted with beach grass in accordance with Department or Soil Conservation Service standards. Fencing shall be in place within 30 calendar days of the transfer operation, while the vegetative plantings may be installed during the appropriate seasonal planting period (October 15 through March 31, anytime the sand is not frozen).

5. There shall be no disturbance to existing dune areas.

6. In areas of documented habitat for threatened or endangered beach nesting shorebirds such as Piping Plovers (Charadrius melodus), Least Terns (Sternula antillarum), and Black Skimmers (Rynchops niger), no sand transfers shall take place between March 15 and August 31.

i. The Department's Division of Fish and Wildlife shall develop a list of specific areas where this restriction shall apply, based on documented habitat during the most recent nesting seasons. The list of restricted areas shall be updated annually by the Division of Fish and Wildlife, at the end of each nesting season and will be available from the Division of Land Use Regulation at the address set forth at 7:7-1.6. The updated list shall be provided by the Department to each permittee prior to March 1 of each year.

ii. If a particular beach area is identified on the updated list as described in (b)6i above as habitat for threatened or endangered beach nesting shorebirds, regardless of the habitat classification of the previous nesting season, no sand transfers shall take place between March 15 and August 31 in those areas.

iii. If a particular beach area is not identified on the updated list as described in (b)6i above, but is subsequently found to contain a nest or unflighted chick of a threatened or endangered beach nesting shorebird, the Department shall notify the permittee and no sand transfers shall take place between March 15 and August 31 in those areas.

iv. The restrictions contained in (b)6 above may be waived if the Department's Division of Fish and Wildlife determines that the identified areas do not represent suitable threatened or endangered beach nesting shorebird habitat due to beach erosion or other causes. Requests for such a waiver shall be made in writing to the Division of Land Use Regulation at the address set forth at 7:7-1.6.

7. In areas documented by the Department as supporting known occurrences of Federally-listed endangered or threatened plant species, or known occurrences of State-listed endangered plant species, no sand transfers shall take place between May 15 and November 30.

i. The Department, in cooperation with the USFWS, shall develop a list of present and documented habitat areas where this restriction shall apply, based on occurrence locations during the previous seasons. The list of restricted areas shall be updated annually and will be available from the Department's Division of Land Use Regulation at the address set forth at 7:7-1.6. The updated list shall be provided by the Department to each permittee prior to May 1 of each year.

ii. If a particular beach area is not identified on the updated list as described in (b)7i above but is subsequently found to contain an occurrence of a Federally listed endangered or threatened plant species, or an occurrence of a State listed endangered plant species, the Department shall notify the permittee and no sand transfer on the beach shall take place between May 15 and November 30 in those areas.

iii. The restrictions contained in (b)7 above may be waived if the Department determines that the identified areas do not support occurrences of a Federally listed endangered or threatened plant species, or occurrences of State listed endangered plant species. Requests for such a waiver shall be made in writing to the Division of Land Use Regulation at the address set forth at 7:7-1.6.

8. Sand transfers to or from wetland areas that may exist on a beach are not authorized by this permit.

9. Records of all sand transfer activities shall be maintained by the property owner, beach association, governmental agency or other authority conducting the activities, and shall be available for inspection by the Department, upon request. These records shall include, but not be limited to, dates of transfer, borrow area limits, fill area limits, estimates of the amount of sand transferred, the name of the person(s) supervising the transfer activities, and the engineering certification required (if appropriate) for all sand transfer activities.

(c) Rationale: Beach maintenance activities are sometimes necessary to reestablish the width and contours of the beach and dune system, and to repair structures that facilitate public access to and enjoyment of the shore. Maintenance of beaches is essential to New Jersey's shore tourism and to protecting people and property from storms and wave action. These rules address actions by municipal or county agencies on property owned by that governing body, as well as actions on privately owned property and State owned property. While these actions are necessary, they must minimize impacts to threatened and endangered wildlife and plant species that rely on beaches for habitat, and must not undermine the protective qualities of the beach and dune system.

The Department's Division of Fish and Wildlife, the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the Army Corps of Engineers have determined that beach raking and other mechanical manipulation of beaches has the potential to adversely affect threatened or endangered beach nesting shorebirds and their habitat. These adverse impacts can occur in several ways. First, mechanical vehicles (such as beach rakes and tractors) crush the eggs, as well as chicks and adult birds. Second, these vehicles create ruts in the beach/berm, which restrict the ability of juvenile birds to move between the upper berm nest areas to the feeding habitats along the wrack line. Third, the mechanical sifting of beach sand removes the birds' natural wrack line feeding habitat, which is the primary food source for these beach nesters. Requiring activities to only take place within certain timeframes in areas documented as habitat for threatened or endangered nesting shorebirds or areas documented as habitat for endangered or threatened plant species will minimize impacts to such species by restricting beach maintenance activities to times of year where the species are not likely to be utilizing the beach area. These timeframes are consistent with USFWS recommendations and accommodate piping plovers, least terns, black skimmers, and other migrating shorebirds. The Division of Fish and Wildlife publishes an annually updated list of areas in which these timing restrictions apply. If a particular area is not listed but is subsequently found to contain such a species, the activities must halt until the restricted time period has passed. Restricting beach raking and sand transfers to active recreation beach areas in locations not documented as threatened or endangered species habitat enables permittees to mechanically clean heavily used recreational beach areas while preserving shorebird feeding habitat.

In the wake of Superstorm Sandy, the Department determined that provisions to allow for the maintenance of engineered beaches and dunes to the design template, allow for the removal of sand from beneath a boardwalk, and allow for the placement of temporary sand fencing during winter months are necessary to facilitate the maintenance of engineered beach and dune systems. Barone, McKenna, and Farrell in their paper "Hurricane Sandy: Beach-dune performance at New Jersey Beach Profile Network Sites" (2014) concluded that Federally designed shore protection projects that included engineered dunes protected landward structures. In the face of future storms, these provisions will allow communities to maintain protective beach and dune systems.

N.J. Admin. Code § 7:7-10.2

Adopted by 47 N.J.R. 422(a), effective 2/2/2015

Renumbered from 7:7E-3A.2 by 47 N.J.R. 1392(a), effective 7/6/2015

Amended by 50 N.J.R. 361(a), effective 1/16/2018