SUBCHAPTER 10. INDIVIDUAL PERMIT REQUIREMENTS WITHIN VARIOUS REGULATED AREAS

7:13-10.1 Requirements for a regulated activity in a channel
7:13-10.2 Requirements for a regulated activity in a riparian zone
7:13-10.3 Requirements for a regulated activity in a floodway
7:13-10.4 Requirements for a regulated activity in a flood fringe
7:13-10.5 Requirements for a regulated activity in or along a water with fishery resources
7:13-10.6 Requirements for a regulated activity in a documented habitat for threatened or endangered species
7:13-10.7 Requirements for a regulated activity in an area with acid producing soils

7:13-10.1 Requirements for a regulated activity in a channel

(a)   This section sets forth specific design and construction standards that apply to any regulated activity proposed in a channel.

(b)   The Department shall issue an individual permit for a regulated activity in a channel only if the following requirements are satisfied:

1.    The basic purpose of the project cannot be accomplished without the disturbance to the channel;

2.    Disturbance to the channel is eliminated where possible; where not possible to eliminate, disturbance is minimized through methods including relocating the project and/or reducing the size or scope of the project;

3.    All roadway, railroad, pedestrian, utility and other crossings are constructed as nearly perpendicular to the channel as possible;

4.    All disturbed sections of the channel are properly stabilized, with special attention given to changes in slope, channel width and hydraulic capacity;

5.    If stabilization measures such as rip-rap or scour holes are proposed in the channel, the applicant demonstrates that such measures are necessary to stabilize the channel and/or to withstand scour along a bridge or culvert, and cannot be avoided through alternative designs, such as construction of deeper abutment footings or a larger bridge opening. Any rip-rap shall be embedded in the channel bed in such a way as to provide low-flow aquatic passage and withstand velocities associated with bank-full flows;

6.    No mining of the channel is proposed. This does not preclude the incidental use or sale of material removed as a result of lake dredging, channel cleaning or other regulated activities authorized by the Department and performed for purposes other than mining;

7.    All temporarily disturbed sections of the channel are restored to pre-construction conditions. Characteristics that shall be replicated include channel shape, width and meandering, ratio of shallow areas to deep areas, anticipated flow rate and velocity and substrate type;

8.    Aquatic habitat is preserved where possible; and

9.    Aquatic habitat is enhanced where preservation is not possible, such as through the placement of habitat enhancement devices, replacement of vegetation removed during construction, creation of tree canopy along the channel where no canopy exists and/or enhancement of existing tree canopy along the channel.

(c)   The Department shall issue an individual permit for a channel modification only if the applicant demonstrates that, in addition to meeting the requirements of (b) above, the channel modification meets at least one of the following requirements:

1.    The channel modification is necessary to improve the ecological health of the regulated water and its riparian zone, or to control existing flooding or erosion which poses an immediate threat to life, property or a lawfully existing structure; or

2.    The channel modification is necessary for the construction of a bridge or culvert, and the following requirements are satisfied:

i.     The disturbance to the channel is minimized;

ii.    A bridge is constructed rather than a culvert, where feasible;

iii.   The length of channel covered by a bridge or enclosed in a culvert is the minimum feasible; and

iv.   No more than 200 linear feet of channel (including the bridge or culvert) is disturbed.

(d)   The Department shall allow the use of construction equipment to perform regulated activities in a channel (whether situated in a channel, reaching into a channel or driven across a channel) only if, in addition to meeting the requirements of (b) above, the following requirements are satisfied:

1.    There is no feasible alternative that will result in less environmental damage;

2.    The bed is firm, the approaches are stable and the proposed construction activities will not cause or exacerbate bank erosion;

3.    Contact with flowing water is minimized where possible through the use of temporary bridges, culverts, coffer dams and/or sediment control devices, which are removed after completion of the project;

4.    Fording the channel is avoided;

5.    Where unavoidable, fording is made as nearly perpendicular to the channel as possible; and

6.    Adequate precautions are taken to prevent sediment, petroleum products and other pollutants from entering the channel.

(e)   A person shall not drive or operate a vehicle across a channel except in the following cases:

1.    It is necessary to operate construction equipment in or across a channel as described in (d) above as part of a temporary construction activity;

2.    An emergency vehicle must access a site that has no other feasible means of entry. This does not include repeated visits to the same site by delivery trucks; or

3.    The vehicle is driven across a lawfully existing and stable ford that was either constructed prior to October 2, 2006, or which is constructed on agricultural lands under general permit 2E at N.J.A.C. 7:13-8.4(c)5.

7:13-10.2 Requirements for a regulated activity in a riparian zone

(a)   This section sets forth specific design and construction standards that apply to any regulated activity proposed in a riparian zone. The width of the riparian zone is set forth at N.J.A.C. 7:13-4.1.

(b)   The riparian zones established by this chapter are separate from and in addition to any other similar zones or buffers established to protect surface waters. For example, the Stormwater Management rules at N.J.A.C. 7:8 and the Highlands Water Protection and Planning Act rules at N.J.A.C. 7:38 establish 300-foot Special Water Resource Protection Areas and buffers, respectively, along certain waters. Furthermore, the Freshwater Wetlands Protection Act rules at N.J.A.C. 7:7A establish 50-foot and 150-foot transition areas along freshwater wetlands and other features that are also regulated under this chapter. Compliance with the riparian zone requirements of this chapter does not constitute compliance with the requirements imposed under any other Federal, State or local statute, regulation or ordinance.

(c)   As used in this section, the total area of vegetation disturbed in a riparian zone shall include the following:

1.    The area of any vegetation within the limit of disturbance shown on submitted drawings;

2.    The area under the canopy of any trees to be cleared, cut or removed; and

3.    All other areas from which any vegetation is to be temporarily or permanently cleared, cut or removed.

(d)   The following table sets forth limits on the area of vegetation that can be disturbed for various regulated activities, provided the requirements for each activity as described in (e) through (r) below are satisfied, and provided the applicant demonstrates the following:

1.    The basic purpose of the project cannot be accomplished onsite without disturbing vegetation in the riparian zone;

2.    Disturbance to the riparian zone is eliminated where possible; where not possible to eliminate, disturbance is minimized through methods including relocating the project, reducing the size or scope of the project and/or situating the project in portions of the riparian zone where previous development or disturbance has occurred;

3.    All temporarily cleared, cut or removed vegetation within a riparian zone is replanted with indigenous, non-invasive vegetation upon completion of the project in accordance with (u) below; and

4.    All additional restrictions for the specific proposed activity described elsewhere in this chapter are satisfied. For example, while (o) below sets limits on disturbance to the riparian zone resulting from a flood control project, N.J.A.C. 7:13-11.12 includes further specific requirements to ensure that disturbance to the channel and riparian zone is avoided or minimized for such projects.

Table C

MAXIMUM ALLOWABLE DISTURBANCE TO RIPARIAN ZONE VEGETATION

(e)   The Department shall issue an individual permit for the construction of a new railroad or public roadway, which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above;

2.    The width of the railroad or public roadway is minimized;

3.    Any crossing of a regulated water is designed and constructed as nearly perpendicular to the channel as possible; and

4.    If the project impacts a 150-foot or 300-foot riparian zone, the applicant demonstrates that there is a compelling public need to construct the new railroad or public roadway, which cannot be satisfied without impacting the riparian zone. This demonstration shall include an analysis of alternate routes and other alternative projects that would avoid impacting the riparian zone.

(f)   The Department shall issue an individual permit for the expansion or improvement of a lawfully existing railroad or public roadway, which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above, unless the applicant demonstrates that public safety cannot be adequately ensured without exceeding these limits. In such a case, the applicant shall provide 2:1 compensation for all cleared, cut and removed vegetation in excess of the limit set forth in Table C in a manner described at (t) below;

2.    The width of the railroad or public roadway is minimized; and

3.    If the project impacts a 150-foot or 300-foot riparian zone, the applicant demonstrates that there is a compelling public need to expand or improve the railroad or public roadway, which cannot be satisfied without impacting the riparian zone. This demonstration shall include an analysis of alternate routes and other alternative projects that would avoid impacting the riparian zone.

(g)   The Department shall issue an individual permit for the construction of a new private roadway, which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above;

2.    The width of the roadway is minimized;

3.    Any crossing of a regulated water is designed and constructed as nearly perpendicular to the channel as possible;

4.    The roadway accesses a lot that did not receive preliminary or final subdivision approval after October 2, 2006;

5.    If the roadway does not cross a regulated water, but impacts a 150-foot or 300-foot riparian zone, the applicant demonstrates that there is no other means of constructing a roadway to access the developable area onsite, which would reduce or eliminate the impact to the riparian zone; and

6.    If the roadway crosses a regulated water that has a 150-foot or 300-foot riparian zone, the applicant demonstrates that there is developable land onsite that cannot feasibly be accessed without crossing the water, including accessing the site through neighboring properties.

(h)   The Department shall issue an individual permit for the expansion or improvement of an existing private roadway, which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above;

2.    The width of the roadway is minimized; and

3.    If the expansion or improvement impacts a 150-foot or 300-foot riparian zone, the applicant demonstrates the proposed reconstruction is necessary for the continued safe access to the site.

(i)    The Department shall issue an individual permit to restore to a stable condition a bank or channel, which has become eroded, unstable and/or ecologically degraded, which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    If the bank or channel is restored and revegetated as described at N.J.A.C. 7:13-11.14(c)2, and the applicant demonstrates the project is necessary pursuant to N.J.A.C. 7:13-11.14(b), the area of vegetation cleared, cut and/or removed within the riparian zone is minimized;

2.    If the bank or channel is restored by any means other than that which is described in (i)1 above, the total area of vegetation permanently cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above, unless the applicant demonstrates that the bank or channel cannot be adequately stabilized or restored without exceeding these limits. In such a case, the applicant shall provide 2:1 compensation for all areas permanently cleared of vegetation in excess of the limit set forth in Table C in a manner described at (t) below; and

3.    The total area of vegetation temporarily cleared, cut and/or removed within the riparian zone in order to provide access to perform the stabilization or restoration does not exceed the limits for temporary disturbance set forth in Table C above, and all such disturbed areas are replanted with indigenous, non-invasive vegetation.

(j)    The Department shall issue an individual permit to construct a stormwater discharge (including the stormwater pipe leading to the discharge), which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above; and

2.    No portion of the stormwater discharge, including any associated conduit outlet protection and/or conveyance swale, is placed within a 150-foot or 300-foot riparian zone, except in the following cases (note that new discharges along Category One waters and certain upstream tributaries are restricted in certain cases under the Stormwater Management rules at N.J.A.C. 7:8-5.5(h)):

i.     The reconstruction of an existing stormwater discharge provided:

(1)  The reconstruction is necessary to ameliorate erosion and/or flooding; and

(2)  The volume, rate and quality of stormwater being discharged is not altered. Compliance with this requirement shall be determined in accordance with the standards of the Department’s Stormwater Management rules at N.J.A.C. 7:8;

ii.    The construction of a new stormwater discharge along an existing roadway provided:

(1)  The discharge is necessary to ameliorate erosion and/or flooding; and

(2)  There is no feasible alternative means of constructing the discharge outside the riparian zone due to topography, soil type, vegetative cover and/or location of the roadway or other existing structures;

iii.   The construction of a new stormwater discharge associated with the construction of a new roadway provided:

(1)  There is no feasible alternative location or alignment for either the new roadway or the new discharge, which would eliminate the need to construct a discharge in the riparian zone;

(2)  In the case of a public roadway, the applicant demonstrates that there is a compelling public need to construct the new roadway and the new discharge, which cannot be satisfied without impacting the riparian zone. This demonstration shall include an analysis of alternate routes for the new roadway and other alternative projects that would avoid impacting the riparian zone; and

(3)  In the case of a private roadway, the applicant demonstrates that there is developable land onsite that cannot feasibly be accessed without constructing a new roadway and/or discharge that impacts the riparian zone, including accessing the site through neighboring properties; and

iv.   The construction or reconstruction of any stormwater discharge not described in (j)2i, ii or iii above, which is located in a Special Water Resource Protection Area pursuant to N.J.A.C. 7:8-5.5(h), provided the requirements at N.J.A.C. 7:8-5.5(h)3 are met.

(k)   The Department shall issue an individual permit to construct a utility line, which crosses a regulated water and results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above, unless the applicant demonstrates that:

i.     The construction of an open trench through the riparian zone is necessary to install the utility line; and

ii.    The width of the trench required to safely install the utility line necessitates that disturbance to vegetation in the riparian zone exceeds the limits set forth in Table C, as described at N.J.A.C. 7:13-11.9(b)4; and

2.    The applicant demonstrates, pursuant to N.J.A.C. 7:13-11.9(b)1 through 4, that disturbance in the riparian zone is unavoidable.

(l)    The Department shall issue an individual permit to construct a utility line, which does not cross a regulated water but which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above;

2.    The applicant demonstrates that it is not feasible to construct the line either outside the riparian zone completely, or otherwise in such a way that no vegetation in the riparian zone is disturbed; and

3.    The line is placed at least 25 feet from any top of bank or edge of water.

(m)  The Department shall issue an individual permit for the construction of a new private residence, which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above;

2.    The private residence is being constructed on a lot that did not receive preliminary or final subdivision approval after October 2, 2006;

3.    The private residence is not being constructed as part of a larger residential subdivision; and

4.    The applicant demonstrates the following:

i.     There is no other reasonable use for the site under the applicable zoning for the property, which would reduce or eliminate the impact to the riparian zone;

ii.    There is no other feasible location onsite to construct a private residence, which would reduce or eliminate the impact to the riparian zone; and

iii.   All disturbance within the riparian zone is located at least 25 feet from any top of bank or edge of water and as far from the regulated water as possible, unless the private residence is constructed adjacent to a manmade tidal water in cases where such waters possess a riparian zone.

(n)   The Department shall issue an individual permit for the construction of an addition to an existing building, or the construction of a building appurtenant to an existing building, such as a garage, barn or shed, which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above; and

2.    The applicant demonstrates the following:

i.     There is no other feasible location onsite to construct the addition or building, which would reduce or eliminate the impact to the riparian zone; and

ii.    All disturbance within the riparian zone is located at least 25 feet from any top of bank or edge of water and as far from the regulated water as possible, unless the addition or building is constructed adjacent to a manmade tidal water in cases where such waters possess a riparian zone.

(o)   The Department shall issue an individual permit for the construction of a flood control project, which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above, unless the applicant demonstrates that public safety cannot be adequately ensured without exceeding these limits. In such a case, the applicant shall provide 2:1 compensation for all cleared, cut and removed vegetation in excess of the limit set forth in Table C in a manner described at (t) below.

(p)  The Department shall issue an individual permit for the construction of a public accessway or public access area along a tidal water, which results in clearing, cutting, and/or removing vegetation in a riparian zone, only if the following requirements are met:

1.    The public accessway or public access area is designed in accordance with the public access to the waterfront rule, N.J.A.C. 7:7E-8.11, in which case such construction need not comply with (d)1 and 2 above;

2.    No building is constructed within 25 feet of any top of bank or edge of water; and

3.    For any proposed parking area, the applicant demonstrates that there is no other feasible location onsite to construct the parking area, which would reduce or eliminate the impact to the riparian zone;

(q)   The Department shall issue an individual permit for the construction of a water dependent development along a tidal water, which results in clearing, cutting, and/or removing vegetation in a riparian zone, only if the following requirements are met:

1.    The development is designed in accordance with the Coastal Zone Management rules, N.J.A.C. 7:7E, and meets the definition of water dependent at N.J.A.C. 7:7E-1.8;

2.    No building is constructed within 25 feet of any top of bank or edge of water; and

3.    For any proposed development, the applicant demonstrates that there is no other feasible location onsite to construct the development, which would reduce or eliminate the impact to the riparian zone.

(r)   The Department shall issue an individual permit for a regulated activity not listed in (e) through (q) above, which results in clearing, cutting and/or removing vegetation in a riparian zone, only if the following requirements are satisfied:

1.    The total area of vegetation cleared, cut and/or removed within the riparian zone does not exceed the limits set forth in Table C above;

2.    No building is constructed within 25 feet of any top of bank or edge of water;

3.    The applicant demonstrates the following:

i.     There is no other reasonable means of accomplishing the project, which would reduce or eliminate the impact to the riparian zone;

ii.    There is no other feasible location onsite to undertake the project, which would reduce or eliminate the impact to the riparian zone; and

iii.   All disturbance within the riparian zone is located as far from the regulated water as possible; and

4.    The applicant provides 2:1 compensation for all cleared, cut and removed vegetation in the riparian zone in a manner described at (t) below.

(s)   If the Department determines that requiring an applicant to meet a limit of disturbance set forth in Table C above constitutes a hardship under N.J.A.C. 7:13-9.8, and the Department subsequently grants an individual permit for an activity that exceeds that limit, the applicant shall provide 2:1 compensation for all cleared, cut and removed vegetation in excess of that limit set forth in Table C in a manner described at (t) below.

(t)   The 2:1 compensation required under (f)1, (i)2, (o), (r)4 and (s) above shall be accomplished as follows:

1.    In the case of (f)1, (i)2, (o) and (s) above, at least twice the area of all cleared, cut and removed vegetation in excess of the limit in Table C above shall be replanted;

2.    In the case of (r)4 above, at least twice the area of all cleared, cut and removed vegetation shall be replanted;

3.    The area selected for 2:1 compensation is deed restricted against future development that would remove the vegetation being planted; and

4.    All replanting of vegetation shall be accomplished as described in (u) below and in one or both of the following ways. (Replanting vegetation that was removed in violation of this chapter does not constitute compensation under this section):

i.     The applicant shall remove lawfully existing structures and/or impervious surfaces in the riparian zone, and replant the area with vegetation; and/or

ii.    The applicant shall plant new trees in the riparian zone in an area that is substantially devoid of trees at the time of application because the trees were removed due to previous, lawful development.

(u)   All replanting of riparian zone vegetation required under this section shall meet the following requirements:

1.    All replanting shall be located in the riparian zone of the same regulated water as the cleared, cut or removed vegetation;

2.    All replanting shall be located as close in proximity to the cleared, cut or removed vegetation as possible;

3.    All replanting shall consist of indigenous, non-invasive vegetation;

4.    The replanted vegetation shall be of equal or greater density as the cleared, cut or removed vegetation;

5.    The applicant shall monitor and maintain the replanted vegetation for at least three growing seasons to ensure proper establishment and survival; and

6.    The location, nature, area and schedule for replanted vegetation shall be shown on drawings submitted with the application for the individual permit which necessitates the replanting. No replanting required under this section shall commence without the prior approval of the Department.

(v)   In cases where an applicant proposes to redevelop a site within 25 feet of any top of bank or edge of water, all existing impervious surface within 25 feet of the top of bank or edge of water shall be removed and the riparian zone in this area shall be adequately stabilized and replanted with indigenous, non-invasive vegetation, except in the following cases:

1.    The applicant demonstrates that removing the existing impervious surface and/or preventing the replacement of the existing impervious surface within 25 feet of the top of bank or edge of water would likely threaten public safety, exacerbate flooding or erosion and/or cause an undue economic hardship upon the applicant. In such a case, the riparian zone within 25 feet of the top of bank or edge of water shall be restored, stabilized and/or replanted to the extent feasible; and/or

2.    The applicant proposes to construct a public walkway within 25 feet of the top of bank or edge of water, provided the walkway is constructed of permeable material where feasible, and provided the remainder of the area within 25 feet of the top of bank or edge of water is restored, stabilized and replanted with indigenous, non-invasive vegetation.

7:13-10.3 Requirements for a regulated activity in a floodway

(a)   This section sets forth specific design and construction standards that apply to any regulated activity proposed in a floodway.

(b)   Except as provided in (c) below, the Department shall not issue an individual permit for the following activities:

1.    The placement of any aboveground structure in or above a floodway;

2.    Any regulated activity that would result in the placement of fill in a floodway;

3.    Any regulated activity that would raise the ground elevation in a floodway; or

4.    Any regulated activity that would obstruct the passage of floodwaters in a floodway.

(c)   Notwithstanding (b) above, the Department shall issue an individual permit for the following regulated activities in a floodway, provided all other requirements of this chapter are satisfied for each activity:

1.    The construction of a building on a pier in the Hudson River, provided the requirements of the Coastal Zone Management rules at N.J.A.C. 7:7E-3.48 are satisfied;

2.    The reconstruction of a lawfully existing building, in accordance with N.J.A.C. 7:13-11.5(e);

3.    The construction of an addition to a lawfully existing building, in accordance with N.J.A.C. 7:13-11.5(f);

4.    The construction of a water control structure, such as a bridge, culvert, footbridge, dam or flood control project, in accordance with N.J.A.C. 7:13-11.7, 11.8, 11.11 and 11.12, respectively;

5.    The construction of a stormwater outfall structure, in accordance with N.J.A.C. 7:13-11.10;

6.    The restoration and/or stabilization of a bank or channel, in accordance with N.J.A.C. 7:13-11.14, which requires the placement of fill, provided:

i.     The placement of the fill is necessary to protect nearby structures or trees from undermining or failure, or to restore or improve the ecological health or habitat value of a regulated water, and not simply to reclaim land that has been lost due to erosion; and

ii.    The cross-sectional area of the channel open to flow will not be reduced to less than the pre-eroded condition of the channel;

7.    The placement of dredged material adjacent to the water from which the material was removed, in accordance with N.J.A.C. 7:13-11.15(f);

8.    The placement of fill in an isolated shallow depression or other area that does not contribute to the hydraulic capacity of the floodway; and

9.    The placement of fill in a portion of a manmade impoundment of water, such as a pond or lake, provided:

i.     An equal or greater amount of excavation is performed elsewhere in the same pond or lake at similar elevations as the proposed fill;

ii.    The applicant demonstrates that the fill will not obstruct flood flows;

iii.   The fill will extend no further than 20 percent of the width of the water, measured perpendicularly across the water from the shoreline along which the fill is being placed; and

iv.   The applicant demonstrates that placing the fill will not cause adverse environmental impacts.

7:13-10.4 Requirements for a regulated activity in a flood fringe

(a)   This section sets forth specific design and construction standards that apply to any regulated activity proposed in a flood fringe.

(b)   This section provides standards for the volume of material that may be placed aboveground in a flood fringe as well as other activities that would reduce the flood storage volume on a site. When material is placed aboveground in a flood fringe, it will occupy a space that would otherwise be filled with floodwaters during a flood, and, thus, will reduce the flood storage volume on the site. Construction also reduces the flood storage volume by preventing floodwaters from entering a space that it would otherwise occupy, such as the space inside a building or stormwater management basin, or behind an embankment. For example, although the space within a building may be empty, the building's walls might prevent floodwaters from entering that space. Since the entire space within the walls has been rendered inaccessible to floodwaters, the entire space, though empty, displaces flood storage volume. The Department also recognizes that some structures, such as garages, sheds and other buildings that are not dry flood-proofed are not likely to prevent the entry of floodwaters, and, therefore, the space within the walls of such a structure may not actually displace flood storage volume.

(c)   The Department shall issue an individual permit for a regulated activity (or combination of regulated activities) in a flood fringe only if one of the following is satisfied:

1.    The regulated activity is not subject to the flood storage volume displacement limits of this section, in accordance with (d) below;

2.    The regulated activity will displace no flood storage volume onsite, as calculated for both the volume between the flood hazard area design flood and the 10-year flood, and the volume between the 10-year flood and the ground, in accordance with (e) below; or

3.    The regulated activity will displace no more than 20 percent of the flood storage volume onsite, as calculated for both the volume between the flood hazard area design flood and the 10-year flood, and the volume between the 10-year flood and the ground, and all flood storage displacement onsite will be compensated offsite as follows:

i.     If the regulated activity is located within the Central Passaic Basin, the requirements at (g) below shall be met;

ii.    If the regulated activity is a Major Highlands Development, as defined at N.J.A.C. 7:38-1.4, the requirements at (h) below shall be met; or

iii.   If the regulated activity is not located within the Central Passaic Basin and is not a Major Highlands Development, the requirements at (i) below shall be met.

(d)   The following regulated activities (or combination of regulated activities) are not subject to the flood storage volume displacement limits of this section, provided the activity is not associated with a Major Highlands Development:

1.    Any activity located in a tidal flood hazard area;

2.    Any activity that displaces no more than five cubic yards of flood storage volume;

3.    The reconstruction of a lawfully existing railroad or public roadway, including any improvement or enlargement, provided flood storage volume displacement is minimized;

4.    The construction or improvement of a driveway across a regulated water provided:

i.     The driveway serves only one private residence, which is not being constructed as part of a larger residential subdivision;

ii.    In the case of the construction of a new driveway, the applicant demonstrates that there is developable land onsite that cannot feasibly be accessed without crossing the water, including accessing the site through neighboring properties; and

iii.   Any flood storage volume displacement resulting from the driveway is minimized;

5.    The construction of one private residence provided:

i.     The residence is not being constructed as part of a larger residential subdivision;

ii.    Any enclosed area beneath the flood hazard area design flood elevation meets the requirements of N.J.A.C. 7:13-11.5(l); and

iii.   Except for the construction of a driveway across a regulated water, which meets the requirements of (d)4 above, the site is not graded to accommodate the construction of the residence in such a way that flood storage volume would be displaced;

6.    The construction of a flood control project, provided flood storage volume displacement is minimized; and

7.    The depositing of sediment removed from a channel, which meets the requirements of N.J.A.C. 7:13-11.15(f).

(e)   The following shall apply to any regulated activity that is designed to displace no flood storage volume in accordance with (c)2 above:

1.    The existing flood storage volume onsite (V_E) is the volume of floodwater that is able to occupy the flood fringe onsite before the proposed regulated activity is undertaken. To determine the existing flood storage volume, calculate the volume of space within the flood fringe between the flood elevation and the ground surface as it exists on the date of application to the Department, and subtract the volume occupied by any structures that lawfully exist as of that date.

2.    The proposed flood storage volume onsite (V_P) is the volume of floodwater that will be able to occupy the flood fringe onsite once all proposed construction, excavation, filling and grading is completed. To determine the proposed flood storage volume, calculate the volume of space within the flood fringe between the flood elevation and the proposed ground surface, and subtract the volume occupied by any structures that will lawfully exist once all proposed construction is completed.

3.    The proposed flood storage volume onsite (V_P) shall be greater than or equal to the existing flood storage volume onsite (V_E), for both the volume between the flood hazard area design flood and the 10-year flood, and the volume between the 10-year flood and the ground. Certain considerations should be made in calculating both (V_P) and (V_E), as set forth in (j) below. Additional flood storage volume can also be created onsite to compensate for proposed flood storage displacement in accordance with (m) below.

(f)   Table D below sets forth the percentage of flood storage volume that a regulated activity (or combination of activities) can lawfully displace in various geographic areas of New Jersey. As described in further detail in this section below, a project cannot displace more than 20 percent of the flood storage volume that originally existed onsite, and all proposed displacement onsite must ultimately be compensated offsite. Table D indicates the dates from which the original and proposed flood storage volumes should be calculated for different geographic areas. Flood storage calculations shall be performed for both the volume between the flood hazard area design flood and the 10-year flood, and the volume between the 10-year flood and the ground, as described at (j) below, to show that the 20-percent and zero-percent limitations are met for both of these areas.

Table D

ALLOWABLE PERCENTAGES OF FLOOD STORAGE VOLUME DISPLACEMENT

(Which shall be met for both the volume between the flood hazard area design flood and the 10-year flood, and the volume between the 10-year flood and the ground)

*If associated with Major Highlands Development, as defined at N.J.A.C. 7:38-1.4.

(g)   The following shall apply to any project located within the Central Passaic Basin that does not meet the requirements of (d) or (e) above:

1.    The onsite percentage of flood storage volume that a project displaces shall be determined as follows:

i.     Calculate the base flood storage volume onsite on March 25, 1977, (V₁₉₇₇) according to (j) and (k) below;

ii.    Calculate the proposed flood storage volume onsite (V_P) according to (j) and (l) below; and

iii.   Calculate the percentage of flood storage volume displaced onsite (P_ONSITE) as follows:

P_ONSITE = (V₁₉₇₇ - V_P)/ V₁₉₇₇

2.    The total percentage of flood storage volume that a project displaces, including any offsite compensation, shall be determined as follows:

i.     Calculate any offsite compensation (V_C) according to (o) below; and

ii.    Calculate the total percentage of flood storage volume displaced (P_TOTAL) as follows:

P_TOTAL = (V₁₉₇₇ - V_P - V_C)/ V₁₉₇₇

(h)   The following shall apply to any Major Highlands Development within the Highlands Preservation Area that does not meet the requirements of (d) or (e) above:

1.    The onsite percentage of flood storage volume that a project displaces shall be determined as follows:

i.     Calculate the base flood storage volume onsite on January 31, 1980, (V₁₉₈₀) according to (j) and (k) below;

ii.    Calculate the proposed flood storage volume onsite (V_P) according to (j) an (l) below; and

iii.   Calculate the percentage of flood storage volume displaced onsite (P_ONSITE) as follows:

P_ONSITE = (V₁₉₈₀ - V_P)/ V₁₉₈₀

2.    The total percentage of flood storage volume that a project displaces, including any offsite compensation, shall be determined as follows:

i.     Calculate the base flood storage volume onsite on August 10, 2004, (V₂₀₀₄) according to (j) and (k) below;

ii.    Calculate any offsite compensation (V_C) according to (o) below; and

iii.   Calculate the total percentage of flood storage volume displaced (P_TOTAL) as follows:

P_TOTAL = (V₂₀₀₄ - V_P - V_C)/ V₂₀₀₄

(i)    The following shall apply to any project located outside the Central Passaic Basin (except for Major Highlands Development as described at (h) above) that does not meet the requirements of (d) or (e) above:

1.    The onsite percentage of flood storage volume that a project displaces shall be determined as follows:

i.     Calculate the base flood storage volume onsite on January 31, 1980, (V₁₉₈₀) according to (j) and (k) below;

ii.    Calculate the proposed flood storage volume onsite (V_P) according to (j) and (l) below; and

iii.   Calculate the percentage of flood storage volume displaced onsite (P_ONSITE) as follows:

P_ONSITE = (V₁₉₈₀ - V_P)/ V₁₉₈₀

2.    The total percentage of flood storage volume that a project displaces, including any offsite compensation, shall be determined as follows:

i.     Calculate the base flood storage volume onsite on November 5, 2007, (V₂₀₀₇) according to (j) and (k) below;

ii.    Calculate any offsite compensation (V_C) according to (o) below; and

iii.   Calculate the total percentage of flood storage volume displaced (P_TOTAL) as follows:

P_TOTAL = (V₂₀₀₇ - V_P - V_C)/ V₂₀₀₇

(j)    The following factors shall be considered when calculating flood storage volumes under this section:

1.    The flood storage displacement limits in this section apply to both the volume between the flood hazard area design flood and the 10-year flood, and the volume between the 10-year flood and the ground. As such, applicants must demonstrate that a proposed project meets these limits for both floods unless the entire project lies above the 10-year flood elevation.

2.    Flood storage displacement proposed above the 10-year flood elevation onsite must be compensated for by the creation of flood storage above the 10-year flood elevation. Similarly, flood storage displacement proposed below the 10-year flood elevation onsite must be compensated for by the creation of flood storage below the 10-year flood elevation. This applies whether the compensation occurs onsite, as described at (m) below, or offsite, as described at (o) below.

3.    In cases where the 10-year flood elevation is not provided on State or Federal flood maps, calculations can instead be performed using a flood depth halfway between the flood hazard area design flood elevation and the lowest ground elevation within the flood fringe onsite. For example, at a given cross-section through a site, if the flood hazard area design flood elevation is 90.0 feet NGVD and the lowest ground elevation within the flood fringe is 80.0 feet NGVD, flood storage calculations can be performed at that cross-section using a flood elevation of 85.0 feet NGVD at that location, if the 10-year flood elevation is unknown. Furthermore, this halfway depth must be determined separately for each cross-section in the flood fringe, and at close intervals throughout the site in order to provide an accurate estimate of the upper and lower flood storage volumes. An illustration of how to properly calculate these volumes is provided in the Flood Hazard Area Technical Manual.

4.    The volume inside a stormwater management basin or other impoundment is considered displaced flood storage volume. For instance, when calculating the flood storage volume onsite during the 10-year flood, the volume below the 10-year water surface elevation in the basin is considered displaced flood storage volume.

5.    The volume behind a dike, levy or similar barrier that prevents the free flow of water is considered displaced flood storage volume.

6.    The volume inside a building that prevents floodwaters from entering is considered displaced flood storage volume.

7.    The construction of a channel modification, or the reconstruction of a water control structure such as a bridge or culvert, can result in lower flood elevations at some point along the water. In such a case, the volume in the flood fringe between the existing and proposed flood elevations is considered displaced flood storage volume.

(k)   The base flood storage volume onsite (V₁₉₇₇, V₁₉₈₀, V₂₀₀₄ and/or V₂₀₀₇) is the volume of floodwater that was able to occupy the flood fringe onsite on the appropriate date shown in Table D depending on the geographic location of the project. To determine the base flood storage volume, calculate the volume of space within the flood fringe between the flood elevation and the ground surface as it existed on the appropriate date in Table D, and subtract the volume occupied by any structures that lawfully existed on that date.

(l)    The proposed flood storage volume onsite (V_P) is the volume of floodwater that will be able to occupy the flood fringe onsite once all proposed construction, excavation, filling and grading is completed. To determine the proposed flood storage volume, calculate the volume of space within the flood fringe between the flood elevation and the proposed ground surface, and subtract the volume occupied by any structures that will lawfully exist once all proposed construction is completed.

(m)  Additional flood storage volume may be created onsite to compensate for proposed flood storage displacement only on land that meets the requirements of (n) below and in the following ways:

1.    Removing material that has been previously lawfully placed within the flood fringe, such as fill or structures, and properly disposing the material outside a flood hazard area, as described in (q) below; and/or

2.    Excavating material from below the surface of the ground and properly disposing the material outside a flood hazard area, as described in (r) below.

(n)   Flood storage volume may be created onsite to compensate for regulated activities that displace flood storage as described in (m) above provided the onsite compensation:

1.    Is created within or adjacent to the flood hazard area of the same water as the proposed flood storage displacement, or a tributary to the same water as the proposed flood storage displacement, provided the tributary lies upstream of the site or the flood hazard area of both waters connect onsite;

2.    Is not created in a floodway;

3.    Is not created within the following areas, unless the area where the compensation will be created has been subject to previous, lawful disturbance:

i.     Within a riparian zone, pursuant to N.J.A.C. 7:13-4.1 and 10.2;

ii.    Within 300 feet of a Highlands open water, if the project is a major Highlands development as defined in the Highlands Water Protection and Planning Act rules at N.J.A.C. 7:38-1.4; and/or

iii.   Within a Special Water Resource Protection Area, if the project is a major development as defined in the Stormwater Management rules at N.J.A.C. 7:8-1.2; and

4.    Would not have other significant adverse environmental consequences; the proposed compensation shall not merely substitute the adverse effects of the proposed activities with adverse impacts upon threatened or endangered species, aquatic biota, fishery resources or Highlands resource areas.

(o)   Offsite compensation (V_C) is additional flood storage volume created offsite to compensate for proposed flood storage displacement onsite. Offsite compensation can only be created on land that meets the requirements of (p) below, and only in the following ways:

1.    Removing material that has been previously lawfully placed within the flood fringe, such as fill or structures, and properly disposing the material outside a flood hazard area, as described in (q) below;

2.    Excavating material from below the surface of the ground and properly disposing the material outside a flood hazard area, as described in (r) below; and/or

3.    Purchasing fill credits, where available, if the project is located in the Central Passaic Basin, as described in (s) and (t) below.

(p)  Flood storage volume can be created offsite to compensate for regulated activities that displace flood storage as described in (o) above provided the offsite compensation:

1.    Is created within or adjacent to the flood hazard area of the same water as the proposed flood storage displacement, or a tributary to the same water as the proposed flood storage displacement, provided the tributary lies upstream of the site or the flood hazard area of both waters connect onsite;

2.    Is not separated from the proposed flood storage displacement by a water control structure, such as a bridge, culvert or dam, unless the applicant demonstrates that the water control structure causes no significant change in the flood hazard area design flood elevation;

3.    Is situated within the same HUC-14 watershed as the proposed flood storage displacement;

4.    Is not created in a floodway;

5.    Is not created within the following areas, unless the area where the compensation will be created has been subject to previous, lawful disturbance:

i.     Within a riparian zone, pursuant to N.J.A.C. 7:13-4.1 and 10.2;

ii.    Within 300 feet of a Highlands open water, if the project is a major Highlands development as defined in the Highlands Water Protection and Planning Act rules at N.J.A.C. 7:38-1.4; and/or

iii.   Within a Special Water Resource Protection Area, if the project is a major development as defined in the Stormwater Management rules at N.J.A.C. 7:8-1.2;

6.    Would not have other significant adverse environmental consequences; the proposed compensation shall not merely substitute the adverse effects of the proposed activities with adverse impacts upon threatened or endangered species, aquatic biota, fishery resources or Highlands resource areas;

7.    Is agreed to in writing by the owners of the land on which the offsite compensation is proposed; and

8.    Is proposed on land which, subsequent to the creation of the offsite compensation, is deed restricted against future flood storage volume displacement. The modified deed shall be filed with the local county clerk, a copy of which shall be provided to the Department within 90 calendar days of the issuance of the individual permit.

(q)   For the purposes of (m)1 and (o)1 above, flood storage volume can be created by removing material previously placed within the flood fringe, such as fill or structures, provided:

1.    The material to be removed was not placed in violation of this chapter;

2.    The material to be removed is not associated with an activity permitted-by-rule under N.J.A.C. 7:13-7;

3.    The area disturbed by the removal of the material is properly graded so that floodwaters can freely enter and exit;

4.    The material to be removed is properly disposed of outside of any regulated area; and

5.    The removal of the material is approved under an individual permit and is completed concurrent with or prior to the commencement of the activities for which the compensation is intended.

(r)   For the purposes of (m)2 and (o)2 above, flood storage volume can be created by excavating material from below the surface of the ground, provided:

1.    The excavation is located in a flood fringe, or is located adjacent and connected to a flood hazard area so that floodwaters can enter the excavated area;

2.    The excavation is located below the flood hazard area design flood elevation;

3.    The excavation is located above the seasonal high water table;

4.    The excavation is located above the normal water surface elevation of the nearest regulated water;

5.    The area disturbed by the excavation is properly graded so that floodwaters can freely enter and exit;

6.    The excavated material is properly disposed of outside of any regulated area; and

7.    The excavation is approved under an individual permit and is completed concurrent with or prior to the commencement of the activities for which the compensation is intended.

(s)   For the purposes of (o)3 above, offsite compensation in the Central Passaic Basin can be accomplished in certain cases described in (t) below through the purchase of fill credits. A fill credit is a unit of flood storage volume that has been created in the Central Passaic Basin by excavation and/or removal of fill, and which can be sold to a permittee to compensate for proposed fill elsewhere in the Central Passaic Basin. The Department has previously permitted several facilities to create fill credits. However, the Department shall no longer accept new applications to allow a person or facility to create additional fill credits in this manner. In order for fill credits to be valid under this section, an application to create the fill credits must have been received by the Department prior to October 2, 2006, and the fill credits, once approved, must be lawfully created by the applicant prior to October 2, 2011. Once all approved fill credits have been purchased, offsite compensation in the Central Passaic Basin will no longer be possible through fill credits.

(t)   For the purposes of (o)3 above, offsite compensation in the Central Passaic Basin can be made through the purchase of fill credits, as described in (s) above, provided the following requirements are satisfied:

1.    The fill credits are purchased from a person or facility that has been authorized by the Department to create and sell fill credits in accordance with (s) above;

2.    The flood storage volume on which the fill credits are based was created prior to the submittal of the application for the activities for which compensation is required;

3.    The Department approves the use of the particular fill credits for the particular activity; and

4.    The applicant provides the Department with adequate documentation of the purchase of the fill credits.

(u)   If the percentage of flood storage volume displacement on a site already exceeds a limit at Table D above due to activities that were previously undertaken in accordance with this chapter, the Department shall issue an individual permit for a new regulated activity on the site only if an equal amount of flood storage volume is created to compensate onsite for any displaced flood storage volume that would result from the new regulated activity, in accordance with (e) above. Compensatory flood storage volume shall not be created offsite in such a case, and shall only be created onsite, as described in (m) above. The volume of fill in excess of the limits in Table D does not need to be removed from the site.

(v)   If the percentage of flood storage volume displacement on a site already exceeds a limit at Table D above due to activities that were previously undertaken in violation of this chapter, the Department shall issue an individual permit for a new regulated activity on the site only if the following requirements are satisfied:

1.    The applicant either obtains an individual permit for the activities undertaken in violation of this chapter, or else removes from the flood hazard area any fill or structure that was placed in violation of this chapter;

2.    All displaced flood storage volume in excess of the limit in Table D is restored onsite; and

3.    An equal amount of flood storage volume is created to compensate onsite for any displaced flood storage volume that would result from the new regulated activity, in accordance with (e) above. Compensatory flood storage volume shall not be created offsite in such a case, and shall only be created onsite, as described in (m) above.

(w)  If the Department issues or has issued an individual permit for a regulated activity that displaces flood storage volume on a site, and that activity was subject to a flood storage displacement limit at the time the permit was issued, subsequent subdivision of that site shall not increase the total amount of flood storage volume that can be displaced on the site under future applications. Instead, the following shall apply:

1.    Flood storage volume can be displaced within a portion of the subdivided site only to the extent that the total flood storage volume displaced within the entire subdivided site does not exceed the flood storage displacement limits of this section;

2.    If the subdivided site involves multiple lots owned (or to be owned) by different persons, any remaining allowable flood storage volume shall be divided equally among all lots in the flood fringe, unless the owners of all lots in the flood fringe otherwise agree in writing; and

3.    The volume of flood storage displacement permissible on each lot shall be described in any individual permit issued for the site as well as in the deed of record for each affected property. The modified deed shall be filed with the applicable county clerk, a copy of which shall be provided to the Department within 90 calendar days of the issuance of the individual permit.

7:13-10.5 Requirements for a regulated activity in or along a water with fishery resources

(a)   This section sets forth specific design and construction standards that apply to any regulated activity proposed in the channel and/or riparian zone of a regulated water containing fishery resources. Further standards for the construction of a bridge or culvert in or along waters with fishery resources are described at N.J.A.C. 7:13-11.7.

(b)   The waters identified by the Department as containing fishery resources are listed in the Department's Surface Water Quality Standards at N.J.A.C. 7:9B, and are further supplemented by the following reports as updated, which are included here by reference. Copies of these reports are included in the Flood Hazard Area Technical Manual, available from the Department at the address listed at N.J.A.C. 7:13-1.1(g):

1.    "Classification of New Jersey Waters as Related to Their Suitability for Trout";

2.    "List of Waters Stocked with Trout by the New Jersey Division of Fish and Wildlife"; and

3.    "Locations of Anadromous American Shad and River Herring During Their Spawning Period in New Jersey's Freshwaters Including Known Migratory Impediments and Fish Ladders."

(c)   The Department shall issue an individual permit for a regulated activity in the channel and/or riparian zone of a regulated water containing fishery resources only if the following requirements are satisfied:

1.    Except as provided in (e) below, the activity meets the timing restrictions of (d) below;

2.    Unset or raw cement is not allowed to come into contact with water in the channel during construction;

3.    No logs or boulders that provide fish habitat are removed from the channel, unless the Department determines that such removal is necessary to accomplish the project; and

4.    Low-flow aquatic passage is maintained in the channel throughout the entire area of disturbance during and after the performance of the regulated activity. In order to provide low-flow aquatic passage, the depth of flow in the modified channel during low-flow conditions must be equal to or greater than pre-project conditions. Where feasible, the applicant shall also provide low-flow aquatic passage in areas that do not currently contain low-flow aquatic passage.

(d)   Except as provided at (e) below, certain activities are prohibited during times when fish are breeding or are especially sensitive to disturbance. The following activities are prohibited during the restricted periods listed in Table E below:

1.    Any construction, excavation, filling or grading in the channel; and

2.    Any construction, excavation, filling or grading in the riparian zone, unless the applicant demonstrates that appropriate soil erosion and sediment control measures are in place which will prevent sediment from reaching the channel. All proposed measures shall meet the Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90.

Table E

   RESTRICTED TIME PERIODS FOR WATERS WITH FISHERY RESOURCES

(e)   An applicant may request that the Department reduce, extend or otherwise modify a timing restriction listed in Table E. The Department shall grant such a request if one or more of the following requirements is satisfied:

1.    The applicant demonstrates that the adverse impacts to fishery resources will be less if a regulated activity occurs during the 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 the regulated activity to occur for up to 183 calendar days, provided the applicant demonstrates that additional measures shall be taken to reduce adverse impacts to fishery resources to a level acceptable to the Department. Note that the 183-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 Department determines that observance of a timing restriction for the reconstruction of a public road crossing would cause increased risks or excessive delays to school buses or vans, and the applicant demonstrates that additional measures shall be taken to reduce adverse impacts to fishery resources to an acceptable level; or

4.    The Department determines that, due to the nature of the project or an unusual circumstance onsite, the timing restriction must be modified in order to prevent a substantial adverse impact to the fishery resource or to the environment.

(f)   The Delaware River Basin Commission (DRBC) may impose timing restrictions in addition to those listed in Table E above 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.

7:13-10.6 Requirements for a regulated activity in a documented habitat for threatened or endangered species

(a)   This section sets forth specific design and construction standards that apply to any regulated activity proposed in a documented habitat for a threatened or endangered species.

(b)   For the purposes of this chapter, the Department identifies present and/or documented habitat for most threatened or endangered wildlife species using the Landscape Project method, which focuses on habitat areas required to support local populations of threatened and endangered wildlife species. This method is further described in the Flood Hazard Area Technical Manual, available from the Department at the address listed at N.J.A.C. 7:13-1.1(g). The report entitled New Jersey's Landscape Project provides additional information on mapping methodology and is available at the website www.nj.gov/dep/fgw/ensphome.htm or by contacting the address given below. The Department's Landscape Maps may be updated periodically and may be obtained via file download from www.nj.gov/dep/fgw/ensphome.htm or through the Interactive I-map NJ website: www.state.nj.us/dep/gis/imapnj/imapnj.htm or 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

P.O. Box 400

Trenton, NJ 08625-0400

(c)   For endangered or threatened plant species and for those wildlife species for which a landscape model in the Landscape Project has not been developed (models do not exist for certain aquatic species), the Department shall rely on the New Jersey Natural Heritage Database for site-specific information. To determine which animal species are not included in the Landscape Project, see Appendix IV of the New Jersey Landscape Mapping Project, Version 2.0 report, available at www.nj.gov/dep/fgw/ensphome.htm. Information regarding the Natural Heritage Program Database is available at: www.nj.gov/dep/parksandforests/natural/heritage/.

(d)   The Department shall issue an individual permit for a regulated activity only if the activity will not adversely affect either of the following:

1.    A threatened or endangered species; or

2.    A documented habitat for a threatened or endangered species.

(e)   The Department shall require a survey and/or a habitat assessment for threatened or endangered species as part of an environmental report, as described at N.J.A.C. 7:13-15.5(c), for an individual permit for any regulated activity which is likely to do either of the following:

1.    Disturb an area known to contain a threatened or endangered species; or

2.    Disturb any habitat that could support a threatened or endangered species.

(f)   Persons seeking information pertaining to threatened or endangered species sightings on or near a particular site can contact: State of New Jersey Department of Environmental Protection, Natural Heritage Program P.O. Box 404 Trenton, New Jersey 08625 Telephone: (609) 984-1339 Website: www.nj.gov/dep/parksandforests/natural/heritage/

(g)   The Department shall restrict a regulated activity during times of year when a threatened or endangered species is especially sensitive to disturbance, such as during mating or migratory periods. The Department shall not limit the regulated activity to fewer than 183 calendar days per year under this section. Note that the 183-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 a threatened or endangered species in a particular case.

7:13-10.7 Requirements for a regulated activity in an area with acid producing soils

(a)   This section sets forth specific design and construction standards that apply to any regulated activity proposed in an area containing acid producing soils.

(b)   The Department shall issue an individual permit for an activity in a regulated area known or suspected to contain acid producing soils only if the applicant submits for Department approval a plan to minimize the adverse effects of exposing acid producing soils. The plan shall, at a minimum, address how the applicant will meet the following requirements:

1.    Exposure of acid producing soils to air and/or water shall be minimized;

2.    All exposed areas with acid producing soils shall be promptly stabilized to prevent such soils from washing into the water;

3.    Any acid that is generated or exposed shall be properly neutralized;

4.    The area shall be treated to ensure that post-exposure oxidation rates do not exceed pre-exposure oxidation rates;

5.    Acid producing soils shall be disposed of properly and shall not be mixed into or spread over non-acid producing soils; and

6.    Any acid producing soils remaining after construction shall be covered with lime and a layer of non-acid producing soil sufficient to facilitate the growth of vegetation.

(c)   The following steps shall be taken if acid producing soils are unexpectedly exposed in a regulated area:

1.    Soil disturbance shall cease immediately;

2.    The soils that have been disturbed shall be quickly stabilized so as to prevent acid producing soils from washing into any nearby water;

3.    Any uncovered acid producing soil shall be immediately isolated from any flowing water;

4.    The Department shall be contacted immediately for further guidance;

5.    The plan required in (b) above shall be prepared and submitted to the Department; and

6.    Soil disturbance shall not resume until the Department has approved the plan.

(d)   The Flood Hazard Area Technical Manual, available at the Department at the address listed at N.J.A.C. 7:13-1.1(g), provides further information to assist in preparation of the plan required in (b) and (c) above.