Proposed New Rules: N.J.A.C. 2:92

Authorized By: State Board of Agriculture and Charles M. Kuperus, Secretary

Authority: N.J.S.A. 13:20-1 et seq; specifically 13:20-29

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2005-288

Submit comments by October 14, 2005 to:

Michelle Hammel, Legal and Legislative Affairs Specialist
New Jersey Department of Agriculture
PO Box 330
Trenton, NJ 08625-0330

Email –Highlandsrules@ag.state.nj.us

The agency proposal follows:

Summary

The Highlands Water Protection and Planning Act (Highlands Act), signed into law on August 10, 2004 as P.L. 2004 c. 120, divided the 800,000-acre Highlands region into two areas: (1) a Preservation Area, where development will be strictly regulated, and (2) a Planning Area, where development will be monitored. A Highlands Water Protection and Planning Council (Highlands Council) was established and charged with preparing and implementing a regional master plan for the entire Highlands region.

The Highlands Act includes a special review process for agricultural and horticultural activities and related development in the Highlands Preservation Area. The Department of Agriculture was charged with drafting and implementing rules for agricultural and horticultural development that would result in an increase of three percent or more of new impervious cover. These proposed new rules have been drafted in consultation with the Department of Environmental Protection, the State Agriculture Development Committee, Rutgers Cooperative Extension and the Natural Resources Conservation Service.

The purpose of the proposed new rules is to implement the process established by the Highlands Act for review of new agricultural or horticultural development within the Highlands Preservation Area. The Act provides that agricultural and horticultural development will be subject to different levels of review based upon the percentage of increase in new agricultural impervious cover that will result from the proposed agricultural or horticultural development. Any impervious cover that existed within a Farm Management Unit prior to the enactment of the Highlands Act (August 10, 2004) shall not be considered new agricultural impervious cover.

Any agricultural or horticultural development in the Preservation Area that would result in the increase of three percent or more of new agricultural impervious cover to the total land area of a Farm Management Unit (either individually or cumulatively) since enactment of the Highlands Act (August 10, 2004) will require the farm owner or operator to develop and obtain Soil Conservation District (SCD) approval of a Farm Conservation Plan, prior to the start of the proposed agricultural or horticultural development.

The Farm Conservation Plan will address New Jersey- Field Office Technical Guide (FOTG) Quality Criteria for soil and water resources as well as Endangered and Threatened Species Habitat.

The Natural Resources Conservation Service (NRCS) -FOTG is a science based, national standard for implementing natural resource management practices that are time tested and proven. United States Environmental Protection Agency along with other Federal and State agencies recognize these standards. The FOTG is the basis for all United States Department of Agriculture Farm Bill conservation programs as well as for New Jersey Department of Agriculture (NJDA) programs. The NJ-FOTG also requires that conservation plans follow State and local requirements when applicable. The NRCS-FOTG meets the goals of the Highlands Act, as these are the practices implemented to protect not only water and soil but also other natural resources.

Any agricultural or horticultural development in the Preservation Area that would result in the increase of nine percent or more of agricultural impervious cover to the total land area of a Farm Management Unit (either individually or cumulatively) since enactment of the Highlands Act (August 10, 2004) will require the farm owner or operator to develop and obtain Soil Conservation District (SCD) approval of a Resource Management System Plan (RMS), prior to the start of the proposed agricultural or horticultural development. Prior to approval, the SCD will transmit a copy to the DEP, who must review and approve it with or without conditions or deny it within 60 days of receipt.

The Resource Management System Plan (RMS) is a comprehensive Farm Conservation Plan that meets the Natural Resource Conversation Service’s (NRCS’s) highest standards for resource sustainability by addressing all resource management concerns on the farm, including soil, water, air, plants and animals.

A copy of the approved Farm Conservation Plan or Resource Management System Plan shall be transmitted by the SCD to the State Soil Conservation Committee. If any part of the Farm Management Unit is preserved under any farmland preservation program, a copy of the plan shall also be transmitted by the SCD to the State Agriculture Development Committee (SADC).

The Farm Conservation Plan and the Resource Management System Plan shall be based on the USDA Natural Resources Conservation Service, New Jersey Field Office Technical Guide. This publication, as amended and supplemented, is adopted and incorporated by reference in the proposed new rules.
The purpose of requiring a Plan when the three percent or nine percent trigger is met either individually or cumulatively is to ensure that operations do not seek to circumvent the requirements of these proposed new rules by continual, but small expansions that would fall below the designated trigger. For example, expansion in year one that results in two percent of new agricultural impervious cover would not require a Plan. However, an additional two percent expansion in year two or thereafter, would then require the implementation of a Plan.

Subchapter 1 sets forth the purpose of the proposed new rules.

Subchapter 2 sets forth the definitions necessary to clarify agricultural development activities from major development as defined in the Highlands Act. The following terms are defined: “agricultural or horticultural development”, “agricultural impervious cover.” “DEP,” “Department, ” “farm conservation plan,” “farm management unit,” “Highlands Preservation Area,” “Natural Resources Conservation Service,” “New Jersey Field Office Technical Guide,” “resource management system plan,” “soil conservation district,” “ State Soil Conservation Committee,” “temporary coverings” and “technical service provider.”

Subchapter 3 outlines the Farm Conservation Plan elements for agricultural or horticultural development that would result in three percent or more of new agricultural impervious cover to the total land area of the farm management unit (either individually or cumulatively) within the Highlands Preservation Area.

Subchapter 4 outlines the Resource Management System Plan elements for agricultural or horticultural development that would result in nine percent or more of new agricultural impervious cover to the total land area of the farm management unit (either individually or cumulatively) within the Highlands Preservation Area.

Subchapter 5 sets forth penalty provisions. Penalties up to a maximum of $5,000 per violation per day may be assessed. Penalties are determined by the seriousness of the conduct and the amount of new impervious cover that has been developed. Points are awarded based on the type of conduct (major, moderate, minor) and the amount of new impervious cover. Other factors, such as the violator’s previous compliance history and whether a plan has been implemented are also considered. Persons aggrieved by a determination under this subchapter are afforded the opportunity for a hearing thereon in the manner provided for contested cases pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

As the Department has provided a 60-day comment period on this notice of proposal, this notice is exempted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The proposed new rules will have a positive social impact as they will help ensure the protection of the soil and water resources of the Highlands preservation area while recognizing that the agricultural industry is a unique, vital and necessary economic component of the Highlands region.

Economic Impact

The proposed new rules will have an economic impact on farmers in the Highlands preservation area who are looking to construct agricultural or horticultural buildings, structures or facilities that will result in three percent or more of new agricultural impervious cover to the total land area of the farm management unit, as Farm Conservation Plans or Resource Management System Plans will be required. It is anticipated that there will be little or no costs associated with plan development. Technical assistance for developing Farm Conservation Plans or Resource Management System Plans will be available from the USDA Natural Resources Conservation Service (NRCS) and the NJDA at no cost to the landowner.

There may be costs associated with the implementation of the required site-specific Farm Conservation Plans or Resource Management System plans. Costs for conservation practices are based upon cost tables developed by the NRCS. Some practices may be costly, depending on various factors such as local costs for construction, size of the structure, topography, soil type, property location, property size, the complexity of the plan, the conservation practices implemented, availability of materials, and other local conditions. Implementation of certain conservation practices, such as filter strips, waterways and specific farming practices can be installed or performed at minimal cost. For example, installation of a grass waterway could cost as little as $4.00 per linear foot ($5,800 per acre) and installation of stream protection could cost as little as $1.75 per linear food ($2,541 per acre). It is anticipated that the more extensive plans may qualify for cost-share assistance that is available through state and federal conservation programs.

The rules will have a net positive economic impact as they do provide an overall benefit to the agricultural industry since agricultural development activities are not subject to the stringent rules that other activities, projects, residential and non-residential development are subject to in the Highlands preservation area.

Federal Standards Statement

Executive Order No. 27 (1994) and P.L. 1995, c.65 require State agencies that adopt, re-adopt or amend State rules that exceed any Federal standards or requirements to include in the rulemaking document a comparison with Federal law. The proposed new rules are based on the USDA policy of incentive-based development and implementation of farm conservation plans, using the Federal technical standards as contained in the NRCS Field Office Technical Guide. Although the Federal FOTG standards are not currently mandatory under Federal law, the proposed new rules nevertheless incorporate standards that are recognized and encouraged by the NRCS. These rules are, therefore, no more stringent than the Federal standards and no Federal standards analysis is necessary.

Jobs Impact

These proposed new rules will not result in the generation or loss of jobs.

Agriculture Industry Impact

The Highlands Act recognizes the agriculture industry in the Highlands region as vital to the economy and the quality of life to the citizens of the Highlands and the State. This recognition resulted in a separate and distinct process for agricultural and horticultural development in the Highlands preservation area. The Act identifies new agricultural impervious cover triggers resulting from such development that, when met, would require the development and implementation of farm conservation plans. The agricultural community is familiar with these plans and the process for creating them; however, until now, they have engaged in the process on a voluntary basis only. The Highlands Act is the first law to make these plans mandatory.

Regulatory Flexibility Analysis

In the absence of new agricultural or horticultural development that increases the impervious cover beyond three percent of the Farm Management Unit, the proposed new rules do not require any compliance, reporting or recordkeeping requirements. However, for those entities that undertake the modification or expansion of their operations, the proposed new rules will impose compliance, reporting and recordkeeping requirements.

The proposed new rules will have an impact on small businesses, primarily farmers, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. The rules require the development and implementation of a Farm Conservation Plan or Resource Management System plan when agricultural or horticultural development activities result in three percent or more of new agricultural impervious cover to the total land area of the farm management unit (either individually or cumulatively) within the Highlands preservation area. The plans will be developed by the owner or operator (applicant) in consultation with NRCS or an appropriate agent, and implemented by the applicant.

While plan development is likely to require the use of professional services, it is anticipated that the necessary technical assistance will be available at no cost from both State and Federal sources. It is anticipated that in most cases, the plan implementation can be completed without the assistance of professional services. However, either the NRCS or NJDA will likely oversee implementation. Capital expenditures may be necessary depending upon the site-specific plan that is developed. It is anticipated that the more complex plans may be eligible for cost-share assistance from State and Federal conservation programs. Since all required plans are site-specific, lesser or differing standards are applied based upon business size, operation, and local conditions.

Smart Growth Impact

The proposed new rules will have a positive impact on smart growth efforts in New Jersey. The Highlands Water Protection and Planning Act recognized that the agriculture industry is a vital and necessary economic component of the Highlands region and to the quality of life to the citizens of the Highlands and the State. That recognition resulted in a separate process for agricultural and horticultural development in the Highlands Preservation Area. Unlike the other types of development activities that will be subject to strict regulations, agricultural and horticultural development that increases new agricultural impervious cover by three percent or more will need to be constructed in accordance with a Farm Conservation Plan or a more comprehensive Resource Management System Plan. The agricultural community is familiar with these plans and the process for creating them. These plans will be developed by the owner, operator or his agent with the assistance of NRCS or appropriate agent and implemented by the applicant, thereby reducing the regulatory burden on farmers. It is anticipated that the more complex plans will be eligible for cost-share assistance. The development and implementation of Farm Conservation Plans is strongly encouraged in the Agricultural Smart Growth Plan to address natural resource concerns. The type of analysis required by these plans is meant to ensure that agricultural development takes plan in an appropriate manner. Therefore, these proposed new rules will have a positive impact upon the achievement of smart growth and upon the State Development and Redevelopment Plan.

Full text of the proposed new rules follows:

CHAPTER 92 AGRICULTRUAL DEVELOPMENT IN THE HIGHLANDS

SUBCHAPTER 1. PURPOSE

2:92-1.1 Purpose
(a) This chapter establishes the standards for Farm Conservation Plans or Resource Management System Plans for agricultural or horticultural development which would increase, either individually or cumulatively, new agricultural impervious cover by three percent or more of the total land area of a Farm Management Unit, triggering the thresholds in the Highlands Preservation Area, established in the Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 et seq.
(b) Nothing in this chapter shall be construed to alter or compromise the goals, purposes, policies, and provisions of, or lessen the protections afforded to farmers by, the Right to Farm Act, P.L. 1983, c. 31 (N.J.S.A. 4:1C-1 et seq.), and any rules or regulations adopted pursuant thereto.

SUBCHAPTER 2. DEFINITIONS

2:92-2.1 Definitions
For the purpose of this chapter, the following terms shall have the meanings described below, unless the context clearly indicates otherwise:
“Agricultural or horticultural development” means construction for the purposes of supporting common farmsite activities, including but not limited to: production, harvesting, storage, grading, packaging, processing, and the wholesale and retail marketing of crops, plants, animals, and other related commodities and the use and application of techniques and methods of soil preparation and management, fertilization, weed, disease, and pest control, disposal of farm waste, irrigation, drainage and water management, and grazing.
“Agricultural impervious cover” means agricultural or horticultural buildings, structures, or facilities with or without flooring, residential buildings and paved areas, but shall not mean temporary coverings.
“DEP” means the New Jersey Department of Environmental Protection.
“Department” or “NJDA” means the New Jersey Department of Agriculture. “Farm Conservation Plan” means a site specific plan that prescribes needed land treatment and related conservation and natural resource management measures, including forest management practices, that are determined to be practical and reasonable for the conservation, protection and development of natural resources, the maintenance and enhancement of agricultural or horticultural productivity and the control and prevention of non-point source pollution.
“Farm Management Unit” means a parcel or parcels of land, whether contiguous or noncontiguous, together with agricultural or horticultural buildings, structures and facilities, producing agricultural or horticultural products, and operated as a single enterprise.
“Highlands Act” means the Highlands Water Protection Act, N.J.S.A. 13:20-1 et seq.
“Highlands Preservation Area” means that portion of the Highlands region so designated by subsection b of section 7 of the Highlands Water Protection and Planning Act (N.J.S.A. 13:20-7).
“Natural Resources Conservation Service (NRCS)” means the technical agency of the USDA, authorized by Public Law 46 of the 74th Congress for the conservation of agricultural and related natural resources.
“New Jersey Field Office Technical Guide (NJ-FOTG)” means the USDA-NRCS technical reference, customized for the State of New Jersey, prescribing practices and standards for the conservation and management of soil, water and related natural resources.
“Resource Management System Plan” means a site-specific farm conservation plan that:
1. Prescribes needed land treatment and related conservation and natural resources management measures, including forest management practices, for the conservation, protection, and development of natural resources, the maintenance and enhancement of agricultural or horticultural productivity, and the control and prevention of non-point source pollution; and
2. Establishes criteria for resources sustainability of soil, water, air, plants, and animals.
“Soil Conservation District” means a soil conservation district established in accordance with the Soil Conservation Act, N.J.S.A. 4:24-1 et seq.
“ State Soil Conservation Committee” means the committee established pursuant to the Soil Conservation Act, N.J.S.A. 4:24-1 et seq.
“Technical Service Provider (TSP)” means NRCS certified professionals outside of the U.S. Department of Agriculture that help agricultural producers apply conservation practices on the land.
“Temporary coverings” mean permeable, woven and non-woven geotextile fabrics that allow for water infiltration or impermeable materials that are in contact with the soil and are used for no more than two consecutive years.
“USDA” means the United States Department of Agriculture.

SUBCHAPTER 3. FARM CONSERVATION PLAN

2:92-3.1 Farm Conservation Plan Requirements
(a) Agricultural or Horticultural Development that results, individually or cumulatively, in at least three percent but less than nine percent increase in new agricultural impervious cover to the total land area of the Farm Management Unit since enactment of the Highlands Act (August 10, 2004) requires the development and implementation of a Farm Conservation Plan approved in accordance with this section.
1. Prior to any development activity, the owner or operator of a farm management unit or his agent shall develop a farm conservation plan with the assistance of the NRCS, TSP or an appropriate agent in conformance with the June 1, 2005 NRCS NJ-FOTG, as amended and supplemented, which is hereby adopted and incorporated by reference.
i. Copies of the NJ-FOTG are available from the NRCS Field Offices and the State Office at 220 Davidson Ave, 4th Floor, Somerset, NJ 08873.
ii. An electronic copy of the NJ-FOTG is available at http://www.nrcs.usda.gov/technical/efotg/.
iii. A copy of this document is on file in the NJDA office of the Director, Division of Agricultural and Natural Resources, Health and Agriculture Building, Market and Warren Streets, Trenton, NJ 08625.
2. The following shall be contained in the Farm Conservation Plan submitted for approval:
i. The name, address, block(s) and lot(s) of the operation and the emergency contact;
ii. The owner or operator’s signature and date;
iii. A soil map;
iv. An aerial photograph or diagram of the field;
v. Identification of soil and water resources and endangered and threatened species;
vi. A list of management decisions;
vii. The location and schedule for applying new practices;
viii. Records of plan implementation activities;
ix. A plan for operation and maintenance; and
x. Any other site-specific information necessary for plan certification.
3. The Farm Conservation Plan shall be reviewed, and if appropriate, approved by the local Soil Conservation District. Plans developed in consultation with entities other than the NRCS or TSP must be reviewed by NRCS for approval prior to submission to the Soil Conservation District for review.
4. The Soil Conservation District shall transmit a copy of an approved plan to the State Soil Conservation Committee. If any part of the Farm Management Unit is preserved under any farmland preservation program, the Soil Conservation District shall also transmit a copy of the plan to the State Agriculture Development Committee.
5. The Soil Conservation District shall approve the Farm Conservation Plan if it finds that the plan meets the New Jersey FOTG Quality Criteria and Standards for soil and water resources and, where applicable, fish and wildlife and threatened and endangered species.
6. The Farm Conservation Plan shall be executed in accordance with the prescribed schedule contained in the approved plan.
7. Anyone aggrieved by a decision of the Soil Conservation District shall have an opportunity to appeal in accordance with N.J.A.C. 2:90-1.6.
8. Anyone who is aggrieved by the determination made in accordance with (a)7 above shall, upon written request transmitted to the Department within 20 days of that determination, be afforded the opportunity for a hearing thereon in the manner provided for contested cases pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.
i. Requests for hearings shall be sent to Director, Division of Agriculture and Natural Resources, N.J. Department of Agriculture, P.O. Box 330, Trenton, New Jersey 08625?0330

SUBCHAPTER 4. RESOURCE MANAGEMENT SYSTEM PLAN

2:92-4 Resource Management System Plan Requirements
(a) Agricultural or horticultural development that results, individually or cumulatively, in at least nine percent or more of new agricultural impervious cover to the total land area of the Farm Management Unit since enactment of the Highlands Act (August 10, 2004) requires the development and implementation of a Resource Management System Plan in accordance with this section.
. Prior to any development activity, the owner or operator of a farm management unit or his agent shall develop a Resource Management System Plan with the assistance of the NRCS, TSP or appropriate agent in conformance with the June 1, 2005 NRCS NJ-FOTG, as amended and supplemented, which is hereby adopted and incorporated by reference.
i. Copies of the NJ-FOTG are available from the NRCS Field Offices and the State Office at 220 Davidson Ave, 4th Floor, Somerset, NJ 08873.
ii. An electronic copy of the NJ-FOTG is available at http://www.nrcs.usda.gov/technical/efotg/.
iii. A copy of this document is on file in the NJDA office of the Director, Division of Agricultural and Natural Resources, Health and Agriculture Building, Market and Warren Streets, Trenton, NJ 08625.
2. The following shall be contained in the RMS plan submitted for approval:
i. The name, address, block(s) and lot(s) of the operation and the emergency contact;
ii. The owner or operator’s signature and date;
iii. A soil map;
iv. An aerial photograph or diagram of the field;
v. Identification of soil, water, air, plant and animal resources including endangered and threatened species;
vi. A list of management decisions;
vii. The location and schedule for applying new practices;
viii. Records of plan implementation activities;
ix. A plan for operation and maintenance; and
x. Any other site-specific information necessary for plan certification.
3. Upon receipt and prior to approval, the Soil Conservation District will transmit a copy of the Resource Management System Plan to the DEP, who must review and approve it with or without conditions or deny it within 60 days of receipt.
4. The Resource Management System Plan shall be reviewed, and if appropriate, approved by the Soil Conservation District. Plans developed by entities other than the NRCS or TSP must be reviewed by NRCS for approval prior to submission to the Soil Conservation District for review.
5. The soil conservation district shall transmit a copy of the approved plan to the State Soil Conservation Committee. If any part of the Farm Management Unit is preserved under any farmland preservation program, the soil conservation district shall also transmit a copy of the plan to the State Agriculture Development Committee.
6. The Soil Conservation District shall approve the RMS plan if it finds that it meets the New Jersey-FOTG Quality Criteria and Standards for soil, water, air, plants and animal resources.
7. The Resource Management System Plan shall be executed in accordance with the prescribed schedule contained in the approved plan.
8. Anyone aggrieved by a decision of the District shall have an opportunity to appeal in accordance with N.J.A.C. 2:90-1.6.
9. Anyone who is aggrieved by the determination made in accordance with (a)8 above shall, upon written request transmitted to the Department within 20 days of the determination, be afforded the opportunity for a hearing thereon in the manner provided for contested cases pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.
i. Requests for hearings shall be sent to Director, Division of Agriculture and Natural Resources, N.J. Department of Agriculture, P.O. Box 330, Trenton, New Jersey 08625?0330.

SUBCHAPTER 5. PENALTIES AND ENFORCEMENT

2:92-5 Penalty and enforcement provisions
(a) Any person who violates N.J.S.A. 13:20-29(a), or any provision of these rules, or the requirements of a Farm Conservation Plan or Resource Management System Plan developed pursuant to these rules, shall be liable to a civil administrative penalty of up to $5,000 for each violation pursuant to the procedures set forth in this section to determine the amount of the penalty.
(b) Pursuant to N.J.S.A. 13:20-29(b) (1), the Department or the local Soil Conservation District may institute a civil action in the Superior Court for injunctive relief to prohibit and prevent the violation(s) and the court may proceed in a summary manner.
(c) If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate, and distinct offense.
(d) The Department shall use the factors described below to determine the amount of a civil administrative penalty under this section. The standards below assign each violation a point value. The total number of points is used to determine the penalty amount per day for each violation. The factors, and the point values assigned to them, are as follows:
1. The seriousness of the violation shall be classified as major, moderate or minor and assigned points as follows:
i. Major conduct shall include an intentional, deliberate, purposeful, knowing or willful act or omission by the violator and is assigned three points;
ii. Moderate conduct shall include any unintentional but foreseeable act or omission by the violator and is assigned two points; and
iii. Minor conduct shall include any conduct not identified in (c)1i or ii above and is assigned one point.
2. The percentage of impervious cover factor shall be assigned points as follows:
i. A violation impacting nine percent or more new impervious cover is assigned two points; and
ii. A violation impacting at least three percent but less than nine percent new impervious cover is assigned one point.
(e) The Department shall sum the total points assigned according to the factors in (d) above, and shall determine the penalty amount per day using the following table:

Penalty points table
Total Points Penalty Amount
Per Day
5 $5,000
4 $4,000
3 $3,000
2 $2,000

(f) The Department shall investigate alleged violations of the rules and take appropriate action, which may include, but is not limited to the following:
1. If a Farm Conservation Plan or Resource Management Plan has been developed, but not fully implemented, the Department shall determine the status of compliance with the plan. Where non-compliance is found, the Department may allow 60 days before imposing a civil administrative penalty.
(g) For a violation under this section, the Department may adjust the daily civil administrative penalty amount based on the following factors:
1. The violator’s compliance history;
2. The nature, timing and effectiveness of measures the violator takes to mitigate the effects of the violation;
The nature, timing and effectiveness of measures the violator takes to prevent future similar violations;
4. Any unusual or extraordinary costs or impacts directly or indirectly imposed on the public or the environment as a result of the violation; and/or
5. Other specific circumstances of the violator or violation.
(h) No assessment shall be levied until after the party has been notified by certified mail or personal service and has been provided an opportunity for a hearing.
(i) Any amount assessed shall take into account the seriousness and duration of the violation and whether the violation involves the failure to prepare or to implement a farm conservation plan or resource management systems plan and shall also provide for an enhanced penalty if the violation causes an impairment to water quality. Any civil administrative penalty assessed under this may be compromised by the Secretary of Agriculture upon the posting of a performance bond by the violator, or upon such terms and conditions as the Secretary may establish by regulation.
Any person who fails to pay a civil administrative penalty in full shall be subject, upon order of a court, to a civil penalty of up to $5,000 for each violation. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate, and distinct offense. Any such civil penalty imposed may be collected with costs in a summary proceeding pursuant to the Penalty Enforcement Law of 1999, P.L. 1999, c.274 (N.J.S.A. 2A:58-10 et seq.).
(k) All penalties collected pursuant to this chapter shall either be used, as determined by the Highlands Water Protection and Planning Council (Highlands Council), by the State Agriculture Development Committee for the preservation of farmland in the preservation area or by the State development transfer bank used or established by the Highlands Council to purchase development easements/credits in the preservation area.
1. The Department will forward quarterly reports to the Highlands Council and the State Agriculture Development Committee detailing any civil penalties collected pursuant to these rules.
(l) Anyone who is aggrieved by a determination pursuant to this section shall, upon written request transmitted to the Department within 20 days of that determination, be afforded the opportunity for a hearing thereon in the manner provided for contested cases pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.
(1) Requests for hearings shall be sent to Director, Division of Agriculture and Natural Resources, N. J. Department of Agriculture, P.O. Box 330, Trenton, New Jersey 08625-0330.

_________________________
Charles M. Kuperus
Secretary, New Jersey Department of Agriculture
May 25, 2005