SUBCHAPTER 19. ENFORCEMENT

7:13-19.1 Penalties
7:13-19.2 Grace period applicability; procedures

7:13-19.1 Penalties

(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.

 

7:13-19.2 Grace period applicability; procedures

(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