SUBCHAPTER 1. GENERAL PROVISIONS

7:13-1.1 Purpose and scope
7:13-1.2  Definitions
7:13-1.3 Types of permits and approvals
7:13-1.4 Delegation of authority
7:13-1.5 Creation of a county water resources association
7:13-1.6 Liberal construction
7:13-1.7 Severability

7:13-1.1 Purpose and scope

(a)   This chapter sets forth requirements governing human disturbance to the land and vegetation in the following areas:

1.    The flood hazard area of a regulated water, as described at N.J.A.C. 7:13-3; and

2.    The riparian zone of a regulated water, as described at N.J.A.C. 7:13-4.

(b)   This chapter implements the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq.; and, in addition, relevant aspects of the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; the Water Quality Planning Act, N.J.S.A. 58:11A-1 et seq.; the Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 et seq.; the Ninety-Day Construction Permits Law, N.J.S.A. 13:1D-29 et seq.; and N.J.S.A. 13:1D-1 et seq.

(c)   The purpose of this chapter is to minimize damage to life and property from flooding caused by development within fluvial and tidal flood hazard areas, to preserve the quality of surface waters, and to protect the wildlife and vegetation that exist within and depend upon such areas for sustenance and habitat.

1.    Unless properly controlled, development within flood hazard areas increases the intensity and frequency of flooding by reducing flood storage, increasing stormwater runoff and obstructing the movement of floodwaters. Damage also occurs from fallen structures, unsecured materials and other debris carried by floodwaters. Furthermore, improperly built structures are subject to flood damage and threaten the health, safety and welfare of those who use them. Increased flooding results in increased risk of loss of life and property damage.

2.    Healthy vegetation adjacent to surface waters is essential for maintaining bank stability and water quality. The indiscriminate disturbance of such vegetation destabilizes the banks of channels and other surface waters, which leads to increased erosion and sedimentation that exacerbates the intensity and frequency of flooding. The loss of vegetation adjacent to surface waters also reduces filtration of stormwater runoff and thus degrades the quality of these waters. Such impacts adversely affect the health and habitat of fish and wildlife that depend upon clean surface waters and therefore disrupt the ecological balance that is necessary for life. Humans are ultimately affected by this imbalance, since clean water is essential for all life.

(d)   Except where authority has been delegated to a county governing body under N.J.A.C. 7:13-1.4, the Department shall be the agency that implements this chapter.

(e)   Activities regulated under this chapter may also be subject to other Federal, State and/or local rules, plans and ordinances. Authorization to undertake a regulated activity under this chapter does not indicate that the activity also meets the requirements of any other rule, plan or ordinance. It is the applicant's responsibility to obtain all necessary approvals for a proposed project.

(f)   Information and forms relating to this chapter can be obtained from:

       Street address (for meetings and hand delivery of material):

State of New Jersey

Department of Environmental Protection

Division of Land Use Regulation

501 East State Street

Station Plaza 5, 2nd Floor

Trenton, New Jersey 08609

       Postal address:

State of New Jersey

Department of Environmental Protection

Division of Land Use Regulation

P.O. Box 439

Trenton, New Jersey 08625-0439

Telephone: (609) 292-0060

Fax: (609) 777-3656

Website: www.nj.gov/dep/landuse/

(g)   USGS quad maps and Flood Hazard Area Technical Manuals can be obtained from the Department's Office of Maps and Publications at the address below. The Flood Hazard Area Technical Manual can also be downloaded from the website listed in (f) above.

State of New Jersey

Department of Environmental Protection

Office of Maps and Publications

428 East State Street

P.O. Box 438

Trenton, New Jersey 08625-0438

Telephone: (609) 777-1039

Fax: (609) 292-3285

 

7:13-1.2 Definitions

The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise:

"Acid producing soils" means soils that contain geologic deposits of iron sulfide minerals (pyrite or marcasite) which, when exposed to oxygen from the air or from surface waters, oxidize to produce sulfuric acid. Acid producing soils, upon excavation, generally have a pH of 4.0 or lower. After exposure to oxygen, these soils generally have a pH of 3.0 or lower. Information regarding the location of acid producing soils in New Jersey can be obtained from local Soil Conservation District offices.

"Actively farmed" means currently and continually in use for cultivation, grazing or other agricultural purposes, provided such activities are recognized as agricultural by the USDA. An area that lies fallow as part of a conventional rotational cycle that does not exceed five years is considered to be actively farmed. Farms that have been abandoned for more than five years are not actively farmed.

"Anadromous water" means a water that supports anadromous fish, as identified by the Department’s Division of Fish and Wildlife. Anadromous fish travel between salt water and fresh water or upstream to spawn, and N.J.A.C. 7:13-10.5(b) indicates how to determine which waters support anadromous fishery resources.

"Applicability determination" is the Department's official statement of whether an activity requires permit under this chapter, as described at N.J.A.C. 7:13-5.1.

"Aquatic habitat enhancement device" means a device placed within and/or adjacent to a channel to enhance aquatic habitat, typically consisting of boulders, brush, deflectors, felled shoreline trees, low-flow channel structures, mud sills, rubble reefs, spawning/nursery structures and/or tire structures.

"Architect" means a professional architect who is licensed to practice in New Jersey.

"Bank" means the inclined side of a channel, an excavated or impounded area or a topographic depression, which confines and/or conducts water.

"Bed" means the floor of a channel over which water flows continuously or intermittently. Bed also means the floor of an excavated or impounded area or of a topographic depression that confines and/or conducts water.

"Building" means a structure with walls and a roof, which is designed, constructed and/or intended for storage, shelter or occupation. A building that is intended for regular human occupation is considered a habitable building.

"Category One water" means a water designated as such in the Department's Surface Water Quality Standards at N.J.A.C. 7:9B.

"Central Passaic Basin" means the regulated area along the following waters:

1.    Beaver Dam Brook, downstream of Jacksonville Road in Montville Township, Morris County;

2.    Black Brook in Florham Park Borough, East Hanover Township and Hanover Township, Morris County;

3.    Dead River, downstream of Liberty Corner Road in Bernards Township, Somerset County;

4.    East Ditch, downstream of Jacksonville Road in Pequannock Township, Morris County;

5.    Harrison Brook, downstream of Lake Road in Bernards Township, Somerset County;

6.    Passaic River, between U.S. Route 202 in Bernards Township, Somerset County, and Harding Township, Morris County, and Beatties Dam in Little Falls Township, Passaic County;

7.    Pequannock River, downstream of Paterson-Hamburg Turnpike in Riverdale Borough, Morris County, and Pompton Lakes Borough, Passaic County;

8.    Pompton River;

9.    Ramapo River, downstream of the Pompton Lake dam in Pompton Lakes Borough, Passaic County;

10.  Rockaway River, downstream of the Boonton Reservoir dam in Boonton Town and Parsippany-Troy Hills Township, Morris County;

11.  Wanaque River, downstream of Paterson-Hamburg Turnpike in Pompton Lakes Borough, Passaic County;

12.  West Ditch, downstream of Jacksonville Road in Lincoln Park Borough, Morris County; and

13.  Whippany River, downstream of State Route 10 in East Hanover and Hanover Townships, Morris County;

"Channel" means a linear topographic depression that continuously or intermittently confines and/or conducts surface water, not including transient erosional gullies and other ephemeral features that temporarily form after heavy rainfall. A channel can be naturally occurring or can be of human origin through excavation or construction. A channel includes both bed and banks.

"Channel modification" means the reconfiguration or reconstruction of all or part of a channel, such as by straightening, relocating, lining or excavating the channel, or by enclosing the channel within a structure such as a pipe or culvert. The removal of accumulated sediment and debris in accordance with N.J.A.C. 7:13-8.3, 8.4(c)2 or 11.15 is not a channel modification.

"Commissioner" means the Commissioner of the Department of Environmental Protection.

"Crawl space" means an enclosed area beneath a building's lowest finished floor, in which the vertical distance between the floor of the enclosed area and the building's lowest finished floor is no more than six feet.

"Dam" means a structure defined as such in the Department's Dam Safety Standards at N.J.A.C. 7:20.

"Department" means the New Jersey Department of Environmental Protection.

"Department delineation" means the flood profiles, flood elevations and/or detailed mapping of the flood hazard area and/or floodway, promulgated by the Department. Appendix 2 of this chapter, incorporated herein by reference, lists the Department delineated waters of New Jersey.

"Documented habitat for threatened or endangered species" means an area 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 can 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 area" means a geographic area within which water, sediments and dissolved materials drain to a particular receiving waterbody or to a particular point along a receiving waterbody.

"Drawing" 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.

"Dry flood-proofing" means a modification to a building designed to eliminate or reduce potential flood damage to the building and its contents by preventing floodwaters from entering the building up to a certain elevation.

"Emergency permit" means an authorization to undertake a regulated activity, which is issued by the Department when certain conditions exist that warrant immediate action to protect the environment and/or public health, safety and welfare, as described at N.J.A.C. 7:13-12.

"Engineer" means a professional engineer who is licensed to practice in New Jersey.

"Erosion" means the detachment and movement of soil or rock fragments by water, wind, ice and/or gravity.

"Excavation" means removal or recovery of soil, minerals, mineral substances or organic substances other than vegetation, from the land surface or beneath the land surface, whether the land surface is exposed or submerged. Excavation does not include the movement of material due to erosion.

"FEMA" means the United States Federal Emergency Management Agency.

"FEMA flood insurance study" means a document providing various information regarding the potential for a water to flood, published by FEMA for certain waters in certain municipalities. A FEMA study can include flood profiles, floodway maps, flow rates and other information related to flooding along the water covered by the FEMA study. Requests for copies of the available FEMA flood insurance studies or flood profiles, as well as any questions regarding their use, derivation or modification, should be directed to FEMA at (800) 358-9616.

"FEMA flood profile" means a graphic depiction of the 100-year water surface elevation of a given water, published by FEMA as part of a FEMA flood insurance study. FEMA flood profiles are not included in all FEMA flood insurance studies.

"FEMA floodway map" means a map showing the limits of the floodway for a given water, published by FEMA as part of a FEMA flood insurance study. FEMA floodway maps are not included in all FEMA flood insurance studies.

"FEMA flow rate" means the calculated peak rate at which floodwaters would flow in a given water during a 100-year flood, published by FEMA as part of a FEMA flood insurance study. FEMA flow rates are not included in all FEMA flood insurance studies.

"Fill" means to deposit or place material on the surface of the ground and/or under water. "Fill" also means the material being deposited or placed. Fill includes, but is not limited to, concrete, earth, pavement, rock, sand, soil, structures or any stored material such as building material, construction equipment, landscaping material, piles of soil, stone or wood, trash, vegetation in planters and/or root balls, and vehicles. Fill does not include vegetation rooted in the ground, whether naturally occurring or planted.

"Flood control project" means a structural or topographic modification to a channel, flood hazard area and/or riparian zone, performed for the public benefit and undertaken by a public entity, which is designed primarily to reduce flood elevations, reduce the risk of damage from flooding and/or protect an area from flooding or flood damage.

"Flood fringe" means the portion of the flood hazard area that is outside the floodway.

"Flood hazard area" means land, and the space above that land, which lies below the flood hazard area design flood elevation. Structures, fill and vegetation that are situated on land that lies below the flood hazard area design flood elevation are described as being "in" or "within" the flood hazard area. The inner portion of the flood hazard area is called the floodway and the outer portion of the flood hazard area is called the flood fringe. Figures A and B at N.J.A.C. 7:13-2.3 illustrate these areas as well as the riparian zone along a typical water. The flood hazard area on a particular site is determined using the methods set forth at N.J.A.C. 7:13-3. There are two types of flood hazard areas:

1.    Tidal flood hazard area, in which the flood hazard area design flood elevation is governed by tidal flooding from the Atlantic Ocean. Flooding in a tidal flood hazard area may be contributed to or influenced by stormwater runoff from inland areas, but the depth of flooding generated by the tidal rise and fall of the Atlantic Ocean is greater than flooding from any fluvial sources; and

2.    Fluvial flood hazard area, in which the flood hazard area design flood elevation is governed by stormwater runoff. Flooding in a fluvial flood hazard area may be contributed to or influenced by elevated water levels generated by the tidal rise and fall of the Atlantic Ocean, but the depth of flooding generated by stormwater runoff is greater than flooding from the Atlantic Ocean.

"Flood hazard area design flood" means a flood equal to the 100-year flood plus an additional amount of water in fluvial areas to account for possible future increases in flows due to development or other factors. This additional amount of water also provides a factor of safety in cases when the 100-year flood is exceeded. N.J.A.C. 7:13-3 describes the various methods of determining the flood hazard area design flood for a particular water as well as the additional amount of water to be added in various situations.

"Flood hazard area design flood elevation" means the peak water surface elevation that will occur in a water during the flood hazard area design flood.

"Flood Hazard Area Technical Manual" means the version of the Department publication entitled "Flood Hazard Area Technical Manual" in effect at the time an application is submitted. The manual can be obtained from the Department at the address listed at N.J.A.C. 7:13-1.1(g). The manual includes a copy of this chapter, various application checklists and other information helpful for understanding the requirements of this chapter and the application review process.

"Floodway" means land, and the space above that land, which lies within the inner portion of the flood hazard area, and which is mathematically determined to be required to carry and discharge floodwaters resulting from the 100-year flood under certain conditions. The floodway always includes the channel and often includes land adjacent to the channel. The floodway is normally characterized by faster and deeper flows than the flood fringe, which is the portion of the flood hazard area outside the floodway.

"Freshwater wetlands" means an area defined as such under the Freshwater Wetlands Protection Act rules at N.J.A.C. 7:7A-1.4.

"General permit" means a flood hazard area permit to undertake a regulated activity for which the terms and conditions are established in a rule promulgated under this chapter at N.J.A.C. 7:13-8, and for which a person must submit an application for authorization.

"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.

"Grading" means the movement of soil or other material on the surface of the ground by humans resulting in a change in topography.

"Habitable building" means a building that is intended for regular human occupation. Examples of a habitable building include a private residence or public building as defined below; a commercial building such as a retail store, restaurant, office building or gymnasium; an appurtenant structure that is regularly occupied, such as a garage, barn or workshop; and any other building that is regularly occupied, such as a house of worship, community center or meeting hall. Examples of a non-habitable building include a bus stop shelter, utility building, storage shed, self-storage unit or an individual shelter for animals such as a doghouse.

"Hazardous substance" means material defined as such in the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11.

"Hazardous waste facility" means a facility that is licensed by the State to receive, store and/or process hazardous substances, and which is operating in accordance with all applicable Federal, State and local laws.

"Highlands Preservation Area" means that geographic portion of the State described in the Highlands Water Protection and Planning Act at N.J.S.A. 13:20-7(b)1.

"Hydraulic capacity" means the ability of a channel, flood hazard area or structure to conduct water. Hydraulic capacity is a function of cross-sectional area, hydraulic friction, shape, skew, slope and the presence or absence of obstructions.

"Impervious surface" means a surface that is covered with a layer of material so that it is highly resistant to infiltration by water. Examples of an impervious surface include asphalt, brick, buildings, concrete, metal and most structures. In some instances, the Department will also consider densely packed gravel or stone roadways and parking areas to be impervious for the purposes of this chapter.

"Individual permit" means a flood hazard area permit to undertake a regulated activity issued by the Department after submittal of an application, and after the Department conducts a project-specific review under the applicable requirements at N.J.A.C. 7:13-9, 10 and 11.

"Invert" means the lowest point in a given cross-section of a channel, as well as the lowest point on the inside of a pipe, culvert or any other structure with an opening such as a flood vent.

"Jacking" means the placement of an underground utility line beneath a channel by means of horizontally pushing, drilling or otherwise forcing through the earth below the channel in such a way that the channel is not disturbed.

"Land surveyor" means a professional land surveyor who is licensed to practice in New Jersey.

"Lawfully existing" means an existing fill, structure and/or use, which meets all Federal, State and local laws, and which is not in violation of this chapter because it was established:

1.    Prior to January 31, 1980; or

2.    On or after January 31, 1980, in accordance with the requirements of this chapter as it existed at the time the fill, structure and/or use was established.

"Low dam" means an artificial dike, levee or other barrier, which is constructed for the purpose of impounding water on a permanent or temporary basis, but which does not raise the water surface elevation enough to meet the definition of a dam.

"Low-flow aquatic passage" means the ability of aquatic species to travel upstream and downstream in a waterway without impediment during low-flow conditions in a channel. Natural channel beds often possess small rivulets that serve to provide aquatic passage in this way during low-flow conditions, which can occur during dry periods of the year. Bridges, culverts and other manmade structures may also be designed to provide low-flow aquatic passage by inclusion of a linear depression throughout the bottom of the structure in the direction of flow, which collects water during low-flow conditions and allows aquatic species to pass through the structure without impediment.

"Lowest floor" means the lowest floor of a building, including a basement or any other area that can be occupied by humans, except for a crawl space, garage or other enclosed area that meets the requirements at N.J.A.C. 7:13-11.5(m), (n) or (o), respectively.

"Method 1" or the "Department delineation method" means the method of determining the flood hazard area design flood elevation and floodway limit from State adopted delineations, as described at N.J.A.C. 7:13-3.3.

"Method 2" or the "FEMA tidal method" means the method of determining the tidal flood hazard area design flood elevation and floodway limit from FEMA Flood Insurance Studies, as described at N.J.A.C. 7:13-3.4(d).

"Method 3" or the "FEMA fluvial method" means the method of determining the fluvial flood hazard area design flood elevation and floodway limit from FEMA Flood Insurance Studies, as described at N.J.A.C. 7:13-3.4(e).

"Method 4" or the "FEMA hydraulic method" means the method of determining the flood hazard area design flood elevation and floodway limit by calculation using flow rate data from FEMA Flood Insurance Studies, as described at N.J.A.C. 7:13-3.4(f).

"Method 5" or the "approximation method" means the method of determining the flood hazard area design flood elevation from the charts in chapter Appendix 1, incorporated herein by reference, as described at N.J.A.C. 7:13-3.5.

"Method 6" or the "calculation method" means the method of determining the flood hazard area design flood elevation and floodway limit by calculation using flow rates provided by an applicant for a verification under this chapter, as described at N.J.A.C. 7:13-3.6.

"NGVD" means the national geodetic vertical datum of 1929, which is the reference datum for all surveying, topography and elevations described in this chapter.

"Non-trout water" means a water that is defined as such in the Department's Surface Water Quality Standards at N.J.A.C. 7:9B. A non-trout water is a water that is not trout production, trout maintenance or trout stocked.

"NRCS" means the United States Department of Agriculture Natural Resource Conservation Service.

"Obstruction" means material placed and/or situated in a flood hazard area that can impede or change the direction of the flow of water, either by itself or by catching or collecting debris carried by such water.

"100-year flood" in fluvial areas means a flood that has a one percent probability of being equaled or exceeded within a one-year period for a given geographic location and/or watershed. In tidal areas, a "100-year flood" means a flood caused by a tidal surge in the Atlantic Ocean, which has a one percent probability of being equaled or exceeded within a one-year period.

"Permit-by-rule" means a flood hazard area permit to undertake a regulated activity for which the terms and conditions are established in a rule promulgated under this chapter at N.J.A.C. 7:13-7 and that is effective without prior written approval from the Department, provided all requirements established for that activity in the applicable permit-by-rule are satisfied.

"Person" means an individual, corporation, corporate officer, partnership, association, the Federal government, the State, a municipality, a commission or political subdivision of the State or any interstate body.

"Private residence" means a one or two-family dwelling.

"Private roadway" means a roadway for use by vehicles, including a driveway or access road, which is not a public roadway as defined in this section.

"Public building" means a habitable building that serves as one or more of the following:

1.    An assisted living facility or nursing home;

2.    A day care center;

3.    A dormitory;

4.    A hospital or medical clinic;

5.    A jail or detention facility;

6.    A police station, fire station or emergency response center;

7.    A public shelter;

8.    A residential rental unit of three or more units, such as an apartment, hotel or motel;

9.    A school or college; and

10.  Any other building designed for a public use that is similar to 1 through 9 above.

"Public roadway" means a roadway for use by vehicles, including a driveway or access road, which is constructed for public use and is maintained by the Federal, State, county or municipal government.

"Reconstruct" means to patch, mend, replace, rebuild and/or restore a lawfully existing structure to a usable condition after decay or damage has occurred, in which greater than 50 percent of the structure is replaced and/or the size, shape or location of the structure is altered. For habitable buildings, the percentage of replacement shall be determined by comparing the cost of the reconstruction to the replacement value of the building. For all other structures, the percentage of replacement shall be determined by comparing the area of the structure being reconstructed to the total area of the structure.

"Regulated activity" means an activity that is regulated under this chapter as described at N.J.A.C. 7:13-2.4. Some regulated activities, when performed in a certain manner or to a specified degree, are permitted-by-rule at N.J.A.C. 7:13-7. All regulated activities which are not permitted-by-rule require a general permit under N.J.A.C. 7:13-8, an individual permit under N.J.A.C. 7:13-9, 10 and 11, an emergency permit under N.J.A.C. 7:13-12, or a coastal permit under N.J.A.C. 7:7 and N.J.A.C. 7:7E, prior to commencement.

"Regulated area" means the flood hazard area and riparian zone along a regulated water, as described at N.J.A.C. 7:13-2.3.

"Regulated water" means a water subject to this chapter as described at N.J.A.C. 7:13-2.2.

"Repair" means to patch, mend, replace, rebuild and/or restore a lawfully existing structure to a usable condition after decay or damage has occurred, in which no more than 50 percent of the structure is replaced and the size, shape or location of the structure is not altered. For habitable buildings, the percentage of replacement shall be determined by comparing the cost of the repair to the replacement value of the building. For all other structures, the percentage of replacement shall be determined by comparing the area of the structure being reconstructed to the total area of the structure.

"Revision" means a document issued by the Department to revise a valid, previously issued verification, general permit authorization, individual permit or Department delineation as described at N.J.A.C. 7:13-13.

"Riparian zone" means the land and vegetation within and adjacent to a regulated water as described at N.J.A.C. 7:13-4.1 and illustrated at N.J.A.C. 7:13-2.3.

"Sediment" means solid material, mineral or organic, that is in suspension, is being transported or has been moved from its site of origin by air, water, ice or gravity as a product of erosion.

"Site" means the area within the legal boundary of the property, properties or right-of-way upon which any action under this chapter is requested, proposed, occurring or has occurred, plus any contiguous land owned or controlled by the same person(s). The legal boundary of a property is set forth in the deed(s) of the property. The legal boundary of a right-of-way is set forth in the document creating the right-of-way.

"Soil bioengineering" means the method of stabilizing eroded banks using vegetation, and sometimes in conjunction with other natural materials, as described at section 650.1601(d)(2) of Chapter 16 in the USDA Natural Resource Conservation Service Engineering Field Handbook, published December 1996, incorporated herein by reference. Copies of the Engineering Field Handbook can be obtained from local NRCS offices.

"Soil Conservation District" means a division of the New Jersey Department of Agriculture (NJDA), authorized under N.J.S.A. 4:24-1 et seq. Each Soil Conservation District administers NJDA programs for one or more counties. Soil Conservation Districts are overseen by the New Jersey State Soil Conservation Committee in the NJDA, which promulgates the Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90.

"Solid waste" means any garbage, refuse, sludge or any other material defined as solid waste in the Solid Waste Rules at N.J.A.C. 7:26-1.6.

"Solid waste facility" means a facility that is licensed by the State to receive, store and/or process solid waste.

"Stormwater" means water resulting from precipitation (including rain and snow) that runs off the land's surface, is transmitted to the subsurface or is captured by separate storm sewers or other sewage or drainage facilities.

"Stormwater management basin" means an impoundment created by constructing an embankment, excavating a pit and/or erecting or placing a structure, for the purpose of managing stormwater runoff. A stormwater management basin can be designed to be normally dry (as in a detention or infiltration basin), retain a permanent pool of water (as in a retention basin or wet pond), and/or be planted mainly with vegetation suitable for freshwater wetlands (as in most constructed stormwater wetlands).

"Stormwater runoff" means water flow on the surface of the ground or in storm sewers, resulting from precipitation.

"Structure" means any assemblage of material by humans, including, but not limited to, a berm, bridge, bulkhead, building, cable, causeway, culvert, dam, dike, embankment, fence, jetty, levee, pavement, piling, pipe, post, railroad, retaining wall, roadway, stormwater management basin, tower, utility pole or wire. Vegetation is not a structure. Soil bioengineering material that includes vegetation as well as other material is a structure.

"Suitably anchored" means secured to resist flotation, collapse and displacement due to floodwaters. A structure shall be considered to be suitably anchored if the structure is erected in accordance with the requirements for flood-resistant construction in the International Building Code, incorporated herein by reference. Copies of the International Building Code can be obtained at the following address:

International Code Council, Inc.

4051 West Flossmoor Road

Country Club Hills, Illinois 60477

Telephone: (888) 422-7233

"Temporary" means a regulated activity that occupies, persists and/or occurs on a site for no more than six months. For example, a fill or structure is temporary if, within six months of its placement, the fill or structure is removed from the site, all disturbed regulated 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., the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. or the Endangered Plant Species List, N.J.A.C. 7:5C-5.1, and any subsequent amendments thereto.

"Tree" means a woody plant which is five inches or greater in diameter at a height of 4.5 feet above the ground.

"Trout maintenance water" means a section of water designated as trout maintenance in the Department's Surface Water Quality Standards at N.J.A.C. 7:9B.

"Trout production water" means a section of water identified as trout production in the Department's Surface Water Quality Standards at N.J.A.C. 7:9B.

"Trout stocked water" means a section of water stocked with trout by the Department's Division of Fish and Wildlife and listed in N.J.A.C. 7:25-6.

"Unsecured material" means the following:

1.    A structure that is not suitably anchored; and

2.    Material placed on the surface of the ground, which would likely become buoyant, mobile or lifted by water during a flood, or otherwise be transported offsite by floodwaters. Examples include building material, construction equipment, landscaping material, patio furniture, piles of soil, stone or wood, trash, vegetation in planters or root balls, and vehicles.

"USDA" means the United States Department of Agriculture.

"USGS quad map" means a topographic quadrangle map issued by the United States Geologic Survey (USGS), 7.5 minute series, drawn at a scale of 1:24,000, available from the Department at the address listed in N.J.A.C. 7:13-1.1(g).

"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.

"Verification" means a document issued by the Department under N.J.A.C. 7:13-6, which establishes the flood hazard area design flood elevation, flood hazard area limit, floodway limit, and/or riparian zone limit on a site.

"Water" means a collection of water on the surface of the ground, including, but not limited to, a bay, brook, creek, ditch, lake, pond, reservoir, river or stream. A water also includes the path or depression through which the water flows or is confined. A water that is piped, relocated or otherwise modified remains a water. A storm sewer is not a water unless it was constructed to replace or divert a previously existing water.

"Water control structure" means a structure within or adjacent to a water, which intentionally or coincidentally alters the hydraulic capacity, design flood elevation, flood hazard area limit and/or floodway limit of the water. Examples of a water control structure include a bridge, culvert, dam, embankment, ford (if above grade), retaining wall and weir.

"Water surface elevation" means the elevation of the surface of a water, measured in feet NGVD, and determined either by special calculation or gauge. For the purposes of determining compliance with a requirement of this chapter, a water surface elevation is rounded to the nearest 0.1 feet.

 

7:13-1.3 Types of permits and approvals

(a)   This chapter establishes procedures and requirements for the following permits and approvals:

1.    An applicability determination, in accordance with N.J.A.C. 7:13-5;

2.    A verification, in accordance with N.J.A.C. 7:13-6;

3.    A permit-by-rule, in accordance with N.J.A.C. 7:13-7;

4.    A general permit, in accordance with N.J.A.C. 7:13-8;

5.    An individual permit, in accordance with N.J.A.C. 7:13-9, 10 and 11;

6.    An emergency permit, in accordance with N.J.A.C. 7:13-12;

7.    A revision of a verification, general permit authorization, individual permit or Department delineation, in accordance with N.J.A.C. 7:13-13; and

8.    A transfer of an approval to another person, in accordance with N.J.A.C. 7:13-14.1.

(b)   Only the following persons or entities may qualify to obtain or operate under the permits and approvals listed at (a) above:

1.    The owner(s) of the site on which the regulated activity is proposed or conducted. If the regulated activity is proposed or conducted within a right-of-way or easement, the Department shall be provided written consent for the regulated activity from the owner(s) of the right-of-way or easement;

2.    An agent that has been designated by the owner(s) of the site on which the regulated activity is proposed or conducted to obtain or operate under a permit or approval on behalf of the owner(s); or

3.    A public entity that is proposing work within an existing or proposed right-of-way or easement, which is owned or controlled by that entity or which will be appropriated by that entity under the power of eminent domain.

(c)   The Department shall review an application for a permit or approval listed in (a) above according to this chapter in effect on the day that a complete application is received by the Department. Any amendments to this chapter that are promulgated after the receipt of a complete application (as described by the application requirements for each type of permit or approval under this chapter) shall not affect the Department's review of that application, unless otherwise agreed to in writing by both the Department and the applicant.

(d)   A person submitting an application under this chapter shall, to the extent that the person is aware, notify the Department of all facts relevant to the review of the application including, but not limited to, the presence of regulated areas and of threatened or endangered species onsite, history of flooding and previous flood damages onsite and the location of easements and other encumbrance on the property. Failure to provide all necessary information of which the applicant, its consultants, engineers, surveyors or agents is aware may result in the denial of an application or the suspension or termination of an approval, and may subject the applicant, its consultants, engineers, surveyors or agents to enforcement action under action pursuant to N.J.A.C. 7:13-19 for submittal of false information.

(e)   No Department decision made under this chapter shall obligate the Department to approve or deny any future application under this or any other Department program or rule.

 

7:13-1.4 Delegation of authority

(a)   Except as specified in (e) below, the Department may delegate authority to take action under this chapter to a county governing body. A county governing body seeking to assume all or a portion of the Department's authority under this chapter shall do the following:

1.    Retain employees with professional training and education capable of properly administering the permitting program established by this chapter; and

2.    Submit to the Department a written request for delegation that includes the following:

i.     A description of the aspects of the Department's authority that the county governing body seeks to assume;

ii.    An agreement to uphold the requirements of this chapter;

iii.   A written statement by the county governing body agreeing to apply for and accept delegation of authority, pursuant to N.J.S.A. 58:16A-55.6, and agreeing to adopt, in the event the request is approved, an ordinance or resolution enabling the body to carry out the delegation. A copy of the proposed ordinance or resolution shall also be provided; and

iv.   A detailed description of the personnel, the physical resources and the source and amount of funding the county governing body shall use to fulfill the obligations it seeks to assume.

(b)   Within 60 calendar days of receipt of a request by a county governing body in accordance with (a)2 above, the Department shall:

1.    Delegate all or a portion of the authority sought by the county governing body. Such delegation may include conditions to ensure compliance with this chapter, and may be for a specified period of time, as the Department deems appropriate; or

2.    Deny the request for delegation and provide the reasons why the Department has determined such delegation is not appropriate.

(c)   A county governing body that has assumed delegation shall permanently retain, and make available for Department review, a copy of all documents, plans, maps, memoranda and notes necessary to document that it has discharged its delegated duties for each application it processes. The Department shall review these records at least biannually. The Department can at any time terminate delegation if it determines that the county governing body has failed to properly administer the authority delegated to it, or has failed to maintain the necessary documentation.

(d)   A county governing body that has assumed delegation shall not charge fees greater than those provided at N.J.A.C. 7:13-17.

(e)   The Department shall not delegate authority to approve any of the following:

1.    An application under this chapter by a State agency;

2.    An application under this chapter by the county governing body itself; and

3.    An application under this chapter for an individual permit that involves a hardship exception pursuant to N.J.A.C. 7:13-9.8.

7:13-1.5 Creation of a county water resources association

(a)   A county governing body can create, by ordinance or resolution, a county water resources association, the purpose of which shall be to:

1.    Establish county flood control and water management programs, and coordinate these with State and Federal programs;

2.    Advise the county governing body on issues related to flood control and water management; and

3.    Undertake other duties concerning flood control and water management that the county governing body delegates to the association by ordinance or resolution.

(b)   The county governing body shall appoint the members of the county water resources association. Appointed members may include the chief administrative officer or executive of a county planning agency, office of the county engineer, county utility authority, county health department, county mosquito commission, local Soil Conservation District, county parks agency and any other person with relevant experience or training.

 

7:13-1.6 Liberal construction

This chapter shall be liberally construed to enable the Department to fulfill its statutory obligations. The Commissioner can amend, repeal or rescind this chapter or any part thereof in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

 

7:13-1.7 Severability

If any section, subsection, provision, clause or portion of these rules or the application thereof to any person or circumstance is judged unconstitutional or invalid by a court of competent jurisdiction, the remainder of these rules and their application to persons and circumstances other than those to which they have been held invalid shall not be affected thereby.