SUBCHAPTER 11.    INDIVIDUAL PERMIT REQUIREMENTS FOR VARIOUS REGULATED ACTIVITIES

7:13-11.1 Requirements that apply to all regulated activities
7:13-11.2 Requirements for stormwater management
7:13-11.3 Requirements for excavation, fill and grading activities
7:13-11.4 Requirements for a structure
7:13-11.5 Requirements for a building
7:13-11.6 Requirements for a railroad, roadway or parking area
7:13-11.7 Requirements for a bridge or culvert
7:13-11.8 Requirements for a footbridge
7:13-11.9 Requirements for a utility line
7:13-11.10 Requirements for a stormwater outfall structure
7:13-11.11 Requirements for a dam or a low dam
7:13-11.12 Requirements for a flood control project
7:13-11.13 Requirements for a retaining wall or bulkhead
7:13-11.14 Requirements for bank stabilization and channel restoration
7:13-11.15 Requirements for sediment and debris removal from a water
7:13-11.16 Requirements for the storage of unsecured material
7:13-11.17 Requirements for the placement, storage or processing of hazardous substances
7:13-11.18 Requirements for the placement, storage or processing of solid waste
7:13-11.19 Requirements for the removal of existing fill or an existing structure

7:13-11.1 Requirements that apply to all regulated activities

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

(b)   The Department shall issue an individual permit for a regulated activity only if it determines that the regulated activity is not likely to cause significant and adverse effects on the following:

1.    Water quality;

2.    Aquatic biota;

3.    Water supply;

4.    Flooding;

5.    Drainage;

6.    Channel stability;

7.    Threatened and endangered species or their current or documented historic habitats;

8.    Navigation;

9.    Energy production; and

10.  Fishery resources.

(c)   A permittee shall obtain all necessary approvals from the local Soil Conservation District or its designee prior to commencing any activity approved in an individual permit issued under this chapter.

(d)   A permittee shall obtain all necessary approvals from the USDA Natural Resource Conservation Service or its designee prior to commencing any activity designed or overseen by the NRCS, which is approved in an individual permit issued under this chapter.

(e)   If neither the Soil Conservation District nor the USDA Natural Resource Conservation Service has jurisdiction over an activity approved in an individual permit issued under this chapter, the permittee shall commence the activity only if the following soil erosion and sediment control standards, as specified in the Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90, are implemented:

1.    Sediment control measures shall be installed around the proposed construction sufficient to prevent sediment from entering any riparian zone or channel outside the construction area;

2.    If construction is proposed in a channel, sediment control measures, such as coffer dams, shall be installed around the activity sufficient to prevent flowing water from coming in contact with construction for the duration of the project where feasible;

3.    All slopes shall be graded and stabilized to prevent post-construction erosion; and

4.    Permanent, indigenous, non-invasive vegetation shall be established on all exposed soils immediately following construction. The applicant shall monitor and maintain all such vegetation for at least three growing seasons to ensure proper establishment and survival.

(f)   The Department shall issue an individual permit for a regulated activity that adversely impacts a property not owned by an applicant only if the applicant demonstrates that one or more of the requirements at N.J.A.C. 7:13-9.2(f) are satisfied for each adversely impacted property. A regulated activity shall be considered to adversely impact a property not owned by an applicant if the activity meets any of the following requirements (for the purpose of determining compliance with (f)3, 4 and 5 below, calculations shall be rounded to the nearest 0.1 feet):

1.    The regulated activity is situated, in whole or in part, on property that is not owned by the applicant;

2.    A stormwater discharge is directed overland onto property that is not owned by the applicant and the Department determines that the discharge will significantly increase overland flow on the property not owned by the applicant;

3.    The regulated activity will cause a building situated on property not owned by the applicant to be subject to increased frequency or depth of flooding during any flood event up to and including the flood hazard area design flood;

4.    The applicant owns (or has development rights on) both sides of a regulated water, and the regulated activity will cause the flood hazard area design flood elevation to increase by more than 0.2 feet on any property not owned by the applicant; and/or

5.    The applicant owns (or has development rights) on only one side of a regulated water, and the regulated activity will cause the flood hazard area design flood elevation to increase by more than 0.1 feet on any property not owned by the applicant.

(g)   If a project results in a significant change in the cross-sectional area and/or hydraulic capacity of a channel or floodway, the Department shall presume that the project has the potential to adversely impact a property not owned by the applicant, as described at (f) above. In such a case, the Department shall require the applicant to provide hydrologic and/or hydraulic calculations that identify the properties that would be adversely impacted, or which demonstrate that such impacts will not in fact occur. Examples of projects that may require such an analysis include a channel modification, flood control project, the construction or removal of a water control structure and the placement of a significant volume of fill in a floodway.

 

7:13-11.2 Requirements for stormwater management

(a)   This section sets forth stormwater management requirements and specific design and construction standards that apply to any major development, as defined at N.J.A.C. 7:8-1.2, which requires an individual permit under this chapter.

(b)   The Department shall issue an individual permit for a regulated activity associated with a major development only if the requirements of the Stormwater Management rules at N.J.A.C. 7:8 are satisfied.

(c)   The Department shall issue an individual permit for a stormwater management basin located within or discharging within a flood hazard area only if the following requirements are satisfied:

1.    The basin is designed and constructed to function properly during both flood and non-flood conditions;

2.    The effects of flooding and tailwater conditions on any proposed discharge are accounted for in the stormwater management calculations for the proposed basin. Tailwater conditions refer to situations where the discharge pipe will be submerged during a flood in such a way that floodwaters prevent the basin from draining properly. The effects of flooding and tailwater conditions are of particular concern in the following cases:

i.     The basin will be overtopped and flooded during the flood hazard area design flood, because it is not feasible to construct the emergency spillway in accordance with (c)3 below;

ii.    The drainage area of the basin is similar in size to the drainage area of the water receiving the proposed discharge;

iii.   The basin reaches its maximum storage volume during or near the time flooding peaks within the water receiving the proposed discharge; and/or

iv.   The elevation of the lowest discharge orifice or weir in the basin lies below the flood hazard area design flood elevation;

3.    If a basin is proposed within the flood hazard area, the emergency spillway shall be constructed above the flood hazard area design flood elevation where feasible, in order to prevent floodwaters from overtopping the berm and flooding the basin; and

4.    If the elevation of the lowest discharge orifice or weir in the basin lies below the flood hazard area design flood elevation, the discharge pipe shall be equipped with mechanical devices where appropriate to prevent floodwater from backing up the pipe into the basin.

 

7:13-11.3 Requirements for excavation, fill and grading activities

(a)   This section sets forth specific design and construction standards that apply to any excavation, fill and/or grading proposed in any regulated area.

(b)   The Department shall issue an individual permit for excavation, fill and/or grading only if the following requirements are satisfied:

1.    The overland flow of stormwater is not impeded and floodwaters can freely enter and exit the disturbed area, unless the area is graded to impound water for a stormwater management structure that meets the requirements of the Stormwater Management rules at N.J.A.C. 7:8;

2.    Any slope of greater than 50 percent (a ratio of two horizontal to one vertical) is stabilized using soil bioengineering, retaining walls, rip-rap or other appropriate slope protection;

3.    The excavation, fill and/or grading does not endanger the integrity of any existing structure; and

4.    All excavated material is disposed of lawfully.

 

7:13-11.4 Requirements for a structure

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

(b)   The Department shall issue an individual permit to construct or reconstruct a structure only if the entire structure is designed and constructed to be suitably anchored in order to:

1.    Resist impact from water and debris during the flood hazard area design flood;

2.    Resist uplift, flotation, collapse and displacement due to hydrostatic and hydrodynamic forces resulting from the flood hazard area design flood;

3.    Resist overturning and sliding pressure, as well as pressure from the freeze/thaw cycle of the soil; and

4.    If the structure is located in or adjacent to a channel, resist undermining caused by channel erosion.

 

7:13-11.5 Requirements for a building

(a)   This section sets forth specific design and construction standards that apply to any building proposed in the areas listed in (b) below. Subsection (c) below establishes standards that apply to all buildings, and subsections (d) through (q) below provide additional standards for various types of buildings.

(b)   The requirements in this section apply to a building that is constructed or reconstructed in the following areas:

1.    A flood hazard area; and

2.    An area that was previously situated in a flood hazard area, but which was filled, raised or otherwise removed from the flood hazard area after January 31, 1980, whether in accordance with or in violation of this chapter, except in the following cases:

i.     A Department delineation is available for the site, and the Department approves a revision of its delineation that removes the area in question from the flood hazard area; or

ii.    No Department delineation is available for the site, but FEMA issues a Letter of Map Amendment that removes the area in question from the 100-year flood plain.

(c)   The Department shall issue an individual permit to construct or reconstruct a building of any kind only if the following requirements are satisfied:

1.    Any new building is located at least 25 feet from any top of bank or edge of water;

2.    If an existing building located near any top of bank or edge of water is to be expanded, the expanded portion is located at least 25 feet from the top of bank or edge of water, where possible;

3.    If an existing building located near any top of bank or edge of water is to be reconstructed, the new building shall be relocated at least 25 feet from the top of bank or edge of water, where possible;

4.    Any exterior wall being constructed or reconstructed is designed to resist hydrostatic and hydrodynamic pressure caused by flooding up to the flood hazard area design flood elevation; and

5.    All applicable requirements contained in (d) through (q) below are satisfied.

(d)   The Department shall not issue an individual permit for the construction of a new building in a floodway, except for the construction of a building on a pier in the Hudson River satisfying the requirements of N.J.A.C. 7:7E-3.48.

(e)   The Department shall issue an individual permit for the reconstruction of a lawfully existing building in a floodway only if the following requirements are satisfied:

1.    The building has not been unoccupied for more than five years prior to the date of application to the Department to reconstruct;

2.    The reconstruction shall not convert a non-residential use to a residential use; and

3.    All construction takes place within the same footprint as the original building.

(f)   The Department shall issue an individual permit for the construction of an addition to a lawfully existing building in a floodway only if the following requirements are satisfied:

1.    The building has not been unoccupied for more than five years prior to the date of application to the Department to construct the addition;

2.    The addition does not result in any further obstruction to the flow of floodwaters; and

3.    The existing building, in combination with the addition, is modified to withstand the hydrodynamic and hydrostatic forces due to flooding up to the flood hazard area design flood elevation.

(g)   The Department shall issue an individual permit to construct or reconstruct a private residence only if the lowest floor of the building meets the elevation requirements at (k) below.

(h)   The Department shall issue an individual permit to construct or reconstruct a public building only if the following requirements are satisfied:

1.    The lowest floor of the building meets the elevation requirements at (k) below;

2.    For a new building in a fluvial flood hazard area, the applicant demonstrates that the building is served by at least one roadway, the travel surface of which is constructed at least one foot above the flood hazard area design flood elevation; and

3.    For a new building in a tidal flood hazard area, or for any reconstructed building, the applicant demonstrates that the building is served by at least one roadway, the travel surface of which is constructed at least one foot above the flood hazard area design flood elevation, where feasible.

(i)    The Department shall issue an individual permit to construct or reconstruct a habitable building that is neither a private residence nor a public building, only if one of the following requirements is satisfied:

1.    The lowest floor of the building meets the elevation requirements at (k) below; or

2.    The applicant does the following:

i.     Demonstrates that it is not feasible to meet the elevation requirements at (k) below;

ii.    Constructs the lowest floor of the building as close to one foot above the flood hazard area design flood elevation as feasible; and

iii.   Certifies that the building will be constructed in accordance with the dry flood-proofing requirements at (q) below.

(j)    The Department shall issue an individual permit for the conversion of a building into a private residence or public building only if the following requirements are satisfied:

1.    The lowest floor of the building meets the elevation requirements at (k) below; and

2.    For a public building, the applicant demonstrates that the building is served by at least one roadway, the travel surface of which is constructed at least one foot above the flood hazard area design flood elevation, where feasible.

(k)   The elevation requirements for a building listed at (g) through (j) above are as follows:

1.    For a new building, the lowest floor shall be constructed at least one foot above the flood hazard area design flood elevation;

2.    For the reconstruction of a building that has been damaged by fire, flooding or other natural disaster, the lowest floor shall be constructed at least one foot above the flood hazard area design flood elevation, unless the applicant demonstrates that it is not feasible to do so. In such a case, the lowest floor shall be constructed as close to this elevation as feasible;

3.    For the reconstruction of a building not covered in (k)2 above, such as the voluntary razing a building and constructing a new one in its place, the lowest floor shall be constructed at least one foot above the flood hazard area design flood elevation; and

4.    For the enlargement of a building, such as the construction of an addition, the lowest floor of the new portion of the building shall be constructed at least one foot above the flood hazard area design flood elevation. The original building does not need to be elevated unless the original building was constructed in violation of this chapter. The Department shall not issue a permit to enlarge a building that was constructed in violation of this chapter unless the applicant first does the following:

i.     Receives a permit under this chapter to legalize the existing building; and

ii.    Performs any modifications to the existing building that the Department determines are necessary to bring the building into compliance with the requirements of this chapter.

(l)    The Department shall issue an individual permit for a habitable building with an enclosed area beneath the flood hazard area design flood elevation only if the enclosed area meets one of the following requirements:

1.    The enclosed area is a crawl space that meets the requirements of (m) below;

2.    The enclosed area is a garage that meets the requirements of (n) below; or

3.    The enclosed area is open to floodwaters as described at (o) below.

(m)  The Department shall issue an individual permit for a habitable building with a crawl space below the flood hazard area design flood elevation as described at (l)1 above only if the Department determines that the crawl space meets the following requirements:

1.    The floor elevation of the crawl space is at or above the adjoining exterior grade along at least one entire exterior wall;

2.    In order to prevent habitation of the crawl space, the vertical distance from the crawl space floor to the finished elevation of the first floor of the building is six feet or less. If this distance is greater than six feet, the area beneath the finished first floor is not considered a crawl space;

3.    Two or more permanent flood vents that meet the requirements of (p) below are constructed in the outer walls of the crawl space; and

4.    The deed of the property is modified to state that habitation of the crawl space is prohibited. 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.

(n)   The Department shall issue an individual permit for a garage with a floor below the flood hazard area design flood elevation as described at (l)2 above, whether attached to or below a private residence or freestanding, only if the garage meets the following requirements:

1.    The floor elevation of the garage is at or above the adjoining exterior grade along at least one entire exterior wall;

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

3.    The garage has a footprint of no more than 625 square feet;

4.    Two or more permanent flood vents that meet the requirements of (p) below are constructed in the outer walls of the garage; and

5.    The deed of the property is modified to disclose (n)5i through iv below. 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:

i.     That habitation of the garage is prohibited;

ii.    That the garage and driveway are likely to be inundated by floodwaters, which may result in damage and/or inconvenience;

iii.   The minimum frequency storm at which the garage and driveway will be inundated; and

iv.   The depth of flooding during the flood hazard area design flood.

(o)   The Department shall issue an individual permit for a habitable building with an enclosed area below the flood hazard area design flood elevation, which is not a crawl space or garage as described at (m) and (n) above, respectively, only if the enclosed area meets the following requirements:

1.    The floor elevation of the enclosed area is at or above the adjoining exterior grade along at least one entire exterior wall;

2.    At least 25 percent of the surface area of the outer wall of the enclosed area is left permanently open so that floodwaters can freely enter the building to balance hydrostatic pressure during a flood;

3.    At least one permanent opening in the outer wall extends down to the floor elevation of the enclosed area; and

4.    The deed of the property is modified to state that habitation of the enclosed area is prohibited. 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.

(p)  A flood vent constructed in the outer wall of a building shall meet the following requirements (unless otherwise required under the New Jersey Uniform Construction Code at N.J.A.C. 5:23):

1.    The invert of each flood vent shall be no more than 12 inches above the adjoining exterior grade;

2.    The invert of at least half of the flood vents shall be no more than 12 inches above the floor of the building;

3.    The combined effective open area of the flood vents shall be at least one square inch per square foot of the area of the footprint of the building, unless a smaller FEMA-approved device with an equivalent effective area is utilized; and

4.    The flood vents shall not be blocked at any time, but shall permanently remain open so that floodwaters can freely enter the building to balance hydrostatic pressure during a flood.

(q)   A building that is to be dry flood-proofed to meet a requirement of this chapter shall be designed and constructed to be waterproof up to the flood hazard area design flood elevation so that floodwaters cannot enter the structure during a flood. Specifically, the building's foundation, floor slab and walls shall be designed to resist hydrostatic pressure up to the flood hazard area design flood elevation. In addition, any exterior wall opening below the flood hazard area design flood elevation, such as a door or window, shall be equipped with waterproof seals and/or panels and shall also be designed to resist hydrostatic pressure up to the flood hazard area design flood elevation. An application for an individual permit for a dry flood-proofed building shall include the information listed at N.J.A.C. 7:13-9.2(e).

 

7:13-11.6 Requirements for a railroad, roadway or parking area

(a)   This section sets forth specific design and construction standards that apply to any railroad, roadway or parking area proposed in a flood hazard area.

(b)   The Department shall issue an individual permit to construct or reconstruct a railroad or public roadway only if one of the following requirements is satisfied:

1.    The travel surface of the railroad or public roadway is constructed at least one foot above the flood hazard area design flood elevation; or

2.    The applicant demonstrates that it is not feasible to construct the travel surface of the proposed railroad or public roadway at least one foot above the flood hazard area design flood elevation pursuant to (g) below, and instead constructs the travel surface as close to this elevation as feasible.

(c)   The Department shall issue an individual permit to construct or reconstruct a driveway that only serves one private residence, which is not being constructed as part of a larger residential subdivision, only if one of the following requirements is satisfied:

1.    The travel surface of the driveway is constructed at least one foot above the flood hazard area design flood elevation; or

2.    The applicant does the following:

i.     Demonstrates that it is not feasible to construct the travel surface of the proposed driveway at least one foot above the flood hazard area design flood elevation pursuant to (g) below, and instead constructs the travel surface as close to this elevation as feasible; and

ii.    Modifies the deed of the property to disclose (c)2ii(1) through (3) below. 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.

(1)  That the driveway is likely to be inundated by floodwaters, which may result in damage and/or inconvenience;

(2)  The minimum frequency storm at which the driveway will be inundated; and

(3)  The depth of flooding during the flood hazard area design flood.

(d)   The Department shall issue an individual permit to construct or reconstruct a private roadway that serves a public building only if one of the following requirements is satisfied:

1.    The travel surface of the private roadway is constructed at least one foot above the flood hazard area design flood elevation;

2.    For a new private roadway in a fluvial flood hazard area, the applicant demonstrates that the public building is already served by one or more roadways having a travel surface at least one foot above the flood hazard area design flood elevation, which is of adequate size and capacity to serve the public building, and instead constructs the travel surface of the roadway as close to this elevation as feasible; or

3.    For a new private roadway in a tidal flood hazard area, or for any reconstructed private roadway that currently lies below the flood hazard area design flood elevation, the applicant demonstrates that it is not feasible to construct the travel surface of the roadway at least one foot above the flood hazard area design flood elevation pursuant to (g) below, and instead constructs the travel surface of the roadway as close to this elevation as feasible.

(e)   The Department shall issue an individual permit to construct or reconstruct a parking area that serves a public building only if one of the following requirements is satisfied:

1.    The travel surface of the parking area is constructed at least one foot above the flood hazard area design flood elevation; or

2.    The applicant demonstrates that it is not feasible to construct the travel surface of the parking area at least one foot above the flood hazard area design flood elevation pursuant to (g) below, and instead constructs the travel surface of the parking area as close to this elevation as feasible.

(f)   The Department shall issue an individual permit to construct or reconstruct a private roadway and/or parking area that serves a building, or group of buildings, not covered by (c), (d) or (e) above, such as a commercial business, house of worship, office complex, shopping center or residential subdivision of two or more private residences, only if one of the following requirements is satisfied:

1.    The travel surface of each proposed private roadway and parking area that serve the building or group of buildings is constructed at least one foot above the flood hazard area design flood elevation;

2.    The applicant demonstrates the following:

i.     Each building or group of buildings is already served by one or more roadways having a travel surface at least one foot above the flood hazard area design flood elevation, which is of adequate size and capacity to serve the building or group of buildings;

ii.    The travel surface of each proposed roadway is constructed as close to one foot above the flood hazard area design flood elevation as feasible; and

iii.   The travel surface of each proposed parking area is constructed at least one foot above the flood hazard area design flood elevation; or

3.    The applicant demonstrates the following:

i.     It is not feasible to construct the travel surface of each private roadway and parking area at least one foot above the flood hazard area design flood elevation pursuant to (g) below;

ii.    The travel surface of each private roadway and parking area is constructed as close to one foot above the flood hazard area design flood elevation as feasible;

iii.   Every effort has been taken to provide some parking areas or sections of roadway in the overall development that are situated at least one foot above the flood hazard area design flood elevation so that vehicles can be moved to higher ground during a flood;

iv.   No extraordinary risk is posed to any person using each private roadway or parking area that is constructed at an elevation less than one foot above the flood hazard area design flood elevation; and

v.    An adequate number of permanent signs are posted in prominent locations indicating which private roadways and parking areas are subject to flooding in the following cases:

(1)  The roadway and/or parking area serves a residential subdivision of two or more private residences; or

(2)  The parking area has 10 spaces or more.

(g)   An applicant seeking to demonstrate that it is not feasible to construct the travel surface of a railroad, roadway or parking area at least one foot above the flood hazard area design flood elevation, as is required for various activities in this section, shall prove that strict compliance with this requirement would result in one or more of the following:

1.    Prohibitively high construction costs;

2.    Construction costs that are disproportionately high compared with any benefit that would be obtained by strict compliance;

3.    A design that necessitates excessive volumes of fill that exceed the flood storage displacement limits at N.J.A.C. 7:13-10.4, for which flood storage cannot feasibly be created in compensation either onsite or offsite; and/or

4.    A design that causes unavoidable and adverse impacts to the environment (such as to the channel, riparian zone or fishery resources), or which would cause unavoidable and significant increases in the flood hazard area design flood elevation.

 

7:13-11.7 Requirements for a bridge or culvert

(a)   This section sets forth specific design and construction standards that apply to any bridge or culvert proposed in any regulated area.

(b)   The Department shall issue an individual permit to construct or reconstruct a bridge or culvert only if the following requirements are satisfied:

1.    The bridge or culvert, and all embankments, are designed to remain stable, scour resistant and resistant to displacement and/or damage during any flood event up to and including the flood hazard area design flood. At a minimum, each bridge shall have stable abutments, each culvert shall have stable headwalls, and each abutment and headwall shall have footings that extend no less than three feet below the invert of the channel; and

2.    The bridge or culvert, and its associated roadway, are designed to minimize flooding and adverse impacts to channel stability and fishery resources. To help achieve this goal, the bridge or culvert opening shall match or exceed the dimensions of the existing channel where feasible, so that the size and shape of the natural channel is preserved through the structure. If additional flood conveyance is required, parallel culverts can be placed alongside the primary structure to carry flows that exceed the banks. Examples of acceptable designs are provided 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).

(c)   The Department shall issue an individual permit to construct a new bridge or culvert only if the following requirements are satisfied (for the purpose of determining compliance with this subsection, calculations shall be rounded to the nearest 0.1 feet):

1.    The new structure does not cause any offsite building, railroad, roadway or parking area to be subject to increased frequency or depth of flooding during any flood event up to and including the flood hazard area design flood; and

2.    The new structure does not cause an increase of more than 0.2 feet in the flood hazard area design flood elevation offsite.

(d)   The Department shall issue an individual permit to reconstruct an existing bridge or culvert only if the following requirements are satisfied (for the purpose of determining compliance with this subsection, calculations shall be rounded to the nearest 0.1 feet):

1.    The reconstructed structure does not cause any offsite building, railroad, roadway or parking area to be subject to increased frequency or depth of flooding during any flood event up to and including the flood hazard area design flood;

2.    The reconstructed structure does not cause an increase of more than 0.2 feet in the flood hazard area design flood elevation offsite within 500 feet of the structure; and

3.    The reconstructed structure does not cause any increase in the flood hazard area design flood elevation offsite more than 500 feet from the structure.

(e)   Subsections (f) through (m) below set forth standards for the protection of aquatic habitat and the maintenance of low-flow aquatic passage associated with the construction of a bridge or culvert. Examples of various designs described in this section are depicted 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). For the purposes of this section, regulated waters are divided into three classes as follows:

1.    Class A waters, which include the following:

i.     Category One waters;

ii.    Trout production waters;

iii.   Trout maintenance waters;

iv.   Trout stocked waters;

v.    Anadromous waters;

vi.   Waters supporting cool and warmwater gamefish; and

vii.  Waters supporting aquatic threatened and/or endangered species;

2.    Class B waters, which include the following:

i.     Waters supporting non-game cool and warmwater fish;

ii.    Waters identified by the Department's Division of Fish and Wildlife as supporting aquatic biota, which are not otherwise listed as Class A in (e)1 above; and

iii.   Waters that have been altered and/or degraded by lining, ditching, channel modification or other human activity, but which the Department determines can be restored and/or enhanced to support viable aquatic resources such as described in this paragraph; and

3.    Class C waters, which include the following:

i.     Waters that do not contain fishery resources;

ii.    Waters that are wholly manmade (not naturally occurring waters that have been altered by human activity); and

iii. All other waters not otherwise included in Class A and Class B in (e)1 and 2 above.

(f)   The Department shall issue an individual permit to construct or reconstruct a bridge or culvert in or across a Class A water that has a channel width of five feet or more as follows:

1.    The channel shall be completely spanned with one bridge, arch culvert or three-sided culvert as described in (i) below.

2.    If spanning under (i) below is not feasible due to prohibitively high construction costs, unstable substrate, adverse impacts to flooding and/or an irregular channel configuration, and the applicant meets the waiver requirements at (m) below, the channel shall be spanned with a smaller structure and adjoining side-relief culverts shall be constructed as described in (j) below.

3.    If spanning the channel with side-relief culverts under (j) below is not feasible due to prohibitively high construction costs, unstable substrate, adverse impacts to flooding and/or an irregular channel configuration, one circular or elliptical culvert, or a system of culverts, shall be constructed as described in (k) below.

4.    If constructing culverts under (k) below is not feasible due to hydraulic or structural design constraints, the applicant can construct a circular, elliptical or box culvert as described in (l) below.

(g)   The Department shall issue an individual permit to construct or reconstruct a bridge or culvert in or across a Class B water, or a Class A water that has a channel width of less than five feet, as follows:

1.    The channel shall be completely spanned with one bridge, arch culvert or three-sided culvert as described in (i) below.

2.    If spanning under (i) below is not feasible due to prohibitively high construction costs, unstable substrate, adverse impacts to flooding and/or an irregular channel configuration, the channel shall be spanned with a smaller structure and adjoining side-relief culverts shall be constructed as described in (j) below.

3.    If spanning the channel with side-relief culverts under (j) below is not feasible due to prohibitively high construction costs, unstable substrate, adverse impacts to flooding and/or an irregular channel configuration, and the applicant meets the waiver requirements at (m) below, one circular or elliptical culvert, or a system of culverts, shall be constructed as described in (k) below.

4.    If constructing culverts under (k) below is not feasible due to hydraulic or structural design constraints, the applicant can construct a circular, elliptical or box culvert as described in (l) below.

(h)   The Department shall issue an individual permit to construct or reconstruct a bridge or culvert in or across a Class C water as follows:

1.    The channel shall be completely spanned with one bridge, arch culvert or three-sided culvert as described in (i) below.

2.    If spanning under (i) below is not feasible due to prohibitively high construction costs, unstable substrate, adverse impacts to flooding and/or an irregular channel configuration, the channel shall be spanned with a smaller structure and adjoining side-relief culverts shall be constructed as described in (j) below.

3.    If spanning the channel with side-relief culverts under (j) below is not feasible due to prohibitively high construction costs, unstable substrate, adverse impacts to flooding and/or an irregular channel configuration, one circular or elliptical culvert, or a system of culverts, shall be constructed as described in (k) below.

4.    If constructing culverts under (k) below is not feasible due to hydraulic or structural design constraints, the applicant can construct a circular, elliptical or box culvert as described in (l) below.

(i)    Spanning a channel under (f)1, (g)1 and (h)1 above shall be accomplished as follows:

1.    The span shall be adequately sized to pass the flood hazard area design flood without a significant increase in the velocity of water in the channel;

2.    A stable, natural, earthen channel with low-flow aquatic passage shall be provided throughout the structure; and

3.    No armoring shall be placed under or across the channel bed, unless such armoring is necessary to prevent scour along the proposed abutments or footings. In such a case, the armoring shall be buried beneath at least two feet of native substrate where feasible.

(j)    Spanning a channel with adjoining side-relief culverts under (f)2, (g)2 and (h)2 above shall be accomplished as follows:

1.    The span shall consist of a bridge, arch culvert or three-sided culvert that is sized to match the width and cross-sectional area of the channel so as to convey bank-full flow without a significant increase in the velocity of water in the channel;

2.    A stable, natural, earthen channel with low-flow aquatic passage shall be provided throughout the structure;

3.    Additional culverts shall be constructed outside the channel, and parallel to the span, as needed to convey flood events that exceed the channel's capacity, up to and including the flood hazard area design flood; and

4.    No armoring shall be placed under or across the channel bed, unless such armoring is necessary to prevent scour along the proposed abutments or footings. In such a case, the armoring shall be buried beneath at least two feet of native substrate where feasible.

(k)   One circular or elliptical culvert, or a system of parallel circular and/or elliptical culverts, under (f)3, (g)3 and (h)3 shall be constructed as follows:

1.    Where possible, one culvert shall be constructed, which is adequately sized so to pass the flood hazard area design flood without a significant increase in the velocity of water in the channel;

2.    If construction under (k)1 above is not feasible, one culvert shall be sized to match the width and cross-sectional area of the channel, so as to convey bank-full flow without a significant increase in velocity, and additional culverts shall be constructed outside the channel, and parallel to the span, as needed to convey flood events that exceed the channel's capacity, up to and including the flood hazard area design flood;

3.    The invert of the in-channel culvert shall be installed at least two feet below the invert of the natural channel where feasible;

4.    The in-channel culvert shall be filled with native substrate up to the invert of the natural channel, in order to create a contiguous flow-path through the culvert that meets and matches the bottom inverts, cross-sections and profile of the channel beyond the culvert; and

5.    The applicant shall demonstrate that the native substrate placed within the in-channel culvert will remain stable under expected storm flow conditions.

(l)    A circular, elliptical or box culvert under (f)4, (g)4 and (h)4 shall be constructed as follows:

1.    Where feasible:

i.     The invert of the culvert shall be installed at least two feet below the invert of the natural channel where feasible;

ii.    The culvert shall be filled with native substrate up to the invert of the natural channel, in order to create a contiguous flow-path through the culvert that meets and matches the bottom inverts, cross-sections and profile of the channel beyond the culvert; and

iii.   The applicant shall demonstrate that the native substrate placed within the culvert will remain stable under expected storm flow conditions; and

2.    If a culvert cannot be constructed as described at (l)1 above due to unstable substrate or other physical constraints, the culvert shall be constructed to incorporate an artificial low-flow treatment such as a V-notch, key-notch or concave floor (see the Flood Hazard Area Technical Manual, available from the Department at the address listed at N.J.A.C. 7:13-1.1(g), for various examples).

(m)  A waiver from the requirements of (f)1 and (g)2 above shall be granted provided:

1.    The applicant clearly demonstrates that compliance with (f)1 or (g)2 is not possible or feasible, and/or that the cost of compliance greatly outweighs the environmental benefit that would be achieved. For the purposes of this subsection, the cost of compliance refers not only to economic cost to the applicant but also real or potential adverse impacts to the environment, flooding or public safety;

2.    The applicant, if a public entity, demonstrates that:

i.     There is a public need to cross the regulated water; and

ii.    There is no other feasible means of constructing a bridge or culvert, which would reduce or eliminate adverse impacts to aquatic resources, flooding and public safety; and

3.    The applicant, if a private entity, demonstrates that:

i.     There is developable land onsite that cannot feasibly be accessed without crossing the regulated water, including accessing the site through neighboring properties; and

ii.    There is no other feasible means of constructing a bridge or culvert to access the developable area onsite, which would reduce or eliminate adverse impacts to aquatic resources, flooding and public safety.

 

7:13-11.8 Requirements for a footbridge

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

(b)   The Department shall issue an individual permit to construct or reconstruct a footbridge only if the following requirements are satisfied (examples of various designs described in this section are depicted 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.    The structure is used exclusively to carry pedestrians, livestock and/or light vehicles such as bicycles, golf carts or lawn tractors over a regulated water;

2.    The travel width is no more than 10 feet. If the travel width is more than six feet, bollards or similar devices shall be installed to prevent automobiles and other larger vehicles from utilizing the footbridge;

3.    The structure completely spans the water so that no footings, piers or abutments are placed in the water or its channel;

4.    All footings, piers and abutments proposed within 10 feet of the top of bank or edge of water extend at least three feet below the channel invert;

5.    All footings, piers and abutments proposed more than 10 feet beyond the top of bank or edge of water extend at least three feet below grade;

6.    No approach ramp or other part of the footbridge obstructs flow in a floodway;

7.    If the footbridge provides access to a public building, its travel surface is constructed at least one foot above the flood hazard area design flood elevation where feasible, or as close to this elevation as feasible; and

8.    The footbridge is designed to pass floodwaters in one of the following ways:

i.     The low chord of the footbridge is set above the flood hazard area design flood elevation; or

ii.    Open handrails are used instead of a solid parapet, and the vertical distance between the low chord and the top of the footbridge deck, including any curbing, is no more than eight inches.

(c)   A structure that meets the requirements of (b) above is not subject to the requirements for a bridge or culvert at N.J.A.C. 7:13-11.7.  Any footbridge or other similar crossing that does not comply with the requirements of (b) above is subject to the requirements at N.J.A.C. 7:13-11.7 for bridges and culverts instead of the requirements of this section.

 

7:13-11.9 Requirements for a utility line

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

(b)   The Department shall issue an individual permit to construct or reconstruct a utility line across or under a channel or water only if the following requirements are satisfied, as applicable:

1.    The applicant demonstrates that it is not feasible to directionally drill or "jack" the proposed utility line under the channel or water, as permitted-by-rule at N.J.A.C. 7:13-7.2(c)3;

2.    The applicant demonstrates that it is not feasible to construct the utility line within a roadway that already crosses the channel or water, as permitted-by-rule at N.J.A.C. 7:13-7.2(c)4;

3.    The applicant demonstrates that it is not feasible to attach the utility line to a bridge that already crosses the channel or water, as permitted-by-rule at N.J.A.C. 7:13-7.2(c)5;

4.    The excavation of an open trench across a channel or water resulting in contact with flowing water is avoided. If the excavation of an open trench is unavoidable, the following requirements shall be met;

i.     Any trench in a channel, water or riparian zone, is no more than 20 feet wide, unless the applicant demonstrates that such a width is not feasible and a wider trench is necessary for safe construction;

ii.    The normal flow of the channel or water is piped or diverted around the open trench during construction where possible so that sediment cannot enter the regulated water; and

iii.   The trench is backfilled to the pre-excavation ground elevation using native substrate upon completion of the crossing;

5.    All disturbed areas in the flood hazard area are restored to pre-construction topography;

6.    A utility line that conveys a gas or liquid is protected in one of the following ways:

i.     It is covered by at least four feet of stable material consisting of native substrate in the channel or water;

ii.    It is encased in six inches of concrete and covered by at least three feet of stable material consisting of native substrate in the channel or water;

iii.   It is encased within a steel sleeve, or protected above by a 0.25-inch thick stainless steel plate, and covered by at least three feet of stable material consisting of native substrate in the channel or water; or

iv.   If the applicant demonstrates that it is not feasible to provide at least three feet of coverage beneath the channel or water, and that there is no feasible alternative location for crossing the channel or water where at least three feet of coverage is provided, the utility line is either:

(1)  Covered by as much stable material consisting of native substrate in the channel or water as feasible, and encased within a steel sleeve; or

(2)  Covered by as much stable material consisting of native substrate in the channel or water as feasible, protected above by a 0.25-inch thick stainless steel plate, and encased with six inches of concrete around the sides and bottom;

7.    A utility line that does not convey a gas or liquid is covered by at least three feet of stable material consisting of native substrate in the channel or water where feasible;

8.    The utility line is sealed to ensure that there will be no leakage or discharge in a regulated area; and

9.    The following requirements are satisfied for each utility line that crosses a channel or water, unless the applicant demonstrates that one or more of these requirements is not feasible or that another configuration would pose less risk to life, property and the environment:

i.     Each utility line is placed nominally horizontal under the entire channel or water, and remains so beyond each bank for a distance equal to twice the height of the bank, or 10 feet, whichever is greater. If there is no discernible bank, the utility line shall remain nominally horizontal for at least 10 feet beyond the normal edge of water;

ii.    The inclined portion of each utility line approaching the channel or water has a slope no greater than 50 percent (a ratio of two horizontal to one vertical); and

iii.   Encasement extends under the entire channel or water and 10 feet beyond each top of bank. If there is no discernible bank, the utility line shall be encased for at least 10 feet beyond the normal edge of water.

(c)   The Department shall issue an individual permit to construct or reconstruct a utility line above a channel or floodway, which is not attached to a roadway or railroad crossing, or which is attached to such a crossing but does not meet the permit-by-rule at N.J.A.C. 7:13-7.2(c)5, only if the following requirements are satisfied:

1.    The applicant demonstrates that it is not feasible to attach the utility line to a bridge that already crosses the channel or water, as permitted-by-rule at N.J.A.C. 7:13-7.2(c)5;

2.    The utility line does not create any obstruction to the flow of floodwaters;

3.    The utility line is suitably anchored and protected from damage by impact from floating debris;

4.    The utility line is sealed to ensure that there will be no leakage or discharge in a regulated area; and

5.    The utility line is placed at least one foot above the flood hazard area design flood elevation.

(d)   The Department shall issue an individual permit to construct or reconstruct a manhole associated with a utility line in a regulated area only if the following requirements are satisfied:

1.    The manhole is constructed at least 10 feet from any top of bank or edge of water (unless situated within a paved surface);

2.    The manhole has a watertight cover if constructed along a sanitary sewer line;

3.    The top of a manhole in a floodway is flush with the ground; and

4.    The top of a manhole in a flood fringe is flush with the ground, where possible.

(e)   The Department shall issue an individual permit for the placement of a cable directly on the bed of a channel or water only if the following requirements are satisfied:

1.    The channel or water is large enough in both width and depth that the cable will not interfere with the normal flow of the channel or water; and

2.    The cable is laid with enough slack so that it can be easily moved.

(f)   The Department shall issue an individual permit that allows, over the five-year term of the permit, the necessary and periodic maintenance, repair or replacement of any section of a lawfully existing above or below ground utility line in a regulated area only if the following requirements are satisfied:

1.    The applicant submits an application for an individual permit which, in addition to the normal application requirements, includes the following:

i.     The exact location of the utility line network that is the subject of the application, identified on USGS quad maps; and

ii.    Details of the types of maintenance, repair and/or replacement activities that can be expected to occur during the five-year period, including typical drawings of any anticipated repairs and a construction sequence;

2.    The applicant agrees to provide public notice pursuant to N.J.A.C. 7:13-16.3(d) at least five working days before performing any repair or replacement;

3.    The applicant agrees to replant all disturbed areas in the riparian zone with indigenous, non-invasive vegetation after each repair or replacement;

4.    The applicant agrees to restore all disturbed areas in the flood hazard area to pre-construction topography after each repair or replacement; and

5.    The applicant agrees to submit a report to the Department each January which includes the following:

i.     A description of each repair or replacement that occurred during the previous calendar year;

ii.    Color photographs of each regulated area before and after each repair or replacement; and

iii.   The fee for each repair or replacement, as provided at N.J.A.C. 7:13-17.

 

7:13-11.10 Requirements for a stormwater outfall structure

(a)   This section sets forth specific design and construction standards that apply to any stormwater outfall structure proposed in any regulated area.

(b)   The Department shall issue an individual permit to construct or reconstruct a stormwater outfall structure only if the following requirements are satisfied (examples of acceptable designs are provided 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.    The structure is built with a concrete headwall or flared-end section with footings that extend no less than three feet below grade;

2.    The structure does not obstruct flow in a channel or floodway;

3.    The structure includes adequate conduit outlet protection where required by the Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90;

4.    If the structure includes a rip-rap apron, a three feet deep by three feet wide rip-rap toe wall is constructed at the end of the apron; and

5.    The structure does not interfere with the normal flow of the channel or threaten to change the dimensions or location of the channel. For example, a large discharge of stormwater into a small channel, or a discharge situated at a significant angle to the normal flow in a channel, may cause the channel to move over time, interfere with the direction of flow and/or cause increased erosion or deposition of sediment within the channel.

 

7:13-11.11 Requirements for a dam or a low dam

(a)   This section sets forth specific design and construction standards that apply to any dam or low dam proposed in any regulated area.

(b)   Activities performed in association with the construction of a dam or low dam, such as a channel modification, the excavation of a stormwater management basin or the creation of a stormwater collection and discharge system, shall be reviewed in accordance with the appropriate requirements for those activities under this chapter. This section applies only to the construction of the dam or low dam itself.

(c)   The construction of a dam in a regulated area is subject to the requirements of this chapter only if the dam is part of a stormwater management basin that is located in a regulated area, or which discharges in a regulated area. Any dam that is constructed for another purpose is not subject to the requirements of this chapter, but is subject to the Dam Safety Standards at N.J.A.C. 7:20. Certain classes of dams require a permit from the Department's Dam Safety Section, which can be reached at (609) 984-0859 for further information. The requirements for removing a dam that is subject to this chapter are found at N.J.A.C. 7:13-11.19.

(d)   The Department shall issue an individual permit to construct a dam or a low dam in a regulated area only if the following requirements are satisfied:

1.    The dam or low dam does not increase offsite flooding in accordance with N.J.A.C. 7:13-11.1(f);

2.    The dam or low dam is not located in a channel unless the applicant demonstrates that there is no feasible alternative that would cause less adverse impact to the environment; and

3.    The dam or low dam is not located in a water with fishery resources, as described at N.J.A.C. 7:13-10.5, unless the dam or low dam includes a fish ladder or other mechanism that permits fish to pass the structure in either direction.

 

7:13-11.12 Requirements for a flood control project

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

(b)   The Department shall issue an individual permit for a flood control project only if the applicant is a public entity, and the applicant provides a detailed analysis of the existing flooding problem that is to be mitigated. At minimum, this analysis shall include the following:

1.    The frequency and intensity of flooding;

2.    The number of homes, businesses and other facilities historically affected by flooding;

3.    A cost-benefit analysis for the proposed flood control project, which includes a comparison of any adverse environmental impacts that may be caused by the project with the benefits for flood relief for each investigated alternative;

4.    A discussion regarding which storms the flood control project is designed to mitigate and why these storms were selected;

5.    If the flood control project is not designed to alleviate flooding for the 100-year flood and/or the flood hazard area design flood, a demonstration as to why this is not feasible and/or possible; and

6.    All hydrologic and hydraulic calculations necessary to demonstrate the need for and viability of the project.

(c)   The Department shall issue an individual permit for a flood control project that results in disturbance to a channel and/or riparian zone only if the requirements of (b) above are satisfied and provided the applicant demonstrates that there is no feasible alternative project located outside the channel and riparian zone that would satisfactorily reduce flooding. At minimum, this analysis shall include the following:

1.    A demonstration that the flooding problem cannot feasibly be solved through any of the following:

i.     Raising, relocating and/or removing the flood prone structures;

ii.    Replacing, removing or altering existing water control structures that are contributing to the flooding, such as dams or inadequately-sized bridges or culverts; and

iii.   Improving the hydraulic capacity of existing water control structures, such as removing accumulated sediment and debris from bridges and culverts, or eliminating bends, inlets and blockages in culverts;

2.    A demonstration that the flooding problem cannot feasibly be solved by reducing the volume and/or flow rate of floodwaters in the channel through either of the following:

i.     Constructing regional stormwater management basins upstream of the flooding; and

ii.    Redirecting excess flows into pipes or artificial channels to bypass the affected areas; and

3.    A demonstration that the following steps have been taken to ensure that the flooding problem will not reoccur after the flood control project has been constructed:

i.     Analysis of local stormwater management ordinances within the drainage area and modification, where necessary, or the ordinances to ensure that flows within the channel will not increase over time; and

ii.    Development of a regional plan to preserve the existing flood storage within the drainage area.

(d)   The Department shall issue an individual permit for the lining or piping of a channel as part of a flood control project only if the project meets the requirements at (b) and (c) above, and provided the applicant demonstrates the following:

1.    There is no feasible alternative project that would satisfactorily reduce the flooding, which would avoid lining or piping the channel;

2.    Lining or piping the channel is necessary to protect public health, safety and welfare; and

3.    Adequate mitigation for all lost vegetation and aquatic biota will occur.

 

7:13-11.13 Requirements for a retaining wall or bulkhead

(a)   This section sets forth specific design and construction standards that apply to any retaining wall or bulkhead proposed in any regulated area.

(b)   The Department shall issue an individual permit to construct or reconstruct a retaining wall or bulkhead that is at least four feet in height in a fluvial flood hazard area only if the following requirements are satisfied:

1.    The retaining wall or bulkhead is designed with stable footings that extend at least 3 feet below grade, unless the applicant demonstrates that such a footing is not possible to construct or necessary for stability;

2.    The applicant provides a stability analysis, signed and sealed by an engineer, which demonstrates that the retaining wall or bulkhead is designed to withstand displacement, overturning and failure due to undermining and/or pressure from soil, water and frost; and

3.    If located in a channel, the wall is designed to be resistant to erosion as well as the possibility of a shifting bed and/or bank over time.

(c)   The Department shall issue an individual permit to construct or reconstruct a retaining wall or bulkhead that is at least four feet in height in a tidal flood hazard area only if an engineer certifies that the retaining wall or bulkhead is designed to withstand displacement, overturning and failure due to undermining and/or pressure from soil, water and frost.

(d)   The Department shall issue an individual permit to construct or reconstruct a retaining wall or bulkhead that is less than four feet in height only if the wall is designed with stable footings and, if located in a channel, the wall is designed to be resistant to erosion as well as the possibility of a shifting bed and/or bank over time.

 

7:13-11.14 Requirements for bank stabilization and channel restoration

(a)   This section sets forth specific design and construction standards that apply to any bank stabilization or channel restoration project proposed in any regulated area.

(b)   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, only if the applicant provides a detailed analysis of the specific problem that is to be corrected. At minimum, this analysis shall include the following:

1.    A complete description of the existing problem onsite including:

i.     A history of the site and the drainage area, including any previous attempts to restore the bank or channel; and

ii.    The likely causes of any erosion, instability or ecological degradation;

2.    A demonstration of why the selected stabilization or restoration methods (as described at (c) below) are the most suitable for the site. At minimum, this demonstration should include and discuss the following (see Flood Hazard Area Technical Manual, available from the Department at the address listed at N.J.A.C. 7:13-1.1(g), for examples):

i.     The location of any headcut in the channel if present. A headcut is a sudden change in elevation in the stream bed, which usually occurs at the leading edge of a forming gully, and is indicative of erosive forces that are likely to continue to wash away the natural channel;

ii.    Any upstream or downstream stressors that may have contributed to and/or exacerbated any erosion, instability or ecological degradation, which should be addressed as part of the project;

iii.   How future development in the drainage area could impact the bank and/or channel and the proposed stabilization and/or restoration;

iv.   The anticipated lifetime of the proposed stabilization or restoration; and

3.    A maintenance and monitoring plan to ensure the success of the proposed stabilization or restoration, which includes:

i.     An action plan in case of future failure of the project; and

ii.    A plan to reduce the likelihood of future erosion, instability and ecological degradation onsite.

(c)   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, only if the project is accomplished as follows:

1.    The project is designed by an individual with experience in fluvial geomorphology (and soil bioengineering if used on site), as evidenced by documentation supplied with the individual permit application;

2.    Where possible, a localized eroded bank or destabilized channel is restored solely by cutting back the bank to a stable slope and planting with vegetation suitable for stabilization. Generally a slope of no greater than 50 percent (a ratio of two horizontal to one vertical) is recommended to stabilize an eroded bank;

3.    If cutting the bank and planting vegetation as described in (c)2 above cannot adequately restore the channel and/or fully prevent erosion due to excessive channel velocity, or if cutting the bank would destroy vegetation in excess of that which is allowed at N.J.A.C. 7:13-10.2(i), soil bioengineering is used to stabilize the eroded bank and/or restore the channel. In designing soil bioengineering installations, the existing soil characteristics, the bank and/or channel's physical structure and the hydrologic conditions on site shall be considered;

4.    The Department shall issue an individual permit for bank stabilization or channel restoration that is not accomplished solely using vegetation or soil bioengineering, as described in (c)2 and (c)3 above, respectively, only if the applicant demonstrates that, given the velocity and configuration of the adjacent channel and/or other conditions of the site, vegetation and/or soil bioengineering alone are not adequate to stabilize the bank and/or restore the channel; and

5.    The Department shall issue an individual permit for the lining or piping of a channel in order to stabilize erosion only if the applicant demonstrates the following:

i.     There is no feasible alternative project that would satisfactorily reduce the erosion, which would avoid lining or piping the channel;

ii.    Lining or piping the channel is necessary to protect public health, safety and welfare; and

iii.   Adequate mitigation for all lost vegetation and aquatic biota will occur.

(d).  In cases where nuisance flooding is a related issue, flood capacity outside the regulated water shall be increased by terracing the overbank areas where appropriate, so that the channel is not forced to convey excessive flows (see the Flood Hazard Area Technical Manual, available from the Department at the address listed at N.J.A.C. 7:13-1.1(g), for examples).

 

7:13-11.15 Requirements for sediment and debris removal from a water

(a)   This section sets forth specific standards that apply to any proposed sediment and debris removal from a regulated water.

(b)  This section does not apply to the removal of sediment and/or debris by a county or municipality in accordance with general permit 1 at N.J.A.C. 7:13-8.3, or the removal of sediment and/or debris conducted for agricultural purposes in accordance with general permit 2B at N.J.A.C. 7:13-8.4(c)2.   In addition, the removal of trash and obstructions from a channel are permitted-by-rule under certain circumstance pursuant to N.J.A.C. 7:13-7.2(a)5 and (d)3.

(c)   Except as provided in (d) below, the Department shall issue an individual permit for the removal of sediment and debris from a channel only if the following requirements are satisfied:

1.    The applicant demonstrates the following:

i.     That there is a flooding problem, mosquito control problem or other threat to public health, safety or welfare that cannot otherwise be remedied without removing the sediment and/or debris from the water; and

ii.    That removing the sediment and/or debris will remedy the problem identified in (c)1i above;

2.    The material to be removed from the water consists solely of accumulated silt, sediment and debris. Removal of material beyond or below the natural channel constitutes a channel modification and is subject to the requirements at N.J.A.C. 7:13-10.1(c);

3.    In order to minimize the downstream transport of sediment during dredging, all areas being dredged are isolated from flowing water where possible. Means of isolation include erecting temporary berms or sheet-piles around the areas being dredged and pumping the normal channel flow around the work area, or, if channel flow is low, by blocking off sections of the channel being dredged and allowing the sediment to settle;

4.    The applicant properly disposes of all material removed from the channel. Removed sediment can be disposed of in a regulated area provided the requirements at (f) below are satisfied. All removed trash and debris shall be disposed of in accordance with all applicable Federal, State and local laws outside any flood hazard area or riparian zone;

5.    The project does not disturb the channel bank or the riparian zone, unless such disturbance is unavoidable, necessary to gain access to the channel and minimized;

6.    The project is conducted from only one bank where possible;

7.    The use of heavy equipment in the channel is avoided;

8.    Vegetation and tree canopy on the more southerly or westerly bank is preserved in order to shade the channel;

9.    All access points to the water are described in writing and with color photographs; and

10.  All disturbed areas in the riparian zone are replanted with indigenous, non-invasive vegetation upon completion of the project.

(d)   The Department shall issue an individual permit for the removal of sediment and debris from a channel, which does not meet one or more of the requirements at (c) above, only if the following requirements are satisfied:

1.    The applicant is a public entity;

2.    The project is intended solely for mosquito control;

3.    The applicant demonstrates that the mosquito control problem cannot be solved by any other feasible methods;

4.    The applicant submits an individual, site-specific proposal to the Administrator of the State Office of Mosquito Control Coordination, and said office determines that the project is necessary to control a documented mosquito problem;

5.    The applicant explains in its public notice that the project does not meet the normal requirements under this chapter for sediment removal and that the applicant is seeking an exception for mosquito control purposes;

6.    The applicant convenes a public hearing to discuss the project in cases of significant public interest; and

7.    The applicant demonstrates that all adverse environmental impacts are minimized.

(e)   The Department shall issue an individual permit for the removal of sediment and debris from an impounded water, such as a lake, pond or reservoir, only if the following requirements are satisfied:

1.    In order to minimize the transport of sediment during dredging, all areas being dredged are isolated from flowing water where possible. Means of isolation include erecting temporary berms or sheet-piles around the areas being dredged, lowering the water level if controlled by a dam, plugging the downstream discharge of the water and pumping the incoming water around the impoundment;

2.    The applicant obtains a lake lowering permit from the Department's Division of Fish and Wildlife, where necessary;

3.    The applicant obtains any necessary approvals the Department's Dam Safety Section;

4.    Machinery access to the water is restricted in order to minimize disturbance to the riparian zone;

5.    The applicant properly disposes of all material removed from the impounded water. Removed sediment can be disposed of in a regulated area provided the requirements at (f) below are satisfied. All removed trash and debris shall be disposed of in accordance with all applicable Federal, State and local laws outside any flood hazard area or riparian zone; and

6.    If dredging expands the area or depth of the impounded water beyond its original dimensions, the applicant demonstrates that such expansion will not adversely affect flooding, any structure or freshwater wetlands adjacent to the water, the seasonal high water table or any dam or low dam that may exist.

(f)   The Department shall issue an individual permit to deposit sediment that has been removed from a regulated water, only if the following requirements are satisfied:

1.    The applicant demonstrates that the transport of the sediment out of the regulated area is not economically or physically feasible, and/or would cause greater environmental damage than depositing the sediment within the regulated area;

2.    The sediment is disposed of in accordance with all applicable Federal, State and local laws;

3.    The sediment is deposited at least 25 feet from any top of bank or edge of water;

4.    The placement of the sediment does not interfere with the positive overland drainage of the receiving area;

5.    Sediment deposited in a floodway is placed no more than three inches deep; and

6.    Sediment deposited is placed on land that lies below both the seasonal high water table and the normal water surface elevation of the nearest regulated water, unless the applicant demonstrates that the sediment cannot feasibly be deposited on such land.

(g)   The Department shall issue an individual permit that allows an applicant to repeatedly remove sediment and debris from a regulated water during the term of the permit, only if the applicant does the following:

1.    Demonstrates that there is no feasible means of preventing the accumulation of sediment and debris over time, which would therefore avoid the need for repeated cleanings;

2.    Demonstrates that repeated cleanings are necessary to properly maintain existing bridges or culverts along the water, and/or to alleviate local flooding;

3.    Demonstrates that repeated cleanings will not adversely impact fishery resources in the water;

4.    Agrees to notify the Department in writing no less than 10 calendar days prior to each proposed sediment removal activity; and

5.    Agrees to submit a report to the Department within 30 calendar days of the completion of each sediment removal activity. This report shall include color photographs of the work area and shall describe how the sediment removal was accomplished, where the dredged material was deposited and to what extent disturbed vegetation in the riparian zone was restored.

 

7:13-11.16 Requirements for the storage of unsecured material

(a)   This section sets forth specific standards that apply to any proposed storage of unsecured material in any regulated area.

(b)   This section governs the storage of unsecured material not addressed by the following:

1.    The permits-by-rule at N.J.A.C. 7:13-7.2(e)1 through 4, which cover the storage of unsecured materials for construction activities, and for certain ongoing residential and commercial uses; and

2.    The requirements at N.J.A.C. 7:13-11.17 and 11.18, which cover the placement of hazardous substances and solid waste in a regulated area, respectively, whether secured or unsecured.

(c)   The Department shall not issue an individual permit for the storage of unsecured material in a floodway.

(d)   The Department shall issue an individual permit for the storage of unsecured material in a regulated area outside a floodway only if the following requirements are satisfied:

1.    No vegetation is cleared, cut or removed in a riparian zone;

2.    The unsecured material is stored as part of a business or facility, the primary function of which is to store and distribute material, such as a bus or truck depot, car dealership or rental facility, gravel pit, junk yard, landscaping business, lumber yard or vehicle impoundment area;

3.    The applicant demonstrates that the unsecured material cannot feasibly be stored outside the flood hazard area and riparian zone onsite;

4.    The unsecured material to be stored is isolated from floodwaters by berms, or will be situated in a specially designed containment area onsite, so that, in the event of a flood, the stored material will not be transported off the site by floodwaters;

5.    The applicant discloses the maximum volume of unsecured material that will be stored in the flood fringe and includes this volume in calculating the maximum flood storage volume displacement on the site pursuant to N.J.A.C. 7:13-10.4; and

6.    The Department determines that the storage of unsecured material in a flood hazard area and riparian zone will not pose a threat to the environment or to public health, safety or welfare.

 

7:13-11.17 Requirements for the placement, storage or processing of hazardous substances

(a)   This section sets forth specific design and construction standards that apply to any proposed placement, storage or processing of hazardous substances in any regulated area.

(b)   A hazardous waste facility established on or before October 2, 2006, may be eligible to place, store or process hazardous substances under the permit-by-rule at N.J.A.C. 7:13-7.2(e)5, provided the size or capacity of the facility is not increased. In addition, the placement of a fuel tank is permitted-by-rule under certain conditions pursuant to N.J.A.C. 7:13-7.2(b)15 and 16. All other placement, storage or processing of hazardous substances is subject to this section.

(c)   The Department shall not issue an individual permit for the placement, storage or processing of hazardous substances in a floodway.

(d)   The Department shall issue an individual permit for the placement, storage or processing of hazardous substances in a regulated area outside a floodway only if the following requirements are satisfied:

1.    No vegetation is cleared, cut or removed in a riparian zone;

2.    The placement, storage or processing of hazardous substances is part of an increase in the size or capacity of a lawfully existing hazardous waste facility established on or before October 2, 2006.     The individual permit application shall include copies of all relevant State permits, licenses and authorizations in order to demonstrate that the facility is operating lawfully;

3.    The applicant demonstrates that the hazardous substances cannot feasibly be placed, stored or processed outside the flood hazard area and riparian zone onsite;

4.    The hazardous substances to be placed, stored or processed is isolated from floodwaters by berms, or will be situated in a specially designed containment area onsite, so that in the event of a flood, the hazardous substances will not be transported off the site by floodwaters;

5.    The applicant discloses the maximum volume of hazardous substances to be placed, stored or processed in the flood fringe and includes this volume in calculating the maximum flood storage displacement volume on the site pursuant to N.J.A.C. 7:13-10.4; and

6.    The Department determines that the placement, storage or processing of hazardous substances in the flood hazard area and riparian zone will not pose a threat to the environment or to public health, safety or welfare.

 

7:13-11.18 Requirements for the placement, storage or processing of solid waste

(a)   This section sets forth specific standards that apply to any proposed placement, storage or processing of solid waste in any regulated area.

(b)   A solid waste facility established on or before October 2, 2006, may be eligible to continue to place, store or process solid waste under the permit-by-rule at N.J.A.C. 7:13-7.2(e)6, provided the size or capacity of the facility is not increased. All other placement storage or processing of solid waste is subject to this section.

(c)   The Department shall not issue an individual permit for the placement, storage or processing of solid waste in a floodway.

(d)   The Department shall issue an individual permit for the placement, storage or processing of solid waste in a regulated area outside a floodway only if the following requirements are satisfied:

1.    No vegetation is cleared, cut or removed in a riparian zone;

2.    The placement, storage or processing of solid waste is part of an increase in the size or capacity of a lawfully existing solid waste facility established on or before October 2, 2006. The individual permit application shall include copies of all relevant State permits, licenses and authorizations in order to demonstrate that the facility is operating lawfully;

3.    The applicant demonstrates that the solid waste cannot feasibly be placed, stored or processed outside the flood hazard area and riparian zone onsite;

4.    The solid waste to be placed, stored or processed is isolated from floodwaters by berms, or will be situated in a specially designed containment area onsite, so that in the event of a flood, the solid waste will not be transported off the site by floodwaters;

5.    The applicant discloses the maximum volume of solid waste to be placed, stored or processed in the flood fringe for the purpose of calculating the maximum flood storage displacement on the site pursuant to N.J.A.C. 7:13-10.4; and

6.    The Department determines that the placement, storage or processing of solid waste in the flood hazard area and riparian zone will not pose a threat to the environment or to public health, safety or welfare.

 

7:13-11.19 Requirements for the removal of existing fill or an existing structure

(a)   This section sets forth specific standards that apply to any proposed removal of existing fill or an existing structure in any regulated area.

(b)   The removal of existing fill or an existing structure is subject to the requirements of this section only as follows:

1.    The fill or structure to be removed lies in a floodway; or

2.    The fill or structure to be removed lies in a regulated area outside a floodway, but does not qualify for the permit-by-rule at N.J.A.C. 7:13-7.2(b)2.

(c)   The Department shall issue an individual permit for the removal of existing fill or an existing structure as described in (b) above only if the following requirements are satisfied:

1.    All disturbed regulated areas are properly stabilized;

2.    If the removed fill or structure lies in a floodway, the applicant demonstrates through a hydraulic analysis that the removal will not adversely impact a property not owned by the applicant, pursuant to N.J.A.C. 7:13-11.1(f) and (g), unless it is clear to the Department that the proposed removal poses no threat to offsite properties;

3.    Any removed fill is disposed of in accordance with all applicable Federal, State and local laws;

4.    Any removed structure is disposed of outside of any regulated area and in accordance with all applicable Federal, State and local laws; and

5.    No vegetation is cleared, cut or removed in a riparian zone, unless the following apply:

i.     Vegetation in the riparian zone must be cleared, cut or removed in order to access the fill or structure;

ii.    The area of disturbance within the riparian zone is minimized; and

iii.   All vegetation cleared, cut or removed in the riparian zone is replanted with indigenous, non-invasive species, except where the removed material is to be replaced by a new structure. (Any replacement fill or structure is subject to the requirements of this chapter.)