N.J. Admin. Code § 7:7-9.2
In addition to being a harvestable resource, shellfish play an important role in the overall ecology of the estuary and are an important forage food source for a variety of finfish species, crabs, and migratory waterfowl. Shellfish themselves are filter feeders and are, therefore, important for maintaining or improving water quality.
There is an inherent conflict between the protection of shellfish habitat and water quality and boating related activities, such as mooring and dredging, though both are important water dependent activities in New Jersey. Boating related activities may affect shellfish habitat and the harvestability of shellfish. Mooring facilities can be a source of pollution with a high potential for improper disposal of human waste. Shellfish that occur in or near marinas and docks are unsafe for human consumption due to the potential health threats associated with the pollution generated by the leaching of toxic chemicals and heavy metals from waterfront construction materials and boat-related pollutants, and human waste disposed in close proximity to these marinas and docks. Bivalve shellfish readily bioaccumulate and concentrate toxic substances and pathogenic microorganisms within their tissue, which poses a human health risk when contaminated shellfish is consumed. Due to the potential health threats associated with shellfish grown in polluted waters, shellfish are prohibited from being harvested for human consumption near mooring facilities.
Dredging activities have a negative effect on the recruitment of shellfish by changing the composition of the substrate. Dredging disturbs and degrades shellfish habitat by adversely altering the water quality, salinity regime, substrate characteristics, natural water circulation pattern, and natural functioning of the shellfish habitat.
Motor fuels can be released into the aquatic environment via the operation of boat engines, fueling operations, and bilge pumping. The effects of petroleum hydrocarbons on fish and shellfish include direct lethal toxicity, sublethal disruption of physiology and/or behavior, bioaccumulation, and development of an unpleasant taste to edible species. Motor fuels and exhaust can contain lead, cadmium, zinc, and other heavy metals. Heavy metals have been shown to cause suppression of growth or death of eggs, embryos, and larvae of hard clams. In addition, such contaminants are known to cause a variety of sublethal effects, including inhibited feeding behavior, retarded shell growth, and depression of cardiovascular function and respiration in various species of shellfish.
Boat maintenance operations may also have adverse impacts to estuarine organisms. Some detergents used to wash boats can be toxic to fish and invertebrates and may contribute to elevated nutrient levels, particularly of phosphorous. Toxins from various antifouling paints are harmful to shellfish and other invertebrates.
This rule intends to strike a balance between protection of shellfish habitat and recreational boating-related uses by allowing maintenance dredging in shellfish habitats where an area has already been previously dredged and by allowing new dredging at existing public boat launching facilities and major mooring/docking facilities. The dredging of larger marinas and boat launching facilities will allow the greatest number of boaters access to the water areas with the least amount of habitat disturbances and degradation. This is partly because larger marinas are more likely than smaller ones to generate sufficient demand for a full service marina, and are required to provide restrooms, and a pumpout facility, as a condition for the dredging approval if they did not already have them. Dredging is allowed at larger marinas and boat launching facilities because their highly concentrated use pattern minimizes the overall physical space required for dockage/mooring area and channel maintenance. Additionally, direct disposal of human waste into the water is expected to be reduced when these better equipped marina facilities are equipped with pumpout facilities. Therefore, maintenance of these facilities is considered acceptable.
Marinas have infrastructure necessary to support recreational boating including pumpout facilities. The State has seen a decrease in the number of marina facilities through their conversion to other non-water dependent uses. The Marine Trades Association of New Jersey has provided a report based on information provided from marine businesses which indicates that over 500 boat slips and 17 marinas have been lost as of 2011. Not only does this result in a loss of slips available to the public, it results in the loss of jobs, revenue and marina services. To preserve existing marinas and the necessary services they provide, encourage new marinas and ensure there is a sufficient amount of boat slips available to the public, expansion of existing commercial marinas and construction of new "infill" marinas in limited situations is acceptable where mitigation through the minimization of the area covered by structures, the use of non-polluting materials, the prohibition of dredging and the provision of a monetary contribution to the Department's dedicated account for shellfish habitat mitigation is provided.
In accordance with N.J.A.C. 7:7-17.9, mitigation for impacts to shellfish habitat and the marine ecosystem associated with the construction of a dock, pier, mooring, or marina include the recording of a conservation restriction and a monetary contribution to the Department's dedicated account for shellfish habitat mitigation. The conservation restriction is intended to reduce any future impacts to the marine ecosystem by prohibiting the construction of a shoreline protection structure other than stone rip-rap or other sloped revetments on an unbulkheaded lot, or the replacement, reconstruction, or rehabilitation of an existing bulkhead with anything other than non-polluting materials. In addition, the monetary contribution to the Department's dedicated fund for shellfish habitat mitigation and restoration is based on the area of shellfish habitat covered by planned structures and mooring areas, the documented shellfish density supported by the local habitat, and the commercial value of the resource. This contribution is intended to ensure that adverse impacts to the shellfish resource are minimized and habitat improvements are promoted in areas outside of the impacted area through the use of the mitigation funds. In 2016, the Assistant Commissioners of Land Use Management and Natural and Historic Resources signed a Memorandum of Understanding that establishes a framework for the use and management of funds from the Department's dedicated account for shellfish habitat mitigation.
Living shorelines are a shoreline management practice that addresses the loss of vegetated shorelines by providing protection, restoration, or enhancement of these habitats. The establishment of living shorelines is conditionally acceptable provided the living shoreline activities disturb the minimum amount of special areas necessary to successfully implement the restoration, creation, enhancement, or protection of habitat, water quality functions, and values of wetlands, wetland buffers, and open water areas. This may include a decrease in the existing special area or the conversion of one special area to another where it is determined that such changes are environmentally beneficial.
The one-time replacement, reconstruction, or renovation of a legally-existing bulkhead outshore of the existing bulkhead within waters classified as prohibited for harvesting shellfish is conditionally acceptable where the bulkhead is constructed of non-polluting materials and is located within 18 inches of the existing bulkhead, except where the replacement bulkhead is constructed of a corrugated material in which case it shall be located no more than 24 inches from the existing bulkhead. Non-polluting materials are required to minimize impacts to water quality. These requirements minimize impacts to water quality and the amount of substrate impacted by the bulkhead. The replacement or reconstruction of a bulkhead outshore of the existing bulkhead is allowed in waters classified as prohibited for harvesting shellfish in order to encourage the elimination of any polluting material in shellfish habitat and the correction or prevention of erosion, and because, in some cases, replacement in kind (requiring the removal of the existing bulkhead which in most, if not all, instances will be constructed of a treated material that is not considered to be non-polluting) will have a detrimental impact to water quality through the sloughing of soil that has been in contact with the bulkhead sheathing that is being replaced. The replacement or reconstruction is limited to one time only in order to limit the encroachment into shellfish habitat.
The Navesink River, Shrewsbury River, and Manasquan River (upstream of the Route 35 Bridge), and St. George's Thorofare contain highly productive shellfish habitat. The Navesink and Shrewsbury Rivers are unique in that only three estuaries within the State have commercial soft clam densities. St. George's Thorofare is a commercially and recreationally valuable area that contains a high hard clam density according to the 1985 Shellfish inventory conducted by the Division of Fish, Game and Wildlife. In 1985, this 107-acre area was estimated to contain 6.2 million hard clams. The high abundance of hard clams, together with the fact that this waterbody is poorly flushed makes St. George's Thorofare a critical area that is sensitive to any potential pollution activities. Compliance with specific standards for boat mooring facilities with five or more slips within these watercourses is required so as to not adversely impact this highly productive shellfish habitat.
Federal, State, and local officials have recognized the importance of these rivers as shellfish habitat and the need to protect their water quality. As a result, pollution control programs have been formed to protect these rivers. For example, the Navesink River Shellfish Protection Program represents a multi-agency pollution control program. On August 21, 1986, a Memorandum of Understanding was signed by the New Jersey Departments of Environmental Protection and Agriculture, the United States Department of Agriculture, and the USEPA. The memorandum serves to "...formalize our commitment to the Navesink River Water Control Shellfish Protection Program, its primary goal of improving water quality in the Navesink River watershed to a point at which the river's full shellfishery and recreational potential may be attained." Water quality monitoring during 6 years of implementation of pollution controls (1987-93) has shown significant reductions in bacterial contamination of the Navesink River, to the point where, after 25 years of being closed to shellfish harvest, the shellfish classification of the Lower Navesink River was upgraded to seasonally approved. Other parts of the river are classified as special restricted. The Shrewsbury River is a unique shellfish habitat in that it is only one of the three estuaries in New Jersey to have commercial densities of soft clams. Studies indicate that the Shrewsbury River is hydrologically connected to the Navesink River. As such, the Shrewsbury River was included as part of the "Navesink River Shellfish Protection Program." In addition, the Monmouth/Ocean Alliance to Enhance the Manasquan River was formed by Monmouth and Ocean Counties and the New Jersey Department of Environmental Protection to identify causes of shellfish water degradation and plan solutions for improved water quality and uses in the Manasquan River. The Alliance requested that the Department ask USEPA to designate the Manasquan River Estuary a No Discharge Zone pursuant to the Federal Clean Water Act. The Department sought such a designation from USEPA and the Manasquan River Estuary was officially declared a No Discharge Zone by USEPA in June 1998.
N.J. Admin. Code § 7:7-9.2