N.J.A.C. 7:7A Subchapter 4

FRESHWATER WETLANDS PROTECTION ACT RULES

N.J.A.C. 7:7A

SUBCHAPTER 10 APPLICATION CONTENTS AND PROCEDURE

Please Note: The Department has made every effort to ensure that the text of this regulation is identical to the official, legally effective version set forth in the New Jersey Register. However, should there be any discrepancies between the text on this web site and the official version of the rule, the official version will govern. For more information on obtaining official versions of the rules, see "How To Get a Paper Copy of Department Rules".

7:7A-10.1 Basic application information
7:7A-10.2 Basic content requirements for all applications
7:7A-10.3 Additional application requirements for an LOI
7:7A-10.4 Additional application requirements for a general permit authorization
7:7A-10.5 Additional application requirements for a transition area waiver
7:7A-10.6 Additional application requirements for an individual freshwater wetlands or open water fill permit
7:7A-10.7 Additional application requirements for a modification or extension
7:7A-10.8 Public notice requirements for applications
7:7A-10.9 Signatories to permit applications and reports
7:7A-10.10 Confidentiality

N.J.A.C. 7:7A-10.1 Basic application information

(a) This subchapter describes the application contents and procedures required for most Department permits, waivers, and authorizations.

(b) This subchapter applies to an application for all of the following:

1. A letter of interpretation, including an extension or modification of a letter of interpretation;

2. Authorization to act under a general permit, except that the following activities are subject to application requirements in the general permits listed below, and are not subject to any of the application requirements in this subchapter except for the public notice requirements at N.J.A.C. 7:7A-10.8:

i. The ongoing maintenance of an off-stream stormwater management facility created in uplands under general permit 1;

ii. The repair or modification of an individual subsurface disposal system (septic system) under general permit 25; and

iii. Minor channel or stream cleaning performed by a local government agency under general permit 26;

3. A transition area waiver;

4. An individual open water fill permit;

5. An individual freshwater wetlands permit; and

6. A minor modification, major modification, or extension of a permit, including a transition area waiver or general permit authorization.

1. An exemption letter. Application requirements for an exemption letter are found at N.J.A.C. 7:7A-2.10; or

2. A mitigation proposal. Application requirements for a mitigation proposal are found at N.J.A.C. 7:7A-15.12.

(d) An application shall be submitted by the owner of the site which is the subject of the application, or by a person who has the legal authority to perform the activities proposed in the application on the site, and to carry out all requirements of this chapter. Others may assist the owner in preparing an application, and may submit reports or other information in accordance with N.J.A.C. 7:7A-10.9.

(e) An applicant shall include on an application all planned activities which are related to the proposed project.

(f) Failure to provide complete and accurate information required in this subchapter of which the applicant, its consultants, engineers, surveyors or agents are, or reasonably should have been, aware may result in denial or termination of the permit under N.J.A.C. 7:7A-14.5, and may subject the applicant, its consultants, engineers, surveyors and/or agents to penalties for submittal of false information under N.J.A.C. 7:7A-16.9.

(g) For each application, the applicant shall provide all information necessary for the Department to determine if the requirements of this chapter are met. The Department will provide an application checklist setting forth the information required for an administratively complete application. Each application checklist will require different information depending on the type of approval sought.

(h) Application checklists and application forms for the Division of Land Use Regulation approvals can be downloaded and/or printed from the Division of Land Use Regulation website at www.state.nj.us/dep/landuse, or they can be obtained by contacting the Department at the address in N.J.A.C. 7:7A-1.3.

(i) In general, the level of detail and documentation required for an application shall be reasonably commensurate with the size and impact of the proposed project, its proximity to critical areas, and its potential to adversely affect freshwater wetlands, transition areas, and/or State open waters. The Department shall, upon request, provide applicants with guidance regarding the appropriate level of detail.

(j) An applicant shall supply each required document in multiple copies as specified in the application checklist. In some cases, the application checklist shall also specify the size or material (such as mylar) of a document, and may require the document to be folded for easier handling.

(k) To minimize permit processing time, an applicant should carefully review the application checklist and make sure the application includes all required information. Following are the Department's average application processing times for 2000, from the date an application is submitted until the Department's final decision on the application. An applicant should assume that at least this amount of time will be required for Department review of the application. Some applications will take longer, depending on how quickly the applicant responds to Department requests for additional information, and on the size and complexity of the application:

1. For a letter of interpretation, approximately 69 calendar days;

2. For an authorization under a general permit, approximately 65 calendar days;

3. For an individual transition area waiver, approximately 71 calendar days; and

4. For an individual permit, approximately 161 calendar days.

(l) If a project requires more than one permit or waiver under this chapter, one application may be submitted for all permits or waivers.

(m) If a project requires approvals from the Division of Land Use Regulation under other chapters, the Department encourages, but does not require, the applicant to submit one application for all project approvals. If an application covers more than one Division of Land Use Regulation approval, the application shall:

1. Comply with the application requirements of each permit program;

2. Include the application fee required at N.J.A.C. 7:7A-11 for multiple approvals; and

3. Include a comprehensive environmental plan, showing all activities on the site that are regulated by the Division of Land Use Regulation.

(n) An applicant shall keep all data used to complete an application, and any information submitted to the Department during the application review process, for three years after the application is submitted to the Department, or for the duration of the permit if one is issued, whichever is longer.

(o) If a project requires mitigation, the applicant shall submit a mitigation proposal complying with the mitigation proposal requirements at N.J.A.C. 7:7A-15 with the application, or alternatively, the applicant shall submit the mitigation proposal later, during the application review process or after a permit is approved. Regardless of when the mitigation proposal is submitted, regulated activities shall not begin on a site for which mitigation is required until the Department approves the mitigation proposal and the mitigation is also begun.

(p) An application for regulated activities in an area under the jurisdiction of the Pinelands Commission shall be submitted to the Pinelands Commission rather than to the Department, except for an application for an individual freshwater wetlands permit, which shall be submitted to the Department in accordance with this subchapter.

(q) When a survey is required, it shall be conducted and the documentation provided in accordance with the requirements at N.J.A.C. 7:36 Appendix 2, specifically scope of work: property surveys at 3.4.2; corner markers at 3.5.2.10.1, deed description at 3.5.4, metes and bound description and reduced survey plan at 3.6.6, and digital files at 3.6.7.

N.J.A.C. 7:7A-10.2 Basic content requirements for all applications

(a) This section includes basic information required for every approval covered by this subchapter (see N.J.A.C. 7:7A-10.1(b)). Each application checklist will require this information and in addition will require information specific to the type of approval sought. The additional information required for each specific approval is set forth below at N.J.A.C. 7:7A-10.3 through 10.7.

(b) The application checklist for every application covered by this subchapter shall require the following:

1. An application form, including a certification of truth and accuracy that meets the requirements at N.J.A.C. 7:7A-10.9, completed as directed in the instructions and/or application checklist. The application form will include basic information regarding the site, the applicant, and the activities proposed;

2. Unconditional written consent from the owner of the site, as defined at N.J.A.C. 7:7A-1.4, for Department representatives to enter the site to conduct site inspections;

3. The appropriate fee, set forth at N.J.A.C. 7:7A-11;

4. Visual materials, including, but not limited to, maps, plans, surveys, diagrams, or photographs as necessary to accurately portray the site, existing conditions on the site, all areas of Department land use regulatory jurisdiction, and any activities proposed on the site;

5. Written narrative information and/or reports as necessary to accurately describe the site, its location (including State plane coordinates), site conditions including areas of Department land use regulatory jurisdiction, and any planned activities, including schedules for performing regulated activities, if appropriate;

6. Documentation that the applicable requirements at N.J.A.C. 7:7A-10.8, Public notice requirements for applications, have been met;

7. Information and certifications regarding the presence or absence of endangered or threatened species habitat, historic or archaeological resources or other features on the site that are relevant to determining compliance with the requirements of this chapter;

8. Information necessary to demonstrate compliance with the stormwater management requirement at N.J.A.C. 7:7A-2.11;

9. The names and addresses of all consultants, engineers, and other persons providing technical assistance in preparing the application; and

10. Any other information not listed in this subsection, if necessary to ensure compliance with the Federal rules governing the Department's assumption of the Federal 404 program at 40CFR§233.30.

(c) In addition to the information required at (b) above, the Department may require any information necessary to clarify information previously submitted, to ensure compliance with State and/or Federal law, or to determine whether an application meets State and/or Federal standards.

(d) Whenever the Department requires a construction plan or other visual depiction of proposed activities, the Department may require that certain information pertinent to the construction work be placed directly on the plan in order to provide notice of Department construction requirements to the workers who will carry out the permitted activities.

(e) Failure to provide all information of which the applicant, its consultants, engineers, surveyors, or agents are or should be aware may result in denial or termination of the permit under N.J.A.C. 7:7A-14.5, and may subject the applicant, its consultants, engineers, surveyors, or agents to penalties for submittal of false information under N.J.A.C. 7:7A-16.10.

N.J.A.C. 7:7A-10.3 Additional application requirements for an LOI

(a) In addition to the basic information required for all applications under N.J.A.C. 7:7A-10.2, an application checklist for an LOI shall require the information specified in this section.

(b) The application checklist for a presence/absence LOI for a portion of a site under N.J.A.C. 7:7A-3.2 shall require information identifying the portion(s) of the site which is the subject of the application.

(d) The application checklist for a line verification LOI issued under N.J.A.C. 7:7A-3.4 shall require the following:

1. A proposed delineation of all freshwater wetlands, transition areas, and State open waters on the site, or portion thereof, which is the subject of the application. The delineation shall be clearly marked in the field as required by the application checklist. When delineating a State open water one to five feet in width measured from top of bank, with no wetland boundary, the delineation shall indicate the centerline of the State open water with several data points numbered and shown on the plans. When delineating a State open water that is greater than five feet in width, the delineation shall include two survey lines, with numbered points, depicting the top of bank on both sides of the State open water;

2. Soil borings and/or other physical indicators of the presence or absence of freshwater wetlands, transition areas, and/or State open waters;

3. Data sheets or other materials that explain and support the delineation; and

4. If the LOI is for a portion of a site, documentation that the site and portion meet the requirements at N.J.A.C. 7:7A-3.4(b)2i through iii, and information identifying the subject portion of the site in accordance with N.J.A.C. 7:7A-3.4(b)2iv.

N.J.A.C. 7:7A-10.4 Additional application requirements for a general permit authorization

(a) In addition to the basic information required for all applications under N.J.A.C. 7:7A-10.2, the application checklist for a general permit authorization shall require:

1. Any information specified as an application requirement in the general permit itself at N.J.A.C. 7:7A-5, if not included in N.J.A.C. 7:7A-10.2;

2. A line delineation LOI issued under N.J.A.C. 7:7A-3.3, or a line verification LOI issued under N.J.A.C. 7:7A-3.4, if an LOI of either type has been issued. A presence/absence LOI issued under N.J.A.C. 7:7A-3.2 is not sufficient. If no LOI has been issued, or if only a presence/absence LOI has been issued, the application checklist shall require all information required for an application for a line delineation LOI or line verification LOI, covering the portion of the site that will be affected by the general permit activities. In addition, the application checklist shall require the total area, in acres, of wetlands and State open waters on the site before the regulated activity is performed, and the total area, in acres, of wetlands and State open waters, on the site that will remain after the regulated activity is performed. The total area of wetlands and State open waters on the site can be approximated using a planimeter or other mapping technique;

3. Information regarding whether other approvals are required for the activities by Federal, interstate, State and local agencies for the activity; information regarding whether any such approvals or denials have been received; and information regarding whether the proposed activities are consistent with the rules, plans, or policies of other Federal, interstate, State and local agencies;

4. If a site is known or suspected to be contaminated with toxic substances, and if the Department requests it, a laboratory analysis of representative samples of the soil or sediment on the site;

5. Documentation regarding when the lot that is the subject of the general permit was created by subdivision;

6. A history of the ownership of the property beginning June 30, 1988 to present; and

7. A listing of contiguous lots that were in common ownership with the lot on which the activities are proposed and the ownership history of each lot beginning June 30, 1988 to present.

N.J.A.C. 7:7A-10.5 Additional application requirements for a transition area waiver

(a) In addition to the basic information required for all applications under N.J.A.C. 7:7A-10.2, an application checklist for a transition area waiver, as defined at N.J.A.C. 7:7A-1.4, shall require the following:

1. A line delineation LOI issued under N.J.A.C. 7:7A-3.3, or a line verification LOI issued under N.J.A.C. 7:7A-3.4, if an LOI of either type has been issued. A presence/absence LOI issued under N.J.A.C. 7:7A-3.2 is not sufficient. If no LOI has been issued for the site, or if only a presence/absence LOI has been issued, the application checklist shall require all information required for an application for a line delineation LOI or line verification LOI;

2. Information regarding whether other approvals are required for the activities by Federal, interstate, State and local agencies for the activity; information regarding whether any such approvals or denials have been received; and information regarding whether the proposed activities are consistent with the rules, plans, or policies of other Federal, interstate, State and local agencies; and

3. If a site is known or suspected to be contaminated with toxic substances, and if the Department requests it, a laboratory analysis of representative samples of the soil or sediment on the site.

(b) In addition to the information required at (a) above, the application checklist for a special activity transition area waiver based upon an individual permit criteria under N.J.A.C. 7:7A-6.3(g) shall require:

1. The applicable fee for a transition area waiver set forth at N.J.A.C. 7:7A-11;

2. The information required for an individual freshwater wetlands permit application at N.J.A.C. 7:7A-10.6(b); and

3. A mitigation proposal in accordance with the requirements at N.J.A.C. 7:7A-15.26.

(c) In addition to the information required at (a) above, the application checklist for a hardship transition area waiver under N.J.A.C. 7:7A-6.5 shall require the information contained in N.J.A.C. 7:7A-17.1(i)4, 5, 7, 8i through iii, and a statement indicating that the property owner has requested a hardship transition area waiver.

N.J.A.C. 7:7A-10.6 Additional application requirements for an individual freshwater wetlands or open water fill permit

(a) In addition to the basic information required for all applications in N.J.A.C. 7:7A-10.2, the application checklist for an individual freshwater wetlands or open water fill permit shall require the following information:

1. The basic project purpose of the proposed activity, including whether it is water-dependent, as defined at N.J.A.C. 7:7A-1.4;

2. A line delineation LOI issued under N.J.A.C. 7:7A-3.3, or a line verification LOI issued under N.J.A.C. 7:7A-3.4, if an LOI of either type has been issued. A presence/absence LOI issued under N.J.A.C. 7:7A-3.2 is not sufficient. If no LOI has been issued for the site, or if only a presence/absence LOI has been issued, the application checklist shall require all information required for an application for a line delineation LOI or line verification LOI. In addition, the application checklist shall require the total area of wetlands and State open waters, in acres, on the site before the regulated activity is performed, and the total area, in acres, of wetlands and State open waters on the site that will remain after the regulated activity is performed. The total area of wetlands and State open waters on the site can be approximated using a planimeter or other mapping technique;

4. If a site is known or suspected to be contaminated with toxic substances, and if the Department requests it, a laboratory analysis of representative samples of the sediment on the site.

5. A copy of the deed and/or other legal documents pertaining to the site;

6. Information regarding special aquatic sites, public lands, critical habitat, and other relevant environmental features of the site; and

7. An alternatives analysis that meets the requirements at (b) below.

(b) To ensure that the Department can evaluate all potential alternatives to a proposed project, the application checklist for an individual freshwater wetlands permit shall require an alternatives analysis that allows the Department to evaluate whether the requirements of N.J.A.C. 7:7A-7.2 are met, including, at a minimum the following:

1. A description of all alternatives considered, including offsite alternatives as well as onsite alternatives that could minimize environmental impacts on the site, and the reasons for rejecting each alternative;

2. Information regarding the history of the property as a whole, as necessary to evaluate the cost to the property owner of various alternatives. Such information may include:

i. Document(s) showing when the property as a whole, as defined at N.J.A.C. 7:7A-1.4, was acquired and its purchase price;

ii. Documentation of any investments made to maintain and/or develop the property as a whole;

iii. Documentation of attempts by the property owner to sell the property or to obtain other property; and

3. Documentation of the environmental impacts of the proposed project, and of ways to minimize those impacts.

N.J.A.C. 7:7A-10.7 Additional application requirements for a modification or extension

(a) In addition to the basic information required for all applications under N.J.A.C. 7:7A-10.2, the application checklist for a modification shall require the applicable information required in this section.

(b) An application checklist for a minor modification shall require the following:

1. For a change in ownership or operational control of a permitted site or activity under N.J.A.C. 7:7A-14.3(c)3:

i. A certification that no other change in the original permit is necessary; and

ii. A written request to transfer the approval, which includes all of the following:

(1) The notarized signature of each original owner of the site, or any legal designee thereof;

(2) The name and address of each new owner (or contract purchaser) of the site;

(3) A list of any adjacent property already owned by the new owner;

(4) The date the property will be or has been transferred to the new owner;

(5) A statement by the new owner (or contract purchaser), signed and notarized, accepting the permit and all conditions; and

(6) A copy of a recorded conservation restriction or easement, if required as a condition of the approval being transferred; or

2. For a minor modification not covered at (b)1 above, a copy of the permit condition proposed for modification, the proposed modification, and information demonstrating that the modification is a minor modification under N.J.A.C. 7:7A-14.3(c).

(d) An application checklist for a major modification shall require the same information as an application for a new individual permit, except that the application need only address the portions of the existing permit affected by the proposed modification. Portions of the existing permit that are not affected by the proposed modification are not subject to public notice, public hearing, or other procedures that would apply to a new application.

(e) In addition to the basic information required for all applications under N.J.A.C. 7:7A-10.2, the application checklist for a permit extension under N.J.A.C. 7:7A-14.6 shall include information reasonably necessary for the Department to evaluate whether the project or activities will comply with this chapter if extended as proposed.

(f) In addition to the basic information required for all applications under N.J.A.C. 7:7A-10.2, the application checklist for an LOI extension under N.J.A.C. 7:7A-3.6 shall include any information reasonably necessary to determine if the information in the original LOI remains correct.

N.J.A.C. 7:7A-10.8 Public notice requirements for applications

(a) This section sets forth basic public notice requirements for applications. The application checklist for each type of permit, waiver, or general permit authorization will include more detail regarding how to comply with the notice requirements for the approval sought. An applicant shall fulfill the requirements in this section before submitting the application, and the application must include documentation that this section has been complied with.

(b) The public notice requirements in this section apply to the applications listed in N.J.A.C. 7:7A-10.1(b), except that:

1. An application by a county or municipal agency for authorization to act under general permit 15, mosquito control activities, shall be subject only to the notice requirements found in that general permit at N.J.A.C. 7:7A-5.15; and

2. An application for a minor modification under N.J.A.C. 7:7A-14.3 shall not require public notice.

(c) Each notice or application required to be provided under this section shall be sent by certified mail, return receipt requested or through other courier or mail delivery service that provides written proof of delivery of letters and packages.

(d) An applicant shall provide a copy of the complete application, as submitted to the Department, to the municipal clerk in each municipality in which the project site is located.

(e) In addition to all other requirements in this section, an applicant shall provide a notice of the application, which meets the requirements in (g) below, to the following:

1. The construction official of each municipality in which the site is located;

2. The municipal environmental commission, or other government agency with similar responsibilities;

3. The municipal planning board of each municipality in which the site is located;

4. The planning board of each county in which the site is located;

5. All owners of land within 200 feet of the proposed disturbance, or of the site. If the proposed project is a linear development greater than one half mile long, the requirement for landowner notice under this paragraph may instead be met by following the procedures in (f) below; and

6. For an individual permit application, a Department-generated list of interested parties in the area, if such a list exists.

(f) If the proposed project is a linear development, as defined at N.J.A.C. 7:7A-1.4, or a trail or boardwalk, which is greater than one-half mile long, an applicant for a permit other than an individual permit may satisfy the requirement in (e)5 above to notify neighboring landowners by:

1. Sending a notice complying with (g) below to all owners of land within 200 feet of any proposed above surface structure (not including conveyance lines suspended above the ground or small utility support structures such as telephone poles) related to the linear facility, such as a pump station, access road, treatment plant, power substation, grade separated interchange or similar structure; and

2. Publishing a display advertisement. The advertisement shall be:

i. At least four column inches in size;

ii. Published in the newspaper of record for each municipality in which the site is located; and

iii. Published in a newspaper with regional circulation in the region in which the site is located.

(g) The notice of application required under this section shall include:

1. A brief description of the proposed project;

2. A map showing the location of the project site; and

3. A copy of a form letter to the neighboring landowners specified in (e)5 above, with all blanks filled in to provide specific information regarding the proposed project. This form letter will be supplied by the Department with the application checklist.

(h) The notice of application required under this section may cover applications for more than one project. However, for each project application covered by the notice, the information at (g)1 through 3 above must be included in the notice of application.

(i) An applicant for an individual permit or for an open water fill permit shall comply with (c) through (g) above, as applicable, and, in addition, shall:

1. Publish a display advertisement at least four column inches in size in the newspaper of record for each municipality in which the site is located; and

2. If the proposed project involves more than ten acres of fill, publish a display advertisement in a newspaper with regional circulation in the region in which the site is located.

(j) An applicant proposing to create, enhance or restore wetlands to satisfy a mitigation requirement in accordance with N.J.A.C. 7:7A-15.11 shall comply with (c) through (e) and (g) above except that the notice required in accordance with (e) above shall be sent to municipal and county officials and all owners of land within 200 feet of the proposed mitigation project site.

(k) If an applicant amends an application during the application review process, the applicant shall comply with the notice requirements at N.J.A.C. 7:7A-12.6(f).

(l) Upon request, the Department shall provide the applicant with copies of any comments submitted to the Department on the application.

N.J.A.C. 7:7A-10.9 Signatories to permit applications and reports

(a) A permit application shall be signed by the person or persons specified below:

1. For a corporation, by a principal executive officer of at least the level of vice president;

2. For a partnership or sole proprietorship, by a general partner or the proprietor, respectively;

3. For a municipality, State, Federal, or other public entity, by either a principal executive officer or ranking elected official; or

4. For an entity not covered at (a)1 through 3 above, by all individual owners of record.

(b) All reports required by permits and other information requested by the Department shall be signed by a person described in (a) above, or by a duly authorized representative of that person. A person is a duly authorized representative only if:

1. The authorization is made in writing by a person described in (a) above;

2. The authorization specifies either an individual or a position having overall responsibility for the construction and/or completion of the regulated project or activity, such as the position of contractor, construction site supervisor, or position of equivalent responsibility. A duly authorized representative may, thus, be either a named individual or any individual occupying a named position; and

3. The written authorization is submitted with the application to the Department.

(c) If an authorization under (b) above is no longer accurate because a different individual or position has overall responsibility for the construction and/or completion of the regulated facility or activity, a new authorization satisfying the requirements of (b) above must be submitted to the Department prior to or together with any reports, information, or applications to be signed by an authorized representative.

(d) If an application, report, survey, environmental impact statement, or other document required under this chapter is prepared for an applicant by a professional such as a consultant, engineer, architect, surveyor, attorney, or scientist, the document shall include the certification required under (e) below, signed by the professional responsible for preparing the document. This certification shall be in addition to the certification signed by the applicant.

(e) Any person signing a document under (a) or (b) above shall make the following certification:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining and preparing the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

(f) Any survey submitted under this chapter shall be performed by a surveyor licensed in New Jersey. In addition, the Department may in some cases require that other documents be submitted, signed, sealed, and/or certified by a person with relevant qualifications such as a license or certification.

N.J.A.C. 7:7A-10.10 Confidentiality

(a) Any information submitted to the Department under this chapter may be claimed as confidential by the submitter at the time of submittal.

(b) Claims of confidentiality for the following information will be denied:

1. The name and address of any permit applicant or permittee;

2. Effluent data;

3. Permit application; and

4. Permit decision.

(c) Claims of confidentiality for all information not listed in (b) above will be denied unless the claimant can show that the information should be kept confidential under the requirements and procedures of 40 CFR Part 2.