FRESHWATER WETLANDS PROTECTION ACT RULES
SUBCHAPTER 12 DEPARTMENT REVIEW OF APPLICATIONS
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-12.2 USEPA review
7:7A-12.3 Public comment on an application
7:7A-12.4 Hearings on an application for an individual permit or transition area waiver
7:7A-12.5 Final decisions
7:7A-12.6 Cancellation, withdrawal, resubmission and amendment of applications
7:7A-12.7 Resubmittal of a denied application
N.J.A.C. 7:7A-12.1 Completeness
(a) Within 20 working days, as defined at N.J.A.C. 7:7A-1.4, after receiving an application, the Department shall review the application as follows:
1. If all items required
by the application checklist are included, the Department shall declare
the application administratively complete. However, if an included item
is clearly deficient, the item shall not be considered to be included
and the Department shall declare the application administratively incomplete;
2. If each application
item is adequate to allow the Department to determine if the proposed
project complies with this chapter, the Department shall declare the
application technically complete.
(b) If the application is not
administratively complete under (a)1 above, the Department shall return
the application to the applicant with a list of the missing items. The
applicant may resubmit the application at any time. If the application
is resubmitted within one year, the original application fee shall be
credited to the fee for the resubmitted application. If the application
is not resubmitted, the applicant may obtain a fee refund upon request.
(c) If the application is administratively
complete under (a)1 above, the Department shall:
1. Notify the applicant
that the application is administratively complete;
2. Transmit a copy of the
application to other agencies if required under this chapter. For example,
an application for an individual permit for a major discharge must be
transmitted to EPA for comment under N.J.A.C. 7:7A-12.2;
3. Publish notice of the
application in the DEP Bulletin; and
4. If the application is
not technically complete under (a)2 above, request any additional information
necessary for technical completeness.
(d) If the Department requests
additional information under (c)4 above, the applicant shall provide
copies of the additional information to the persons who received a copy
of the initial application under N.J.A.C. 7:7A-10.8, and to the reviewing
agencies who received a copy under (c)2 above.
(e) If an application is returned
for incompleteness under (b) above, the applicant may submit a new application
without repeating the public notice requirements of N.J.A.C. 7:7A-10.8
if the new application:
1. Is submitted within
60 days after the date the Department returned the original submittal;
2. Is sufficiently similar
to the original submittal that the original public notice would provide
reasonable notice of the characteristics of the new submittal to potential
(f) If a person submits an application
and does not receive a response from the Department within the deadlines
imposed in this subchapter, the person shall not be entitled to assume
that the application is approved, except if the application is for authorization
of the following activities and complies with the applicable general
1. Maintenance of a stormwater
management facility under general permit 1;
2. Repair of a malfunctioning
individual subsurface sewage disposal system under general permit 25;
3. Minor channel or stream
cleaning activities under general permit 26.
N.J.A.C. 7:7A-12.2 USEPA review
(a) Because the Department
has assumed responsibility for the Federal 404 program in most freshwater
wetlands and State open waters in New Jersey, the Federal Act requires
that the USEPA oversee the State's administration of the program set
forth in this chapter. The procedures in (b) through (j) below explain
USEPA's oversight role, and the procedures which the State will follow
to facilitate USEPA's oversight. In areas where the Department has assumed
the Federal 404 program, the Department's freshwater wetlands or open
water fill permit constitutes the permit required under this chapter
as well as the Federal 404 permit, unless the permit specifies otherwise.
(b) The Department shall transmit
the following items to USEPA for review:
1. Each new proposed draft
general permit. In general, an application for authorization to act
under an adopted general permit will not require USEPA review, unless
the activity proposed under the general permit itself constitutes a
2. Each application involving
a major discharge, as defined at N.J.A.C. 7:7A-1.4;
3. Any permit application, or category of permit applications, that the Department determines is appropriate for USEPA review;
4. Any permit application
that USEPA requests to review;
5. Any additions or changes
made to an application listed at (b)2 through 4 above after the application
has been submitted to USEPA, as a result of a contested case proceeding
in the Office of Administrative Law; and
6. For informational purposes,
an initial decision issued by an administrative law judge in a contested
case proceeding which involves an application listed at (b)2 through
(c) For an item that requires
USEPA review under (b) above, the Department shall promptly transmit
to the Regional Administrator:
1. A complete copy of the
2. Notice of every significant
action taken by the Department related to the consideration of the permit
application or other item; and
3. A copy of any decision
on the application or other item.
(d) If USEPA intends to comment
upon, object to, or make recommendations with respect to an item, or
with respect to the Department's failure to accept the recommendations
of an affected state pursuant to N.J.A.C. 7:7A-12.3(d), USEPA may notify
the Department of this intent within 30 days of receipt of the permit
application or other item. If the Department has been so notified, the
permit or other item shall not be issued until after the receipt of
such comments or within 90 days of the USEPA's receipt of the application
or other item, or the Department response, whichever comes first. The
USEPA may notify the Department within 30 days of receipt that there
is no comment but that USEPA reserves the right to object within 90
days of receipt, based on any new information brought out by the public
during the comment period or at a hearing.
(e) When the Department has
received a USEPA objection or requirement for a permit condition under
this section, the State shall not issue the Federal 404 permit unless
the steps required by the USEPA to eliminate the objection have been
taken. However, the Department may issue a freshwater wetlands permit.
Such a permit shall satisfy only the requirements of the New Jersey
Freshwater Wetlands Protection Act and the permit shall not constitute
a 404 permit. In such a case, the applicant would be responsible for
obtaining any necessary 404 program approvals from the ACOE.
(f) Within 90 days after receiving
an objection or requirement for a permit condition by the USEPA, the
Department or any interested person may request that the USEPA hold
a public hearing on the objection or requirement. USEPA shall conduct
a public hearing if requested by the Department, or if warranted by
significant public interest based on requests received.
(g) If USEPA holds a public
hearing under (f) above, USEPA shall, following that hearing, reaffirm,
modify or withdraw the objection or requirement for a permit condition.
USEPA shall notify the Department of this decision.
(h) If USEPA holds a public hearing, the Department shall have 30 days after USEPA gives the Department notice of its decision under (g) above to take either of the actions at
(i)1 or 2 below. If USEPA does
not hold a public hearing, the Department shall have 90 days after receiving
USEPA's original objection or requirement for a permit condition to
take either of the actions at (i)1 or 2 below.
(i) The Department shall take
one of the following actions within the applicable deadline in (g) or
1. If the USEPA has withdrawn
the objection or requirement for a permit condition, the State may issue
the Federal 404 permit; or
2. If the USEPA has not
withdrawn the objection or requirement for a permit condition, the Department
must do one of the following:
i. Issue a revised
permit satisfying the USEPA's objection or including the required permit
ii. Notify USEPA of
its intent to deny the permit. If the Department intends to deny the
permit it shall notify EPA of this intent within 30 days after receiving
USEPA's notification; or
iii. Issue a State
freshwater wetlands permit that does not constitute a Federal 404 permit
and require the applicant to apply to the appropriate Federal agency
for a permit under the Federal 404 program.
(j) No Federal 404 permit shall
be issued by the Department in the following circumstances, although
the Department may issue a State freshwater wetlands permit that does
not constitute a Federal 404 permit:
1. When the Regional Administrator
has objected to issuance of the permit and the objection has not been
2. When the proposed discharges
would be in an area which has been prohibited, withdrawn, or denied
as a disposal site by the USEPA under Section 404(c) of the Federal
Act, or when the discharge would fail to comply with a restriction imposed
3. If the Army Corps of
Engineers determines, after consultation with the Secretary of the Department
in which the Coast Guard is operating, that anchorage and navigation
of any of the navigable waters would be substantially impaired.
(k) The Department shall submit
an application to the U.S. Fish and Wildlife Service for review of the
potential for impacts on Federally listed threatened or endangered species
in accordance with the 1993 Memorandum of Agreement between the Department
and the U.S. Fish and Wildlife Service, and all modifications,
addenda, and clarifications thereto, executed in order for the Department
to assume responsibility for the Federal 404 program.
(l) The Department shall identify
all wetland permit applications for proposed projects that may affect
properties which are listed, or are eligible for listing, on the New
Jersey or National Register of Historic Places. In accordance with N.J.A.C.
7:4-8.1(a), an "effect" on "property which is listed
or is eligible for listing on the New Jersey or National Register of
Historic Places" can be direct or indirect and occurs whenever
any aspect of the project causes or may cause any change, beneficial
or adverse, in the quality of the historical, architectural, archaeological,
or cultural characteristics that qualified a historic property to meet
the criteria of evaluation for inclusion in the New Jersey or National
Register. Applications reflecting any of the following characteristics
shall be deemed to present a high probability of the presence of historic
and archaeological resources, requiring assessment and shall require,
with the wetlands permit application, the submittal of a Phase IA historical
and archaeological survey, and an architectural survey, defined at N.J.A.C.
1. Proposed projects containing
known historic or archaeological resources, based upon information contained
within the application, or as identified on copies of historic property
maps prepared by the Department;
2. Proposed projects on
sites that exceed 20 acres in size which include a permanent water body
(for example wetlands, pond, lake, river or perennial stream) or are
located within 250 feet of a permanent water body;
3. Proposed projects for
which available maps, photographs, or other information, or observations
made during a site visit, indicate the presence of buildings, structures,
or ruins over 50 years old that could potentially be affected by the
4. Proposed projects including
new, replacement, reconstructed, or rehabilitated bridges or culverts;
5. Proposed projects on
which letters are received from concerned citizens or others indicating
the possible presence of historic properties within or adjacent to the
(m) In order to demonstrate
due diligence in identifying historic sites that may be affected by
a wetlands permit application, as well as provide the Department with
information regarding sites with historic or potentially historic resources,
the applicant shall submit with each permit application:
1. Clear color photographs of all buildings, structures, ruins of buildings and structures, and burial grounds on the site;
2. A key map of the site
locating all photographs provided in 1. above; and
3. All information and copies
of correspondence, known, received or in the possession of project
representatives or the applicant, regarding historic districts, buildings,
structures, ruins, burial grounds, and archaeological sites on or near
the project site.
(n) Applicants who are or will
be pursuing Federal financial assistance, permits, licenses, or other
approvals for the project that is the subject of the freshwater wetlands
permit application, shall supply a copy of the consultation comments
provided by the Department's Historic Preservation Office (HPO) in its
role as staff to the Federally designated State Historic Preservation
Officer (SHPO) under Section 106 of the National Historic Preservation
Act (16 U.S.C. § 470(f)), together with a statement detailing how the
comments have been incorporated into the project, with the State freshwater
wetlands permit application. The Department will consider that information
as a part of its review under this chapter.
1. If an applicant is not
and will not be pursuing Federal financial assistance as described in
(n) above, the applicant shall provide the Department with a statement
to that effect.
(o) Public entities that are
or will be pursuing a project authorization application, pursuant to
N.J.A.C. 7:4-7, for the project that is the subject of the freshwater
wetlands permit application shall comply with either (o)1 or 2 below.
For the purposes of this subsection, "public entities" means
the State, county, municipality, or an agency or instrumentality thereof:
1. If the public entity
has received a project authorization from the Department pursuant to
N.J.A.C. 7:4-7 prior to applying for a State freshwater wetlands permit,
a copy of the project authorization shall be submitted with the permit
application. The Department will consider that authorization as a part
of its review under this chapter; or
2. If the public entity
has not yet begun the process for obtaining a project authorization
pursuant to N.J.A.C. 7:4-7 at the time of application for a State freshwater
wetlands permit, the applicant shall consult directly with the Department's
Historic Preservation Office to initiate the project authorization process
at the same time as the permit application is processed.
(p) At sites where activities
require a freshwater wetlands and/or State open water permit, the demolition
of buildings or structures potentially over 50 years of age, or the
disturbance of soils, shall not be undertaken prior to receipt of such
permit. Undertaking such activities without a permit shall be
considered a violation of this chapter.
N.J.A.C. 7:7A-12.3 Public
comment on an application
(a) The Department shall publish
notice in the DEP Bulletin of each administratively complete application
in accordance with N.J.A.C. 7:7A-12.1, except for an application for
a minor modification. The DEP Bulletin is available at www.state.nj.us/dep/bulletin/. This notice shall constitute notice
of the application to all interested persons except those who must be
notified by the applicant under N.J.A.C. 7:7A-10.8.
(b) The Department shall make
copies of all applications available for public inspection by appointment
in the offices of the Department in Trenton (see N.J.A.C. 7:7A-1.3 for
address) during normal business hours.
(c) The applicant shall transmit
a copy of each application to the clerk of the municipality in which
the project is located in accordance with N.J.A.C. 7:7A-10.8, to be
made available for public inspection.
(d) The public shall have 30
days to comment on an application after the Department publishes notice
of the application in the DEP Bulletin under (a) above. The Department
shall consider all written public comments submitted within this time.
The Department may, in its discretion, consider comments submitted after
(e) If a proposed discharge
may affect the biological, chemical, or physical integrity of the waters
of any state(s) other than New Jersey, the Department shall provide
an opportunity for such state(s) to submit written comments within the
public comment period and to suggest permit conditions. If these recommendations
are not accepted, the Department shall notify the affected state and
the USEPA in writing, prior to permit issuance, of the Department's
intent not to accept these recommendations, together with the reasons
for so doing. The EPA shall then have the same amount of time provided
for applications and draft general permits in N.J.A.C. 7:7A-12.2 to
comment upon, object to, or make recommendations regarding the Department's
N.J.A.C. 7:7A-12.4 Hearings on an application for an individual permit
or transition area waiver
(a) Within 30 days after a
notice of an application for an individual permit or transition area
waiver is published in the DEP Bulletin, interested persons may request
in writing that the Department hold a public hearing on the application.
Requests shall state the nature of the issues proposed to be raised
at the hearing. The DEP Bulletin is available at www.state.nj.us/dep/bulletin/.
(b) The Department may issue
or deny an individual permit or transition area waiver without a public
hearing. However, the Department will hold a public hearing if:
1. There is a significant
degree of public interest in the application, as manifested by written
requests for a hearing within the 30 day hearing request period set
forth in (a) above. In considering the degree of public interest, the
Department will consider whether the issues raised in the hearing requests
are relevant to the application review;
2. A public hearing is
requested by USEPA; or
3. The Department determines
that the public interest would be served by holding a hearing.
(c) If a hearing is to take
place, the Department shall, within 30 days after the end of the 30
day hearing request period set forth in (a) above:
1. Set a date and time
for the public hearing;
2. Choose a location for
the hearing, in the county where the freshwater wetlands, transition
areas, and/or State open waters affected by the application are located;
3. Notify the applicant;
4. Publish a notice announcing
the date, place, and time of the public hearing in the DEP Bulletin.
(d) A public hearing held under
this section shall be a non-adversarial proceeding, conducted solely
to provide information to the public and the Department regarding the
application under review.
(e) The applicant shall give
public notice of the public hearing by doing the following, at least
30 days before the hearing:
1. Sending a completed
public hearing notice form, obtained from the Department at the address
in N.J.A.C. 7:7A-1.3 or the Division of Land Use Regulation website
at www.state.nj.us/dep/landuse, to the following:
i. All persons to whom
a complete application must be sent under N.J.A.C. 7:7A-10.8(d);
All persons to whom a notice of an application must be sent under N.J.A.C.
7:7A- 10.8(e); and
All persons who submitted comments on the application during the hearing
request period set forth in (a) above; and
2. Publishing a display
advertisement containing the completed hearing notice form, in accordance
with N.J.A.C. 7:7A-10.8 (h).
(f) The applicant shall submit
proof that public notice of the hearing has been provided in accordance
with this section. This proof of notice shall be submitted to the Department
at least three days prior to the public hearing. If proof of publication
is unavailable three days prior to the hearing, the applicant may submit
a notarized affidavit stating that notice of the hearing has been published,
and specifying the date and newspaper in which such notice was published.
(g) The Department shall maintain
a copy of the hearing transcript and all written comments received.
The transcript and written comments shall be made part of the official
record on the application and shall be available for public inspection
in the Department's Trenton Office. See N.J.A.C. 7:7A-1.3 for address.
(h) The applicant shall provide
a court reporter, bear the cost of the hearing and provide the Department
with a transcript.
(i) The presiding official
at the non-adversarial public hearing shall have broad discretion with
respect to oral and written presentations by interested persons.
This discretion shall be exercised to allow every person the opportunity
to speak, to reasonably limit the length of individual testimony, and
to ensure the maintenance of an orderly forum. At the conclusion
of statements by interested persons, the applicant shall be afforded
the opportunity to speak on the statements offered by interested persons.
(j) Any interested person may
submit information and comments concerning the application. The information
and/or comments must be submitted in writing within 15 days after the
N.J.A.C. 7:7A-12.5 Final
(a) The Department shall issue
or deny a permit or waiver within 180 days of submittal of a complete
application, provided the Department has satisfied all of the requirements
in N.J.A.C. 7:7A-12.2.
(b) If the Department issues
or denies a permit, the Department shall send notice thereof to the
(c) The Department may issue
a permit imposing conditions necessary for compliance with the Freshwater
Wetlands Protection Act, this chapter, the Federal Act and the New Jersey
Water Pollution Control Act. Any regulated activities undertaken under
the authority of any issued permit, waiver, or general permit authorization
shall constitute an acceptance by the applicant of the entire permit
including all conditions therein.
(d) Decisions by the Department
shall be published in the DEP Bulletin and a copy of every issued individual
permit which requires USEPA review under N.J.A.C. 7:7A-12.2 shall be
transmitted to USEPA.
(e) The permit application
review process may be extended by mutual agreement between the applicant
and the Department.
N.J.A.C. 7:7A-12.6 Cancellation,
withdrawal, resubmission and amendment of applications
(a) The Department may cancel
an application, whether or not the application has been declared administratively
complete. An applicant may withdraw, amend, and/or resubmit its application.
This section applies to all applications, including an application for
a permit as defined at N.J.A.C. 7:7A-1.4, an application for a letter
of interpretation, and a request for an exemption letter.
(b) The Department shall cancel
an application if the Department requests additional information regarding
the application, and the information is not submitted within 30 days
after the date of the request. Before canceling an application, the
Department shall send the applicant a letter stating that the application
will be cancelled. If, within 15 days of the date of the Department's
letter, the applicant submits the information, or a letter providing
good cause for the delay, the Department shall extend the time required
for submittal of the information. If the applicant does not submit the
information or a letter providing good cause, the Department shall cancel
(c) If the Department cancels
an application, the application fee shall not be refunded. The Department
will purge the cancelled application from its files and a new application,
including a new application fee, shall be required if the applicant
wishes to pursue the project.
(d) An applicant may withdraw
an application at any time in the application review process. If an
application is withdrawn, the application fee shall not be refunded.
However, if the requirements of (e)2 below are met, the fee may be credited
toward a future application.
(e) If the Department cancels
an application, or if the applicant withdraws an application, the applicant
may resubmit an application for a revised project on the same site.
The Department shall treat the resubmitted application as a new application.
The fees for the resubmitted application shall be as follows:
1. If the Department cancelled
the original application under (b) above, a new fee under N.J.A.C. 7:7A-11
shall be required;
2. If the applicant withdrew
the original application under (d) above, and resubmits the application
within one year of the date of withdrawal, the original application
fee shall be credited to the new application.
(f) An applicant may choose
to amend an application at any time as part of the permit review process.
If an applicant amends an application:
1. The applicant shall
provide a copy of the new or changed information to the same persons
who received a complete copy of the initial application under N.J.A.C.
7:7A- 10.8, Public notice requirements for applications. The information
need not be provided to persons who received only a notice of the application,
unless the Department determines that the change will increase the environmental
impact of the project; and
2. The amendments shall
constitute a new submission and the Department may, at its discretion,
require reinitiation of the entire application and review process.
7:7A-12.7 Resubmittal of
a denied application
If the Department denies an application, the applicant may resubmit an application for a revised project on the same site. The Department shall treat the resubmitted application as a new application. The resubmitted application shall include a new fee in accordance with 7:7A-11.