7:13-19.2 Grace period applicability; procedures
(a) Pursuant
to N.J.S.A. 58:16A-63, and subject to the grace period provisions applicable in
accordance with N.J.A.C. 7:13-19.2, the Department may seek, in a court of
competent jurisdiction, a civil penalty and/or injunctive relief for any
violation of the Flood Hazard Area Control Act and/or this chapter, as follows:
1. Any person who knowingly
violates any provision of the Act or this chapter shall be subject to a penalty
of not more than $ 2,500 for each offense; and
2. Any person who otherwise
violates any provision of the Act or this chapter shall be subject to a penalty
of not more than $ 1,500 for each offense.
(b) If
a violation is of a continuing nature, each day that the violation continues
constitutes an additional, separate and distinct offense. A violation is of a
continuing nature as long as the adverse impact of the violation continues. For
example, if a violation involves placement of fill in a floodway, each day that
the fill remains in the floodway is an additional, separate and distinct
offense, because the increased flood hazard caused by the fill continues each
day that the fill is present. In such a case, the Department may seek a
separate penalty for each day that the fill remains in the floodway.
(a) Each
violation identified in Table G at (f) below by an "M" in the Type of
Violation column, for which the conditions of (d)1 through 6 below are satisfied,
is a minor violation and is subject to a 30-day grace period as described at
(e) below.
(b) Each
violation identified in Table G at (f) below by an "NM" in the Type
of Violation column is a non-minor violation and is not subject to a grace
period.
(c) If
a violation is not listed in Table G at (f) below, the designation of the
violation as minor or non-minor is determined as follows:
1. If the violation is not
listed in Table G at (f) below but is comparable to a violation designated as
"M" in Table G and the violation meets all of the criteria of (d)1
through 6 below, then the violation is minor. The minor violation shall be
subject to a grace period of 30 calendar days as described at (e) below.
2. If the violation is not
listed in Table G at (f) below and is not comparable to a violation listed in
Table G but the violation meets all of the criteria at (d)1 through 9 below,
then the violation is minor. The minor violation shall be subject to a grace
period of 30 calendar days as described at (e) below.
3. If the violation is not
listed in Table G at (f) below but is comparable to a violation designated as
"NM" in Table G, then the violation is a non-minor violation and is
not subject to a grace period.
4. If the violation is not
listed in Table G at (f) below and is not comparable to a violation listed in
Table G, and the violation does not meet all of the criteria at (d)1 through 9
below, the violation is non-minor and is not subject to a grace period.
5. Comparability of a violation
to a violation in Table G at (f) below is based on the nature of the
violation(s) (for example recordkeeping, accuracy of information provided to
the Department, amount and type of impacts to the protected resources). A
violation shall not be considered comparable to any violation designated as
"M" in Table G unless the violation also meets the criteria at (d)7
through 9 below.
(d) The
Department shall provide a grace period of 30 calendar days for any violation
identified as minor under this section, provided the following conditions are
met:
1. The violation is not the
result of the purposeful, knowing, reckless or criminally negligent conduct of
the person responsible for the violation;
2. The activity or condition
constituting the violation has existed for less than 12 months prior to the
date of discovery by the Department or a local government agency;
3. In the case of a violation
that involves a permit, the person responsible for the violation has not been
identified in a previous enforcement action by the Department or a local
government agency as responsible for a violation of the same requirement of the
same permit within the preceding 12-month period;
4. In the case of a violation
that does not involve a permit, the person responsible for the violation has
not been identified in a previous enforcement action by the Department or a
local government agency as responsible for the same or a substantially similar
violation at the same facility within the preceding 12-month period;
5. In the case of a violation of
the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq. or any rule or
regulation promulgated thereunder, or permit issued pursuant thereto, the
person responsible for the violation has not been identified in a previous
enforcement action by the Department or a local government agency as
responsible for the same or a substantially similar violation at the same site
or any other site within the preceding 12-month period;
6. In the case of any violation,
the person responsible for the violation has not been identified by the
Department or a local government agency as responsible for the same or
substantially similar violations at any time that reasonably indicate a pattern
of illegal conduct and not isolated incidents on the part of the person
responsible;
7. The violation poses minimal
risk to the public health, safety and natural resources;
8. The violation does not
materially and substantially undermine or impair the goals of the regulatory
program; and
9. The activity or condition
constituting the violation is capable of being corrected and compliance
achieved within the time prescribed by the Department.
(e) For
a violation determined to be minor under (a) or (c) above, the following
provisions apply:
1. The Department shall issue a
notice of violation to the person responsible for the minor violation that:
i. Identifies the
condition or activity that constitutes the violation and the specific
regulatory provision or other requirement violated; and
ii. Specifies that a penalty may
be imposed unless the minor violation is corrected and compliance is achieved
within the specified grace period of 30 calendar days.
2. If the person responsible for
the minor violation corrects that violation and demonstrates, in accordance
with (e)3 below, that compliance has been achieved within the specified grace
period, the Department shall not impose a penalty for the violation.
3. In response to a notice of
violation, the person responsible for the minor violation shall submit to the
Department, before the end of the specified grace period, written information,
signed and certified to be true by the responsible person or his or her
designee, detailing the corrective action taken or how compliance was achieved.
4. If the person responsible for
the minor violation seeks additional time beyond the specified grace period to
achieve compliance, the person shall request an extension of the specified
grace period in writing no later than one week before the expiration of the
specified grace period. The request shall include the anticipated time needed
to achieve compliance, the specific cause or causes of the delay, and any
measures taken or to be taken to minimize the time needed to achieve
compliance. The request shall be signed and certified to be true by the
responsible party or their designee. The Department may, in its discretion,
approve in writing an extension which shall not exceed 90 calendar days, to
accommodate the anticipated delay in achieving compliance. In exercising its
discretion to approve a request for an extension, the Department may consider
the following:
i. Whether the violator
has taken reasonable measures to achieve compliance in a timely manner;
ii. Whether the delay has been
caused by circumstances beyond the control of the violator;
iii. Whether the delay will pose a risk
to the public health, safety and natural resources; and
iv. Whether the delay will materially
or substantially undermine or impair the goals of the regulatory program.
5. If the person responsible for
the minor violation fails to demonstrate to the Department that the violation
has been corrected and compliance achieved within the specified grace period,
or within any approved extension, the Department may, in accordance with the
provisions of this chapter, impose a penalty that is retroactive to the date on
which the notice of violation under (e)1 above was issued.
6. The person responsible for a
minor violation shall not request more than one extension of a grace period
specified in a notice of violation.
(f) The designations of violations of
the Flood Hazard Area Control Act and this chapter as minor (M) and non-minor
(NM) are set forth in Table G below. The violation descriptions are provided
for informational purposes only. In the event that there is a conflict between
a violation description in Table G and the rule to which the violation
description corresponds, the rule shall govern.
Table G
MINOR AND NON-MINOR VIOLATIONS
|
Rule Citation |
Violation Description |
Type of Violation |
|
N.J.A.C. 7:13-1.3(d) |
Failure of an
applicant, or any consultant, engineer, surveyor or agent employed by an
applicant, to provide all necessary information to the Department which is
relevant to an application. Submittal of false information by the applicant,
its consultants and/or agents. |
NM |
|
N.J.A.C. 7:13-1.4(a)2ii |
Failure of a delegated
county governing body to uphold the requirements of this chapter |
NM |
|
N.J.A.C. 7:13-1.4(c) |
Failure of a delegated
county governing body to permanently retain a copy of all required documents
that document that it has discharged its delegated duties |
NM |
|
N.J.A.C. 7:13-2.1(a) |
Initiating a regulated
activity in a regulated area not in conformance with a permit-by-rule,
general permit authorization, individual permit, emergency permit or
appropriate CAFRA or waterfront development permit. |
NM |
|
N.J.A.C. 7:13-6.1(g) |
Failure of an
applicant to record the metes and bounds description of a verified flood
hazard area and/or floodway limit on the property deed within 90 calendar
days of issuance of the verification |
NM |
|
N.J.A.C. 7:13-6.1(g) |
Failure of an
applicant to submit proof to the Department of recording of the metes and
bounds description of the verified flood hazard area and/or floodway limit on
the property deed within 90 calendar days of issuance of the verification |
M |
|
N.J.A.C. 7:13-8.2 |
Failure to comply with
all conditions of a general permit except as indicated directly below |
NM |
|
N.J.A.C. 7:13-8 |
Failure to submit to
the Department any documentation required by a general permit |
M |
|
N.J.A.C.
7:13-9.5 |
Failure to comply with
all conditions of an individual permit except as indicated directly below |
NM |
|
N.J.A.C. 7:13-9 |
Failure to submit to
the Department any documentation required by an individual permit |
M |
|
N.J.A.C. 7:13-12.2 |
Commencement of
activities authorized under an emergency permit later than 30 calendar days
after verbal approval; failure to complete commenced activities within 60
calendar days after verbal approval; failure to file a complete permit
application and “as built” drawings for completed activities within 90
calendar days after verbal approval; and failure to modify the activities to
comply with the requirements of this chapter where directed to do so by the
Department. |
NM |
|
N.J.A.C. 7:13-13 |
Failure of an applicant to record a revised verification |
NM |
|
N.J.A.C. 7:13-13 |
Failure of an
applicant to provide proof that a revised verification has been properly
recorded |
M |
|
N.J.A.C. 7:13-16.1(c) |
Failure of an
applicant to comply with notice requirements |
NM |