Ditches and swales have different meanings and are handled differently by the regulations under the Division of Land Use Regulation’s purview. Activities within ditches and/or swales may result in disturbances to “special areas” regulated by the Department and may require multiple permits from the Division of Land Use Regulation prior to site preparation or construction. The presence or absence of special areas can be rudimentarily determined using the Department’s online mapping service, NJ-GeoWeb. Special areas within your project site may also affect the type of authorization required. Therefore, it is important to closely examine a proposed project relative to the sensitive areas which may be impacted.
The above tabs provide additional information on permit requirements relating to ditch and/or swale projects. For impacts to streams, rivers, lakes, ponds, flood plains, flood ways, riparian zones, please see the "Flood Hazard" tab. For impacts to special coastal areas, please see the "Coastal" tab. For impacts to Freshwater Wetlands, see the "Freshwater Wetlands" tab. Information on Tidelands can be found by selecting the "Tidelands" tab.
The Freshwater Wetlands rules have specific definitions for a Ditch and a Swale. Please refer to that definition for more information.
With regards to regulated activities within these areas, there is a Freshwater Wetlands General Permit (No. 7) for "Human-made ditches or swales in headwaters". This permit allows for activities ONLY in a headwater area. In addition, if the wetlands is of exceptional resource value, within a USEPA priority wetlands, over an acre or would result in a distruption of a surface water connection that would isolate a wetland, it is not permitted under this general permit.
If the project does not comply with the criteria for a GP1, a GP10A, or a GP10B, the applicant would need to apply for an (Individual Permit (IP). An IP application would need to include a description as to why the project cannot be minimized to satisfy the General Permit criteria described in the links above.
The construction of a ditch and/or swale in regulated areas may require authorization under the Flood Hazard Area Control Act Rules (N.J.A.C. 7:13).
While there are no permits-by-rule specifically related to only activities in ditches or swales, a number of permits-by-rule may potentially apply to such an activity. See N.J.A.C. 7:13-7 for all flood hazard area permits-by-rule.
One general permit-by-certification concerns ditches and swales. Flood hazard area general permit-by-certification 11, at N.J.A.C. 7:13-8.11, authorizes the maintenance of ditches and swales related to stormwater management. An applicant must submit an engineering certification as part of the application which confirms that the activities will not exacerbate flooding. The types of activities and amount of disturbance authorized under this permit are limited. The conditions at N.J.A.C. 7:13-6.7 as well as the conditions that apply to all permits at N.J.A.C. 7:13-22.2 also apply to any activities authorized by general permit-by-certification 11.
Two general permits involve activities related to ditches and swales. Activities related to mosquito control within ditches and swales are authorized via flood hazard area general permit 2 at N.J.A.C. 7:13-9.2. These activities may include removal of accumulated silt, sediment, or debris; creation of ditches and channels where appropriate; and/or improvements to manmade waters which are performed by county mosquito control agency or by a Federal agency on Federal land. Specific requirements apply to these activities and to the placement of any material removed from a ditch or channel.
Relocating a manmade ditch to accommodate public roadway improvements is authorized via flood hazard area general permit 7 at N.J.A.C. 7:13-9.7. The relocation of the ditch or ditches must be necessary for the continued safe operation of the roadway. The ditch cannot be enclosed in a pipe when relocated and must maintain flood carrying capacity equivalent to the previous ditch. No more than one quarter acre of riparian zone vegetation may be disturbed in the course of the activity. N.J.A.C. 7:13-6.7 as well as the conditions that apply to all permits at N.J.A.C. 7:13-22.2 also apply to general permits 2 and 7.
If no permits-by-rule, general permits-by-certification, or general permits apply to the activity, an authorization may be granted by obtaining a flood hazard area verification, described in subchapter 5 (N.J.A.C. 7:13-5) in conjunction with an individual permit. Individual permit standards are described in Subchapters 10, 11, and 12 of the Flood Hazard Area Control Act Rules (N.J.A.C. 7:13-10, 11, and 12).
If the proposed project is regulated pursuant to the Coastal Zone Management Rules, then no separate flood hazard approval is required. In these instances, the applicant need only submit a report and plans demonstrating compliance with the Flood Hazard Area Control Act Rules as part of the coastal permit application.
The Coastal Zone Management rules at N.J.A.C. 7:7 require compliance with the rules concerning wetlands, wetland buffers, flood hazard areas and riparian zones as these features may be wetlands, convey floodwaters and/or lie in riparian zones.
There are no exemptions, Permits-by-rule, General Permits-by-Certification, or General Permits specific to ditch and/or swale projects within coastal areas. Therefore, a CAFRA, Coastal Wetlands, and/or Waterfront Development Individual Permit may be required. If a project requires a coastal permit, proposes to impact a ditch and/or swale, and the feature is regulated by the Flood Hazard Area Control Act, the applicant need only submit a report and plans demonstrating compliance with the Flood Hazard Area Control Act rules as part of the coastal permit application. If the ditch and/or swale is regulated under the Freshwater Wetlands Protection Act rules at N.J.A.C. 7:7A-1.1 et seq., a separate Freshwater Wetlands Permit may be required.
Please contact the Division’s Technical Support Center at (609) 777-0454 should you require further assistance.
Tidelands, also known as riparian lands, are all those lands now or formerly flowed by the mean high tide of a natural waterway; that is to say any land that is currently or was previously covered by tidal waters. The State of New Jersey, and therefore the people of New Jersey, owns all Tidelands except for those to which it has already sold its interest in the form of a riparian grant. It is important to note that the State generally does not own artificial waterways such as lagoons however, the State does claim those lands within a lagoon that were flowed by the mean high tide of a natural waterway which existed prior to the creation of the lagoon.
The construction of a ditch/swale that is proposed in an area that is currently landward of the mean high water line but was, at some point, flowed by the tide may require a tidelands grant.
A riparian grant, or tidelands grant, is a deed from the State of New Jersey selling its tidelands. Tidelands grants are generally only issued for lands that have already been filled in and are no longer flowed by the tide.
For more information on tidelands instruments, please see the tidelands section of this website.
For information and instruction on how to determine whether you are in an area that may require either a license or a grant, or for information how to apply for Tideland instruments please see the "Before you Build, Before you Buy" webpage.