SUBCHAPTER 9. INDIVIDUAL PERMITS

7:13-9.1 General provisions for individual permits
7:13-9.2 Application requirements for an individual permit
7:13-9.3 Application review procedures for a verification or individual permit
7:13-9.4 Duration of an individual permit
7:13-9.5 Individual permit conditions
7:13-9.6 Cases where a verification is required prior to obtaining an individual permit
7:13-9.7 Cases where an individual permit can be issued in an approximated flood hazard area
7:13-9.8 Hardship exception for an individual permit  

7:13-9.1 General provisions for individual permits

(a)   This subchapter sets forth application and review procedures for an individual permit. Design and construction standards for activities that require an individual permit are set forth in this chapter as follows:

1.    Standards associated with the location of a project in a particular regulated area, such as a channel or floodway, or the location of the project in relation to certain natural resources, are set forth at N.J.A.C. 7:13-10; and

2.    Standards associated with a particular regulated activity, such as the construction of a building or roadway, are set forth at N.J.A.C. 7:13-11.

(b)   A regulated activity that requires an individual permit is typically subject to multiple requirements that are set forth throughout N.J.A.C. 7:13-10 and 11 as described in (a) above. The applicant shall evaluate each regulated activity according to its location, nature and potential impacts in order to determine which design and construction standards will apply to the applicant's particular project.

 

7:13-9.2 Application requirements for an individual permit

(a)   An application for an individual permit shall include information on all planned activities that are reasonably related to the proposed project. In general, the level of detail and documentation required for an application shall correspond to the size and likely impact of the proposed project, its proximity to a channel and/or riparian zone, and its potential to adversely affect flooding and the environment. The Department shall, upon request, provide an applicant with guidance regarding the appropriate level of detail for a particular application.

(b)   An application for an individual permit shall include the following:

1.    One copy of the appropriate checklist for the proposed activities, completed as directed by its instructions. Checklists summarize the requirements of this chapter and ask various questions about the project in order to guide the applicant through the permitting process and ensure that the correct material is submitted with each application. For example, checklists ask how the applicant determined the flood hazard area and floodway limits onsite, whether construction is proposed in a floodway or flood fringe, and how much impervious surface is proposed, all in order to alert the applicant as to whether hydrologic, hydraulic, flood storage and/or stormwater management calculations are required as part of the permit application. Checklists also ask the applicant to identify all regulated activities proposed onsite to ensure that public notice is provided where necessary and to help the applicant determine the correct application review fee. Checklists do not set forth application requirements in addition to those listed in this chapter. Checklists are provided at www.nj.gov/dep/landuse or can be obtained from the Department at the address listed in N.J.A.C. 7:13-1.1(f);

2.    Three copies of an application report, as described at N.J.A.C. 7:13-15.3. The photographs required in the application report shall show any sections of channel or riparian zone that will be disturbed by the project;

3.    One copy of an engineering report, as described at N.J.A.C. 7:13-15.4, if the Department must review detailed engineering calculations in order to determine whether the proposed activity complies with this chapter;

4.    Three copies of an environmental report, as described at N.J.A.C. 7:13-15.5, except that no environmental report is required if a project consists solely of the following activities:

i.     The construction of one private residence, which is not being constructed as part of a larger residential subdivision; and/or

ii.    The construction of a building appurtenant to a private residence, such as a garage, barn or shed;

5.    Documentation that the applicable public notice requirements of N.J.A.C. 7:13-16 have been met;

6.    The application fee required under N.J.A.C. 7:13-17; and

7.    Six sets of drawings, signed and sealed by a engineer, land surveyor or architect, as appropriate, which contain the following information:

i.     All proposed regulated activities (including the size, location and all construction details for each regulated activity);

ii.    The limit of any riparian zone onsite;

iii.   Existing and proposed topography if fill or grading is proposed, unless the Department determines that topography is not necessary to determine compliance with this chapter. All topography shall reference NGVD, or include the appropriate conversion factor to NGVD, unless the applicant demonstrates that such reference is not necessary;

iv.   The limit of the flood hazard area and floodway onsite if present. If proposed fill, construction and/or grading will affect these limits, then both existing and proposed flood hazard area and floodway limits shall be included on all drawings;

v.    Details of proposed soil erosion and sediment control measures;

vi.   If construction is proposed in a regulated water, the drawings shall also include the following:

(1)  A thorough explanation of the proposed method of construction;

(2)  A timetable for the construction; and

(3)  All proposed trenching, diversionary channels and temporary piping of the regulated water; and

vii.  If construction is proposed in a riparian zone, the drawings shall also include the following:

(1)  All locations where vegetation will be cleared, cut or removed; and

(2)  Details of any replanting pursuant to N.J.A.C. 7:13-10.2.

(c)   An application that proposes activities in a regulated area known or suspected to contain acid producing soils shall include the following:

1.    A comprehensive evaluation of the potential environmental risks caused by exposure of the acid producing soils; and

2.    A plan to minimize any such risks.

(d)   An application that proposes the use of fill credits to balance fill on a site in the Central Passaic Basin, as described at N.J.A.C. 7:13-10.4(s) and (t), shall include documentation that the fill credits have been purchased by the applicant prior to the submittal of the application.

(e)   An application that proposes to construct a dry flood-proofed building shall include the following material, signed and sealed by an architect or engineer:

1.    Drawings that clearly show the proposed dry flood-proofing measures;

2.    Calculations that demonstrate that the structure meets the requirements for flood resistance at N.J.A.C. 7:13-11.4(b); and

3.    A dry flood-proofing certification, listing each applicable dry flood-proofing requirement at N.J.A.C. 7:13-11.5(q), and stating how the building meets each requirement.

(f)   An application proposing an activity that adversely impacts a property not owned by the applicant, as described at N.J.A.C. 7:13-11.1(f), shall include documentation demonstrating that one or more of the following applies to each adversely impacted property:

1.    The applicant is a public entity that intends to appropriate the adversely impacted property through its power of eminent domain;

2.    The applicant has entered into a contract to purchase the adversely impacted property;

3.    The applicant has obtained an easement that encompasses the entire area that will be adversely impacted by the proposed activity, which specifically allows the applicant to undertake the proposed activity; and/or

4.    The applicant has obtained written permission from the owners of the adversely impacted property. Written permission shall include the following:

i.     An explanation of the nature and purpose of the project;

ii.    An estimate of the length of time regulated activities will occur;

iii.   An estimate of the extent to which the adversely impacted property will be affected by flooding or stormwater discharges and the frequency at which these impacts are expected to occur; and

iv.   The notarized signature of all owners of the adversely impacted property.

(g)   The Department shall accept for review an application for an individual permit for an activity subject to the Department's Water Quality Management Planning rules at N.J.A.C. 7:15 only if the activity is consistent with N.J.A.C. 7:15 and the applicable Water Quality Management Plan adopted under the Water Quality Management Planning Act, N.J.S.A. 58:11A-1 et seq.

(h)   The Department shall accept for review an application for an individual permit for an activity located in an area under the jurisdiction of the Pinelands Commission, as defined at N.J.S.A. 13:18A-11, only if the applicant has first received a Certificate of Filing, a Notice of Filing, a Certificate of Compliance or a Resolution of Approval from the Pinelands Commission for the proposed activity, as appropriate. For more information, contact the Pinelands Commission at (609) 894-7300 or through its website at www.state.nj.us/pinelands.

 

7:13-9.3 Application review procedures for a verification or individual permit

(a)   This section sets forth the Department's application review process for verifications and individual permits with the following exceptions:

1.    Pursuant to the Construction Permits Law at N.J.S.A. 13:1D-29 et seq., the default approval provisions at (e) through (h) below do not apply to an application for an individual permit for an electric generating facility or for a petroleum processing or storage facility, including a liquefied natural gas facility, with a storage capacity of over 50,000 barrels; and

2.    Pursuant to the Highlands Water Protection and Planning Act at N.J.S.A. 13:20-1 et seq., this section does not apply to a regulated activity associated with a Major Highlands Development, the application requirements and review procedures for which are found in the Highlands Water Protection and Planning Act rules at N.J.A.C. 7:38.

(b)   Within 20 working days following the receipt of an application for a verification or individual permit, the Department shall:

1.    Determine that all necessary information required by this chapter for a complete application has been provided, and declare the application complete for review;

2.    Determine that all necessary information required by this chapter for a complete application has not been provided, or that one or more submitted items are deficient, and request in writing that the applicant submit the missing material and/or address any deficiencies within a reasonable time period. The Department may cancel the application if the requested information is not provided within 60 calendar days. The Department shall subsequently declare the application complete for review within 20 working days of receiving the requested information; or

3.    If the Department does not take action under (b)1 or 2 above within 20 working days, the application shall be deemed complete for review. In such a case, the Department may request additional information, which is necessary to bring the application into compliance with the requirements of this chapter during the review of the application.

(c)   Upon written request of the applicant, the Department shall cancel an application and fully refund the submitted application fee provided:

1.    The request to cancel the application is received within 20 working days of the submittal of the application and the Department has not already approved or denied the application; or

2.    The request to cancel the application is received within 60 calendar days of the submittal of an application that remains incomplete under (b)2 above.

(d)   If the Department determines during the review of a complete application under (b) above that the application does not meet the requirements of this chapter, the Department can request additional information and/or changes to the project in order to bring the project into compliance, provided such changes are possible within the remaining application review period described in (e) below.

(e)   Within 90 calendar days following the receipt of a complete application under (b) above, the Department shall:

1.    Determine that the application meets the requirements of this chapter and approve the application in writing;

2.    Determine that the application does not meet the requirements of this chapter and extend the review period by 30 calendar days in writing, if agreed to by the applicant as described in (f) below; or

3.    Determine that the application does not meet the requirements of this chapter and deny the application in writing.

(f)   The 90-day review period in (e) above can be extended one time by 30 calendar days by mutual consent of the applicant and the Department. An applicant requesting an extension shall make this request in writing during the 90-day review period (prior to the approval or denial of the project) and shall direct the request to the project manager (or his or her supervisor) assigned to review the application. The Department shall not extend the 90-day review period by less than or greater than 30 calendar days. An applicant cannot waive the right for a timely review (as provided under this section and the Ninety-Day Construction Permits Law, N.J.S.A. 13:1D-29 et seq.) and thereby avoid or indefinitely extend the Department's 90-day review period for the application.

(g)   If a 30-day extension has been granted under (f) above, the Department shall, within this 30-day period:

1.    Determine that the application meets the requirements of this chapter and approve the application in writing; or

2.    Determine that the application does not meet the requirements of this chapter and deny the application in writing.

(h)   If the Department fails to take action on an application in accordance with (e) or (g) above, the application shall automatically be deemed to be approved. This default approval is subject to any applicable conditions set forth in this chapter for the activities covered by the application. Furthermore, default approval under this section shall not prevent the Department from taking enforcement action pursuant to N.J.A.C. 7:13-19 for any activity undertaken in violation of this chapter.

(i)    An applicant can request withdrawal of an application in writing at any time during the Department's review of the application. In response to a request to withdraw an application, the Department shall:

1.    Agree to the withdrawal in writing; or

2.    Not agree to the withdrawal and either approve or deny the application in accordance with (e) or (g) above.

(j)    If an application is denied or withdrawn under (e), (g) or (i) above, any application fee that was paid to the Department shall be credited toward the application fee for one new application, provided the following requirements are satisfied:

1.    The denied or withdrawn application did not include a request for a hardship exception pursuant to N.J.A.C. 7:13-9.8;

2.    The new application is submitted within one year of denial or withdrawal;

3.    The new application is submitted by the same applicant;

4.    The new application is submitted for the same site; and

5.    The new application is submitted for the same project, except for changes necessary to meet the requirements for approval or other minor adjustments that do not require a complete re-review of the project.

(k)   The Department shall list in the DEP Bulletin, published in accordance with N.J.S.A. 13:1D-34, all complete applications received, the review status of these applications, and all decisions made on these applications. The DEP Bulletin can be viewed or downloaded from the Department's web site at www.state.nj.us/dep.

(l)    The Department may issue or deny an application for a verification or an individual permit without a public hearing. However, the Department shall hold a public hearing in either of the following cases:

1.    There is a significant degree of public interest in the application, as manifested by written requests for a hearing from at least 10 persons at different addresses. In considering the degree of public interest, the Department shall take into account whether the issues raised in the hearing requests are relevant to the application's review; or

2.    The Department determines that the public interest would be best served by holding a hearing due to an unusual situation or condition on site, or due to a high potential for adverse impacts to flooding and/or the environment.

 

7:13-9.4 Duration of an individual permit

(a)   Except as provided in (b) below, an individual permit is valid for five years from its issuance date and shall not be extended. However, the Department can transfer an individual permit with the sale of a property to a new owner pursuant to N.J.A.C. 7:13-14.1.

(b)   An individual permit for a public roadway, railroad or flood control project is valid for 10 years from its issuance date, provided the applicant is a public entity and the applicant demonstrates that the size and scope of the project is likely to prevent the completion of all regulated activities within a five-year period.

(c)   All regulated activities shall cease upon expiration of an individual permit. Regulated activities cannot resume unless the applicant applies for and obtains a new individual permit from the Department. In such cases, the Department shall issue a new individual permit only as follows:

1.    If no regulated activities have occurred onsite prior to the expiration of the original individual permit, a new individual permit shall be issued only if the project is revised where necessary to comply with the requirements of this chapter in effect when the new application is submitted; and

2.    If some regulated activities have occurred onsite prior to the expiration of the original individual permit, a new individual permit shall be issued only if the project is revised where feasible to comply with the requirements of this chapter in effect when the new application is submitted. In determining the feasibility of compliance with the current requirements of this chapter, the Department shall consider the amount of construction that was completed onsite prior to the permit expiration, as well as whether continuing construction as originally approved would constitute an adverse impact on flooding or the environment.

 

7:13-9.5 Individual permit conditions

(a)   The Department places certain conditions on an individual permit to ensure that the approved project complies with this chapter. Standard conditions that apply to all individual permits are described in (b) below and the application of additional site-specific conditions are described in (c) through (e) below. If a permittee does not agree with a condition on an individual permit, the permittee is entitled to appeal the individual permit as described at N.J.A.C. 7:13-18.1.       However, if a permittee undertakes any regulated activity approved under an individual permit, such action shall constitute the permittee's acceptance of the individual permit in its entirety and the permittee's agreement to abide by the individual permit and all conditions listed therein.

(b)   The following conditions apply to all individual permits issued under this chapter:

1.    Duty to comply: The permittee, its contractors and subcontractors shall comply with all conditions of the permit, supporting documents and approved drawings. Any noncompliance with a permit constitutes a violation of this chapter, and is grounds for enforcement action pursuant to N.J.A.C. 7:13-19, as well as suspension and/or termination of the permit

2.    Duty to reapply: If the permittee wishes to continue an activity covered by the permit after the expiration date of the permit, the permittee must apply for and obtain a new permit.

3.    Duty to halt or reduce activity: It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.

4.    Duty to minimize environmental impacts: The permittee shall take all reasonable steps to prevent, minimize or correct any adverse impact on the environment resulting from activities conducted pursuant to the permit, or from noncompliance with the permit.

5.    Proper operation and maintenance: The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used to achieve compliance with the permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. The operation of back-up or auxiliary facilities or similar systems is only required when necessary to achieve compliance with the permit. The permittee must also properly execute any approved mitigation compensation and/or restoration proposal designed to mitigate losses caused by the permitted activity. The permittee shall maintain the authorized work areas in good condition and in accordance with the permit.

6.    Proper oversight: The permittee shall ensure that all approved activities are undertaken using the best management practices available under the supervision and direction of an engineer at all points necessary to ensure compliance with all permit conditions.

7.    Proper site maintenance: While the regulated activities are being undertaken, neither the permittee nor its agents shall cause or permit any unreasonable interference with the free flow of a regulated water by placing or dumping any materials, equipment, debris or structures within or adjacent to the channel. Upon completion or abandonment of the work, the permittee and/or its agents shall remove and dispose of in a lawful manner all excess materials, debris, equipment, silt fences and other temporary soil erosion and sediment control devices from all regulated areas.

8.    Permit actions: A permit can be revised, suspended or terminated for cause. The filing of a request by the permittee for a revision, or a notification of planned changes or anticipated noncompliance does not stay any condition of a permit.

9.    Property rights: A permit does not convey any property rights of any sort, or any exclusive privilege.

10.  Duty to provide information: A copy of the general permit and other authorizing documents including all approved plans and drawings shall be maintained at the authorized site at all times and made available to Department representatives or their designated agents immediately upon request. The permittee shall also furnish to the Department within a reasonable time any information that the Department requests to determine compliance with a permit or to determine whether cause exists for suspension or termination of a permit. The permittee shall also furnish to the Department, upon request, copies of records required to be kept by the permit.

11.  Inspection and entry: The permittee shall allow an authorized representative of the Department, at reasonable times and upon the presentation of credentials, to:

i.     Enter upon the permittee's premises where a regulated activity is located or conducted, or where records must be kept under the conditions of the permit;

ii.    Have access to and copy any records that must be kept under the conditions of the permit; and

iii.   Inspect any facilities, equipment, practices or operations regulated or required under the permit. Failure to allow reasonable access under this section shall be considered a violation of this chapter and subject the permittee to enforcement action pursuant to N.J.A.C. 7:13-19.

12.  Reporting requirements: The permittee shall provide reports to the Department as follows:

i.     Planned changes: The permittee shall give notice to the Department prior to any planned physical alterations or additions to the permitted project or activity;

ii.    Transfers: The permit is not transferable to any person unless the transfer is approved by the Department, pursuant to N.J.A.C. 7:13-14.1;

iii.   Noncompliance: The permittee shall immediately report to the Department by telephone at (877) 927-6337 any noncompliance that may endanger health or the environment. The permittee shall report all other noncompliance to the Division of Land Use Regulation by telephone at (609) 292-0060 within two business days of the time the permittee becomes aware of the noncompliance, and in writing within five business days of the time the permittee becomes aware of the noncompliance. The written notice shall include: a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and, if the noncompliance has not been corrected, the anticipated length of time it is expected to continue; and steps taken or planned to reduce, eliminate and prevent recurrence of the noncompliance. Such notice shall not, however, serve as a defense to enforcement action if the project is found to be in violation of this chapter; and

iv.   Other information: Where the permittee becomes aware that it failed to submit any relevant facts in an application, or submitted incorrect information in an application or in any report to the Department, it shall promptly submit such facts or information.

(c)   In addition to the conditions that apply to all individual permits under (b) above, the Department shall establish conditions in an individual permit, as required on a case-by-case basis, to assure compliance with all applicable requirements of this chapter and its enabling statutes.

(d)   The Department may in some cases include in an individual permit a condition requiring a pre-construction meeting on the site of permitted activities. Such a condition shall specify how many days prior to construction the permittee must notify the Department so that the pre-construction meeting can be scheduled.

(e)   All conditions of an individual permit shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable rules or regulations or requirements shall be included in the individual permit.

 

7:13-9.6 Cases where a verification is required prior to obtaining an individual permit

(a)   Except as provided at (b) and (c) below, the Department shall issue an individual permit for a regulated activity only if the flood hazard area design flood elevation and floodway limit are known and verified pursuant to N.J.A.C. 7:13-6.1. An applicant for an individual permit shall therefore demonstrate that:

1.    The applicant possesses a valid verification of the flood hazard area design flood elevation, and also the floodway limit if present, for the project area;

2.    The applicant has applied for a verification of the flood hazard area design flood elevation, and also the floodway limit if present, for the project area, and the Department approves the verification either prior to or concurrent with the issuance of the individual permit;

3.    The project meets the conditions of either (b)1 or 2 below, in which case no verification is required in order to obtain an individual permit; or

4.    The project meets the conditions of (c) below, in which case a verification of only the flood hazard area design flood elevation is required either prior to or concurrent with the issuance of an individual permit.

(b)   A verification is not required prior to the issuance of an individual permit in either of the following cases:

1.    No fill and no aboveground structure is proposed onsite; or

2.    Fill and/or an aboveground structure is proposed and it is clear to the Department from a visual inspection of submitted drawings that:

i.     No habitable building, railroad, roadway or parking area is proposed, which requires knowledge of the flood hazard area design flood elevation to determine compliance with this chapter;

ii.    The proposed fill and/or structure is either located outside a floodway or will not obstruct flow in a floodway; and

iii.   The flood storage displacement requirements of N.J.A.C. 7:13-10.4 are satisfied.

(c)   Verification of the floodway limit is not required prior to the issuance of an individual permit for the construction a habitable building, railroad, roadway or parking area provided it is clear to the Department from a visual inspection of submitted drawings that:

1.    The proposed fill and/or structure is either located outside a floodway or will not obstruct flow in a floodway; and

2.    The flood storage displacement requirements of N.J.A.C. 7:13-10.4 are satisfied.

 

7:13-9.7 Cases where an individual permit can be issued in an approximated flood hazard area

(a)   The Department shall issue an individual permit for a regulated activity in a flood hazard area approximated under Method 5 at N.J.A.C. 7:13-3.5, only if the flood hazard area is verified under N.J.A.C. 7:13-6, and only in either of the following cases:

1.    No fill or aboveground structure is proposed in the flood hazard area; or

2.    Fill and/or an aboveground structure is proposed in the flood hazard area, and it is clear to the Department from a visual inspection of submitted drawings that the following requirements are satisfied:

i.     If a habitable building is proposed, it is located outside a floodway;

ii.    If fill or any structure other than a habitable building is proposed, it is either located outside a floodway or will not obstruct flow in a floodway; and

iii.   The flood storage displacement requirements of N.J.A.C. 7:13-10.4 are satisfied.

 

7:13-9.8 Hardship exception for an individual permit

(a)   The Department shall issue an individual permit for an activity that does not comply with one or more of the requirements at N.J.A.C. 7:13-10 and 11 only if all of the requirements of (b) below are satisfied and, additionally, one or more of the following requirements are satisfied:

1.    The Department determines that there is no feasible and prudent alternative to the proposed project, including not pursuing the project, which would avoid or substantially reduce the anticipated adverse effects of the project, and that granting the hardship exception would not compromise the reasonable requirements of public health, safety and welfare, or the environment;

2.    The Department determines that the cost of compliance with the requirements of this chapter is unreasonably high in relation to the environmental benefits that would be achieved by compliance; and/or

3.    The Department and applicant agree to one or more alternative requirements that, in the judgment of the Department, provide equal or better protection to public health, safety and welfare and the environment.

(b)   To obtain an individual permit based on a hardship exception, the applicant shall demonstrate to the Department that the following requirements are satisfied:

1.    Due to an extraordinary situation of the applicant or site condition, compliance with this chapter would result in an exceptional and/or undue hardship for the applicant;

2.    The proposed activities will not adversely affect the use of contiguous or nearby property;

3.    The proposed activities will not pose a threat to the environment, or to public health, safety and welfare; and

4.    The hardship was not created by any action or inaction of the applicant or its agents.

(c)   To obtain an individual permit based on a hardship exception, the applicant shall submit an application pursuant to N.J.A.C. 7:13-9.2 and shall include the following additional information as applicable:

1.    A description of any potential impacts of the proposed project upon the environment;

2.    If the hardship exception request relates to the access requirements of N.J.A.C. 7:13-11.6, proposed access routes to and from the property during a flood;

3.    If the hardship exception request relates to any potential impacts from or to flooding, the projected height, velocity and duration of the floodwaters expected at the site during the flood hazard area design flood, as well as evidence that the project will not adversely affect the hydraulic capacity of any water so as to cause or increase flooding upstream and/or downstream of the proposed project;

4.    If the hardship exception request is based on economic grounds, detailed financial documentation to support the request;

5.    A description of the existing development in the area and any potential impacts of the proposed regulated activities on that development; and

6.    Any additional information that the Department determines is reasonable and necessary to evaluate whether the hardship exception request meets the requirements of this section.

(d)   The Department shall review an application for an individual permit based on a hardship exception in accordance with the procedures for an individual permit at N.J.A.C. 7:13-9.3. The denial of an individual permit based on a hardship exception shall be without prejudice. However, any future reapplication for an individual permit based on a hardship exception that has been denied or withdrawn shall be accompanied by a new application fee.

(e)   A delegated agency shall not issue an individual permit based on a hardship exception.