Regulatory Program Frequently Asked Questions (FAQs)
Application & Review Procedures:
The Commission has the authority to regulate government and private projects in defined “Review Zone” specified in law and the Commission’s regulations. There are standards for governmental projects in Commission established review zones and in the park itself. For a private project to be regulated, the project must be located in a Commission “Review Zone,” require a municipal permit or approval, and be a “major project” in Review Zone B or a “minor project” or “major project” in Review Zone A.
The Commission’s regulations establish the boundaries of Review Zones A and B, which are the areas in which a project may be subject to regulation. Review Zone A is the area closest to the canal (generally, 1,000 feet from the centerline of the canal) and Review Zone B is the larger watershed area around the canal.
Review Zones A and B constitute an approximately 450-square-mile watershed around the Delaware and Raritan Canal State Park. The Review Zones were established based on the drainage of streams that go into the park. Since the watershed was established based on potential impacts to streams and tributaries that eventually enter the park, a project can be a distance from the canal and nevertheless be regulated. The Commission Review Zone can be viewed on the DEP NJ-Geoweb interactive mapping tool at: https://www.nj.gov/dep/gis/geowebsplash.htm
However, a project may be adjacent to the Delaware and Raritan Canal State Park trail, but not be regulated. That is because the review zones were drawn around the canal and were based on drainage patterns of the watersheds that go to the canal. Since its creation, the Department of Environmental Protection has added land to the park and extended the park beyond the historic boundaries of the canal, such as areas in Frenchtown Borough and Horseshoe Bend in Kingwood Township.
The Commission’s regulations, in part, define a “major project” as any project in Commission Review B that results in the cumulative coverage since January 11, 1980, of one quarter acre of land with impervious surface. Thus, the standard for determining whether a project has created one quarter acre of impervious surface coverage is cumulative, and retrospectively examines the total impervious surface placed since 1980.
One quarter acre of impervious surface equals 10,890 square feet of coverage. As an example, if an applicant proposes in the year 2019 to place 5,000 square feet of new impervious surface coverage on a site that had undergone the placement of 6,000 square feet of impervious surface coverage in 1981, the 2019 project would be regulated as a “major project,” because the total post-1980 impervious surface coverage exceeded 10,890 square feet. Pre-1980 impervious surface coverage is not included in the calculation of whether a project is a “major project.”
Coverage of a site by impervious surface is considered a cumulative process under the Commission’s regulation. January 11, 1980 was the date that the Commission’s land use rules first went into effect. These standards are designed to protect the Delaware and Raritan Canal State Park from the threat of damage from floods and water pollution. By reviewing impervious surface coverage cumulatively, the Commissions’ regulations prevent avoidance of the rules by dividing a project into several smaller parts.
The current rules, which were adopted in 2009, replaced earlier rules that authorized the review of the addition of any amount of new impervious surface, with no lower limit. The Commission believes that the current regulations set a threshold that is fairer for property owners, more supportive of redevelopment, and more predictable than the pre-2009 iteration of the rule.
No. A project must be completed within the five-year period set forth in the certificate of approval authorizing that project. The Commission’s regulations do not permit the granting of extensions; therefore, an uncompleted project will need to reapply for Commission approval.
If the proposed change to the project involves the correction of a typographical error, or in Commission Review Zone B a change in materials, construction techniques, or the minor relocation of a structure on a site required by another permitting agency, and the proposed change does not affect any Commission-regulated stream corridor, then the change may be considered a “minor modification” which may be approved by the Commission Executive Director through the issuance of a letter. The Commission staff does not issue verbal approvals of proposed modifications.
Any other proposed change shall be considered a “major modification” subject to Commission review and approval. Portions of the approval that are not affected by the proposed modification are not subject to further Commission review, or other procedures that would apply to an application for a new individual approval.
One set of drawings/plans is sufficient. The Commission also encourages applicants to submit documents in electronic format; especially, final plans that are referenced in the certificate of approval for Commission-approved projects.
No. The “Delaware and Raritan Canal State Park Law of 1974” and the Commission’s regulations specifically require that a proposed project must obtain a memorialized resolution of approval issued by the appropriate municipal and county approving agencies before being voted on by the Commission.
Yes. An application is not considered to be administratively-complete until the Commission staff obtains county and municipal approvals. However, the Commission staff will review the technical aspects of an application while the applicant pursues any required county and municipal approvals.
No. The Commission only considers “full depth” repaving as land disturbance for the purpose of jurisdiction.
Yes. The fee schedule set forth in the Commission’s regulations at N.J.A.C. 7:45-13.2 does not permit the Commission to waive fees.
All application fee checks must be made payable to “Treasurer, State of New Jersey.”
Impervious Surface Coverage:
Examples of “synthetic turf” previously regulated by the Commission include athletic fields or synthetic greens at golf courses. The regulations do not contain a permeability rate for determining impervious surface coverage. The standard is the definition set forth at N.J.A.C. 7:45-1.4, and the Commission staff will review other types not listed on a case-by-case basis.
Graveled surfaces were specifically included in the definition of “impervious surface” at N.J.A.C. 7:45-1.3 when the Commission’s regulations were amended in 2009. While the Commission is allocated to the Department of Environmental Protection, it has its own independent statutory authority and regulations.
No. Porous pavement consists of pervious asphalt or concrete materials which are both included in the Commission definition of “impervious surface.” Porous pavement is designed to allow percolation or infiltration of stormwater through the surface into the soil below, where the water is then naturally-filtered, and pollutants are removed. Therefore, porous pavement by the nature of its design creates its own stormwater management response.
While considered “impervious surface” under the Commission’s regulations for the purpose of jurisdiction and regulation, the Commission encourages the use of porous pavement as a stormwater management treatment technology.
Stormwater Runoff & Water Quality Impact:
Yes. The Commission requires an 80% TSS removal rate for all new pavement and an 80% TSS removal rate for all renewed “full depth” repaving.
No. The Commission’s Stormwater Runoff and Water Quality Impact Review standards are cited within Subchapter 8 of N.J.A.C. 7:45. Currently, the Regulations for the Review Zone of the Delaware and Raritan Canal State Park do not include a requirement for the use of green infrastructure BMPs. However, the inclusion of green infrastructure BMPs within a stormwater management system is anticipated to assist an applicant with demonstrating compliance with one or more of the stormwater management requirements list at N.J.A.C. 7:45-8, since green infrastructure disconnects impervious surface by directing stormwater to infiltrate and/or be filtered through media.
The Appellate Division of the New Jersey Superior Court invalidated the use of the NSPS point system to determine compliance with low-impact development requirements of the NJDEP Stormwater Rules in 2013. However, because the Commission adopted the point system as a rule under the “Administrative Procedure Act,” the Court, in a footnote, noted that it was permissible for the Commission to continue to use the NSPS worksheet as an evaluative tool.
Stream Corridor Impact:
The Delaware and Raritan Canal Commission’s regulations restrict most intrusions into stream corridors for a number of reasons. First, unless properly controlled, development within stream corridors can degrade the quality of water and exacerbate the intensity and frequency of flooding by reducing flood storage, increasing stormwater runoff, increasing pollutants and obstructing the movement of floodwaters. Additionally, structures that are improperly built in stream corridors are subject to flood damage and threaten the health, safety, and welfare of those who occupy them.
Although the primary source of water for the Delaware and Raritan Canal is the Delaware River, a number of other watercourses also either drain directly into the canal, or into the Delaware and Raritan Canal State Park. The watersheds of these streams encompass approximately 450 square miles of land area in central New Jersey. The maintenance of healthy native vegetation adjacent to these surface waters is essential for ensuring bank stability and water quality. The unregulated disturbance of vegetation along these waters can destabilize channels, leading to increased erosion and sedimentation, which in turn exacerbates the intensity and frequency of flooding. The destruction of native vegetation adjacent to surface waters also reduces filtration of stormwater runoff and thus degrades the quality of the waters that ultimately drain into the canal.
When the Commission requires an applicant to "delineate" the boundaries of a stream corridor as part of a project application, the applicant is being directed to define the natural boundaries of that corridor in order that it will be protected for the ecological and flood control reasons noted above. The Delaware and Raritan Canal Commission accepts any of the six methods for determining the 100-year floodplain under the New Jersey Department of Environmental Protection Flood Hazard Control Act Rules at N.J.A.C. 7:45-13. Those methods are:
1. Method 1 (Department delineation method) as described at N.J.A.C. 7:13-3.3;
2. Method 2 (FEMA tidal method) as described at N.J.A.C. 7:13-3.4(d);
3. Method 3 (FEMA fluvial method) as described at N.J.A.C. 7:13-3.4(e);
4. Method 4 (FEMA hydraulic method) as described at N.J.A.C. 7:13-3.4(f);
5. Method 5 (approximation method) as described at N.J.A.C. 7:13-3.5; and
6. Method 6 (calculation method) as described at N.J.A.C. 7:13-3.6
When a project makes an intrusion into a Commission-regulated stream corridor, the Commission’s regulations direct that as part of the approval of the project, the applicant shall take whatever measures are necessary to ensure that stream corridor will be preserved and to prevent future encroachments in the stream corridor. This protection takes the form of a conservation easement between the applicant and the Commission. The conservation easement places a deed restriction on the stream corridor on the subject property, and generally prohibits any activity that would disturb the natural functioning of the corridor, thus allowing it to fulfill its beneficial ecological and flood control functions.
A stream corridor is applied to any water course that flows into the Delaware and Raritan Canal State Park, its tributaries, the 100-year floodplain associated with the water course and its tributaries, and all land within a 100-foor buffer adjacent to the 100-year flood line associated with the water courses and their tributaries, per N.J.A.C. 7:45-1.3 and shall be mapped as noted below.
Scenario 1: The entire 100-year floodplain is conveyed through the water control structure.
In this scenario, the limits of the stream corridor shall be truncated at the entrance and exit of the structure at a straight line that runs perpendicular to the predominant direction of flow in the water course.
Scenario 2: The 100-year floodplain overtops the water control structure and flows overland toward the downstream open channel section of the water course.
In this scenario, the limits of the stream corridor shall be mapped along the entire limit of the 100-year floodplain with no gaps.
Prior to 2009, the Commission’s regulations contained a list of 18 named streams that were subject to the stream corridor impact review standards. In 2009, the Commission’s regulations were substantially amended. Among the changes, regulations were amended to describe a “stream corridor” using a definition.
This definition states that a “stream corridor” means any water course that flows into the Delaware and Raritan Canal State Park, its tributaries, the 100-year floodplain associated with the water course and its tributaries, and all of the land within a 100-foot buffer adjacent to the 100-year flood line associated with the water courses and their tributaries. For any water course and its tributaries that discharge into the canal, the stream corridor includes the water course and its tributaries, and either the 100-year floodplain associated with the water course and its tributaries and a 100 foot buffer adjacent to the 100-year flood line associated with the water course and its tributaries, or 300 feet along both sides of the water course or tributary, measured from the top of the water course’s banks, whichever is greater. A stream corridor starts from the point that the water course enters the park, upstream to the point that the water course or its tributaries drain less than 50 acres.
No. Interior alterations to an existing structure are specifically exempt from Commission regulation.
No. For a project to be regulated by the Commission, it must be subject to a local approval or permit. Since house painting by itself does not require a municipal permit, it would not be regulated by the Commission. The Commission may examine the proposed colors, materials and textures of a proposed project that is being constructed in Review Zone A.
At present, the Commission’s rules do not contain a decibel level or a reference to the “Noise Control Act,” (Noise Act) at N.J.S.A. 13:1G-1 et seq. The 1979 Commission rules contained a “Noise Control Regulation” section (N.J.A.C. 7:45-7, since repealed). The rules referenced the Noise Act and the DEP regulations adopted pursuant thereto.
When the 1979 rules expired, the Commission published a rule proposal in 1988 that contained a Noise Control subchapter. However, this subchapter was ultimately removed and not adopted. The succeeding versions of the regulations, in 1989 and 1990, and Commission regulations adopted thereafter did not contain a Noise Control subchapter.
While the existing rules do not contain a noise standard, they do contain three references to noise. N.J.A.C. 7:45-10.3 states that major projects are discouraged in Natural, Rural, Transportation, and Special Node canal environments. This rule also states that the Commission shall not approve a project unless specific compensatory measures mitigate the harmful impact. One such compensatory measure listed is “noise abatement measures.” (See N.J.A.C. 7:45- 10.3(a)5)
Additionally, the Commission’s Traffic Impact Subchapter at N.J.A.C. 7:45-11.2(a) states that “[T]he Commission shall not approve projects that include new vehicular crossings of the canal unless the applicant demonstrates to the satisfaction of the Commission that the project conforms with certain following goals. Included in these goals are the utilization of “noise retardation measures” wherever appropriate.
The Commission regulations also contain a Visual, Historic, and Natural Quality Impact Review at N.J.A.C. 7:45-10. This subchapter has general standards at N.J.A.C. N.J.A.C. 7:45-10.2, which state that the Commission shall review all projects in Review Zone A to determine if the project is in accord with the goals for the Delaware and Raritan Canal State Park as defined in the Master Plan, and outlines the various environments through which the canal flows. Generally speaking, this impact would be assessed by the Commission staff through observation and inspection in the park as the staff does with other impact and design standards. This assessment would consider the Master Plan canal environment in which the project is located (i.e. “transportation,” “urban,” “suburban,” “rural,” etc.)
The Master Plan further notes in its “Principles and Objectives” that “the Canal Park must retain a degree of serenity and separation from the man-made world” and that the park should be a “…respite from the noise the bustle and the hard edges of the man-made world.” The objectives further note that vehicular intrusions from roads that enter the park or that run parallel should be avoided.