N.J.A.C. 7:7A FRESHWATER WETLANDS PROTECTION ACT

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COMPILED IN TITLE 7 OF THE NEW JERSEY ADMINISTRATIVE CODE.

N.J.A.C. 7:7A

FRESHWATER WETLANDS PROTECTION ACT RULES

Statutory authority:

N.J.S.A. 13:9B-1 et seq.

Date last amended:

November 7, 2022

For regulatory history and effective dates, see the New Jersey Administrative Code.

Table of Contents

SUBCHAPTER 1. GENERAL PROVISIONS .......................................................................................................... 6

7:7A-1.1 Purpose and scope ...................................................................................................................................... 6

7:7A-1.2 Effect of a permit ....................................................................................................................................... 7

7:7A-1.3 Definitions .................................................................................................................................................. 7

7:7A-1.4 Forms, checklists, and information; Department address and website ..................................................... 27

7:7A-1.5 Liberal construction ................................................................................................................................. 28

7:7A-1.6 Severability .............................................................................................................................................. 28

SUBCHAPTER 2. APPLICABILITY AND ACTIVITIES FOR WHICH A PERMIT IS REQUIRED ........... 28

7:7A-2.1 When a permit is required ........................................................................................................................ 28

7:7A-2.2 Regulated activities in freshwater wetlands and State open waters ......................................................... 29

7:7A-2.3 Regulated activities in transition areas ..................................................................................................... 31

7:7A-2.4 Activities exempted from permit and/or waiver requirement .................................................................. 33

7:7A-2.5 Geographic areas exempted from permit and/or waiver requirement ...................................................... 39

7:7A-2.6 Exemption letters ..................................................................................................................................... 40

7:7A-2.7 Stormwater management .......................................................................................................................... 41

SUBCHAPTER 3. IDENTIFYING FRESHWATER WETLANDS AND TRANSITION AREAS;

FRESHWATER WETLANDS RESOURCE VALUE CLASSIFICATION ........................................................ 41

7:7A-3.1 Identifying freshwater wetlands ............................................................................................................... 41

7:7A-3.2 Classification of freshwater wetlands by resource value ......................................................................... 42

7:7A-3.3 Identifying a transition area ..................................................................................................................... 44

7:7A-3.4 Transition areas due to freshwater wetlands on adjacent property ........................................................... 46

SUBCHAPTER 4. LETTERS OF INTERPRETATION ....................................................................................... 47

7:7A-4.1 Purpose and scope .................................................................................................................................... 47

7:7A-4.2 General provisions ................................................................................................................................... 47

7:7A-4.3 Presence/absence LOI .............................................................................................................................. 49

7:7A-4.4 Line delineation LOI ................................................................................................................................ 50

7:7A-4.5 Line verification LOI ............................................................................................................................... 50

7:7A-4.6 Duration of a letter of interpretation ........................................................................................................ 50

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7:7A-4.7 Conditions that apply to an issued letter of interpretation delineation or verification .............................. 51

SUBCHAPTER 5. GENERAL PROVISIONS FOR GENERAL PERMITS-BY-CERTIFICATION AND

GENERAL PERMITS .............................................................................................................................................. 52

7:7A-5.1 Purpose and scope .................................................................................................................................... 52

7:7A-5.2 Standards for issuance, by rulemaking, of general permits-by-certification and general permits ............ 52

7:7A-5.3 Use of an authorization pursuant to a general permit-by-certification or a general permit to conduct

regulated activities ................................................................................................................................................... 53

7:7A-5.4 Use of more than one general permit or general permit-by-certification on a single site ........................ 55

7:7A-5.5 Duration of an authorization under a general permit-by-certification ...................................................... 56

7:7A-5.6 Duration of an authorization under a general permit ................................................................................ 57

7:7A-5.7 Conditions applicable to an authorization pursuant to a general permit-by-certification or a general

permit ...................................................................................................................................................................... 57

SUBCHAPTER 6. GENERAL PERMITS-BY-CERTIFICATION ...................................................................... 61

7:7A-6.1 General permit-by-certification 8―Construction of an addition to a lawfully existing residential

dwelling ................................................................................................................................................................... 61

7:7A-6.2 General permit-by-certification 24―Repair or modification of a malfunctioning individual subsurface

sewage disposal (septic) system .............................................................................................................................. 62

SUBCHAPTER 7. GENERAL PERMITS .............................................................................................................. 62

7:7A-7.1 General permit 1―Maintenance and repair of existing features .............................................................. 62

7:7A-7.2 General permit 2―Underground utility lines .......................................................................................... 64

7:7A-7.3 General permit 3―Discharge of return water .......................................................................................... 65

7:7A-7.4 General permit 4―Hazardous site investigation and cleanup .................................................................. 65

7:7A-7.5 General permit 5―Landfill closures ........................................................................................................ 66

7:7A-7.6 General permit 6―Non-tributary wetlands .............................................................................................. 67

7:7A-7.6A General permit 6A―Transition areas adjacent to non-tributary wetlands ............................................ 68

7:7A-7.7 General permit 7―Human-made ditches or swales in headwaters .......................................................... 68

7:7A-7.8 General permit 8―House additions ......................................................................................................... 69

7:7A-7.9 General permit 9―Airport sight line clearing.......................................................................................... 69

7:7A-7.10A General permit 10A―Very minor road crossings ............................................................................... 70

7:7A-7.10B General permit 10B―Minor road crossings ........................................................................................ 73

7:7A-7.11 General permit 11―Outfalls and intake structures ................................................................................ 74

7:7A-7.12 General permit 12―Surveying and investigating .................................................................................. 76

7:7A-7.13 General permit 13―Lake dredging ........................................................................................................ 77

7:7A-7.14 General permit 14―Water monitoring devices ..................................................................................... 79

7:7A-7.15 General permit 15―Mosquito control activities .................................................................................... 79

7:7A-7.16 General permit 16—Creation, restoration, and enhancement of habitat and water quality functions and

values....................................................................................................................................................................... 80

7:7A-7.17 General permit 17--Trails and boardwalks ............................................................................................. 82

7:7A-7.17A General permit 17A—Non-Motorized, Multiple-use Paths ................................................................ 83

7:7A-7.18 General permit 18―Dam repair ............................................................................................................. 83

7:7A-7.19 General permit 19―Docks and piers ..................................................................................................... 85

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7:7A-7.20 General permit 20―Bank stabilization .................................................................................................. 86

7:7A-7.21 General permit 21―Above ground utility lines ..................................................................................... 88

7:7A-7.22 General permit 22―Expansion of cranberry growing operations in the Pinelands ............................... 89

7:7A-7.23 General permit 23―Spring developments ............................................................................................. 94

7:7A-7.24 General permit 24―Malfunctioning individual subsurface sewage disposal (septic) systems .............. 95

7:7A-7.25 General permit 25― Minor channel or stream cleaning for local government agencies ....................... 96

7:7A-7.26 General permit 26―Redevelopment of previously disturbed areas ....................................................... 99

7:7A-7.27 General permit 27 – application of herbicide within freshwater wetlands and transition areas to control

invasive plant species ............................................................................................................................................ 100

SUBCHAPTER 8. TRANSITION AREA WAIVERS.......................................................................................... 100

7:7A-8.1 General provisions for transition area waivers ....................................................................................... 101

7:7A-8.2 Transition area averaging plan waiver ................................................................................................... 104

7:7A-8.3 Special activity transition area waiver.................................................................................................... 106

7:7A-8.4 Hardship transition area waiver .............................................................................................................. 107

7:7A-8.5 Duration of a transition area waiver ....................................................................................................... 109

SUBCHAPTER 9. INDIVIDUAL FRESHWATER WETLANDS AND OPEN WATER FILL PERMITS... 109

7:7A-9.1 Requirement to obtain an individual permit ........................................................................................... 109

7:7A-9.2 Duration of an individual permit ............................................................................................................ 109

7:7A-9.3 Conditions applicable to an individual permit ....................................................................................... 110

SUBCHAPTER 10. REQUIREMENTS FOR ALL INDIVIDUAL FRESHWATER WETLANDS AND OPEN

WATER FILL PERMITS ....................................................................................................................................... 110

7:7A-10.1 General provisions for individual permits ............................................................................................ 110

7:7A-10.2 Standard requirements for all individual permits ................................................................................. 110

7:7A-10.3 Additional requirements for a non-water dependent activity in a wetland or special aquatic site........ 113

7:7A-10.4 Additional requirements for a non-water dependent activity in exceptional resource value wetlands or

trout production waters .......................................................................................................................................... 114

SUBCHAPTER 11. MITIGATION ...................................................................................................................... 114

7:7A-11.1 Definitions ............................................................................................................................................ 114

7:7A-11.2 General mitigation requirements .......................................................................................................... 116

7:7A-11.3 Timing of mitigation ............................................................................................................................ 119

7:7A-11.4 Property suitable for mitigation ............................................................................................................ 120

7:7A-11.5 Conceptual review of a mitigation area ................................................................................................ 121

7:7A-11.6 Basic requirements for mitigation proposals ........................................................................................ 122

7:7A-11.7 Department review and approval of a mitigation proposal .................................................................. 125

7:7A-11.8 Mitigation for a temporary disturbance ................................................................................................ 125

7:7A-11.9 Mitigation hierarchy for a smaller disturbance .................................................................................... 125

7:7A-11.10 Mitigation hierarchy for a larger disturbance ..................................................................................... 127

7:7A-11.11 Mitigation for transition area impacts in accordance with N.J.A.C. 7:7A-8.3(g) (special activity

transition area waivers based upon individual permit criteria) .............................................................................. 128

7:7A-11.12 Requirements for restoration, creation, or enhancement .................................................................... 128

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7:7A-11.13 Requirements for upland preservation ............................................................................................... 131

7:7A-11.14 Requirements for credit purchase from an approved mitigation bank ............................................... 132

7:7A-11.15 Requirements for a land donation ...................................................................................................... 133

7:7A-11.16 Requirements for a monetary contribution to the Department’s in-lieu fee program......................... 134

7:7A-11.17 Financial assurance for mitigation projects; general provisions......................................................... 136

7:7A-11.18 Financial assurance; fully funded trust fund requirements ................................................................. 137

7:7A-11.19 Financial assurance; line of credit requirements ................................................................................ 138

7:7A-11.20 Financial assurance; letter of credit requirements .............................................................................. 138

7:7A-11.21 Financial assurance; surety bond requirements .................................................................................. 139

7:7A-11.22 Wetlands Mitigation Council ............................................................................................................. 139

7:7A-11.23 New Jersey In-Lieu Fee Mitigation Program ..................................................................................... 140

7:7A-11.24 New Jersey In-Lieu Fee Mitigation Program grant funding procedures ............................................ 141

7:7A-11.25 Mitigation banks ................................................................................................................................ 143

7:7A-11.26 Application for a mitigation bank ...................................................................................................... 145

SUBCHAPTER 12. CONSERVATION RESTRICTIONS ................................................................................. 147

7:7A-12.1 Conservation restriction form and recording requirements .................................................................. 147

7:7A-12.2 Property owners’ reservation of rights ................................................................................................. 149

SUBCHAPTER 13. RECONSIDERATION BY DEPARTMENT OF ITS ACTION OR INACTION

CONCERNING A PERMIT ................................................................................................................................... 149

7:7A-13.1 Reconsideration by Department of its action or inaction concerning a permit .................................... 149

SUBCHAPTER 14. EMERGENCY AUTHORIZATIONS ................................................................................. 155

7:7A-14.1 Standards for issuance of an emergency authorization ........................................................................ 155

7:7A-14.2 Procedure to request an emergency authorization ................................................................................ 155

7:7A-14.3 Issuance of emergency authorization; conditions ................................................................................. 156

SUBCHAPTER 15. PRE-APPLICATION CONFERENCES ............................................................................. 158

7:7A-15.1 Purpose and scope ................................................................................................................................ 158

7:7A-15.2 Request for a pre-application conference; scheduling; information required ....................................... 159

SUBCHAPTER 16. APPLICATION REQUIREMENTS.................................................................................... 159

7:7A-16.1 Purpose and scope ................................................................................................................................ 159

7:7A-16.2 General application requirements ......................................................................................................... 160

7:7A-16.3 Additional application requirements for an LOI .................................................................................. 163

7:7A-16.4 Application requirements for an E-LOI ............................................................................................... 164

7:7A-16.5 Application requirements for an LOI extension ................................................................................... 166

7:7A-16.6 Additional application requirements for an authorization under a general permit-by-certification ..... 166

7:7A-16.7 Additional application requirements for an authorization under a general permit, for an individual

permit, or for a transition area waiver ................................................................................................................... 167

7:7A-16.8 Additional requirements specific to an application for authorization under a general permit .............. 169

7:7A-16.9 Additional requirements specific to an application for an individual permit ....................................... 170

7:7A-16.10 Additional requirements specific to an application for a transition area waiver ................................ 171

7:7A-16.11 Confidentiality ................................................................................................................................... 172

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SUBCHAPTER 17. REQUIREMENTS FOR AN APPLICANT TO PROVIDE PUBLIC NOTICE OF AN

APPLICATION ....................................................................................................................................................... 172

7:7A-17.1 Purpose and scope ................................................................................................................................ 172

7:7A-17.2 Timing of public notice of an application ............................................................................................ 173

7:7A-17.3 Contents and recipients of public notice of an application ................................................................... 173

7:7A-17.4 Content and format of newspaper notice .............................................................................................. 175

7:7A-17.5 Documenting public notice of an application ....................................................................................... 176

SUBCHAPTER 18. APPLICATION FEES .......................................................................................................... 176

7:7A-18.1 Application fees ................................................................................................................................... 176

7:7A-18.2 Adjustment of application fees ............................................................................................................. 181

SUBCHAPTER 19. APPLICATION REVIEW .................................................................................................... 182

7:7A-19.1 General application review provisions ................................................................................................. 182

7:7A-19.2 Completeness review ........................................................................................................................... 184

7:7A-19.3 Department review and decision on an application for authorization for maintenance of a stormwater

management facility, including a wetland constructed in uplands for stormwater management purposes, under

general permit 1 and repair of a malfunctioning individual subsurface sewage disposal system under general

permit 24 ............................................................................................................................................................... 186

7:7A-19.4 Department review and decision on an application for authorization under general permit 25 for minor

channel or stream cleaning for local government agencies ................................................................................... 187

7:7A-19.5 USEPA review ..................................................................................................................................... 188

7:7A-19.6 Public comment on an application ....................................................................................................... 192

7:7A-19.7 Department decision on an application that is complete for review ..................................................... 192

7:7A-19.8 Cancellation of an application .............................................................................................................. 193

7:7A-19.9 Withdrawal of an application ............................................................................................................... 194

7:7A-19.10 Re-submittal of an application after denial, cancellation, or withdrawal ........................................... 194

7:7A-19.11 Fee refund or credit when an application is returned, withdrawn, or cancelled ................................. 194

SUBCHAPTER 20. PERMIT AND WAIVER CONDITIONS; MODIFICATION, TRANSFER,

SUSPENSION, AND TERMINATION OF AUTHORIZATIONS AND PERMITS ........................................ 195

7:7A-20.1 Purpose and scope ................................................................................................................................ 195

7:7A-20.2 Conditions that apply to all permits ..................................................................................................... 195

7:7A-20.3 Establishing permit conditions ............................................................................................................. 198

7:7A-20.4 Extension of an authorization under a general permit, a transition area waiver, and an individual permit

............................................................................................................................................................................... 200

7:7A-20.5 Transfer of an emergency authorization, authorization under a general permit, a transition area waiver,

or an individual permit .......................................................................................................................................... 202

7:7A-20.6 Modification of an authorization under a general permit, a transition area waiver, or an individual

permit .................................................................................................................................................................... 202

7:7A-20.7 Application for a modification ............................................................................................................. 204

7:7A-20.8 Suspension of a waiver, an authorization under a general permit, an individual permit, or an emergency

authorization .......................................................................................................................................................... 206

7:7A-20.9 Termination of an authorization under a general permit, an individual permit, a transition area waiver,

or an emergency authorization .............................................................................................................................. 208

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SUBCHAPTER 21. REQUESTS FOR ADJUDICATORY HEARINGS ........................................................... 209

7:7A-21.1 Procedure to request an adjudicatory hearing; decision on the request ................................................ 209

7:7A-21.2 Procedure to request dispute resolution................................................................................................ 210

7:7A-21.3 Effect of request for hearing on operation of permit or authorization .................................................. 210

7:7A-21.4 Notice of settlement agreement ............................................................................................................ 211

SUBCHAPTER 22. ENFORCEMENT .................................................................................................................. 211

7:7A-22.1 General provisions ............................................................................................................................... 211

7:7A-22.2 USEPA review ..................................................................................................................................... 212

7:7A-22.3 Issuance of an administrative order ...................................................................................................... 212

7:7A-22.4 Civil administrative penalty ................................................................................................................. 213

7:7A-22.5 Assessment, settlement, and payment of a civil administrative penalty ............................................... 213

7:7A-22.6 Procedures to request and conduct an adjudicatory hearing to contest an administrative order and/or

notice of civil administrative penalty assessment .................................................................................................. 214

7:7A-22.7 Civil administrative penalties for failure to obtain a permit prior to conducting regulated activities .. 216

7:7A-22.8 Civil administrative penalties for violations other than failure to obtain a permit prior to conducting

regulated activities ................................................................................................................................................. 219

7:7A-22.9 Civil administrative penalty amount for submitting inaccurate or false information ........................... 222

7:7A-22.10 Civil administrative penalty amount for failure to allow entry and inspection .................................. 223

7:7A-22.11 Civil administrative penalty for failure to pay a civil administrative penalty .................................... 224

7:7A-22.12 Economic benefit factor ..................................................................................................................... 224

7:7A-22.13 Civil penalties .................................................................................................................................... 224

7:7A-22.14 Civil actions ....................................................................................................................................... 225

7:7A-22.15 Criminal actions ................................................................................................................................. 225

7:7A-22.16 Forfeiture of conveyances .................................................................................................................. 226

7:7A-22.17 Recording a notice concerning violation with the deed for the property............................................ 226

7:7A-22.18 "After the fact" permit ........................................................................................................................ 226

7:7A-22.19 Public participation ............................................................................................................................ 227

7:7A-22.20 Grace period applicability; procedures............................................................................................... 227

APPENDIX 1 ........................................................................................................................................................... 233

SUBCHAPTER 1. GENERAL PROVISIONS

7:7A-1.1 Purpose and scope

(a) This chapter constitutes the rules governing the implementation of the Freshwater Wetlands

Protection Act, N.J.S.A. 13:9B-1 et seq., and the New Jersey Water Pollution Control Act,

N.J.S.A. 58:10A-1 et seq. Certain violations of the New Jersey Water Pollution Control Act are

also subject to enforcement provisions at N.J.A.C. 7:14.

(b) The powers, duties, and functions vested in the Department under this chapter shall not limit,

in any manner, the powers, duties, and functions vested under any other law, except as

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specifically set forth in this chapter.

any law or ordinance enacted by any municipality, county, or political subdivision thereof,

regulating freshwater wetlands or freshwater wetlands transition areas, except that the Pinelands

Commission may provide for more stringent regulation of activities in and around freshwater

wetland areas within its jurisdiction. No municipality, county, or political subdivision thereof

shall enact any law, ordinance, rule, or regulation requiring a transition area adjacent to a

freshwater wetland, except that the Pinelands Commission may provide for more stringent

regulation of activities in and around freshwater wetland areas within its jurisdiction.

(d) This section shall not, however, preclude municipal advice to the Department concerning

letters of interpretation or other matters.

(e) This chapter shall not preempt State regulatory programs that affect regulated activities in

freshwater wetlands, including, but not limited to, Coastal Area Facility Review Act (CAFRA),

N.J.S.A. 13:19-1 et seq., the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq., and

State-approved municipal water quality management plans. These programs will continue to

regulate based on the concerns covered by their respective enabling statutes and rules, and may,

through such regulation, have some impact on projects in freshwater wetlands. However, those

programs will not use freshwater wetlands concerns as a basis for regulation, and any regulation

by these programs of projects in freshwater wetlands will be limited to that based on other

concerns (for example, flood danger).

(f) If a proposed project does not involve a freshwater wetland or State open water, does not

constitute a regulated activity, or is exempt under this chapter, the final decision on the

application shall be based solely on the requirements of other applicable permit programs.

7:7A-1.2 Effect of a permit

(a) Compliance with a permit during its term constitutes compliance, for enforcement purposes,

with sections 301, 307, and 403 of the Federal Act, with the Freshwater Wetlands Protection Act,

and with this chapter. Because transition areas are not regulated under the Federal Act,

compliance with a transition area waiver during its term constitutes compliance, for enforcement

purposes, with the Freshwater Wetlands Protection Act and with this chapter. However, a permit

may be modified, terminated and reissued, suspended, or terminated during its term for cause as

set forth in this chapter.

(b) The issuance of a permit does not convey property rights of any sort, or any exclusive

privilege.

7:7A-1.3 Definitions

The following words and terms, when used in this chapter, shall have the following meanings

unless the context clearly indicates otherwise. Additional definitions specifically applicable to

N.J.A.C. 7:7A-11, Mitigation, are set forth at N.J.A.C. 7:7A-11.1.

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“Abandoned” means, with respect to an agricultural field, including a blueberry field or a

cranberry bog, that the field was used for agriculture, but has not been used to produce a crop or

product, or maintained or improved for agricultural purposes, for five years or more. If an

agricultural field has been abandoned for 40 or more years, it shall no longer be considered an

abandoned agricultural field. The lack of a commercial harvest or production of a crop on or

from a cranberry bog or blueberry field shall not be a determining factor as to whether the

agricultural use has been abandoned.

“Administratively complete” means that every item required on the application checklist for

a letter of interpretation or permit being sought is included in the application.

"Agency of the State" means each of the principal departments in the executive branch of the

State Government, and all boards, divisions, commissions, agencies, departments, councils,

authorities, offices or officers within any such departments.

"Applicant" means a person who submits an application for a permit, waiver, or any other

Department decision pursuant to N.J.A.C. 7:7A.

"Aquatic ecosystem" means waters of the United States, including wetlands, that serve as

habitat for interrelated and interacting communities and populations of plants and animals.

“Architectural survey” means an intensive-level historic architectural survey completed by an

architectural historian whose qualifications meet the Secretary of the Interior’s Professional

Qualifications Standards and related guidance as part of the larger Secretary of the Interior’s

Standards and Guidelines for Archaeology and Historic Preservation as referenced in 36 CRF 61,

as amended and supplemented, incorporated herein by reference.

"Atlantic white-cedar wetlands" means a type of forested freshwater wetlands where Atlantic

white-cedar tree is the dominant vegetation, as described in the Federal Manual.

"Best Management Practices" or "BMPs" means methods, measures, designs, performance

standards, maintenance procedures, and other management practices which prevent or reduce

adverse impacts upon or pollution of freshwater wetlands, State open waters, and adjacent

aquatic habitats, which facilitate compliance with the Federal Section 404(b)(1) guidelines (40

CFR Part 230), New Jersey Department of Environmental Protection Flood Hazard Area Control

Act Rules, N.J.A.C. 7:13; the Department's Storm Water Management Regulations, N.J.A.C. 7:8;

the Standards for Soil Erosion and Sediment Control in New Jersey, promulgated by the New

Jersey State Soil Conservation Committee at N.J.A.C. 2:90; and effluent limitations or

prohibitions under Section 307(a) of the Federal Act and the Department's Surface Water Quality

Standards, N.J.A.C. 7:9B. Examples include practices found at 33 CFR 330.6, 40 CFR

233.35(a)6, the Department's Flood Hazard Area Technical Manual, and "A Manual of

Freshwater Wetland Management Practices for Mosquito Control in New Jersey." The manuals

included in this definition are only a partial listing, and interested persons should contact the

Department for the most up to date list.

“Category One waters” means waters designated as such in the Department's Surface Water

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Quality Standards at N.J.A.C. 7:9B.

“Charitable conservancy” means a corporation or trust that meets the definition of a

charitable conservancy at N.J.S.A. 13:8B-2. (Note: Effective as of May 1, 2017, the definition of

charitable conservancy at N.J.S.A. 13:8B-2 is a corporation or trust whose purposes include the

acquisition and preservation of land or water areas or of a particular land or water area, or either

thereof, in a natural, scenic or open condition, no part of the net earnings of which insures to the

benefit of any private shareholder or individual, and which has received tax exemption under

section 501(c) of the 1954 Internal Revenue Code.)

“Commissioner” means the Commissioner of the Department, or his or her designated

representative.

“Compelling public need” means that based on specific facts, the proposed regulated activity

will serve an essential health or safety need of the municipality in which the proposed regulated

activity is located, that the public health and safety benefit from the proposed use and that the

proposed use is required to serve existing needs of the residents of the State, and that there is no

other means available to meet the established public need.

“Complete for review” means that an application for a letter of interpretation or a permit is

both administratively and technically complete and is ready to be evaluated by the Department

for compliance with the applicable requirements of this chapter.

“Conservation restriction” means a restriction, easement, covenant, or condition, in any deed,

will, or other instrument, other than a lease, executed by or on behalf of the owner of the land,

appropriate to retaining land or water areas predominantly in their natural state, scenic or open or

wooded condition, or for conservation of soil or wildlife, or for outdoor recreation or park use, or

as suitable habitat for fish or wildlife, to forbid or limit any or all of the following:

1. Construction or placing of buildings, roads, signs, billboards or other advertising, or other

structures on or above the ground;

2. Dumping or placing of soil or other substance or material as landfill, or dumping or

placing of trash, waste or unsightly or offensive materials;

3. Removal or destruction of trees, shrubs or other vegetation;

4. Excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral

substance;

5. Surface use except for purposes permitting the land or water area to remain

predominantly in its natural condition;

6. Activities detrimental to drainage, flood control, water conservation, erosion control or

soil conservation, or fish and wildlife habitat preservation; and/or

7. Other acts or uses detrimental to the retention of land or water areas according to the

purposes of this chapter.

“Contiguous” means adjacent properties, even if they are separated by human-made barriers

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or structures or legal boundaries. Contiguous properties shall include, but are not limited to, land

areas which directly abut or are separated by a general access roadway or other right-of way,

including waterways; and properties which are part of a subdivision that was under common

ownership on July 1, 1988.

“Critical habitat for fauna or flora” means:

1. For fauna, areas which serve an essential role in maintaining wildlife, particularly for

wintering, breeding, spawning and migrating activities;

2. For flora, areas supporting rare or unique plant species or uncommon vegetational

communities in New Jersey.

“Cultivating” means physical methods of soil treatment, employed upon planted farm, ranch

or forest crops to aid and improve the growth, quality or yield of the crops.

“Degraded wetland” means a wetland in which there is impaired surface water flow or

groundwater hydrology, or excessive drainage; a wetland which has been partially filled or

excavated, contaminated with hazardous substances, or which has an ecological function

substantially less than that of undisturbed wetlands in the region.

“Delegable waters” means all waters of the United States, as defined in this section, within

New Jersey, except waters which are presently used, or are susceptible to use in their natural

condition or by reasonable improvement, as a means to transport interstate or foreign commerce,

shoreward to their ordinary high water mark. This term includes all waters which are subject to

the ebb and flow of the tide, shoreward to their mean high water mark, including wetlands that

are partially or entirely located within 1,000 feet of their ordinary high water mark or mean high

tide. Waters that are not delegable waters include, but are not limited to:

1. The entire length of the Delaware River within the State of New Jersey;

2. Waters of the United States under the jurisdiction of the New Jersey Sports and

Exposition Authority (formerly the New Jersey Meadowlands Commission); and

3. Greenwood Lake.

“Department” means the Department of Environmental Protection.

“Detention basin” or “detention facility” means a human-made impoundment area made by

constructing an embankment, or excavating a pit, or both, for the purpose of temporarily storing

stormwater.

“Developable upland” means an upland area that could be developed under the laws that

apply to the site.

“Discharge of dredged material” means any addition of dredged material into State open

waters or freshwater wetlands. The term includes the addition of dredged material into State

open waters or freshwater wetlands and the runoff or overflow from a contained land or water

dredge material disposal area. Discharges of pollutants into State open waters resulting from the

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subsequent onshore processing of dredged material are not included within this term. Such

discharges of pollutants may, however, be subject to the New Jersey Pollutant Discharge

Elimination System (NJPDES) rules at N.J.A.C. 7:14A.

“Discharge of fill material” means the addition of fill into State open waters or freshwater

wetlands. The term includes, but is not limited to, the following activities:

1. Placement of fill that is necessary for the construction of any structure;

2. The building of any structure or impoundment requiring rock, sand, dirt, or other

materials for its construction;

3. Site-development fill for recreational, industrial, commercial, residential, and other uses;

4. Causeways or road fills;

5. Dams and dikes;

6. Artificial islands;

7. Property protection or reclamation devices, or both, such as riprap, groins, seawalls,

breakwaters, and revetments;

8. Beach nourishment;

9. Levees;

10. Fill for structures such as sewage treatment facilities, intake and outfall pipes associated

with power plants and underground utility lines;

11. Artificial reefs; and

12. Stump removal.

“Ditch” means a linear topographic depression with bed and banks of human construction,

which conveys water to or from a site, which is surrounded by uplands and which is not located

within a wetland. This does not include channelized or redirected natural water courses.

"Documented habitat for threatened or endangered species" means areas for which:

1. There is recorded evidence of past use by a threatened or endangered species of flora or

fauna for breeding, resting, or feeding. Evidence of past use by a species may include, but

is not limited to, sightings of the species, or of its sign (for example, skin, scat, shell,

track, nest, herbarium records, etc.), as well as identification of its call; and

2. The Department makes the finding that the area remains suitable for use by the specific

documented threatened or endangered species during the normal period(s) the species

would use the habitat.

“Drainage” means active or passive methods for changing the hydrologic conditions of

wetlands or State open water, such as lowering groundwater or surface water levels through

pumping, ditching, or otherwise altering water flow patterns.

“Dredging” means removal of wetlands or State open water soils or sediments through use of

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mechanical, hydraulic, or pneumatic tools or other means.

“Dredged material” means material that is excavated or dredged from waters of the United

States.

“Dumping” means the discharge, placement or abandonment of solid, semi-solid or liquid

materials.

“Electronic LOI” or “E-LOI” means an application for a letter of interpretation submitted to

the Department electronically.

“Environmental commission" means a municipal advisory body created pursuant to N.J.S.A.

40:56A-1 et seq.

“EPA priority wetlands” or “USEPA priority wetlands” means wetlands that are designated

as priority wetlands by the USEPA, and are listed on the “Priority Wetlands List for the State of

New Jersey,” which is available from the Department at the address set forth at N.J.A.C. 7:7A-

1.4.

“Established, ongoing farming, ranching, or silviculture operation” means activities on areas

subject to a farming, ranching, or silviculture use as of June 30, 1988, which use has been

pursued continuously since June 30, 1988. Activities on areas lying fallow as part of a

conventional rotational cycle that does not exceed five years are part of an established operation.

Activities that bring an area into farming, silviculture, or ranching use are not part of an

established operation. An operation ceases to be established when the area on which it was

conducted has been converted to another use or has lain idle for so long that modifications to the

hydrological regime are necessary to resume operations, or for more than five years, whichever

is shorter.

A cranberry bog, blueberry field, or portion thereof that was used for such purposes as of

June 30, 1988, and on which any of the activities listed at N.J.A.C. 7:7A-2.4(c)2 and 3 have

occurred within the prior five years shall be considered an established, ongoing farming

operation and shall not be deemed abandoned. The lack of a commercial harvest or production of

a crop on or from the lands shall not be a determining factor as to whether the agricultural use

has been abandoned.

“Excavation” means the removal of soil, rocks, or other material resulting in a change in site

elevation.

“Fair market value” or “market value” means the most probable price for which land will sell

in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller

each acting prudently and knowledgeably, and assuming the price is not affected by any unusual

benefit to the purchaser.

“Farmed wetland” means a freshwater wetland, as defined in this section, which was both

manipulated and cropped before December 23, 1985, and has been in active agricultural use

continuously since then. This term also includes a wetland that was manipulated and used for

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pasture or hayland before December 23, 1985, which has been in active use for pasture or

hayland continuously since then. An area that lies fallow as part of a conventional rotational

cycle that does not exceed five years is considered to be in active agricultural use.

“Federal act” means the Federal Water Pollution Control Act, 33 U.S.C. §§1251 et seq.,

including any amendments and supplements, and implementing regulations. This statute is

sometimes referred to as the Federal Clean Water Act.

“Federal 404 program” means the program regulating the discharge of dredged or fill

materials pursuant to Section 404 of the Federal Act.

“Fill” means the deposition or placement of material such as soil, sand, earth, rock, concrete,

pavement, or solid material of any kind; so as to change the ground elevation in relation to

surface water or groundwater level. "Fill" also means the material deposited.

“Forested” means that tree species with an average height greater than 20 feet are the

predominant vegetation present.

“FW” means the general surface water classification applied to fresh waters in the

Department's Surface Water Quality Standards, N.J.A.C. 7:9B.

“FW1 waters” means waters designated as FW1 waters in the Department's Surface Water

Quality Standards, N.J.A.C. 7:9B.

“FW2 waters” means waters designated as FW2 waters in the Department's Surface Water

Quality Standards, N.J.A.C. 7:9B.

“Freshwater wetland” or “wetland” means an area that is inundated or saturated by surface

water or groundwater at a frequency and duration sufficient to support, and that under normal

circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil

conditions, commonly known as hydrophytic vegetation; provided, however, that the

Department, in designating a wetland, shall use the three-parameter approach (that is, hydrology,

soils and vegetation) enumerated in the 1989 Federal Manual as defined in this section. These

include tidally influenced wetlands which have not been included on a promulgated map

pursuant to the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq.

“Freshwater wetlands permit” means a permit or authorization to engage in a regulated

activity in a freshwater wetland issued pursuant to the Freshwater Wetlands Protection Act and

this chapter.

“Gabion” means a shore or stream bank protection structure, that is made of wire mesh

basket(s) or mattress(es) filled with rocks and usually used in multiples as a structural unit

installed to withstand the forces of waves and currents.

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“Government agency” means any department, division, authority, board, commission, office,

bureau, agency, committee or other instrumentality of the United States, or of the State or any

political subdivision thereof.

"Grace period" means the period of time afforded under the Grace Period Law, N.J.S.A.

13:1D-125 et seq., for a person to correct a minor violation in order to avoid imposition of a

penalty that would otherwise be applicable for such violation.

“Harvesting” means physical measures employed directly upon farm, forest, or ranch crops

within established agricultural and silvicultural lands to bring about their removal from farm,

forest, or ranch land, but does not include the construction of farm, forest, or ranch roads or other

engineering practices such as drainage which would alter the existing character of the farm,

forest or ranch land.

“Historic preservation restriction or easement” means an interest in land less than fee simple

absolute, stated in the form of a right, restriction, easement, covenant, or condition, in any deed,

will or other instrument, other than a lease, executed by or on behalf of the owner of the land,

appropriate to preserving a structure or site which is historically significant for its architecture,

archeology or associations, to forbid or limit any or all:

1. Alteration in exterior or interior feature of such structure;

2. Changes in appearance or condition of such site;

3. Uses of such structure or site which are not historically appropriate; and/or

4. Other acts or uses detrimental to the appropriate preservation of such structure or site.

“Hoophouse” or “polyhouse” means a temporary pipe-frame structure covered with plastic

sheeting, with a dirt or fabric floor, that provides for a controlled growing environment to create

more favorable growing conditions for crops grown within the covered space. For the purposes

of this chapter, a “hoophouse” or “polyhouse” shall not include permanent footings.

“HUC” means the hydrologic unit code system developed by the United States Geological

Service for delineating and identifying drainage areas. The system starts with the largest possible

drainage areas and progressively smaller subdivisions of the drainage area are delineated and

numbered in a nested fashion. As used in this chapter, “HUC 14” indicates a drainage area with a

hydrologic unit code designation with 14 numbers. “HUC 11” indicates a larger subwatershed

that is composed of several HUC 14 subwatersheds. There are 921 HUC 14 subwatersheds in

New Jersey that range in size from 0.1 to 42 square miles. The boundaries are included in the

United States Geological Survey, Water Resources Investigations Report 95-4134, 1995, entitled

"Development of a 14-digit Hydrologic Coding Scheme and Boundary Data Set for New Jersey."

The HUC codes for New Jersey can be downloaded from https://www.nj.gov/dep/gis. The HUC

11 data is entitled "subwatersheds." Software designed for use with Geographic Information

Systems (GIS) will be required to view the downloaded data.

“Hydric soil” means a soil that in its undrained condition is saturated, flooded, or ponded

long enough during the growing season to develop anaerobic conditions that favor the growth

and regeneration of hydrophytic vegetation. These soils may be described in several places,

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including New Jersey's Official List of Hydric Soils, developed by the Natural Resources

Conservation Service; the National Wetlands Inventory, entitled "The Wetlands of New Jersey",

published in 1985 by the United States Fish and Wildlife Service; or in the 1989 Federal manual.

Alluvial land, as mapped on soil surveys, or other soils exhibiting hydric characteristics

identified through field investigation as described in Part III of the 1989 Federal manual may

also be considered a hydric soil for the purposes of wetland classification. Also, wet phases of

somewhat poorly drained soils not on New Jersey's Official List of Hydric Soils may be

associated with a wetland and therefore for the purposes of this chapter shall be considered a

hydric soil.

“Hydrophyte” means plant life adapted to growth and reproduction under periodically

saturated root zone conditions during at least a portion of the growing season. A listing of these

plants can be found in the "National List of Plant Species that Occur in Wetlands: 1988-New

Jersey" and amendments thereto, compiled by the USFWS, USACE, USEPA, and the Natural

Resources Conservation Service.

“Impervious surface” means a surface that is covered with a layer of material, so that it is

highly resistant to infiltration by water.

“Intermittent stream” means surface water drainage channels with definite bed and banks in

which there is not a permanent flow of water. Most intermittent streams are shown on Soil

Conservation Service county soil surveys.

“Isolated wetlands” means a freshwater wetland that is not "part of a surface water tributary

system," as defined in this section.

“Lake, pond, or reservoir” means any impoundment of water, whether naturally occurring or

created in whole or in part by the building of structures for the retention of surface water.

“Letter of interpretation” or “LOI” means the document issued by the Department under

N.J.A.C. 7:7A-4, indicating the presence or absence of wetlands, State open waters, or transition

areas; verifying or delineating the boundaries of freshwater wetlands, State open waters, and/or

transition areas; or assigning a wetland a resource value classification.

“Linear development” means a development with the basic function of connecting two

points, such as a road, drive, public walkway, railroad, sewerage pipe, stormwater management

pipe, gas pipeline, water pipeline, or electric, telephone, or other transmission line. Linear

development shall not mean residential, commercial, office, or industrial buildings,

improvements within a development, such as utility lines or pipes, or internal circulation roads.

"Loss" means, with respect to freshwater wetlands or State open waters, an alteration of a

wetland or water to the extent that the wetland or water, or portion thereof, no longer retains the

functions and characteristics of a wetland or water.

“Major discharge” means a discharge or activity that the Department must transmit to

USEPA for review in accordance with the Department’s 1993 MOA with the USEPA regarding

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assumption of the Federal 404 program. Provisions regarding USEPA review of major

discharges are found at N.J.A.C. 7:7A-19.5. The following are major discharges:

1. A draft general permit;

2. A discharge with reasonable potential to affect Federally listed or proposed endangered

or threatened species as determined by the USFWS;

3. A discharge of dredged or fill material which has the potential for adverse impacts on the

waters of a state other than New Jersey;

4. A discharge known or suspected to contain:

i. Toxic pollutants as identified by Section 307(a)(1) of the Federal act;

ii. Hazardous substances identified pursuant to Section 311 of the Federal act and

Section 101(14) of the Comprehensive Environmental Response Compensation and

Liability Act, 42 U.S.C. §§9601 et seq.;

iii. Toxic substances as defined by Section 3 of the Toxic Substances Control Act, 15

U.S.C. §§2601 et seq.; or

iv. Hazardous waste as defined by Section 1004(5) of the Resource Conservation and

Recovery Act, 42 U.S.C. §§6901 et seq.;

5. A discharge located in the proximity of a public water supply intake;

6. A discharge within a critical area established under State or Federal law, including but

not limited to a National or State park; fish or wildlife sanctuary or refuge; National or

historical monument; wilderness area or preserve; a site identified or proposed under the

National Historic Preservation Act; or a component of the National Wild and Scenic

Rivers system;

7. The filling of five or more acres of freshwater wetlands and/or State open waters;

8. Any regulated activity that results in a significant reduction in the ecological,

commercial, or recreational values of five or more acres of freshwater wetlands or State

open waters;

9. A culvert enclosure longer than 100 feet; or

10. Channelization of more than 500 feet of a river or stream.

“Maximum extent practicable” means to the maximum extent after weighing, evaluating and

interpreting alternatives to protect the ecological integrity of a wetland or State open water.

“Mitigation” means activities carried out pursuant to N.J.A.C. 7:7A-11 in order to

compensate for freshwater wetlands or State open waters loss or disturbance caused by regulated

activities.

“Mitigation bank” means an operation in which wetlands, uplands, and/or other aquatic

resources are restored, created, enhanced, or preserved by a mitigation bank operator for the

purpose of providing compensatory mitigation for disturbances to freshwater wetlands and/or

State open waters.

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“Natural Resources Conservation Service” or “NRCS” means the arm of the U.S.

Department of Agriculture (USDA) that provides technical assistance with USDA conservation

programs associated with soil, water, and other related natural resources. The Natural Resources

Conservation Service was previously known as the Soil Conservation Service.

“1989 Federal Manual” means the Federal Manual for Identifying and Delineating

Jurisdictional Wetlands, published in 1989 by the USEPA, USACE, USFWS, and the U.S.

Department of Agriculture's Natural Resources Conservation Service (formerly the Soil

Conservation Service), as amended and/or supplemented, which Manual is incorporated herein

by reference.

“Non-delegable waters” mean waters that are not delegable waters.

“Normal rainfall year” means a 12 month period in which the precipitation at a location is

within 10 percent of the average annual precipitation for that location, calculated using the

standard averaging period for "normals," established by the World Meteorological Organization,

except that the Department may determine normal rainfall on a case-by-case basis in unusual

situations, such as where the sampling period begins immediately following prolonged drought

conditions. As of September 4, 2001, the World Meteorological Organization has defined the

standard averaging period as 1961 through 1990. Information regarding the standard averaging

period can be found in the USDA's Natural Resources Conservation Service website at

https://www.wcc.nrcs.usda.gov/climate.

“Offsite” means the area not onsite.

“Onsite” means the area located within the site, as defined in this section.

“Open water fill permit” means the type of New Jersey Pollution Discharge Elimination

System permit or authorization issued pursuant to this chapter and N.J.S.A. 58:10A-1 et seq.,

which governs the discharge of dredged or fill material into State open waters.

“Ordinary high water mark” means that line on the shore established by the fluctuations of

water and indicated by physical characteristics such as clear, natural line impressed on the bank,

shelving, changes in the character of soil, destruction of terrestrial vegetation, presence of litter

and debris, or other appropriate means that consider the characteristics of the surrounding areas.

“Palustrine emergent” means a wetlands vegetation pattern in which persistent and non-

persistent grasses, rushes, sedges, forbs, and other herbaceous or grass-like plants are the

dominant vegetation.

“Part of a surface water tributary system” means connected to a surface water that discharges

into a lake, pond, river, stream or other surface water feature. The connection may be through

any surface water feature, whether regulated or not, including a stormwater or drainage pipe. The

connection may be through a secondary flow channel or other feature. However, the connection

may be through overland flow only if there is evidence of scouring, erosion, or concentrated

flows. The connection may not be through groundwater alone. Wetlands adjacent to a surface

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water are connected to the surface water and are part of the surface water tributary system.

“Permit” means a permit or authorization issued under this chapter pursuant to the

Freshwater Wetlands Protection Act or the Water Pollution Control Act to engage in a regulated

activity in a freshwater wetland, State open water, or transition area.

“Permittee” means a person to whom the Department has issued a permit or a waiver under

this chapter.

“Person” means an individual, corporation, corporate officer or official, partnership,

association, the Federal government, the State, municipality, commission or political subdivision

of the State or any interstate body.

“Phase IA historical and archaeological survey” means an archaeological survey the purpose

of which is to identify resources completed by an archaeologist whose qualifications meet the

Secretary of the Interior’s Professional Qualifications Standards and related guidance as part of

the larger Secretary of the Interior’s Standards and Guidelines for Archaeology and Historic

Preservation as referenced in 36 CFR 61, as amended and supplemented, incorporated herein by

reference.

“Pilings” means timber, metal, concrete or other similar structures driven, dropped, poured,

or placed to support a vertical load.

“Plowing” means all forms of primary tillage, including moldboard, chisel, or wide-blade,

plowing, discing, harrowing, and similar physical means utilized on farm, forest or ranch land for

the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops.

The term does not include the redistribution of dredged material, rock, sand, or other surface

materials in a manner which changes any area of wetlands to dry land. For example, the

redistribution of surface materials by blading, grading, or other means to fill in wetland areas is

not plowing. Rock crushing activities which result in the loss of natural drainage characteristics,

the reduction of water storage and recharge capabilities, or the overburden of natural water

filtration capacities do not constitute plowing. Plowing will never involve a discharge of

material.

“Practicable alternative” means other choices available and capable of being carried out after

taking into consideration cost, existing technology, and logistics in light of overall project

purposes, and may require an area not owned by the applicant which could reasonably have been

or be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the

proposed activity.

“Preliminary approval” means the conferral of certain rights pursuant to the Municipal Land

Use Law at N.J.S.A. 40:55D-46, 48 and 49 prior to final approval after specific elements of a

development plan have been agreed upon by the planning board and the applicant.

“Project” means the following:

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1. For the purpose of a transition area exemption under N.J.A.C. 7:7A-2.4(f) based on the

application for or the grant of a preliminary site plan approval:

i. All buildings, structures, pavements, and other improvements specifically depicted

on the site plans referenced in the resolution approving the site plan; and

2. For the purpose of a transition area exemption under N.J.A.C. 7:7A-2.4, based on the

application for or the grant of a preliminary subdivision approval:

i. Where subdivision approval is the last stage of municipal review before the

owner/applicant may apply for a building permit to begin construction, the "project"

is the development of the subdivision consistent with the lot coverage, use, and

density restrictions of the zoning ordinance in effect at the time of the subdivision

approval; or

ii. Where site plan approval is required prior to construction, "project" means the

proposed economic development, whether commercial, industrial or residential,

intended to be constructed on that portion of a tract of land that is the focus of the

qualifying approval. Although "project" is not limited to specific structures shown

on the subdivision plans, it is limited to development on those portions of a tract of

land that were the focus of the qualifying subdivision application or approval.

Development on other lands, such as development on the remainder of a larger tract

or on a contiguous property in common ownership, are not included within a

"project."

In order to determine if an applicant qualifies for an exemption under this definition,

the Department will determine the existence of a proposed economic development at

the time of the subdivision application. Because the purpose of the exemption is to

protect that degree of investment in planning and development that the preliminary

site plan or subdivision application normally represents, where the subdivision is

merely a division of land and no substantial investment was made in planning or

development, there can be no exempted project. Therefore, an application for the

subdivision of lands simply for future development, yet to be planned, or simply for

resale shall not qualify for an exemption. To determine the existence of a proposed

economic development and to determine which portion of a tract was the focus of

subdivision approval or application, the Department will examine the resolution

granting approval and any documentation submitted with the application, including,

but not limited to, drainage, engineering, traffic, utility, landscaping, soil and

environmental plans and reports as well as the subdivision plan. In cases where the

above information is unclear, the Department may consider money spent or

obligated on engineering and design in the preparation of the subdivision application

to determine if a substantial investment has been made in an economic development.

Money spent or obligated for the initial purchase, carrying costs, or legal services

will not be considered in determining the existence of a proposed economic

development.

iii. The following are examples of how the Department will determine the “project”

exempted on the basis of the application for or grant of preliminary subdivision

approval:

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(1) Where a project was to be developed in three sections but a complete

application for preliminary approval was submitted, accepted and subsequently

approved for only one section, only the development planned for that section is

exempt and the development envisioned for sections two and three is not

exempt. This is not altered by the fact that some depiction of that future

development on the remainder of the parcel might be required by a local

planning board in concept or sketch form;

(2) Where an entire parcel is subdivided into five conforming residential lots, the

residential development planned on all five lots is exempt. However, where the

focus of the subdivision application and approval is on less than the entire tract

of land, which lesser portion is divided into five single family house lots, and

the remainder of the tract is left as a bulk parcel for further subdivision or other

planning board approval, only development on the five lots is exempt. It is

irrelevant that the configuration of the remainder lot has been changed by the

subdivision or that the remainder lot has been renumbered;

(3) Where the land to be divided for a commercial industrial park straddles two

townships and the developer received approval to subdivide the land in

township A and sold the unsubdivided portion in township B to another

developer, only the development on the land in township A could be considered

the subject of township A's subdivision approval. Therefore, only the

development on the land in township A is exempt. It is irrelevant that the

original developer had, from the start, contemplated a commercial industrial

park for the property in both townships or that the office building contemplated

on the land in township B did not require further subdivision;

(4) Where land is divided for the sole purpose of bequeathing it sometime in the

future to one's children to be developed as they wish, no economic development

was contemplated when the application was made or approval granted. After the

land passes to the children and one of them decides to build, that development is

not exempt. The purpose of the exemption is to protect that degree of

investment in planning and development that the preliminary site plan or

subdivision application normally represents. Where the subdivision is merely a

division of land and no investment was made in the planning or development,

there can be no exempted project; and

(5) Where land is subdivided but requires further subdivision, other than de minimis

changes for road rights-of-way or other infrastructure, before the applicant can

proceed to the next step of municipal approval (either building permits or site

plan approvals), there is no evidence of intended economic development at the

time of initial subdivision application or approval, because the proposed

economic development only comes into being with the subsequent, untimely

subdivision. Therefore, there is no basis for exemption.

“Property as a whole” means all property assembled as one investment or to further one

development plan. The property as a whole may include more than one municipal tax block or

lot. The property as a whole may also include blocks or lots that were previously sold or

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developed, if those blocks or lots and the remaining unsold or undeveloped blocks or lots were

part of one investment or development plan. In determining the property as a whole in a

particular case, the Department shall consider existing legal precedent regarding what constitutes

"property as a whole" at the time of the determination.

“Public hearing” means an administrative non-adversarial type hearing before a

representative or representatives of the Department providing the opportunity for public

comment, but does not include cross-examination.

“Redevelopment” means the construction of structures or improvements on or below

impervious surfaces, as defined in this section, or other significantly disturbed area.

“Regulated activity” means any of the activities described at N.J.A.C. 7:7A-2.2 or at

N.J.A.C. 7:7A-2.3.

“Seeding” means the sowing of seed and placement of seedlings to produce farm, ranch, or

forest crops and includes the placement of soil beds for seeds or seedlings on established farm

and forest lands.

“Silviculture” means the art and science of controlling the establishment, growth,

composition, health, and quality of forests and woodlands to meet the diverse needs and values

of landowners and society on a sustainable basis. The normal harvesting of forest products is a

part of some silviculture operations. Orchards, tree farms and nurseries are not silviculture but

are farming.

“Site” means the area within the legal boundary of the property(ies) or right-of-way for

which a letter of interpretation is requested, or upon which a regulated activity is proposed, is

occurring, or has occurred, plus any contiguous land owned or controlled by the same person(s).

This term also includes an area which is the subject of an application for a letter of interpretation

or which is the location of a proposed mitigation bank. For the purposes of this definition, the

legal boundary of a property or right-of-way shall be the boundary as it existed on July 1, 1988,

except that if additional contiguous lots and/or blocks were acquired after July 1, 1988, or if lots

were merged after July 1, 1988, these lots are included in the site, and the legal boundary of the

property or right-of-way shall be the boundary of all contiguous land owned or controlled by the

same person(s), as it exists on the date an application is submitted under this chapter. The legal

boundary of a property is set forth in the deed(s) for the property or other legally binding

document that sets forth a boundary. The legal boundary of a right-of-way is set forth in the

document creating the right-of-way.

“Site plan” or “plan” means a graphic depiction of land, vegetation, water, structures, and

other physical features on paper, such as a blueprint, construction plan, cross-section,

topographic map, architectural rendering, or other similar illustration, which is submitted to the

Department to describe an existing or proposed activity or condition.

“Soil Conservation District” means a governmental subdivision of this State, and a public

body corporate and politic, organized in accordance with N.J.S.A. 4:24-1 et seq. Each Soil

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Conservation District administers New Jersey Department of Agriculture programs for one or

more counties. Soil Conservation Districts are overseen by the New Jersey State Soil

Conservation Committee in the New Jersey Department of Agriculture, which promulgates the

Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90. For the

purposes of this chapter only, the term “Soil Conservation District” shall include any exempt

municipality authorized to enforce the Standards for Soil Erosion and Sediment Control by

ordinance pursuant to N.J.S.A. 4:24-48.

“Special aquatic site” means a site described in subpart E of the 404(b)1 guidelines (40

C.F.R. 230 et seq.), except freshwater wetlands which, for the purposes of this chapter, shall not

be considered special aquatic sites. In general, special aquatic sites are geographic areas, large or

small, possessing special ecological characteristics of productivity, habitat, wildlife protection, or

other important and easily disrupted functions and values. These areas are generally recognized

as significantly influencing or positively contributing to the general overall environmental health

or vitality of the entire ecosystem of a region. As of September 4, 2001, the following special

aquatic sites are described in subpart E of the 404(b)1 guidelines (40 C.F.R. 230 et seq.):

sanctuaries and refuges, wetlands (note: while freshwater wetlands are excluded from the

definition of a special aquatic site for purposes of this chapter, other wetlands, such as most

coastal wetlands, would be considered special aquatic sites), mud flats, vegetated shallows, coral

reefs, and riffle and pool complexes.

“State Forester” means the chief forester employed by the Department.

“State open waters” means all waters of the State as defined in this section, including waters

of the United States as defined in this section, but excluding ground water as defined at N.J.A.C.

7:14A, and excluding freshwater wetlands as defined in this section. The following waters will

generally not be considered State open waters for the purposes of this chapter. However, the

Department shall determine, on a case-by-case basis, if a particular watercourse or water body

listed below is a State open water:

1. Non-tidal drainage and irrigation ditches excavated on dry land;

2. Artificially irrigated areas which would revert to upland if the irrigation ceased;

3. Artificial lakes or ponds created by excavating and/or diking dry land to collect and retain

water and which are used exclusively for such purposes as stock watering, irrigation,

settling basins, or rice growing;

4. Artificial reflecting or swimming pools or other small ornamental bodies of water created

by excavating and/or diking dry land to retain water for primarily aesthetic reasons;

5. Water-filled depressions created in dry land incidental to construction or remediation

activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel

unless and until the construction or excavation operation is abandoned and the resulting

body of water meets the definition of "waters of the United States";

6. Waste treatment systems, including treatment ponds or lagoons designed to meet the

requirements of the Federal act (other than cooling ponds);

7. Erosional channels less than two feet wide and six inches deep in upland areas resulting

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from poor soil management practices; and

8. Stormwater management facilities created in uplands.

“Stormwater management facility” means a facility which receives, stores, conveys or

discharges stormwater runoff and is designed in accordance with applicable local, county and

State regulations. These facilities may include retention basins, detention basins, infiltration

structures, grassed swales, rip-rap channels and/or stormwater outfalls.

“Swale” means a linear topographic depression, either naturally occurring or of human

construction, which meets all of the following criteria:

1. It is surrounded by uplands except where runoff flows out of it.

i. A depression is not a swale if it is located within a larger wetland or if it is merely an

undulation in a wetland boundary;

ii. A depression is not a swale if it is naturally occurring, contains palustrine forest, and

is located within an upland forest;

2. It has formed or was constructed in uplands to convey surface water runoff from the

surrounding upland areas;

3. It drains less than 50 acres;

4. It is not a seep or spring;

5. It is not an intermittent stream;

6. It has no definite bed and banks; and

7. At its widest point, it is generally 50 feet wide or narrower.

“Technically complete” means that each item included in an application for a letter of

interpretation or a permit provides sufficient information for the Department to declare the

application complete for review.

“Temporary disturbance” means a regulated activity that occupies, persists, and/or occurs on

a site for no more than six months. Where a disturbance associated with certain regulated

activities, such as hazardous substance remediation or solid waste facility closure, is intended to

be temporary, but will exceed six months in duration because of the nature of the activity, the

Department will consider the disturbance to be temporary for purposes of this subchapter

provided the disturbed areas are restored to their original topography, and all necessary measures

are implemented to ensure that the original vegetative cover onsite is restored to its previous (or

an improved) condition.

“Threatened or endangered species” means a species identified pursuant to the Endangered

and Nongame Species Conservation Act, N.J.S.A. 23:2A-1 et seq., or those identified pursuant to

the Endangered Species Act of 1973, 16 U.S.C. §§1531 et seq., and subsequent amendments

thereto.

“Tidal waters” means fresh or saline waters under tidal influence, up to the head of the tide.

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“Transition area” means an area of upland adjacent to a freshwater wetland which minimizes

adverse impacts on the wetland or serves as an integral component of the wetlands ecosystem.

“Transition area waiver” or “waiver” means a waiver issued by the Department under this

chapter, authorizing any of the regulated activities enumerated at N.J.A.C. 7:7A-2.3 in a

transition area.

“Tree” means a woody plant which is five inches or greater in diameter at a height of four and

one half feet above the ground.

“Trout production waters” means waters designated in the Department's Surface Water Quality

Standards, N.J.A.C. 7:9B, for use by trout for spawning or nursery purposes during their first

summer.

“USACE” means the United States Army Corps of Engineers.

“USEPA” means the United States Environmental Protection Agency.

“USFWS” means the United States Fish and Wildlife Service.

"USGS" means the United States Geological Survey.

“USGS quad map” means a topographic quadrangle map issued by the USGS, 7.5 minute

series, drawn at a scale of 1:24,000.

“Utility line” means a pipe, cable, line, or wire for the transport or transmission of gases,

liquids, electrical energy, or communications. This term includes a pole or tower required to

support a utility line, but does not include a tower that only transmits or receives electromagnetic

waves through the air, such as for radio, television, or telephone transmission. The term "utility

line" does not include a stormwater pipe, or a pipe that drains a wetland or State open water,

such as a drainage tile.

“Vernal habitat” means a wetland as identified at N.J.A.C. 7:7A-3.1, or State open water, as

defined above in this section that meets all of the criteria at 1 through 4 below. Evidence of

breeding by an obligate species under 2i below creates a rebuttable presumption that the criteria

at 3 and 4 below are met:

1. Occurs in or contains a confined basin depression without a permanent flowing outlet;

2. Features evidence of breeding by one or more species of fauna adapted to reproduce in

ephemeral aquatic conditions, identified in N.J.A.C. 7:7A, Appendix 1, incorporated

herein by reference. The following shall constitute evidence of breeding by such a

species:

i. One or more obligate species listed in Appendix 1, or evidence of such a species, is

found in or immediately adjacent to the area of ponded water; or

ii. Two or more facultative species listed in Appendix 1, or evidence of the presence of

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such a species, are found in or immediately adjacent to the area of ponded water;

3. Maintains ponded water for at least two continuous months between March and

September of a normal rainfall year; and

4. Is free of reproducing fish populations throughout the year, or dries up at some time

during a normal rainfall year.

“Water dependent activity” means an activity that cannot physically function without direct

access to the body of water along which it is proposed. Uses, or portions of uses, that can

function on sites not adjacent to the water are not considered water dependent regardless of the

economic advantages that may be gained from a waterfront location. Maritime activity,

commercial fishing, public waterfront recreation, and marinas are examples of water dependent

uses, but only the portion of the development requiring direct access to the water is water

dependent. The test for water dependency shall assess both the need of the proposed use for

access to the water and the capacity of the proposed water body to satisfy the requirements and

absorb the impacts of the proposed use. A proposed use will not be considered water dependent

if either the use can function away from the water or if the water body proposed is unsuitable for

the use. For example, in a maritime operation, a dock or quay and associated unloading area

would be water dependent, but an associated warehouse would not be water dependent.

1. Examples of water dependent uses include: docks, piers, marina activities requiring

access to the water, such as commissioning and decommissioning new and used boats,

boat repairs and short-term parking for boaters, storage for boats that are too large to be

feasibly transported by car trailer (generally greater than 24 feet), rack systems for boat

storage, industries, such as fish processing plants and other commercial fishing

operations, port activities requiring the loading and unloading of vessels, and water-

oriented recreation.

2. Water dependent uses exclude, for example: housing, hotels, motels, restaurants,

warehouses, manufacturing facilities (except for those which receive and quickly process

raw materials by ship), dry boat storage for boats that can be transported by car trailer,

long-term parking, parking for persons not participating in a water dependent activity,

boat sales, automobile junk yards, and non-water oriented recreation, such as roller rinks

and racquetball courts.

“Water Pollution Control Act” means the New Jersey Water Pollution Control Act, N.J.S.A.

58:10A-1 et seq.

“Water quality certificate” means a determination by the Department of the consistency with

this chapter of an activity that proposes a discharge to waters of the United States that requires a

Federal license or permit pursuant to Section 401 of the Federal Clean Water Act, 33 U.S.C. §

1341. Federal licenses and permits for which water quality certificates are issued include, but are

not limited to:

1. NJPDES permits by USEPA under Section 402 of the Federal Clean Water Act, 33

U.S.C. § 1342;

2. Permits for the discharge of dredged or fill material issued by the USACE under Section

404 of the Federal Clean Water Act, 33 U.S.C. § 1344;

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3. Permits for activities that have a potential to discharge in navigable waters issued by the

USACE under Sections 9 and 10 of the Rivers and Harbors Act, 33 U.S.C. §§ 403 and

404; and

4. Hydropower licenses issued by the Federal Energy Regulatory Commission under

Sections 3(11), 4(e) and 15 of the Federal Power Act, 16 U.S.C. §§ 796(11), 797(e), and

808.

“Waters of the State” means the ocean and its estuaries, all springs, streams, wetlands, and

bodies of surface or ground water, whether natural or artificial, within the boundaries of the State

of New Jersey or subject to its jurisdiction.

“Waters of the United States” means:

1. All waters which are currently used, were used in the past, or may be susceptible to use in

interstate or foreign commerce, including all waters which are subject to the ebb and flow

of the tide;

2. All interstate waters including interstate wetlands;

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams),

wetlands, mudflats, sand flats, sloughs, wet meadows, or natural ponds the use,

degradation, or destruction of which would affect or could affect interstate or foreign

commerce including any such waters:

i. Which are or could be used by interstate or foreign travelers for recreational or other

purposes;

ii. From which fish or shellfish are or could be taken and sold in interstate or foreign

commerce;

iii. Which are used or could be used for industrial purposes by industries in interstate

commerce;

iv. Which are or would be used as habitat by birds protected by Migratory Bird Treaties;

v. Which are or would be used as habitat by other migratory birds which cross state

lines;

vi. Which are or would be used as habitat for endangered and threatened species; or

vii. Which are used to irrigate crops sold in interstate commerce;

4. All impoundments of waters otherwise defined as waters of the United States under this

definition;

5. Tributaries of waters identified in paragraphs 1 through 4 of this definition;

6. The territorial seas; and

7. Wetlands adjacent to waters identified in paragraphs 1 through 6 of this definition, other

than those that are themselves wetlands.

The following waters are generally not considered "waters of the United States." However, the

right is reserved to determine on a case by case basis, if particular watercourses or waterbodies

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are "waters of the United States":

1. Non-tidal drainage and irrigation ditches excavated on dry land;

2. Artificially irrigated areas which would revert to upland if the irrigation ceased;

3. Artificial lakes or ponds created by excavating and/or diking dry land to collect and retain

water and which are used exclusively for such purposes as stock watering, irrigation,

settling basins, or rice growing;

4. Artificial reflecting or swimming pools or other small ornamental bodies of water created

by excavating and/or diking dry land to retain water for primarily aesthetic reasons;

5. Waterfilled depressions created in dry land incidental to construction activity and pits

excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the

construction or excavation operation is abandoned and the resulting body of water meets

the above definition of "waters of the United States";

6. Waste treatment systems, including treatment ponds or lagoons designed to meet the

requirements of the CWA (other than cooling ponds); and

7. Erosional channels less than two feet wide and six inches deep in upland areas resulting

from poor soil management practices.

“Working day” means a day on which the offices of the New Jersey Department of

Environmental Protection are open for business.

7:7A-1.4 Forms, checklists, and information; Department address and website

(a) Forms, checklists, and other information related to this chapter can be obtained from the

Division of Land Use Regulation at the address in (b) below, by telephone at (609) 984-0162, or

through the Division’s website at https://www.nj.gov/dep/landuse. Further information about the

Department can be accessed at https://www.nj.gov/dep.

(b) Applications and other correspondence shall be submitted to the following addresses:

1. For submittal of an application for an e-LOI, for authorization under a general permit-by-

certification or general permit, for an individual permit, or for a transition area waiver,

the Department’s website at https://www.nj.gov/dep/online; and

2. For correspondence or the submittal of an application for an exemption, letter of

interpretation, or an extension, transfer, or modification of a permit:

i. For regular mail:

New Jersey Department of Environmental Protection

Division of Land Use Regulation

Mail Code 501-02A

PO Box 420

Trenton, NJ 08625; and

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ii. For hand delivery, courier service, and overnight mail:

New Jersey Department of Environmental Protection

Division of Land Use Regulation

501 East State Street

5 Station Plaza, Second Floor

Trenton, New Jersey 08609.

application can be directed to the Division of Land Use Regulation Technical Support Center at

(609) 777-0454, via email at [email protected], or by using an online contact form

at https://www.nj.gov/dep/landuse/contact.html.

(d) Applications for authorization under a general permit-by-certification or general permit, an

individual permit, or a transition area waiver sent or delivered to the Department by mail, hand

delivery, or courier service shall not be deemed to have been received for the purposes of

calculating application review deadlines or other time periods under this chapter.

(e) Applications identified at (b)2 above sent or delivered to the Department at an address other

than those listed at (b)2i and ii above shall not be deemed to have been received for the purposes

of calculating application review deadlines or other time periods under this chapter.

7:7A-1.5 Liberal construction

This chapter shall be liberally construed to effectuate the purpose of the Acts under which it was

adopted.

7:7A-1.6 Severability

If any subchapter, section, subsection, provision, clause, or portion of this chapter, or the

application thereof to any person, is adjudged unconstitutional or invalid by a court of competent

jurisdiction, such judgment shall be confined in its operation to the subchapter, section,

subsection, provision, clause, portion, or application directly involved in the controversy in

which the judgment was rendered and it shall not affect or impair the remainder of this chapter or

the application thereof to other persons.

SUBCHAPTER 2. APPLICABILITY AND ACTIVITIES FOR WHICH A PERMIT IS

REQUIRED

7:7A-2.1 When a permit is required

(a) No person shall engage in a regulated activity subject to this chapter without a permit or

authorization listed in (b) below. Initiation of a regulated activity without a permit or conducting

a regulated activity beyond that specifically authorized by a permit is considered a violation of

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this chapter and shall subject the person or persons responsible for the regulated activity to

enforcement action in accordance with N.J.A.C. 7:7A-22.

(b) A person undertaking any regulated activity under this chapter shall do so only in accordance

with:

1. An authorization under a general permit-by-certification, pursuant to N.J.A.C. 7:7A-5

and 6;

2. An authorization under a general permit, pursuant to N.J.A.C. 7:7A-5 and 7;

3. A transition area waiver, pursuant to N.J.A.C. 7:7A-8;

4. An individual permit, pursuant to N.J.A.C. 7:7A-9 and 10; or

5. An emergency authorization, pursuant to N.J.A.C. 7:7A-14.

wetlands program (also known as the 404 program) in delegable waters. In non-delegable waters,

the USACE retains jurisdiction under Federal law, and both Federal and State requirements

apply. Accordingly, a person proposing to engage in a regulated activity in non-delegable waters

shall obtain two permits, one from the Department under this chapter and one from the USACE

under the Federal 404 program.

(d) A permit issued under this chapter shall constitute the water quality certificate required under

the Federal Act at 33 U.S.C. § 1341 for any activity covered by this chapter. If a discharge of

dredged or fill material into waters of the United States does not require a permit under this

chapter but does require a water quality certificate, the Department shall use the standards and

procedures in this chapter to determine whether to issue the water quality certificate, except in

the New Jersey coastal zone, as described at N.J.A.C. 7:7-1.2(b). For a discharge of dredged or

fill material in the coastal zone, the Department shall use the standards and procedures in the

Coastal Zone Management rules, N.J.A.C. 7:7, to determine whether to issue a water quality

certificate.

7:7A-2.2 Regulated activities in freshwater wetlands and State open waters

(a) The following activities are regulated under this chapter when performed in a freshwater

wetland unless excluded under (c) below:

1. The removal, excavation, disturbance or dredging of soil, sand, gravel, or aggregate

material of any kind;

2. The drainage or disturbance of the water level or water table so as to alter the existing

elevation of groundwater or surface water, regardless of the duration of such

alteration, by:

i. Adding or impounding a sufficient quantity of stormwater or other water to

modify the existing vegetation, values or functions of the wetland; or

ii. Draining, ditching or otherwise causing the depletion of the existing

groundwater or surface water so as to modify the existing vegetation, values

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or functions of the wetland;

3. The dumping, discharging or filling with any materials;

4. The driving of pilings;

5. The placing of obstructions, including depositing, constructing, installing or

otherwise situating any obstacle which will affect the values or functions of a

freshwater wetland; and

6. The destruction of plant life which would alter the character of a freshwater wetland,

including killing vegetation by applying herbicides or by other means, the physical

removal of wetland vegetation, and/or the cutting of trees.

(b) The term "regulated activity" shall also mean the discharge of dredged or fill material into

State open waters, except for a discharge into a non-delegable State open water which is subject

to the Waterfront Development Law, N.J.S.A. 12:5-3.

1. Surveying or wetlands investigation activities, for the purpose of establishing or

reestablishing a boundary line or points, which use only hand held equipment and do not

involve the use of motorized vehicles to either clear vegetation or extract soil borings.

The clearing of vegetation along the survey line or around the survey points shall not

exceed three feet in width or diameter respectively and shall not be kept clear or

maintained once the survey or delineation is completed;

2. The placement of temporary structures (such as observation blinds, waterfowl blinds,

artificial nesting structures, or sign posts) for observing, managing, or harvesting fish or

wildlife, provided the structures:

i. Do not have permanent foundations;

ii. Do not require the deposition of fill material; and

iii. Have a footprint no larger than 32 square feet;

3. Placement of one or more small guy anchors that screw into the ground to secure a guy

wire supporting a utility pole, provided that the area of disturbance caused by each guy

anchor is no more than 15 inches in diameter;

4. Hand trimming of trees or other vegetation, provided the trimming does not alter the

character of the freshwater wetland; and

5. The driving of one or more pilings in a State open water, if the pilings are not regulated

by the USACE under the Federal 404 program. The USACE regulates the placement of

pilings if the placement would have the effect of a discharge of fill material. Examples of

activities that are and are not regulated by the USACE are:

i. Activities that generally do not have the effect of a discharge of fill material and thus

are not regulated are:

(1) Placing pilings for linear projects, such as bridges, elevated walkways, and

utility line structures; and

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(2) Placement of pilings for piers or docks;

ii. Activities that generally do have the effect of a discharge of fill material and thus are

regulated include, but are not limited to:

(1) Projects where the pilings are so closely spaced that sedimentation rates would

be increased;

(2) Projects in which the pilings themselves effectively would replace the bottom of

a water body;

(3) Projects involving the placement of pilings that would reduce the reach or

impair the flow or circulation of waters of the United States;

(4) Projects involving the placement of pilings which would result in the adverse

alteration or elimination of aquatic functions; and

(5) Projects where the pilings are intended to be used for structural support of a

building such as a commercial or residential structure.

7:7A-2.3 Regulated activities in transition areas

(a) Except as provided in (b) and (c) below, the following are regulated activities when they

occur in transition areas:

1. Removal, excavation, or disturbance of the soil;

2. Dumping or filling with any materials;

3. Erection of structures;

4. Placement of pavements; and

5. Destruction of plant life which would alter the existing pattern of vegetation.

(b) Notwithstanding (a) above, the following activities are not regulated in transition areas and

do not require Department approval under this chapter, provided that the activities are performed

in a manner that minimizes adverse effects to the transition area and adjacent freshwater

wetlands, and provided that the transition area is not contained within a conservation restriction.

If the transition area is contained in a conservation restriction, none of the following activities are

allowed unless explicitly stated in the conservation restriction:

1. Normal property maintenance;

i. For the purposes of this paragraph, "normal property maintenance" means activities

required to maintain lawfully existing artificial and natural features, landscaping, and

gardening. These activities include:

(1) Mowing of existing lawns. The conversion of a field to a lawn by planting,

seeding, frequent mowing or any other means is not considered normal property

maintenance and requires a transition area waiver;

(2) Maintenance of existing fields;

(3) Pruning of trees and shrubs;

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(4) Selective cutting of trees;

(5) Replacement of existing non-native plants with either native or non-native

species that will not significantly change the character of the existing

vegetational community of the transition area.;

(6) Limited supplemental planting of non-native plant species that will not

significantly change the character of the existing vegetational community of the

transition area. The creation of a lawn is not considered supplemental planting;

(7) Planting of native species, that is, plants naturally occurring in transition areas

in the local region, (the county agricultural agent may be consulted to obtain

information regarding these species);

(8) Continued cultivation of existing gardens and the development of new gardens

provided that the new garden is:

(A) No larger than 2,500 square feet in size;

(B) Located in a non-forested transition area; and

(9) Maintenance of artificial features including the repair, rehabilitation,

replacement, maintenance or reconstruction of any previously authorized,

currently serviceable structure, lawfully existing prior to July 1, 1989, or

permitted under this chapter, provided such activities do not result in additional

disturbance of the transition area upon completion of the activity. Minor

deviations from the existing structure due to changes in materials or

construction techniques and which are necessary to make repairs, rehabilitation

or replacements are allowed provided such changes do not result in disturbance

of additional transition area upon completion of the activity.

ii. Any activity which involves or causes the substantial alteration or change of the

existing characteristics of a transition area shall not be considered normal property

maintenance and shall require a transition area waiver in accordance with this

chapter. Activities which involve or cause substantial alteration or change of the

transition area include, but are not limited to, extensive removal, alteration, or

destruction of vegetation by clear cutting, cutting, mowing (except as described in

(b)1i above), burning or application of herbicides, planting of ornamental plants or

lawns for landscaping purposes (except as described in (b)1i above), regrading or

significant changes in the existing surface contours and the placement of fill,

pavement or other impervious surfaces.

2. Minor and temporary disturbances of the transition area resulting from, and necessary for,

normal construction activities on land adjacent to the transition area, provided the

activities do not result in adverse environmental effects on the transition area or on the

adjacent freshwater wetlands, and do not continue for more than six months. For the

purposes of this paragraph, minor and temporary disturbances include, but are not limited

to, the placement of scaffolds or ladders, the removal of human-made debris by non-

mechanized means which does not destroy woody vegetation, the placement of temporary

construction supports, and the placement of utility lines over or under a previously

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authorized, currently serviceable paved roadway surface. Fencing will not be regulated if

it is installed on the boundary between the transition area and upland area; and

3. The erection of one or more temporary structures covering a combined total of 150

square feet or less of the transition area. For the purposes of this paragraph, a "temporary

structure" means a shed or fence without a foundation, or a structure that remains in the

transition area for no more than six months. Chain link fences are not considered

temporary structures.

7:7A-2.4(f). In addition, an activity that is exempt from freshwater wetlands permit requirements

under N.J.A.C. 7:7A-2.4(c) for farming activities, or N.J.A.C. 7:7A-2.4(d) for forestry activities,

is also exempt from transition area requirements, subject to the limits on freshwater wetlands

exemptions at N.J.A.C. 7:7A-2.4. A person may request an exemption letter confirming the

exemption status of an activity by using the procedures at N.J.A.C. 7:7A-2.6.

7:7A-2.4 Activities exempted from permit and/or waiver requirement

(a) The following are exempt from the requirement of a freshwater wetlands permit and/or

waiver unless the USEPA’s regulations providing for the delegation to the State of the Federal

wetlands program conducted pursuant to the Federal Act require a permit for any of these

activities, in which case the Department shall require a permit for those activities so identified by

that agency. Any activity conducted under an exemption that does not meet all standards,

conditions, or limitations of the exemption shall constitute a violation of this chapter, and shall

be subject to enforcement action in accordance with N.J.A.C. 7:7A-22.

(b) The farming, ranching, and silviculture exemptions in (c) and (d) below are subject to the

following limits:

1. The exemptions shall not apply to any discharge of dredged or fill material into

freshwater wetlands or State open water incidental to any activity which involves

bringing an area of freshwater wetlands or State open waters into a use to which it was

not previously subject, where the flow or circulation patterns of the freshwater wetlands

or waters may be impaired, or the extent or values and functions of freshwater wetlands

or State open waters is reduced;

2. The exemptions apply only as long as the area is used for the exempted activity.

Therefore, if the area stops being used for farming, ranching, or silviculture, the

exemption no longer applies;

3. The exemptions apply only to the portion of the property which meets all requirements

for the exemption. For example, if half of a 20 acre property has been actively farmed

since June 30, 1988 and half has not, the half that has been actively farmed would be

considered to be part of an established, ongoing farming operation and would therefore

be eligible for the farming exemption. The remainder would not be eligible for the

farming exemption;

4. Normal silviculture activities must be part of a forest management plan that conforms to

best management practices (BMPs) and is reviewed and approved by the State Forester

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before the activities are undertaken. A woodland management plan prepared for tax

purposes but that does not address wetlands is insufficient to qualify for the exemption;

and

5. If an area with hydric soils has been drained for farming or other purposes through the

use of drainage structures such as tiles or ditches, the Department shall, in the absence of

compelling scientific information that wetland hydrology has been effectively removed

by factors other than the drainage structures, presume that the area maintains wetlands

hydrology for the purpose of identifying a freshwater wetland under N.J.A.C. 7:7A-3.1.

To rebut this presumption of wetlands hydrology, all drainage structures shall be

removed or completely disabled and the area shall be left undisturbed for at least one

normal rainfall year, after which the presence or absence of wetlands hydrology shall be

determined through use of technical criteria, field indicators, and other information, in

accordance with the 1989 Federal Manual.

ongoing farming, ranching, or silviculture operation, on properties that have received or are

eligible for a farmland assessment under the New Jersey Farmland Assessment Act, N.J.S.A.

54:4-23.1 et seq., are exempt from the requirement of a freshwater wetlands or open water fill

permit, or transition area waiver:

1. Normal farming, silviculture, and ranching activities, such as plowing, seeding,

cultivating, minor drainage, harvesting for the production of food and fiber, or soil and

water conservation practices. For the purposes of this paragraph, “minor drainage”

means:

i. The discharge of material incidental to connecting upland drainage facilities to

adjacent wetlands, adequate to effect the removal of excess soil moisture from

upland croplands;

ii. The discharge of material for the purpose of installing ditching or other such water

control facilities incidental to planting, cultivating, protecting, or harvesting of rice,

cranberries, or other wetland crop species, where the farming activities and the

discharge occur in wetlands and waters that are in established use for such

agricultural and silvicultural wetlands crop production. Any discharge of material

into wetlands or waters, excavation of wetlands, or draining of wetlands or waters,

that are not in established use for such agricultural and silvicultural wetlands crop

production requires a permit. For example, the construction of ditches within the

confines of an established cranberry bog is an exempt activity. However, the

construction of new ditches in wetlands or waters located outside of the established

cranberry bog requires a permit;

iii. The discharge of material for the purpose of manipulating the water levels of, or

regulating the flow or distribution of water within, existing impoundments which

have been constructed in accordance with applicable requirements of the Federal Act

and which are in established use for the production of rice, cranberries, or other

wetland crop species;

iv. The discharge of material incidental to the emergency removal of sandbars, gravel

bars, or other similar blockages which are formed during flood flows or other events,

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where such blockages close or constrict previously existing drainage ways and, if not

properly removed, would result in damage to or loss of existing crops on land in

established use for crop production. Such removal does not include enlarging or

extending the dimensions of, or changing the bottom elevations of, the affected

drainage way as it existed prior to the formation of the blockage. Removal must be

accomplished within one year of formation of such blockages in order to be eligible

for exemption under this paragraph; and

v. Minor drainage in wetlands is limited to drainage within areas that are part of an

established farming or silvicultural operation. It includes maintenance of existing

drainage tile or other drainage structures. It does not include drainage associated

with the immediate or gradual conversion of a wetland to a non-wetland (for

example, wetlands species to upland species not typically adapted to life in saturated

soil conditions), or conversion from one wetland use to another (for example,

silviculture to farming).

2. Activities associated with the normal maintenance of cranberry bogs and blueberry fields

where the maintenance activities and the discharge occur in wetlands and waters that are

in established use for cranberry or blueberry production, such as:

i. Periodic flooding;

ii. Sanding;

iii. Control or suppression of weeds or brush in and around the bog or field;

iv. Pest control or suppression; and

v. Maintenance, repair, or cleaning of dams, ditches, underdrains, floodgates, irrigation

systems, or other drainage or water control facilities;

3. Activities for the renewal or rehabilitation of a cranberry bog, including but not limited

to:

i. Removal of undesirable soil or vegetation;

ii. Grading and leveling;

iii. Installation, reconfiguration, repair, or replacement of water control or supply

systems or facilities;

iv. The removal, relocation, or construction of internal dams; and

v. The planting of new vines in an appropriate soil layer;

4. Construction or maintenance of farm or stock ponds or irrigation ditches, or the

maintenance of drainage ditches, provided that such facilities are for farming, ranching,

or silvicultural purposes and do not constitute a change in use. Any dredged material

from pond construction or maintenance must be placed outside the freshwater wetlands,

unless it is needed for the structural or environmental integrity of the pond;

i. A pond constructed in an actively farmed area does not constitute a change in use. A

field in which no crops or pasturing has occurred for 5 years or more is considered

abandoned and is not considered an actively farmed area. Forest land is not

considered an actively farmed area; however, an area that has been undergoing

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normal harvesting of forest products is considered an actively farmed area if it is part

of a forest management plan in accordance with (d) below;

ii. To qualify for this exemption, a farm pond shall be:

(1) Part of a farm conservation plan developed in conjunction with the Natural

Resources Conservation Service and approved by the Soil Conservation

District, as appropriate;

(2) Located outside a watercourse;

(3) Created by excavation and not by creating an embankment within a

watercourse;

(4) Not associated with development as that term is defined in the Municipal Land

Use Law, N.J.S.A. 40:55D-4;

(5) Intended exclusively for agricultural purposes. The applicant shall submit a

description of the purpose of the pond with any application for an exemption

letter under N.J.A.C. 7:7A-2.6; and

(6) Sized appropriately for the intended use under (c)3ii(5) above.

5. Construction or maintenance of farm roads or forest roads constructed and maintained in

accordance with best management practices (BMPs) to assure that flow and circulation

patterns and chemical and biological characteristics of freshwater wetlands and State

open waters are not impaired and that any adverse effect on the aquatic environment will

be minimized; where the proposed discharge will result in significant discernible

alterations to flow or circulation, the presumption is that flow or circulation may be

impaired by such alteration. Roads constructed for forestry and silviculture purposes shall

be constructed using temporary mats whenever practicable. Once the land use changes

from forestry or farming to another use, that is, once the property no longer qualifies for a

farmland assessment, all roads employing the placement of fill shall be removed within

30 days;

i. Construction of a farm road shall be undertaken only in accordance with the

following:

(1) The road shall be part of a farm conservation plan developed in conjunction

with the Natural Resources Conservation Service and approved by the Soil

Conservation District, as appropriate;

(2) The location of the road shall be selected to minimize disturbance to wetlands,

transition areas and watercourses. If there is an alternative location for a farm

road that will have less impact to wetlands, transition areas, and watercourses,

the alternative location shall be used;

(3) The road shall be necessary to support or provide access for a farming activity.

A road that supports or provides access to proposed development is not a farm

road and requires a permit in accordance with this chapter;

(4) The farm road shall not exceed 14 feet in width unless it must be wider to

accommodate a large piece of equipment such as a combine. In the latter case,

the road shall be no wider than 20 feet;

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(5) The farm road shall be built at grade. If not built at grade, the applicant shall

demonstrate to the Department why fill material is necessary for the farming

operation with any application for an exemption letter under N.J.A.C. 7:7A-2.6;

and

(6) In accordance with (c)4i(5) above, if fill material is necessary, it shall be no

more than six inches deep and shall be limited to 0.25 acres of wetland

disturbance. In addition, pipes shall be installed to maintain wetland hydrology;

ii. “Maintenance of a farm road” means:

(1) The existing road remains the same width before and after maintenance

activities;

(2) The placement of all fill is entirely within the existing footprint of the existing

road; and

(3) A culvert shall be used only to replace an existing culvert. If it is necessary to

install a culvert for the first time, the Department will consider the project to be

construction of a new road subject to the limitations in (c)4i above; and

6. Installation of temporary farm structures with only a dirt or fabric floor, such as

hoophouses, polyhouses, run-in sheds, and pole barns and any grading or land contouring

associated therewith, and fencing without foundations on lands that were actively

cultivated on or before July 1, 1988, have been in active agricultural use since then, were

in active agricultural use at the time that the temporary farm structures were or are to be

erected, and are identified as “ModAg” farmed wetlands on the Wetlands Maps

promulgated by the Department in 1988.

(d) Normal silviculture activities, in accordance with a forest management plan approved by the

State Forester before the conduct of the forest management activities, are exempt from the

requirement of a freshwater wetlands permit, transition area waiver, or open water fill permit,

subject to the limitations of this section. A woodland management plan prepared for tax purposes

but that does not address wetlands is insufficient to qualify for the exemption. However, the

removal of stumps results in a discharge of dredged or fill material, and a change in use and an

impairment of flow or circulation. Therefore, under (b)1 above, the removal of stumps is not

exempt and shall require a permit under this chapter.

(e) Until March 2, 1994, when the Department assumed responsibility for the Federal 404

program, the Department issued certain exemptions based on prior local approvals.

However, as of March 2, 1994, these exemptions are void as they apply to freshwater wetlands

permit and open water fill requirements. The exemptions continue to apply to transition area

requirements, and are described at (f) below.

(f) Subject to the limitations of this section including (g) below, the following projects, are

exempt from transition area requirements, but are subject to freshwater wetlands and State open

water requirements:

1. A project for which a preliminary site plan or subdivision application received formal

preliminary approvals from local authorities pursuant to the Municipal Land Use Law,

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N.J.S.A. 40:55D-1 et seq., prior to July 1, 1989, provided those approvals remain valid

under the Municipal Land Use Law. This excludes approvals which were given prior to

the August 1, 1976 effective date of the Municipal Land Use Law; and

2. A project for which a preliminary site plan or subdivision application, as defined in

N.J.S.A. 40:55D-1 et seq., was submitted to the local authorities prior to June 8, 1987 and

was subsequently approved. To qualify for an exemption under this paragraph, an

application for preliminary approval must have been in proper form, must have been

accompanied by all plans, data and information called for by the local land use ordinance

and by statute, and thus must have been in fact complete prior to June 8, 1987.

(g) The following limits apply to the transition area exemptions at (f) above:

1. To be eligible for a transition area exemption under (f) above, a project must have

preliminary site plan or subdivision approval. The exemptions do not apply to an

application for, or grant of, any other approval under the Municipal Land Use Law, such

as a sketch plat approval, general development plan, classification determination,

building permit, variance, or conditional use approval;

2. A project listed in (f) above shall no longer be exempt from transition area requirements

if significant changes are made to the approved site or subdivision plan. A significant

change will be deemed to have been made if either of the following criteria is met:

i. The change would void the preliminary approval; or

ii. The change would require submittal to or approval of a new or amended application

from the local authorities and either of the following criteria is met:

(1) The change would result in a change in land use on the project site, for example,

from single family houses to multi-family units or a golf course; or

(2) The change would increase impacts to freshwater wetlands, State open waters,

or transition areas;

3. A project listed in (f) above shall no longer be exempt if the municipal approval upon

which the exemption was based becomes invalid for any reason; and

4. For all development determined to be exempt by the Department, once the development

is constructed, the exempted "project" has been built. If, for example, the owner of a

commercial building decides afterward that it is necessary to construct an addition, and

goes back to the municipal authority for a new or amended site plan or subdivision

approval, the exemption has been "used up" and the addition is subject to the permitting

requirements of this chapter. Similarly, for residential approvals, once the houses and any

accessory structures planned along with the house (for example, detached garages, barns,

storage sheds, pools) are constructed, or the certificate of occupancy is issued, the

exemption has been exhausted and any later additions or structural improvements are

subject to the permitting requirements of this chapter. If there is an interruption of more

than one year before construction of an accessory structure claimed to have been planned

along with the house, there is a rebuttable presumption that the structure constitutes a

later addition and will require a permit.

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(h) If any discharge of dredged or fill material resulting from the activities exempted by this

section contains any toxic pollutant listed under section 307 of the Federal Act, such discharge

shall be subject to any applicable toxic effluent standard or prohibition, and shall require a

freshwater wetlands or open water fill permit.

(i) A project covered by an individual permit issued by the USACE prior to July 1, 1988, shall be

governed only by the Federal Act, and shall not be subject to additional or inconsistent

substantive requirements of this chapter. However, when the USACE permit expires, any

application for an extension shall be made to the Department under N.J.A.C. 7:7A-20.4. The

Department shall not require a transition area as a condition of any extension of an USACE

permit issued prior to July 1, 1988.

7:7A-2.5 Geographic areas exempted from permit and/or waiver requirement

(a) Regulated activities in areas under the jurisdiction of the New Jersey Sports and Exposition

Authority under N.J.S.A. 13:17-1 et seq., do not require a permit under this chapter, but may

require other State and/or Federal wetlands approvals, such as a Federal 404 permit from the

USACE, a water quality certificate, or a Federal Consistency Determination issued under the

Federal Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq.

(b) The discharge of dredged or fill material in a freshwater wetlands or State open water under

the jurisdiction of the Pinelands Commission is subject to freshwater wetlands and open water

fill permit requirements under this chapter. However, regulated activities in areas under the

jurisdiction of the Pinelands Commission, other than the discharge of dredged or fill material, are

not subject to this chapter. Transition areas are not regulated under this chapter in areas under the

jurisdiction of the Pinelands Commission. However, the Pinelands Commission may provide for

more stringent regulation of activities in and around freshwater wetland areas within its

jurisdiction, which include transition area regulations. For information on freshwater wetlands

and transition areas in the Pinelands under this chapter and under the Pinelands Comprehensive

Management Plan (CMP), contact the Pinelands Commission at (609) 894-7300 or through its

website at https://www.nj.gov/pinelands.

the Pinelands Commission shall be reviewed as follows:

1. If the discharge is subject to the Pinelands CMP and is eligible for a general permit under

this chapter, the Pinelands Commission shall review the discharge under the CMP and

shall also review the application for a freshwater wetlands general permit using the

standards in this chapter;

2. If the discharge is subject to the Pinelands CMP and requires an individual permit under

this chapter, the Pinelands Commission shall review the discharge under the CMP and the

Department shall review the application for an individual freshwater wetlands permit

using the standards in this chapter; and

3. If the discharge is not subject to the Pinelands CMP but requires an individual or general

permit under this chapter, the Department shall review the application for an individual or

general freshwater wetlands permit using the standards in this chapter.

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(d) Regulated activities in tidally influenced wetlands which are defined as coastal wetlands

pursuant to the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq. are not subject to this chapter,

but may require other State and/or Federal approvals.

7:7A-2.6 Exemption letters

(a) A person with a project or activity which qualifies for an exemption under this subchapter

may obtain a letter from the Department certifying that an activity is exempt. The letter will be

based on the information required by this section, and will be void if the information submitted is

not complete and accurate, if the approval upon which it was based becomes invalid for any

reason, or if the project or activity is not carried out as represented in the submittal(s) to the

Department. This exemption will remain valid for the duration of the approval upon which it was

based.

(b) To apply for an exemption letter for a farming, silviculture, or ranching exemption under

N.J.A.C. 7:7A-2.4(c), an applicant shall submit the following:

1. A completed application form described at N.J.A.C. 7:7A-20.4(c)1 and available from the

Department at the address set forth at N.J.A.C. 7:7A-1.4.

2. Certification of farmland assessment eligibility under the New Jersey Farmland

Assessment Act, N.J.S.A. 54:4-23.1 et seq. The Department will accept a copy of the

applicant's tax bill showing farmland assessment to document this requirement;

3. A site plan or other drawing, and description of all activities for which the exemption is

requested, including the location, total area of the existing and proposed activities, the

types of farming, silviculture, or ranching, best management practices currently

employed or to be employed, the site conditions in the area in which the activity would

take place, the size, location, and use of all proposed dwellings or structures, and the

length of time the operation has been ongoing;

4. A copy of the farm conservation plan, as developed in conjunction with the Natural

Resource Conservation Service and approved by the Soil Conservation District, as

appropriate; and

5. The fee specified in N.J.A.C. 7:7A-18.

N.J.A.C. 7:7A-2.4(d), an applicant shall submit the following:

1. A completed application form described at N.J.A.C. 7:7A-20.4(c)1 and available from the

Department at the address set forth at N.J.A.C. 7:7A-1.4.

2. A copy of a forest management plan approved by the State Forester which includes the

size of the site, the length of time required to complete the project, and a detailed

description of the activities to take place in wetlands, transition areas, and/or State open

waters, including the best management practices to be employed and the location and

detailed plans for any proposed forest road(s); and

3. The fee specified in N.J.A.C. 7:7A-18.

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(d) To apply for an exemption letter for a transition area exemption pursuant to N.J.A.C. 7:7A-

2.4(f), an applicant shall submit the following:

1. A completed application form described at N.J.A.C. 7:7A-20.4(c)1 and available from the

Department at the address set forth at N.J.A.C. 7:7A-1.4.

2. A folded copy of the preliminary local approval of the site plan or subdivision, including

a copy of the site plan or subdivision itself and a copy of the resolution approving the site

plan or subdivision;

3. A letter from a municipal official with knowledge of and authority over the approval,

including the following:

i. A statement that the site plan or subdivision approval is still within the period of

protection from zoning changes provided for in the Municipal Land Use Law; or if

the period of protection has expired, that there have been no changes to the

municipal land use ordinances since the approval that would prohibit construction of

the project; and

ii. A statement that the municipal approval that forms the basis for the exemption is still

valid; and

4. The fee specified in N.J.A.C. 7:7A-18.

7:7A-2.7 Stormwater management

If a project requires an individual permit under this chapter and the project in its entirety (that

means the whole project, not just the portions within wetlands or transition area) meets the

definition of “major development” at N.J.A.C. 7:8-1.2, then the project shall comply in its

entirety with the Stormwater Management rules at N.J.A.C. 7:8. If an activity requires a general

permit under this chapter and the regulated activity meets the definition of “major development”

at N.J.A.C. 7:8-1.2, then the project of which the regulated activity is a part shall comply in its

entirety with the Stormwater Management rules at N.J.A.C. 7:8. In accordance with N.J.A.C.

7:7A-1.1(c), the Pinelands Commission may require equal or more stringent stormwater

management regulation of activities in and around freshwater wetland areas within its

jurisdiction.

SUBCHAPTER 3. IDENTIFYING FRESHWATER WETLANDS AND TRANSITION

AREAS; FRESHWATER WETLANDS RESOURCE VALUE CLASSIFICATION

7:7A-3.1 Identifying freshwater wetlands

(a) Freshwater wetlands shall be identified and delineated using the three-parameter approach

(that is, hydrology, soils, and vegetation) enumerated in the 1989 Federal Manual.

(b) To aid in determining the presence or absence of freshwater wetlands, the Department may

refer to any of the following sources of information:

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1. New Jersey Freshwater Wetlands maps prepared by the Department and available as

indicated in (f) below;

2. United States Department of Agriculture Soil Surveys;

3. USGS quad maps;

i. NWI maps shall be used to indicate the approximate location of some freshwater

wetlands;

ii. NWI maps have been determined to be unreliable for the purposes of locating the

actual wetlands boundary;

4. USGS topographic maps;

5. Letters submitted by applicants containing site specific data;

6. Comments filed by municipal and county governments and interested citizens; and

7. Comments filed by State or Federal agencies.

include, but not be limited to, those plants listed in “National List of Plant Species that Occur in

Wetlands: 1988 New Jersey,” compiled by the USFWS in cooperation with the USACE,

USEPA, and the United States Soil Conservation Service, and any subsequent amendments

thereto.

(d) To obtain a determination from the Department of the presence, absence, or boundaries of

freshwater wetlands on a particular site, a person may apply to the Department for a letter of

interpretation under N.J.A.C. 7:7A-4.

(e) The Department has developed freshwater wetlands maps at a scale of 1:12000 to provide

guidance and for general informational purposes. These freshwater wetlands maps can help to

determine the approximate extent and location of wetlands. However, these maps are for

guidance only and do not take the place of nor supersede a wetland delineation that the

Department has approved through a letter of interpretation issued for a particular site.

(f) The Department has provided the New Jersey freshwater wetlands maps to the offices listed

at (f)1 and 2 below for public inspection. The maps are also available through NJ-GeoWeb at

https://www.nj.gov/dep/gis/geowebsplash.htm.

1. The county clerk or registrar of deeds and mortgages in each county; and

2. The municipal clerk of each municipality.

7:7A-3.2 Classification of freshwater wetlands by resource value

(a) Freshwater wetlands shall be divided into three classifications based on resource value. The

Department shall consider the resource value classification of a wetland in, among other things,

evaluating alternatives to the proposed regulated activity, in determining the size of the transition

area, and in determining the amount and/or type of mitigation required.

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(b) A freshwater wetland of exceptional resource value, or exceptional resource value wetland, is

a freshwater wetland which:

1. Discharges into FW-1 or FW-2 trout production waters or their tributaries;

2. Is a present habitat for threatened or endangered species; or

3. Is a documented habitat for threatened or endangered species, and which remains suitable

for breeding, resting, or feeding by these species during the normal period these species

would use the habitat.

threatened or endangered species using the Landscape Project method, which focuses on habitat

areas required to support local populations of threatened and endangered wildlife species. The

report entitled New Jersey’s Landscape Project, which is updated periodically, provides

additional information on mapping methodology and is available at

https://www.nj.gov/dep/fgw/ensp/landscape/index.htm. Interested parties may also obtain

information by writing to the Division of Fish and Wildlife, Endangered and Nongame Species

Program at:

The Landscape Project

State of New Jersey Department of Environmental Protection

Division of Fish and Wildlife Endangered and Nongame Species Program

Mail Code 501-03

PO Box 420

Trenton, NJ 08625-0420.

(d) If the Department becomes aware of an occurrence of an threatened or endangered wildlife

species on or proximate to a site that is not mapped as threatened or endangered wildlife species

habitat by the Landscape Project, and the Department determines that the habitat may be suitable

for that species, the Department shall notify the applicant of the proposed exceptional resource

value classification based on new endangered or threatened species data and provide them with

the opportunity to contest the classification decision prior to formally classifying the wetlands of

exceptional resource value in accordance with (b) above.

(e) An applicant may request that a documented habitat not result in the classification of a

freshwater wetland as a freshwater wetland of exceptional resource value. Such a request shall

include a demonstration of the long-term loss of one or more habitat requirements of the specific

documented threatened or endangered species, including, but not limited to, wetlands size or

overall habitat size, water quality, or vegetation density or diversity. Upon such a request, the

Department shall review all available information, and shall make a final classification of the

wetland.

(f) A freshwater wetland of ordinary resource value, or an ordinary resource value wetland, is a

freshwater wetland, which does not exhibit any of the characteristics in (b) above, and which is:

1. An isolated wetland that:

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i. Is smaller than 5,000 square feet; and

ii. Has the uses listed below covering more than 50 percent of the area within 50 feet of

the wetland boundary. In calculating the area covered by a use, the Department will

only consider a use that was legally existing in that location prior to July 1, 1988, or

was permitted under this chapter since that date:

(1) Lawns;

(2) Maintained landscaping;

(3) Impervious surfaces;

(4) Active railroad rights-of-way; and

(5) Graveled or stoned parking/storage areas and roads;

2. A drainage ditch;

3. A swale; or

4. A detention facility created by humans in an area that was upland at the time the facility

was created regardless of the wetland resource classification of the wetland under this

chapter, or the classification of the body of water, as FW-1 or FW-2 trout production, to

which it discharges.

(g) A freshwater wetland of intermediate resource value, or intermediate resource value wetland,

is any freshwater wetland not defined as exceptional or ordinary.

(h) The classification system established under this section shall not restrict the Department's

authority to require the creation or restoration of freshwater wetlands under N.J.A.C. 7:7A.

(i) To obtain a Department determination of the resource value classification for a particular

wetland, an applicant may obtain a letter of interpretation from the Department under N.J.A.C.

7:7A-4.

7:7A-3.3 Identifying a transition area

(a) A transition area serves as:

1. An ecological transition zone from uplands to freshwater wetlands which is an integral

portion of the freshwater wetlands ecosystem, providing temporary refuge for freshwater

wetlands fauna during high water episodes, critical habitat for animals dependent upon

but not resident in freshwater wetlands, and slight variations of freshwater wetland

boundaries over time due to hydrologic or climatologic effects; and

2. A sediment and storm water control zone to reduce the impacts of development upon

freshwater wetlands and freshwater wetlands species.

(b) Acts or acts of omission in a transition area that adversely affect a transition area's ability to

serve as any of the areas described below at (b)1 to 7 shall be deemed inconsistent with (a)

above:

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1. A temporary refuge for freshwater wetlands fauna during high water episodes;

2. A habitat area for activities such as breeding, spawning, nesting and wintering for

migrating, endangered, commercially and recreationally important wildlife;

3. An area to accommodate slight variations in freshwater wetland boundaries over time due

to hydrologic or climatologic effects;

4. A remediation and filtration area to remove and store nutrients, sediments,

petrochemicals, pesticides, debris and other pollutants as they move from the upland

towards the freshwater wetlands;

5. A buffer area to keep human activities at a distance from freshwater wetlands, thus

reducing the impact of noise, traffic, and other direct and indirect human impacts on

freshwater wetlands species;

6. A corridor area which facilitates the movement of wildlife to and from freshwater

wetlands and from and to uplands, streams and other waterways; and

7. A sediment and storm water control area to reduce the adverse effects of development or

disturbance upon freshwater wetlands, flora and fauna, and nearby waterways.

and of intermediate resource value as classified in N.J.A.C. 7:7A-3.2. A transition area is not

required adjacent to a freshwater wetland of ordinary resource value or adjacent to a State open

water.

(d) The standard widths of a transition area are set forth at (d)1 and 2 below. These standard

widths shall only be modified through the issuance of a transition area waiver. The types of

transition area waivers are listed at N.J.A.C. 7:7A-8.1(a).

1. The standard width of a transition area adjacent to a freshwater wetland of exceptional

resource value shall be 150 feet.

2. The standard width of a transition area adjacent to a freshwater wetland of intermediate

resource value shall be 50 feet.

(e) A person shall not engage in regulated activities, as described at N.J.A.C. 7:7A-2.3, in a

transition area except pursuant to a transition area waiver.

(f) A transition area shall be measured outward from a freshwater wetland boundary line on a

horizontal scale perpendicular to the freshwater wetlands boundary line as shown in Figure 1

below. The outside boundary line of a transition area shall parallel, that is, be equidistant from,

the freshwater wetlands boundary line, unless the Department issues a transition area waiver.

The width of the transition area shall be measured as the minimum distance between the

freshwater wetlands boundary and the outside transition area boundary.

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7:7A-3.4 Transition areas due to freshwater wetlands on adjacent property

(a) The outside boundary of a transition area is determined solely by reference to the freshwater

wetlands boundary and is not affected by property lines. Therefore, a property within 150 feet of

a freshwater wetlands may contain a transition area that arises from a freshwater wetlands on

another property. Every property containing a transition area is subject to this chapter, even if the

freshwater wetland that causes the transition area is located on another property.

(b) To determine whether a site has transition areas on it caused by wetlands on another property:

1. Determine whether there are any wetlands on any property within 150 feet of the site's

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property line. If not, there are no transition areas on the site due to wetlands on nearby

properties;

2. If there are freshwater wetlands on another property within 150 feet of the site's property

line, determine the resource value classification of the wetlands on the nearby property.

For a Department-issued resource value classification of the wetlands, obtain an LOI

under N.J.A.C. 7:7A-4;

3. If all of the freshwater wetlands on nearby properties within 150 feet of the site's property

line are ordinary resource value wetlands, there is no transition area on the site arising

from wetlands on other properties;

4. If any of the freshwater wetlands on nearby properties within 150 feet of the site’s

property line cannot be classified as ordinary resource value wetlands, determine the

transition area on the site as follows:

i. If any wetlands on nearby properties are intermediate resource value wetlands, and

are within 50 feet of the site’s property line, there is at least some transition area on

the site arising from these wetlands. In order to determine the size and shape of the

transition area, obtain a delineation of the wetlands on the nearby properties and

determine the transition area for each under N.J.A.C. 7:7A-3.3(d)2; and

ii. If any wetlands on nearby properties are exceptional resource value wetlands, and

are within 150 feet of the site’s property line, there is at least some transition area on

the site arising from these wetlands. In order to determine the size and shape of the

transition area, obtain a delineation of the wetlands on the nearby properties and

determine the transition area for each under N.J.A.C. 7:7A-3.3(d)1; and

5. To avoid obtaining an LOI and/or delineating wetlands under (b)3 and 4 above, a person

can ensure compliance with transition area requirements arising from wetlands on other

properties by assuming that there are exceptional resource value wetlands on all adjacent

properties and refraining from any regulated activities within 150 feet of the site's

property line.

their land within 150 feet of the site's boundary.

SUBCHAPTER 4. LETTERS OF INTERPRETATION

7:7A-4.1 Purpose and scope

This subchapter sets forth the general provisions relating to letters of interpretation; the types of

letters of interpretation; the duration of a letter of interpretation; and the conditions that apply to

a letter of interpretation.

7:7A-4.2 General provisions

(a) A letter of interpretation (LOI) provides the Department's official determination of one or

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more of the following:

1. Whether there are any freshwater wetlands, transition areas, and/or State open waters

present on a site or portion of a site;

2. Where the boundaries of freshwater wetlands, transition areas and/or State open waters

are located on a site; and/or

3. What resource value classification under N.J.A.C. 7:7A-3.2 applies to the freshwater

wetlands on a site.

(b) A letter of interpretation does not grant approval to conduct any regulated activities. The sole

function of a letter of interpretation is to provide or confirm information about the presence or

absence, boundaries, and/or resource value classification of freshwater wetlands, transition areas,

and/or State open waters.

1. For planning approvals, for demonstrating compliance with ordinances, or for other

purposes, a municipality or county may require an applicant to obtain an LOI as a

condition of application completeness or as a condition of approval.

1. A presence/absence LOI, in which the Department determines whether any freshwater

wetlands, transition areas, and/or State open waters exist on a site or on a portion of a site

(also called a footprint of disturbance LOI). See N.J.A.C. 7:7A-4.3 for further details

regarding presence/absence LOIs;

2. A line delineation LOI, in which the Department delineates the boundary lines of

freshwater wetlands, transition areas, and/or State open waters for an applicant. See

N.J.A.C. 7:7A-4.4 for further details regarding line delineation LOIs; and

3. A line verification LOI, in which the Department confirms or modifies a delineation

proposed by the applicant. See N.J.A.C. 7:7A-4.5 for further details regarding line

verification LOIs.

(d) If an area with hydric soils has been drained for farming or other purposes through the use of

drainage structures or features, such as tiles or ditches, the Department shall, in the absence of

compelling scientific information that wetland hydrology has been effectively removed by

factors other than the drainage structures, presume that the area maintains wetlands hydrology

for the purpose of identifying a freshwater wetland under N.J.A.C. 7:7A-3.1. To rebut this

presumption of wetlands hydrology, all drainage structures shall be removed or completely

disabled and the area shall be left undisturbed for at least one normal rainfall year, after which

the presence or absence of wetlands hydrology shall be determined through use of technical

criteria, field indicators, and other information, in accordance with the 1989 Federal Manual.

(e) Each LOI that indicates the presence of freshwater wetlands shall state the resource value

classification of the wetlands under N.J.A.C. 7:7A-3.2 and will specify the width of the transition

area. However, in some cases, seasonal conditions make it difficult to determine the resource

value classification of a wetland. For example, if there has been a past sighting of a bog turtle (an

endangered species) in the area, and an LOI application is submitted in December

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when the early successional habitat needed by bog turtles may be impossible to identify under

snow cover, Department staff cannot determine if the habitat remains suitable for bog turtles

until the snow melts. In such a case, the Department shall notify the applicant that seasonal

conditions do not permit an accurate assessment of resource value, shall provide an explanation

of the seasonal conditions involved, and shall give the applicant the option to accept an

exceptional resource value classification, or to wait for the LOI until the Department can

determine the resource value classification of the wetland.

(f) The Department shall issue an LOI for a portion of a site, also called a footprint of

disturbance, under N.J.A.C. 7:7A-4.3(c)2 or 4.5(b)3. Special application requirements shall

apply to such an LOI, in order to ensure that the portion of the site is clearly marked on the plan

and on the ground. These requirements are described at N.J.A.C. 7:7A-16.3(a)4i and (b)4.

(g) The Department shall not issue an LOI if the Department determines that the information

submitted in the application for the LOI is inaccurate. In such a case, the applicant may provide

corrected information upon the Department's request, or may apply directly for a permit without

obtaining an LOI. If the applicant applies for the permit without first obtaining an LOI, the

permit application must include all information that would be necessary for the Department to

issue an LOI for the site, in accordance with N.J.A.C. 7:7A-16.8(b)1, 16.9(b)1, or 16.10(b)1, as

applicable. The Department will then review the submitted wetland delineation as part of the

permit review process.

(h) Except for a presence/absence LOI for an entire site under N.J.A.C. 7:7A-4.3(c)1, all LOI

applicants shall provide the Department with a survey in accordance with N.J.A.C. 7:7A-

16.3(a)4. If the Department requires adjustments to the delineated wetlands and/or State open

waters boundary after the survey is submitted, the applicant shall resurvey the delineated

boundary after the adjustments are made and the Department has approved the boundary. The

issued LOI will reference the approved and surveyed boundary line.

7:7A-4.3 Presence/absence LOI

(a) A presence/absence LOI identifies whether any freshwater wetlands, State open waters or

transition areas exist on a site, or on a portion of a site (footprint of disturbance). A

presence/absence LOI also provides the resource value classification for any wetlands on the site.

(b) A presence/absence LOI does not identify the boundaries or location of any freshwater

wetlands, transition areas, and/or State open waters found within a site or portion thereof. To

obtain an LOI indicating the location or the boundaries of freshwater wetlands, transition areas,

and/or State open waters, an applicant shall apply for a line delineation LOI under N.J.A.C.

7:7A-4.4, or a line verification LOI under N.J.A.C. 7:7A-4.5.

1. An entire site, regardless of its size; or

2. A portion of a site, also known as a footprint of disturbance, provided the portion is no

larger than one acre.

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(d) The Department shall issue a presence/absence LOI for more than one portion of a site,

provided that:

1. Each portion is no larger than one acre;

2. The applicant submits a separate fee for each portion; and

3. No more than three presence/absence LOIs shall be issued for a single site under this

subsection.

7:7A-4.4 Line delineation LOI

(a) A line delineation LOI identifies the boundaries of any freshwater wetlands, transition areas,

and/or State open waters on a site or a municipal tax lot that is one acre or smaller, and identifies

the resource value classification of any freshwater wetlands on the site. For a line delineation

LOI, the applicant need not submit a delineation. Rather, the Department shall inspect the site

and delineate the boundary lines of any freshwater wetlands, transition areas, and/or State open

waters.

(b) The Department shall issue a line delineation LOI for a site, or for a municipal tax lot, that is

one acre or smaller. The Department shall not issue a line delineation LOI for a site larger than

one acre. The Department shall not issue a line delineation LOI for a portion of a site, unless the

portion is a municipal tax lot.

7:7A-4.5 Line verification LOI

(a) A line verification LOI identifies the boundaries of any freshwater wetlands, transition areas,

and/or State open waters on a site, and the resource value classification of any freshwater

wetlands on the site. For a line verification LOI, the applicant shall submit a proposed

delineation of wetlands, transition areas, and/or State open waters, which the Department will

confirm or modify.

(b) The Department shall issue a line verification LOI for the following:

1. A site, regardless of its size;

2. A municipal tax lot no larger than the site; or

3. A portion of a site, if all of the following criteria are met:

i. The site is publicly owned;

ii. The site is larger than 10 acres;

iii. The portion is no larger than 10 percent of the overall site; and

iv. The portion is clearly marked on the plan and on the ground.

7:7A-4.6 Duration of a letter of interpretation

(a) A person who is issued a letter of interpretation pursuant to this subchapter shall be entitled to

rely on the determination of the Department, concerning the presence or absence, or the extent of

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freshwater wetlands and/or State open waters, for a period of five years from its issuance,

unless the letter of interpretation is determined to have been based on inaccurate or incomplete

information, in which case the Department may void the original letter of interpretation and issue

a new letter of interpretation reflecting the actual conditions on the site. For example, the LOI

may be revised to reflect additional wetland areas identified after LOI issuance; or if a threatened

or endangered species habitat is disclosed or discovered after the LOI was issued, the

Department may correct the resource value classification.

(b) The term of a letter of interpretation may be extended, provided that the information upon

which the original letter was based remains valid, but shall not exceed five years from the

original expiration date.

interpretation has expired, but no more than one year before the expiration date, and shall be

subject to the application requirements at N.J.A.C. 7:7A-16. Applicants will be required to

submit a new application if an extension is not applied for prior to the expiration date of the letter

of interpretation.

7:7A-4.7 Conditions that apply to an issued letter of interpretation delineation or

verification

(a) Within 90 calendar days after the Department issues a delineation or verification letter of

interpretation on a privately owned lot, or on a publicly owned lot other than a right-of-way, the

recipient of the delineation or verification shall submit the following information to the Office of

the County Clerk or the registrar of deeds and mortgages in which the site is located, and shall

send proof to the Department in accordance with (b) below that this information is recorded on

the deed of each lot referenced in the delineation or verification letter of interpretation:

1. The Department file number for the letter of interpretation;

2. The approval and expiration date of the letter of interpretation;

3. A metes and bounds description of the wetland boundary approved under the letter of

interpretation;

4. The width and location of any transition area approved under the letter of interpretation;

and

5. The following statement: “The State of New Jersey has determined that all or a portion of

this lot lies in a freshwater wetland and/or transition area. Certain activities in wetlands

and transition areas are regulated by the New Jersey Department of Environmental

Protection and some activities may be prohibited on this site or may first require a

freshwater wetland permit. Contact the Division of Land Use Regulation at (609) 292-

0060 or https://www.nj.gov/dep/landuse for more information prior to any construction

onsite.”

(b) Proof that the information at (a) above has been recorded on the deed of each lot referenced

in the letter of interpretation shall be in the form of either a copy of the complete recorded

document or a receipt from the clerk or other proof of recordation provided by the recording

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office. However, if the initial proof provided to the Department is not a copy of the complete

recorded document, a copy of the complete recorded document shall be provided to the

Department within 180 calendar days of the issuance or reissuance of the letter of interpretation.

SUBCHAPTER 5. GENERAL PROVISIONS FOR GENERAL PERMITS-BY-

CERTIFICATION AND GENERAL PERMITS

7:7A-5.1 Purpose and scope

This subchapter sets forth the standards for the Department to issue, by rulemaking, general

permits-by-certification and general permits; the use of these permits to conduct authorized

activities; the standards governing the use of more than one of these permits on a single site; the

duration of authorizations under these permits; and the conditions that apply to these permits.

7:7A-5.2 Standards for issuance, by rulemaking, of general permits-by-certification and

general permits

(a) The Department will, in accordance with the rulemaking provisions of the New Jersey

Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., promulgate each general permit-by-

certification or general permit, except for general permit numbers 6 and 7, after publication of a

notice of rule proposal in the New Jersey Register and consideration of public comment. In

addition, the Department will send a copy of the draft general permit-by-certification or general

permit to the USEPA, and will follow the procedures for USEPA comment found at N.J.A.C.

7:7A-19.5.

(b) The Department will promulgate a general permit-by-certification or general permit only if

all of the following conditions are met:

1. The Department determines that the regulated activities will cause only minimal adverse

environmental impacts when performed separately, will have only minimal cumulative

adverse impacts on the environment, and will cause only minor impacts on freshwater

wetlands and State open waters;

2. The Department determines that the activity will conform to the purposes of the

Freshwater Wetlands Protection Act, and will not violate the Federal Act; and

3. The Department has provided public notice and an opportunity for a public hearing with

respect to the proposed general permit-by-certification or general permit. After a general

permit-by-certification or general permit has been promulgated pursuant to this

subchapter, the Department will not hold public hearings on individual applications for

authorization under a general permit-by-certification or general permit.

to comply with Federal regulations governing the Department’s assumption of the Federal 404

program at 40 CFR 233.21(c) as follows:

1. A description of the activities which are authorized, including limits for any single

project. At a minimum, these limits shall include:

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i. The maximum quantity of material that may be discharged;

ii. The type(s) of material that may be discharged;

iii. The depth of fill permitted;

iv. The maximum extent to which an area may be modified; and

v. The size and type of structure that may be constructed; and

2. A precise description of the geographic area to which the general permit-by-certification

or general permit applies, including, when appropriate, limits on the type(s) of water(s) or

wetlands where activities may be conducted.

(d) The Department will include in each general permit-by-certification or general permit

promulgated pursuant to this subchapter appropriate conditions applicable to particular types of

sites or development that must be met in order for a proposed activity to qualify for authorization

under the general permit-by-certification or general permit.

(e) The Department may, through rulemaking in accordance with the New Jersey Administrative

Procedure Act, N.J.S.A. 52:14B-1 et seq., repeal a general permit-by-certification or general

permit and thereafter require individual permits for activities previously covered by the general

permit-by-certification or general permit, if it finds that the general permit-by-certification or

general permit no longer meets the standards of the Freshwater Wetlands Protection Act and this

chapter.

(f) The Department shall review each general permit at least every five years. This review shall

include public notice and opportunity for public hearing. Upon this review the Department shall

modify, readopt or repeal each general permit.

(g) If a general permit is not modified or readopted in accordance with (f) above within five

years of publication of its adoption in the New Jersey Register, it shall automatically expire.

7:7A-5.3 Use of an authorization pursuant to a general permit-by-certification or a general

permit to conduct regulated activities

(a) An activity that meets the requirements of a general permit-by-certification may be conducted

when the person proposing to conduct the activity receives the automatic authorization resulting

from completion of the application submission through the Department’s electronic system in

accordance with N.J.A.C. 7:7A-16.6.

(b) An activity that meets the requirements of a general permit may be conducted when the

person proposing to conduct the activity receives authorization from the Department in

accordance with N.J.A.C. 7:7A-19, except in an area under the jurisdiction of the Pinelands

Commission. In such an area, the application shall be submitted to the Pinelands Commission

rather than to the Department, in accordance with the Pinelands Comprehensive Management

Plan (CMP). For information on freshwater wetlands and transition areas in the Pinelands,

contact the Pinelands Commission at (609) 894-7300 or through its website at

https://www.nj.gov/pinelands.

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freshwater wetlands, transition areas, State open waters, or a combination thereof. An

authorization issued under a general permit-by-certification or general permit that covers

activities in freshwater wetlands satisfies the requirement for a freshwater wetlands permit. An

authorization issued under a general permit-by-certification or general permit that covers

activities in State open waters satisfies the requirement for an open water fill permit. An

authorization issued under a general permit-by-certification or general permit that covers

activities in a transition area satisfies the requirement for a transition area waiver.

(d) Each authorization under a general permit shall include an access transition area waiver that

allows access to the authorized activity, in accordance with N.J.A.C. 7:7A-8.1(a)5. No fee or

application is required for this waiver and the disturbance authorized under this waiver is not

counted in calculating the amount of disturbance under the general permit.

(e) The Department shall deny an application for authorization under a general permit and

require an application for an individual permit if the Department finds that:

1. Additional permit conditions added under N.J.A.C. 7:7A-20.3 would not be sufficient to

ensure compliance with this chapter and other applicable laws; or

2. Special circumstances make an individual permit necessary to ensure compliance with

the Freshwater Wetlands Protection Act, this chapter, any permit or order issued pursuant

thereto, or the Federal Act.

(f) The limits on disturbance in each general permit-by-certification or general permit apply to

the entire site upon which activities authorized under the general permit-by-certification or

general permit occur. An applicant shall not segment a project or its impacts by applying for a

general permit-by-certification or general permit authorization for one portion of the project and

applying for an individual permit for another portion of the project. Similarly, an applicant shall

not segment a project or its impacts by separately applying for authorizations under a general

permit-by-certification or a general permit for different portions of the same project.

(g) Unless otherwise specified, the limits on disturbance under a general permit-by certification

or a general permit apply to total disturbance, including both temporary and permanent

disturbance.

(h) If a regulated activity is not covered by any general permit-by-certification, general permit, or

combination thereof, an individual freshwater wetlands or open water fill permit must be

obtained under N.J.A.C. 7:7A-9 in order to authorize the activity under this chapter. If a

regulated activity in a transition area is not covered by any general permit-by-certification,

general permit, or combination thereof, a transition area waiver must be obtained under N.J.A.C.

7:7A-8 in order to authorize the activity under this chapter.

(i) An authorization under a general permit-by-certification or general permit does not relieve

the person conducting the authorized regulated activities from the obligation to obtain any other

applicable permits or approvals required by law.

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7:7A-5.4 Use of more than one general permit or general permit-by-certification on a single

site

(a) A person may undertake more than one regulated activity on a single site. The activities may

be authorized under one or more general permits-by-certification and/or general permits,

provided:

1. The individual limits of each general permit-by-certification and/or general permit are

complied with. If activities under one general permit-by-certification and/or general

permit are conducted in more than one place on a site, the total disturbance caused by all

activities at all locations onsite under that general permit-by-certification and/or general

permit shall be summed in order to determine if the limits in the general permit-by-

certification and/or general permit are met. For example, if an applicant seeks

authorization for more than one outfall structure under general permit 11 (N.J.A.C. 7:7A-

7.11) on a site, the impacts from all of the structures shall be summed and the total must

be no greater than 0.25 acres, which is the acreage limit for that general permit (see

N.J.A.C. 7:7A-7.11(c)1). In a second example, if an applicant proposes a minor road

crossing under general permit 10B (N.J.A.C. 7:7A-7.10B) and two outfall structures

under general permit 11 on the same site, the minor road crossing cannot exceed 0.25

acres, which is the acreage limit for that general permit (see N.J.A.C. 7:7A-7.10B(b)2),

and the combined impact of the two outfall structures cannot exceed the 0.25-acre limit

for general permit 11. Other than the combination of general permits 6 and 6A, the

Department shall not authorize the combination of two different general permits-by-

certification or general permits, or combination thereof, for a single activity. For

example, if an applicant seeks authorization for a road crossing that will have an impact

of 0.60 acres, an individual permit will be required because the Department will not

authorize 0.25 acres under general permit 10B to be combined with 0.35 acres under

general permit 6, which has a one-acre limit (see N.J.A.C. 7:7A-7.6(a)1) for a minor road

crossing of 0.60 acres. In addition, other than the combination of an access transition area

waiver (see N.J.A.C. 7:7A-8.1(a)5), a transition area waiver averaging plan (see N.J.A.C.

7:7A-8.2), a special activity transition area waiver for linear development (see N.J.A.C.

7:7A-8.3(e)), or a special activity waiver for redevelopment (see N.J.A.C. 7:7A-8.3(f)),

with a general permit, the Department shall not authorize the combination of a general

permit or general permit-by-certification with a transition area waiver for a single

activity if the combined effect of the transition area waiver and general permit

authorization would be to expand the general permit activity beyond the limits set forth in

the general permit.

2. The total combined area of wetlands, State open waters, and transition areas disturbed or

modified on the site under general permits 2, 6, 6A, 7, 8, 10A, 10B, 11, 12, 13, 14, 17,

17A, 18, 19, 21, 23, 24, and 25, and general permits-by-certification 8 and 24 does not

exceed one acre with the exception of the following:

i. Disturbance of State open waters as part of a lake dredging project under general

permit 13 at N.J.A.C. 7:7A-7.13. However, disturbance of wetlands or transition area

in the lake or for access to the dredging project shall be counted toward the one acre

limit in this subsection;

ii. Disturbance of State open waters as part of a channel or stream cleaning project

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under general permit 25 at N.J.A.C. 7:7A-7.25. However, disturbance of wetlands or

transition area in the channel or stream or for access to the channel or stream

cleaning project shall be counted toward the one acre limit in this subsection;

iii. Disturbance of a transition area solely for access to a general permit activity

performed in a wetland in accordance with N.J.A.C. 7:7A-8.1(a)5; and

iv. Disturbance authorized under general permit 17 on a publicly owned site or on land

dedicated for conservation and/or recreation purposes;

4. The Department shall not authorize disturbance under both general permit 10A and

general permit 10B for the same site; and

5. The Department shall not authorize multiple crossings of the same wetland or State open

water unless:

i. There is no other location, design and/or configuration for the proposed crossing that

would provide access to an otherwise developable lot that would reduce or eliminate

the disturbance to a wetland or State open water; and

ii. Shared driveways are used to the maximum extent possible to access multiple lots.

(b) The Department may authorize activities under a general permit-by-certification and/or

general permit more than once on the same site, and/or at different times on the same site.

However, the total disturbance authorized on a site under general permits-by-certification and/or

general permits since July 1, 1988, shall meet the criteria for use of multiple general permits set

forth at (a)1 and 2 above.

disturbed under that general permit-by-certification or general permit is not counted towards the

one acre limit in (a)2 above, regardless of whether the general permit-by-certification or general

permit is used singly or in combination with other general permits-by-certification or general

permits, and regardless of whether the general permit-by-certification or general permit is used

once or repeatedly.

(d) In addition to the limits above in this section, the Department shall not authorize activities

under general permit numbers 13, 15, or 18 more often than once every five years on a single

site.

7:7A-5.5 Duration of an authorization under a general permit-by-certification

(a) An authorization under a general permit-by-certification is valid for five years from the date

of issuance of the authorization.

(b) The five-year term of an authorization under a general permit-by-certification shall not be

extended.

by-certification shall immediately cease if the authorization expires.

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(d) If an authorization under a general permit-by-certification expires and the person intends to

commence or continue the regulated activities, the person shall obtain a new authorization or

permit under this chapter authorizing the regulated activities.

7:7A-5.6 Duration of an authorization under a general permit

(a) Except as provided in (b) below, an authorization under a general permit is valid for five

years from the date of issuance of the authorization.

(b) The five-year term of an authorization under a general permit may be extended one time for

five years pursuant to N.J.A.C. 7:7A-20.4.

continue the regulated activities, the person shall obtain a new authorization under this chapter

authorizing the regulated activities.

1. If no regulated activities have occurred prior to the expiration of the authorization, the

Department shall issue a new authorization under the general permit only if the project is

revised where necessary to comply with the requirements of this chapter in effect when

the application for the new authorization is declared complete for review;

2. If any regulated activities have occurred prior to the expiration of the authorization, the

Department shall issue a new authorization under the general permit only if the project is

revised where feasible to comply with the requirements of this chapter in effect when the

application for the new authorization is declared complete for review. In determining the

feasibility of compliance with the requirements in effect at the time the application is

declared complete for review, the Department shall consider the amount of construction

that has been completed prior to the expiration of the original authorization, the amount

of reasonable financial investment that has been made in the original design consistent

with the requirements applicable under the original authorization, and whether continuing

construction as approved under the original authorization would have an adverse impact

on the environment.

7:7A-5.7 Conditions applicable to an authorization pursuant to a general permit-by-

certification or a general permit

(a) A person conducting regulated activities pursuant to an authorization under a general permit-

by-certification or a general permit shall comply with:

1. The conditions set forth in the general permit-by-certification or general permit itself;

2. The conditions that apply to all general permits-by-certification and general permits set

forth at (b) below;

3. The conditions that apply to all permits at N.J.A.C. 7:7A-20.2;

4. The limits on the use of multiple general permits-by-certification or general permits in

N.J.A.C. 7:7A-5.4;

5. If required under a particular general permit, mitigation pursuant to N.J.A.C. 7:7A-11;

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and

6. Any additional conditions imposed under (f) below.

(b) The following conditions apply to all activities conducted under the authority of a general

permit-by-certification or general permit:

1. Activities performed under a general permit-by-certification or general permit shall be

associated with a proposed project. The Department shall not authorize activities under a

general permit-by-certification or general permit for the purpose of eliminating a natural

resource in order to avoid regulation. For the purposes of this subsection, project shall

mean the use and configuration of all buildings, pavements, roadways, storage areas and

structures, and all associated activities;

2. The regulated activities shall not occur in the proximity of a public water supply intake;

3. The activities shall not destroy, jeopardize, or adversely modify a present or documented

habitat for threatened or endangered species; and shall not jeopardize the continued

existence of any local population of a threatened or endangered species;

4. The activities will not occur in a component of either the Federal or State Wild and

Scenic River System; nor in a river officially designated by Congress or the State

Legislature as a “study river” for possible inclusion in either system while the river is in

an official study status; except that the activity may occur in these waters if approved by

the National Park Service in accordance with 40 CFR 233;

5. The activities shall not adversely affect properties which are listed or are eligible for

listing on the New Jersey or National Register of Historic Places unless the applicant

demonstrates to the Department that the proposed activity avoids or minimizes impacts to

the maximum extent practicable or the Department determines that any impact to the

affected property would not impact the property's ability to continue to meet the criteria

for listing at N.J.A.C. 7:4-2.3 or otherwise negatively impact the integrity of the property

or the characteristics of the property that led to the determination of listing or eligibility.

The Department shall not issue a conditional permit if it finds that the mitigation

proposed is inadequate to compensate for the adverse effect. Any permit for an activity

which may adversely affect a property listed or eligible for listing on the New Jersey or

National Register of Historic Places shall contain conditions to ensure that any impact to

the property is minimized to the maximum extent practicable and any unavoidable impact

is mitigated.

i. If the permittee, before or during the work authorized, encounters a possible historic

property, as described at N.J.A.C. 7:7A-19.5(l), that is or may be eligible for listing

in the New Jersey or National Register, the permittee shall preserve the resource,

immediately notify the Department and proceed as directed.

ii. The Department shall not issue a general permit-by-certification or general permit

authorization if the applicant, its consultants, engineers, surveyors and/or agents

significantly adversely affect a historic property to which the general permit-by-

certification or general permit authorization applies, unless the Department

determines that circumstances justify issuing the general permit-by-certification or

general permit authorization;

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6. Any discharge of dredged or fill material shall consist of clean, suitable material free

from toxic pollutants (see 40 CFR 401) in toxic amounts, and shall comply with all

applicable Department rules regarding use of dredged or fill material;

7. Any structure or fill authorized shall be maintained as specified in the construction plans;

8. The activities will not result in a violation of the Flood Hazard Area Control Act,

N.J.S.A. 58:16A-50, or implementing rules at N.J.A.C. 7:13;

9. If activities under the general permit meet the definition of "major development" at

N.J.A.C. 7:8-1.2, then the project of which the activities are a part shall comply in its

entirety with the Stormwater Management Rules at N.J.A.C. 7:8.

10. If activities under the general permit-by-certification or general permit involve

excavation or dredging, the applicant shall use an acceptable disposal site for the

excavated or dredged material. No material shall be deposited or dewatered in freshwater

wetlands, transition areas, State open waters or other environmentally sensitive areas. The

Department may require testing of dredged material if there is reason to suspect that the

material is contaminated. If any dredged material is contaminated with toxic substances,

the dredged material shall be removed and disposed of in accordance with Department-

approved procedures;

11. The amount of rip-rap or other energy dissipating material shall not exceed the minimum

necessary to prevent erosion, as calculated under the Standards for Soil Erosion and

Sediment Control in New Jersey at N.J.A.C. 2:90;

12. Best management practices, shall be followed whenever applicable;

13. If the general permit activities are subject to the Department's Water Quality

Management Planning rules at N.J.A.C. 7:15, the activities shall be consistent with those

rules and with the applicable approved Water Quality Management Plan (208 Plan)

adopted under the New Jersey Water Quality Planning Act, N.J.S.A. 58:11A-1 et seq.;

14. The timing requirements at (c) below shall be met; and

15. Activities authorized under a general permit-by-certification or general permit shall not

take place in a vernal habitat, or in a transition area adjacent to a vernal habitat, with the

exception of activities associated with general permits 1, 6, 6A, and 16, which shall be

reviewed on a case-by-case basis in accordance with N.J.A.C. 7:7A-5.3(e).

activity which may introduce sediment into a stream or cause a stream to become turbid shall not

be performed during the time periods listed in Table 5.7 below:

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Table 5.7

RESTRICTED TIME PERIODS FOR WATERS WITH FISHERY RESOURCES

Water and classification

Time period (inclusive) during which

activities are prohibited

1. Trout Waters

• All trout production waters except rainbow

trout

September 15 through March 15

• Rainbow trout production waters

February 1 through April 30

• Trout stocked waters

• Trout maintenance waters

• All regulated waters located within 1 mile

upstream of a trout stocked or a trout

maintenance water

March 15 through June 15

2. Non-Trout Waters

• Regulated waters that support general game

fish located north of Interstate 195

May 1 through July 31

• Regulated waters that support general game

fish located south of Interstate 195

May 1 through June 30

• Regulated waters that support pickerel

Ice out through April 30

• Regulated waters that support walleye

March 1 through May 30

3. Anadromous Waters

• All unimpeded tidal regulated waters open to

the Atlantic Ocean or any coastal bay

• All regulated waters identified as

anadromous migratory pathways

April 1 through June 30

• Delaware River upstream of U.S. Route 1

April 1 through June 30 and

September 1 through November 30

• Delaware River between U.S. Route 1 and

Interstate 295 (Delaware Memorial Bridge)

• Tidal portions of Raccoon Creek, Rancocas

Creek, Crosswicks Creek, and Cooper River

March 1 through June 30 and

September 1 through November 30

• All unimpeded tidal regulated waters open to

the Delaware River downstream of Interstate

295 (Delaware Memorial Bridge)

• Tidal portions of the Maurice River,

Cohansey River, and Salem River

March 1 through June 30 and

October 1 through November 30

Note that the Delaware River Basin Commission (DRBC) imposes additional timing restrictions on certain

activities in waters under DRBC jurisdiction. Contact the U.S. Fish and Wildlife Service's River Basin Coordinator

through the DRBC at (609) 883-9500 for information on these additional timing restrictions.

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(d) The Department shall reduce, extend, or otherwise modify a timing restriction listed in Table

5.7, if it determines that one or more of the following requirements is satisfied:

1. Potential adverse impacts to the fishery resource are likely to be reduced if a regulated

activity occurs during a restricted time period rather than during an unrestricted time

period;

2. A regulated activity is subject to more than one restricted time period, the combined

effect of which would limit the regulated activity to fewer than 183 calendar days per

year. In such a case, the Department shall allow regulated activities to occur for up to 183

calendar days, provided the applicant demonstrates that additional measures will be taken

to reduce potential adverse impacts to fishery resources to a level acceptable to the

Department. Note that the 183-calendar day period during which the Department

determines that activities may occur need not be consecutive. For example, the

Department may determine that restricting activities for three months in the spring and

three months in the fall best protects fishery resources in a particular case;

3. The observance of a timing restriction would adversely impact public health, safety,

and/or welfare, and the applicant demonstrates that additional measures are taken where

necessary to reduce adverse impacts to fishery resources to an acceptable level; or

4. Due to the nature of the project or an unusual circumstance on site, the timing restriction

must be modified in order to prevent a substantial adverse impact to the fishery resource,

to the aquatic environment, or to a threatened or endangered species or its habitat.

(e) If an activity will take place in a non-delegable water, and the activity requires approval from

the USACE under the Federal 404 program, the activities authorized under the general permit or

general permit-by-certification shall not begin until the permittee obtains the required Federal

404 program approval.

(f) In addition to the conditions that apply to every authorization pursuant to a general permit

under (a) above, the Department shall establish additional conditions in a specific authorization

pursuant to a general permit, on a case-by-case basis in accordance with N.J.A.C. 7:7A-20.3, as

required to ensure the authorized regulated activity meets all applicable requirements of this

chapter and its enabling statutes.

SUBCHAPTER 6. GENERAL PERMITS-BY-CERTIFICATION

7:7A-6.1 General permit-by-certification 8―Construction of an addition to a lawfully

existing residential dwelling

(a) General permit-by-certification 8 authorizes construction of an addition to a lawfully existing

residential dwelling in freshwater wetlands and/or transition areas, provided the conditions at

N.J.A.C. 7:7A-5.7 are met and:

1. The dwelling was lawfully constructed prior to July 1, 1988;

2. The proposed addition is attached to or an extension of the residential dwelling;

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3. The proposed activities do not include disturbance of State open waters;

4. The total area of disturbance, including freshwater wetlands, transition areas, and non-

regulated areas, is no more than 750 square feet; and

5. The footprint of the existing building has not increased by more than 750 square feet,

cumulatively, since July 1, 1988, and the addition will not exceed a cumulative 750-

square-foot increase in combination with previous additions.

7:7A-6.2 General permit-by-certification 24―Repair or modification of a malfunctioning

individual subsurface sewage disposal (septic) system

(a) General permit-by-certification 24 authorizes activities in freshwater wetlands and transition

areas necessary for the repair or modification of a malfunctioning individual subsurface sewage

disposal system, provided the conditions at N.J.A.C. 7:7A-5.7 are met and:

1. The total area of disturbance including freshwater wetlands, transition areas, and non-

regulated areas is no more than one-quarter acre and all disturbance is located on the

same property where the malfunctioning system is located;

2. The proposed activities do not include disturbance of State open waters;

3. The repair or modification of the system is limited to serve only those volumes of

sanitary sewage, estimated in accordance with N.J.A.C. 7:9A-7.4, that were approved

prior to the malfunction; and

4. Prior to applying for this general permit-by-certification, the applicant obtains a letter

from the local board of health with jurisdiction over the individual subsurface sewage

disposal system, stating that:

i. The proposed activities are authorized under, and comply with, the Department’s

Standards for Individual Subsurface Sewage Disposal Systems at N.J.A.C. 7:9A;

ii. The proposed activities are not directly or indirectly caused by an expansion of the

facility the individual subsurface sewage disposal system serves, or a change in its

use, including a change from disuse or abandonment to any type of use; and

iii. There is no alternative location on the site that:

(1) Has a seasonal high water table deeper than 1.5 feet below the existing ground

surface; and

(2) Can be used for a subsurface sewage disposal system.

SUBCHAPTER 7. GENERAL PERMITS

7:7A-7.1 General permit 1―Maintenance and repair of existing features

(a) General permit 1 authorizes activities in freshwater wetlands and State open waters required

to carry out the repair, rehabilitation, replacement, maintenance, or reconstruction of a previously

authorized, currently serviceable structure, fill, roadway, utility line, active irrigation, or drainage

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ditch, or stormwater management facility lawfully existing prior to July 1, 1988, or

permitted under this chapter, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3

are met and:

1. The previously authorized structure, fill, roadway, utility, ditch, or facility has not been

and will not be put to any use other than as specified in any permit authorizing its original

construction; and

2. The activities do not expand, widen, or deepen the previously authorized feature, and do

not deviate from any plans of the original activity, except that minor deviations due to

changes in materials or construction techniques and which are necessary to make repairs,

rehabilitation, or replacements are allowed, provided such changes do not result in

disturbance of additional freshwater wetlands or State open waters upon completion of

the activity.

(b) If the activity is the ongoing maintenance of an off-stream stormwater management facility

created in uplands, including a wetland constructed in uplands for stormwater management

purposes after September 4, 2001, the following shall apply:

1. The application for authorization shall be subject to the public notice requirements at

N.J.A.C. 7:7A-17, but shall not be subject to the application requirements at N.J.A.C.

7:7A-16, except for the general application requirements at N.J.A.C. 7:7A-16.2;

2. The application for authorization shall be submitted to the Department electronically

through the Department’s online system at https://nj.gov/dep/online and shall include the

following:

i. All of the information listed at N.J.A.C. 7:7A-16.7(b);

ii. The following digital documents, which must be uploaded to the online service in the

format specified in the application checklist:

(1) A completed Property Owner Certification form(s) signed by the applicant and

all individuals required to certify to the application in accordance with N.J.A.C.

7:7A-16.2(d). The Property Owner Certification form(s) is available from the

Department at the address set forth at N.J.A.C. 7:7A-1.4;

(2) A copy of the permit, if any, authorizing the original construction of the

stormwater management facility, or a description of the stormwater management

facility;

(3) A copy of a USGS quad map for the site;

(4) Photographs or other visual representations that illustrate existing site

conditions;

(5) Documentation that public notice of the application has been provided in

accordance with N.J.A.C. 7:7A-17, including a completed Public Notice form,

available from the Department at the address set forth at N.J.A.C. 7:7A-1.4; and

(6) A copy of all conservation restrictions that impact any portion of the site that is

the subject of the application; and

3. For the purposes of this subsection, maintenance includes removal of sediment and debris

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and mowing of vegetation as necessary to ensure that the stormwater management facility

will function as it was originally designed and/or permitted. Maintenance does not

include enlargement of a stormwater management structure, excavation below the

original bottom of a structure, or any other change in its design.

7:7A-7.2 General permit 2―Underground utility lines

(a) General permit 2 authorizes activities in freshwater wetlands, transition areas, and/or State

open waters necessary for the construction and/or maintenance of an underground utility line,

provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. Permanent above-ground disturbance of wetlands, transition area, and/or State open

waters is no greater than 0.5 acre. Anything that changes the character of the existing

wetland, even if only to a different wetland type, is permanent disturbance. For example,

maintained clearing over a utility line is permanent disturbance. For the purposes of this

section, installation of a utility line in scrub shrub or emergent wetlands shall not be

considered permanent disturbance;

2. Permanently maintained clearing over the utility line is no wider than 20 feet unless a

wider area is required by law;

3. The trench into which the utility line is placed is no wider than necessary to comply with

the United States Occupational Safety and Health Administration safety standards for

excavations, set forth at 29 CFR Part 1926, Subpart P;

4. Temporary disturbance, such as temporary construction clearing or temporary storage of

dirt or equipment, is the minimum size necessary for compliance with applicable laws;

5. The activities shall not cause any change in preconstruction elevation of a freshwater

wetland, transition area, or State open water; and

6. Manholes and siphons for sewer lines are placed outside of wetlands, unless the

Department's Municipal Finance and Construction Element determines under N.J.A.C.

7:22 and/or 7:14A-23 that there is no feasible alternative to placement in wetlands.

(b) If a utility line is jacked or directionally drilled underground, so that there is no surface

disturbance of any freshwater wetlands, transition areas, or State open waters and there is no

draining or dewatering of freshwater wetlands, no Department approval is required under this

chapter. Jacking or directional drilling is regulated under this chapter if any disturbance occurs to

the ground surface in the freshwater wetlands, transition area, or State open water; for example,

if the drilling is conducted from a pit located in a freshwater wetland or transition area.

1. Dispose of any excess soil or bedding material immediately upon completion of

construction. This material shall be disposed of outside of freshwater wetlands, transition

areas, State open waters, and areas regulated under the Department's Flood Hazard Area

Control Act rules at N.J.A.C. 7:13;

2. Backfill the uppermost 18 inches of any excavation with the original topsoil material;

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3. Replant the disturbed area with indigenous wetlands plants;

4. Stabilize the disturbed area in accordance with the requirements of the appropriate Soil

Conservation District; and

5. Ensure that the activities do not interfere with the natural hydraulic characteristics of the

wetland, such as the flow characteristics of groundwater on the site.

(d) Any pipes laid through wetlands, transition areas, or State open waters shall be:

1. Properly sealed so as to prevent leaking or infiltration;

2. Designed so as not to form or provide a conduit for groundwater to be discharged or

drained from the wetland; and

3. Placed entirely beneath the pre-existing ground elevation in order to allow free passage of

surface and ground water, unless the applicant shows that placing some or all of the pipe

above ground would be more environmentally beneficial.

(e) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater

of freshwater wetlands or State open waters. Mitigation shall be performed for all permanent loss

and/or disturbance of less than 0.1 acres of freshwater wetlands or State open waters unless the

applicant demonstrates to the Department that all activities have been designed to avoid and

minimize impacts to wetlands. For purposes of this subsection, “minimize” means that the

project is configured so that most or all of it is contained in the uplands on the site, and that the

wetlands are avoided to the greatest extent possible. An applicant is not required to reduce the

scope of the project or to consider offsite alternatives to comply with this requirement.

1. The mitigation shall meet the substantive and procedural requirements at N.J.A.C. 7:7A-

11 and shall be submitted to the Department for review and approval no later than 90-

calendar days prior to the initiation of regulated activities authorized by this general

permit.

7:7A-7.3 General permit 3―Discharge of return water

(a) General permit 3 authorizes the discharge of return water from an upland, contained, dredged

material management area into State open waters, and placement of a pipe above ground for the

discharge through freshwater wetlands and/or transition areas, provided all applicable

requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met.

(b) The dredging itself may also require other State and Federal permits.

7:7A-7.4 General permit 4―Hazardous site investigation and cleanup

(a) General permit 4 authorizes activities in freshwater wetlands, transition areas, and State open

waters that are undertaken by the Department or by a licensed site remediation professional

pursuant to the Administrative Requirements for the Remediation of Contaminated Sites,

N.J.A.C. 7:26C, for the investigation, cleanup, removal, or remediation of hazardous substances

as defined by or pursuant to the Department's rules governing hazardous substances at N.J.A.C.

7:1E, Appendix A or pollutants as defined by or pursuant to the New Jersey Pollutant Discharge

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Elimination System (NJPDES) rules at N.J.A.C. 7:14A, provided all applicable requirements at

N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The applicant demonstrates, or provides a certification from a licensed site remediation

professional pursuant to the Administrative Requirements for the Remediation of

Contaminated Sites, N.J.A.C. 7:26C, that the area of freshwater wetlands, State open

waters, and/or transition areas disturbed is the minimum necessary for compliance with

the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and the

Administrative Requirements for the Remediation of Contaminated Sites rules, N.J.A.C.

7:26C. This demonstration or certification shall include:

i. An exploration of all feasible alternative remediation methods acceptable under

N.J.A.C. 7:26E and 7:26C; and

ii. The identification of any remediation methods that would result in less area of

freshwater wetlands, State open waters, and transition areas disturbance with an

explanation for why these remediation methods were not chosen; and

2. The applicant provides mitigation, in accordance with N.J.A.C. 7:7A-11, for the total area

of freshwater wetlands and/or State open waters disturbed, except that mitigation is not

required to compensate for disturbance of wetlands or State open waters that have formed

as a direct result of the remediation activities.

(b)The mitigation proposal required under (a)2 above may be incorporated into the document

approved pursuant to the Administrative Requirements for the Remediation of Contaminated

Sites, N.J.A.C. 7:26C, and/or it may be submitted as part of the general permit application. The

Department shall not issue an authorization under general permit 4 until the mitigation proposal,

or an equivalent document that ensures that the requirements of N.J.A.C. 7:7A-11 are met, is

approved.

7:7A-7.5 General permit 5―Landfill closures

(a) General permit 5 authorizes activities in freshwater wetlands, transition areas, and/or State

open waters that are undertaken by the Department's Division of Solid and Hazardous Waste, or

authorized through a solid waste facility closure and post-closure plan or disruption approval

issued by the Department under N.J.A.C. 7:26-2A.9, provided all applicable requirements at

N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The Department determines that the activities that will cause the disturbance are

necessary to properly close the solid waste facility and to properly maintain and monitor

it after closure. For example, an access road necessary for landfill closure may be

authorized under general permit 5, but an access road that is not necessary for landfill

closure, but that will facilitate development of the site, is not authorized under general

permit 5; and

2. The applicant demonstrates that the amount of disturbance is the minimum necessary in

order to adequately close and/or maintain the landfill. For example, a disturbance for an

access road through wetlands may be necessary to properly close the landfill in

accordance with (a)1 above, but the road shall be the minimum size possible.

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(b) There is no acreage limit on activities under general permit 5. However, mitigation shall be

performed to compensate for disturbance of freshwater wetlands and/or State open waters

authorized under general permit 5, except that mitigation is not required for disturbance of

wetlands located on top of the landfill, or on the intermediate or permanent cover of the landfill.

The mitigation shall meet the procedural and substantive requirements at N.J.A.C. 7:7A-11.

post-closure plan or disruption approval and/or it may be submitted as part of the general permit

application.

(d) The Department shall not issue an authorization under general permit 5 until the mitigation

proposal is approved. Activities under general permit 5 shall not begin until the Department has

approved the mitigation proposal.

7:7A-7.6 General permit 6―Non-tributary wetlands

(a) General permit 6 authorizes regulated activities in freshwater wetlands and/or State open

waters, if the freshwater wetlands and/or State open waters are not part of a surface water

tributary system discharging into an inland lake or pond, or a river or stream, provided all

applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The activities disturb no more than one acre of a freshwater wetland and/or State open

water that is not a water of the United States; and

2. The activities disturb no more than one-half acre of a freshwater wetland and/or State

open water that is a water of the United States. Mitigation shall be performed for all

permanent loss and/or disturbance to wetlands and/or State open water that are waters of

the United States in accordance with (b) below.

3. The activities do not take place in any of the following:

i. An exceptional resource value wetland, as described at N.J.A.C. 7:7A-3.2;

ii. A State open water that is a special aquatic site;

iii. USEPA priority wetlands; or

iv. A State open water that is larger than one acre.

(b) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater

of freshwater wetlands or State open waters that are also waters of the United States. Mitigation

shall be performed for permanent loss and/or disturbance of less than 0.1 acres of freshwater

wetlands or State open waters that are also waters of the United States unless the applicant

demonstrates to the Department that all activities have been designed to avoid and minimize

impacts to wetlands. For purposes of this subsection, “minimize” means that the project is

configured so that most or all of it is contained in the uplands on the site, and that the wetlands

are avoided to the greatest extent possible. An applicant is not required to reduce the scope of the

project or to consider offsite alternatives to comply with this requirement.

1. The mitigation shall meet the substantive and procedural requirements at N.J.A.C. 7:7A-

11 and shall be submitted to the Department for review and approval no later than 90-

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calendar days prior to the initiation of regulated activities authorized by this general

permit.

7:7A-7.6A General permit 6A―Transition areas adjacent to non-tributary wetlands

(a) General permit 6A authorizes regulated activities in transition areas adjacent to freshwater

wetlands, if the freshwater wetlands are not part of a surface water tributary system discharging

into an inland lake or pond, or a river or stream, provided all applicable requirements at N.J.A.C.

7:7A-5.7 and 20.3 are met and:

1. The activities disturb no more than one-half acre of a transition area.

i. If the activity authorized under general permit 6 eliminates a wetland in its entirety,

authorization under general permit 6A is not required for activities in the associated

transition area;

2. Activities do not take place in a transition area adjacent to the following:

i. An exceptional resource value wetland, as described at N.J.A.C. 7:7A-3.2; or

ii. USEPA priority wetlands

7:7A-7.7 General permit 7―Human-made ditches or swales in headwaters

(a) General permit 7 authorizes activities in freshwater wetlands that are human-made ditches or

in freshwater wetlands that are swales, provided all applicable requirements at N.J.A.C. 7:7A-5.7

and 20.3 are met and:

1. The ditch or swale is located in a headwater;

i. For the purpose of this section, "headwater" means a water or wetland that is

upstream of the point on a non-tidal stream where the average annual flow is less

than five cubic feet per second. The Department may estimate this point from

available data by using area annual precipitation, area drainage basin maps, and the

average annual runoff coefficient, or by similar means. For a stream that is dry for

long periods of the year, the Department may establish the downstream boundary of

the headwater as that point in the stream where water flow exceeds five cubic feet

per second at least 50 percent of the time. In general, the Department considers a

water body with a drainage area of less than 50 acres to be a headwater.

2. The activities do not take place in the following:

i. A ditch or swale that is, or is located within, an exceptional resource value wetland,

as described at N.J.A.C. 7:7A-3.2; or

ii. A ditch or swale that is, or is located within, a USEPA priority wetland.

3. The activities do not result in either of the following:

i. The loss or substantial modification of more than one acre of freshwater wetlands; or

ii. A disruption of a surface water connection, resulting in the isolation of wetlands or

State open waters which were not isolated at the time of the general permit

application.

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7:7A-7.8 General permit 8―House additions

(a) General permit 8 authorizes activities in freshwater wetlands and/or transition areas necessary

for the construction of additions or appurtenant improvements to residential dwellings lawfully

existing prior to July 1, 1988, provided all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3

are met and:

1. The activities will not occur in State open waters;

2. The improvement or addition requires no more than a cumulative surface area of 750

square feet of fill and/or disturbance and will not result in new alterations to freshwater

wetlands outside of the 750-square-foot area; and

3. The improvement or addition is located within 100 feet of the residential dwelling.

(b) If requested within five years of the destruction of a dwelling, this permit authorizes the

replacement of a residential dwelling that was lawfully existing prior to July 1, 1988, within the

same footprint of the previous dwelling with an increase of up to 750 square feet of fill and/or

disturbance provided that:

1. The applicant provides documentation that the dwelling was habitable at the time of

destruction. "Habitable" means that persons could legally occupy the dwelling and that

the dwelling had utilities including a functioning septic system or legal connection to a

sewer; and

2. There is a foundation remaining or other evidence, such as a deed or plot plan, of the size

and location of the overall building footprint.

7:7A-7.9 General permit 9―Airport sight line clearing

(a) General permit 9 authorizes the selective cutting of certain vegetation in freshwater wetlands

and transition areas at a public use aeronautical facility, as defined in the New Jersey Department

of Transportation rules at N.J.A.C. 16:54-1.3, provided all applicable requirements at N.J.A.C.

7:7A-5.7 and 20.3 are met and:

1. The cutting of vegetation is only as necessary to comply with the protected air space

provisions for a public use aeronautical facility, mandated by the Federal Aviation

Administration (FAA) and set forth in the New Jersey Department of Transportation rules

at N.J.A.C. 16:54-4.2(a)1iii and 2ii;

2. The activities are necessary to enable an aeronautical facility to comply with New Jersey

Department of Transportation rules. The cutting of vegetation in wetlands and/or

transition areas as part of a project that increases the area of pavement or buildings at an

airport is not authorized under general permit 9, and would require an individual permit

under this chapter;

3. Adverse environmental impacts are minimized as follows:

i. Activities shall be timed to minimize disturbance of threatened and endangered

species. The Department will specify the required timing in the general permit

authorization when issued;

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ii. The permittee shall leave all tree stumps, brush stumps, and root systems in place;

iii. The permittee shall minimize disturbance of freshwater wetlands and transition areas

through use of matting, equipment running on oversized tires, or other similar

practices; and

iv. Cut vegetation shall be disposed of in a manner that will minimize adverse

environmental impacts on wetlands and transition areas, taking into consideration

State Forest Fire Service requirements at N.J.S.A. 13:9-23 and/or other applicable

laws.

(b) In addition to meeting all applicable application requirements at N.J.A.C. 7:7A-16, an

applicant for authorization under general permit 9 shall provide a certification from the Director

of the Division of Aeronautics in the New Jersey Department of Transportation, containing:

1. A copy of the current license for the public use aeronautical facility;

2. A description of the area that must be cleared to ensure compliance with New Jersey

Department of Transportation rules, including descriptions and drawings of the required

approach slopes, the airport layout, and/or other aspects of the facility, as applicable; and

3. A statement citing the applicable regulation, and an explanation of why the proposed

cutting of vegetation is necessary to bring existing operations into compliance with New

Jersey Department of Transportation and FAA rules, or to maintain the compliance of

existing operations with those rules.

7:7A-7.10A General permit 10A―Very minor road crossings

(a) General permit 10A authorizes the following activities in freshwater wetlands, transition

areas, and/or State open waters:

1. Construction of one or more new road crossings, including attendant features such as

shoulders, sidewalks and embankments;

2. Expansion, widening, or upgrading of one or more existing paved or unpaved roads or

drives; and

3. Activities necessary to reduce horizontal curves in an existing paved road to comply with

New Jersey Department of Transportation safety regulations.

(b) The Department shall issue a general permit 10A authorization only if the activities comply

with all applicable requirements at N.J.A.C. 7:7A-5.7 and 20.3 and with the limits in one of the

following scenarios:

1. Short crossing scenario:

i. The disturbance of freshwater wetlands and/or State open waters is no longer than

100 feet for each crossing, as calculated under (e) below; and

ii. The total cumulative disturbance of freshwater wetlands, transition area, and State

open waters onsite under general permit 10A is one quarter acre or less; or

2. Long crossing scenario: The total cumulative disturbance of freshwater wetlands,

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transition area, and State open waters onsite under general permit 10A is one-eighth acre

or less. Under the long crossing scenario, the length of the crossing is not limited.

wetland or transition area, without actually crossing through the wetland or transition area, the

applicant shall, in addition to meeting the requirements at (b) above, demonstrate in accordance

with N.J.A.C. 7:7A-7.10B(d) that there is no alternative onsite location and/or configuration for

the road crossing that would provide access to the developable upland with less adverse

environmental impact.

(d) Activities under general permit 10A shall minimize environmental impact as follows:

1. The applicant shall design the crossing to ensure that fish passage is unimpeded during

times when the water level is at its lowest, unless the applicant demonstrates that the

water body is unsuitable for habitation by fish and will remain so for the foreseeable

future. The applicant shall ensure fish passage by maintaining the existing gradient and

bottom contours of the water body to the extent possible, and by using arches, culverts, or

other structures that will ensure fish passage;

2. The applicant shall install cross drains or other devices to ensure that the crossing does

not alter the hydrology of the freshwater wetlands and/or State open waters on either side

of the crossing; and

3. The amount of rip-rap or other energy dissipating material used shall be the minimum

necessary to prevent erosion, and shall not exceed 200 cubic yards of fill below the top of

bank or high water mark, unless a larger amount is required in order to comply with the

Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90.

(e) The length limit at (b)1 above applies to each separate road crossing on the site. The

following apply to the calculation of the length of disturbance caused by a road crossing:

1. The length of the disturbance resulting from a crossing is measured along its longest

dimension;

2. A crossing that connects more than two upland areas that are separated by the same

wetland or State open water is considered one crossing. That is, a road that repeatedly

traverses the same wetland or State open water is considered one crossing. Thus, the total

length of disturbance is the sum of all the lengths of crossing that traverse that particular

wetland or water. For example, if a road crosses three arms of an irregularly shaped

wetland, the total length of disturbance would be the sum of the lengths of all three

crossings. See Figures 2 and 3 below for an illustration of this; and

3. If the road crosses State open waters with adjacent wetlands, the total length of

disturbance is the sum of the disturbances in both the State open waters and the adjacent

wetlands.

(f) Mitigation shall be performed for all permanent loss and/or disturbance of 0.1 acres or greater

of freshwater wetlands or State open waters. Mitigation shall be performed for permanent loss

and/or disturbance of less than 0.1 acres of freshwater wetlands or State open waters unless the

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applicant demonstrates to the Department that all activities have been designed to avoid and

minimize impacts to wetlands. For purposes of this subsection, "minimize" means that the

project is configured so that most or all of it is contained in the uplands on the site, and that the

wetlands are avoided to the greatest extent possible. An applicant is not required to reduce the

scope of the project or to consider offsite alternatives to comply with this requirement.

1. The mitigation shall meet the substantive and procedural requirements at N.J.A.C. 7:7A-

11 and shall be submitted to the Department for review and approval no later than 90-

calendar days prior to the initiation of regulated activities authorized by this general

permit.

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7:7A-7.10B General permit 10B―Minor road crossings

(a) General permit 10B authorizes the following activities in freshwater wetlands, transition

areas, and/or State open waters:

1. Construction of one or more new road crossings necessary to gain access to an otherwise

inaccessible, developable, upland site, including attendant features such as shoulders,

sidewalks and embankments;

2. Expansion, widening, or upgrading of one or more existing paved or unpaved roads,

including attendant features such as shoulders, sidewalks and embankments; and

3. Activities necessary to reduce horizontal curves in an existing paved road to comply with

New Jersey Department of Transportation safety regulations.

(b) The Department shall issue a general permit 10B authorization only if all applicable

requirements at N.J.A.C. 7:7A-5.7 and 20.3 are met and:

1. The applicant demonstrates in accordance with (d) below that there is no alternative

onsite location and/or configuration for the road crossing that would provide access to the

developable upland with less adverse environmental impact; and

2. The total area of freshwater wetlands, transition areas, and/or State open waters disturbed

under general permit 10B shall not exceed one-quarter of an acre.

1. The applicant shall design the crossing to ensure that fish passage is unimpeded during

times when the water level is at its lowest, unless the applicant demonstrates that the

water body is unsuitable for habitation by fish and will remain so for the foreseeable

future. The applicant shall ensure fish passage by maintaining the existing gradient and

bottom contours of the water body to the extent possible, and by using arches, culverts, or

other structures that will ensure fish passage;

2. The applicant shall install cross drains or other devices to ensure that the crossing does

not alter the hydrology of the freshwater wetlands and/or State open waters on either side

of the crossing;

3. The amount of rip-rap or other energy dissipating material used shall be the minimum

necessary to prevent erosion, and shall not exceed 200 cubic yards of fill below the top of

bank or high water mark, unless a larger amount is required in order to comply with the

Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90; and

4. The cartway, shoulder, and side slopes of the roadway shall be the minimum necessary

for the crossing and shall not exceed the limits in the New Jersey Department of

Community Affairs' Residential Site Improvement Standards at N.J.A.C. 5:21. If the

project is not a residential development, the cartway, shoulder, and side slopes of the

roadway shall be the minimum necessary for safety.

(d) In evaluating whether there is an alternative onsite location and/or configuration for a road

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crossing under (b)1 above, the Department shall make the presumptions at (d)1 through 5 below.

However, these presumptions may be rebutted based on site-specific or unusual circumstances:

1. Disturbance of a non-transition area upland would have less adverse environmental

impact than disturbance of a transition area, State open water or freshwater wetland;

2. Disturbance of a transition area would have less adverse environmental impact than

disturbance of a freshwater wetland or State open water;

3. Disturbance of a freshwater wetland would have less adverse environmental impact than

disturbance of a State open water;

4. Expansion or upgrading of an existing and currently serviceable drive or crossing would

have less adverse environmental impact than placement of a new crossing; and

5. Placement of a new crossing in an area that is already significantly disturbed would have

less adverse environmental impact than disturbance of a previously undisturbed wetland

and/or State open water.