New Jersey Administrative Code › Title 7 - ENVIRONMENTAL PROTECTION › Chapter 7A - FRESHWATER WETLANDS PROTECTION ACT RULES › Subchapter 1 - GENERAL INFORMATION › Section 7:7A-1.3 - Definitions

Current through Register Vol. 56, No. 14, July 15, 2024
The following words and terms, when used in this chapter,
				  shall have the following meanings unless the context clearly indicates
				  otherwise. Additional definitions specifically applicable to N.J.A.C. 7:7A-11,
				  Mitigation, are set forth at
				  N.J.A.C.
				  7:7A-11.1.
"Abandoned" means, with respect to an agricultural field,
				  including a blueberry field or a cranberry bog, that the field was used for
				  agriculture, but has not been used to produce a crop or product, or maintained
				  or improved for agricultural purposes, for five years or more. If an
				  agricultural field has been abandoned for 40 or more years, it shall no longer
				  be considered an abandoned agricultural field. The lack of a commercial harvest
				  or production of a crop on or from a cranberry bog or blueberry field shall not
				  be a determining factor as to whether the agricultural use has been
				  abandoned.
"Administratively complete" means that every item required on
				  the application checklist for a letter of interpretation or permit being sought
				  is included in the application.
"Agency of the State" means each of the principal departments
				  in the executive branch of the State Government, and all boards, divisions,
				  commissions, agencies, departments, councils, authorities, offices or officers
				  within any such departments.
"Applicant" means a person who submits an application for a
				  permit, waiver, or any other Department decision pursuant to N.J.A.C.
				  7:7A.
"Aquatic ecosystem" means waters of the United States,
				  including wetlands, that serve as habitat for interrelated and interacting
				  communities and populations of plants and animals.
"Architectural survey" means an intensive-level historic
				  architectural survey completed by an architectural historian whose
				  qualifications meet the Secretary of the Interior's Professional Qualifications
				  Standards and related guidance as part of the larger Secretary of the
				  Interior's Standards and Guidelines for Archaeology and Historic Preservation
				  as referenced in 36 CFR 61, as amended and supplemented, incorporated herein by
				  reference.
"Atlantic white-cedar wetlands" means a type of forested
				  freshwater wetlands where Atlantic white-cedar tree is the dominant vegetation,
				  as described in the Federal Manual.
"Best Management Practices" or "BMPs" means methods,
				  measures, designs, performance standards, maintenance procedures, and other
				  management practices which prevent or reduce adverse impacts upon or pollution
				  of freshwater wetlands, State open waters, and adjacent aquatic habitats, which
				  facilitate compliance with the Federal Section 404(b)(1) guidelines (40 CFR
				  Part 230), New Jersey Department of Environmental Protection Flood Hazard Area
				  Control Act Rules,
N.J.A.C. 7:13
; the Department's Storm Water
				  Management Regulations,
N.J.A.C. 7:8
; the Standards for Soil
				  Erosion and Sediment Control in New Jersey, promulgated by the New Jersey State
				  Soil Conservation Committee at
N.J.A.C. 2:90
; and effluent
				  limitations or prohibitions under Section 307(a) of the Federal Act and the
				  Department's Surface Water Quality Standards,
N.J.A.C. 7:9B
.
				  Examples include practices found at
				  33 CFR
				  330.6,
				  40 CFR
				  233.35(a)6, the Department's
				  Flood Hazard Area Technical Manual, and "A Manual of Freshwater Wetland
				  Management Practices for Mosquito Control in New Jersey." The manuals included
				  in this definition are only a partial listing, and interested persons should
				  contact the Department for the most up to date list.
"Category One waters" means waters designated as such in the
				  Department's Surface Water Quality Standards at N.J.A.C. 7:9B.
"Charitable conservancy" means a corporation or trust that
				  meets the definition of a charitable conservancy at
N.J.S.A.
N.J.S.A.
				  13:8B-2
. (Note: Effective as of May
				  1, 2017, the definition of charitable conservancy at
N.J.S.A.
				  13:8B-2
is a corporation or trust whose purposes include the
				  acquisition and preservation of land or water areas or of a particular land or
				  water area, or either thereof, in a natural, scenic or open condition, no part
				  of the net earnings of which insures to the benefit of any private shareholder
				  or individual, and which has received tax exemption under
section
				  501(c) of the 1954 Internal Revenue Code
.)
"Commissioner" means the Commissioner of the Department, or
				  his or her designated representative.
"Compelling public need" means that based on specific facts,
				  the proposed regulated activity will serve an essential health or safety need
				  of the municipality in which the proposed regulated activity is located, that
				  the public health and safety benefit from the proposed use and that the
				  proposed use is required to serve existing needs of the residents of the State,
				  and that there is no other means available to meet the established public
				  need.
"Complete for review" means that an application for a letter
				  of interpretation or a permit is both administratively and technically complete
				  and is ready to be evaluated by the Department for compliance with the
				  applicable requirements of this chapter.
"Conservation restriction" means a restriction, easement,
				  covenant, or condition, in any deed, will, or other instrument, other than a
				  lease, executed by or on behalf of the owner of the land, appropriate to
				  retaining land or water areas predominantly in their natural state, scenic or
				  open or wooded condition, or for conservation of soil or wildlife, or for
				  outdoor recreation or park use, or as suitable habitat for fish or wildlife, to
				  forbid or limit any or all of the following:
1. Construction or placing of buildings, roads, signs,
				  billboards or other advertising, or other structures on or above the
				  ground;
2. Dumping or placing of soil or other substance or material
				  as landfill, or dumping or placing of trash, waste or unsightly or offensive
				  materials;
3. Removal or destruction of trees, shrubs or other
				  vegetation;
4. Excavation, dredging or removal of loam, peat, gravel,
				  soil, rock or other mineral substance;
5. Surface use except for purposes permitting the land or
				  water area to remain predominantly in its natural condition;
6. Activities detrimental to drainage, flood control, water
				  conservation, erosion control or soil conservation, or fish and wildlife
				  habitat preservation; and/or
7. Other acts or uses detrimental to the retention of land or
				  water areas according to the purposes of this chapter.
"Contiguous" means adjacent properties, even if they are
				  separated by human-made barriers or structures or legal boundaries. Contiguous
				  properties shall include, but are not limited to: land areas which directly
				  abut or are separated by a general access roadway or other right-of-way,
				  including waterways; and properties which are part of a subdivision that was
				  under common ownership on July 1, 1988.
"Critical habitat for fauna or flora" means:
1. For fauna, areas which serve an essential role in
				  maintaining wildlife, particularly for wintering, breeding, spawning and
				  migrating activities;
2. For flora, areas supporting rare or unique plant species
				  or uncommon vegetational communities in New Jersey.
"Cultivating" means physical methods of soil treatment,
				  employed upon planted farm, ranch or forest crops to aid and improve the
				  growth, quality or yield of the crops.
"Degraded wetland" means a wetland in which there is impaired
				  surface water flow or groundwater hydrology, or excessive drainage; a wetland
				  which has been partially filled or excavated, contaminated with hazardous
				  substances, or which has an ecological function substantially less than that of
				  undisturbed wetlands in the region.
"Delegable waters" means all waters of the United States, as
				  defined in this section, within New Jersey, except waters which are presently
				  used, or are susceptible to use in their natural condition or by reasonable
				  improvement, as a means to transport interstate or foreign commerce, shoreward
				  to their ordinary high water mark. This term includes all waters which are
				  subject to the ebb and flow of the tide, shoreward to their mean high water
				  mark, including wetlands that are partially or entirely located within 1,000
				  feet of their ordinary high water mark or mean high tide. Waters that are not
				  delegable waters include, but are not limited to:
1. The entire length of the Delaware River within the State
				  of New Jersey;
2. Waters of the United States under the jurisdiction of the
				  New Jersey Sports and Exposition Authority (formerly the New Jersey Meadowlands
				  Commission); and
3. Greenwood Lake.
"Department" means the Department of Environmental
				  Protection.
"Detention basin" or "detention facility" means a human-made
				  impoundment area made by constructing an embankment, or excavating a pit, or
				  both, for the purpose of temporarily storing stormwater.
"Developable upland" means an upland area that could be
				  developed under the laws that apply to the site.
"Discharge of dredged material" means any addition of dredged
				  material into State open waters or freshwater wetlands. The term includes the
				  addition of dredged material into State open waters or freshwater wetlands and
				  the runoff or overflow from a contained land or water dredge material disposal
				  area. Discharges of pollutants into State open waters resulting from the
				  subsequent onshore processing of dredged material are not included within this
				  term. Such discharges of pollutants may, however, be subject to the New Jersey
				  Pollutant Discharge Elimination System (NJPDES) rules at N.J.A.C. 7:14A.
"Discharge of fill material" means the addition of fill into
				  State open waters or freshwater wetlands. The term includes, but is not limited
				  to, the following activities:
1. Placement of fill that is necessary for the construction
				  of any structure;
2. The building of any structure or impoundment requiring
				  rock, sand, dirt, or other materials for its construction;
3. Site-development fill for recreational, industrial,
				  commercial, residential, and other uses;
4. Causeways or road fills;
5. Dams and dikes;
6. Artificial islands;
7. Property protection or reclamation devices, or both, such
				  as riprap, groins, seawalls, breakwaters, and revetments;
8. Beach nourishment;
9. Levees;
10. Fill for structures such as sewage treatment facilities,
				  intake and outfall pipes associated with power plants and underground utility
				  lines;
11. Artificial reefs; and
12. Stump removal.
"Ditch" means a linear topographic depression with bed and
				  banks of human construction, which conveys water to or from a site, which is
				  surrounded by uplands and which is not located within a wetland. This does not
				  include channelized or redirected natural water courses.
"Documented habitat for threatened or endangered species"
				  means areas for which:
1. There is recorded evidence of past use by a threatened or
				  endangered species of flora or fauna for breeding, resting, or feeding.
				  Evidence of past use by a species may include, but is not limited to, sightings
				  of the species, or of its sign (for example, skin, scat, shell, track, nest,
				  herbarium records, etc.), as well as identification of its call; and
2. The Department makes the finding that the area remains
				  suitable for use by the specific documented threatened or endangered species
				  during the normal period(s) the species would use the habitat.
"Drainage" means active or passive methods for changing the
				  hydrologic conditions of wetlands or State open water, such as lowering
				  groundwater or surface water levels through pumping, ditching, or otherwise
				  altering water flow patterns.
"Dredging" means removal of wetlands or State open water
				  soils or sediments through use of mechanical, hydraulic, or pneumatic tools or
				  other means.
"Dredged material" means material that is excavated or
				  dredged from waters of the United States.
"Dumping" means the discharge, placement or abandonment of
				  solid, semi-solid or liquid materials.
"Electronic LOI" or "E-LOI" means an application for a letter
				  of interpretation submitted to the Department electronically.
"Environmental commission" means a municipal advisory body
				  created pursuant to
				  40:56A-1
				  et seq.
"EPA priority wetlands" or "USEPA priority wetlands" means
				  wetlands that are designated as priority wetlands by the USEPA, and are listed
				  on the "Priority Wetlands List for the State of New Jersey," which is available
				  from the Department at the address set forth at
N.J.A.C.
				  7:7A-1.4
.
"Established, ongoing farming, ranching, or silviculture
				  operation" means activities on areas subject to a farming, ranching, or
				  silviculture use as of June 30, 1988, which use has been pursued continuously
				  since June 30, 1988. Activities on areas lying fallow as part of a conventional
				  rotational cycle that does not exceed five years are part of an established
				  operation. Activities that bring an area into farming, silviculture, or
				  ranching use are not part of an established operation. An operation ceases to
				  be established when the area on which it was conducted has been converted to
				  another use or has lain idle for so long that modifications to the hydrological
				  regime are necessary to resume operations, or for more than five years,
				  whichever is shorter.
A cranberry bog, blueberry field, or portion thereof that was
				  used for such purposes as of June 30, 1988, and on which any of the activities
				  listed at
N.J.A.C.
				  7:7A-2.4(c)
2 and 3
				  have occurred within the prior five years shall be considered an established,
				  ongoing farming operation and shall not be deemed abandoned. The lack of a
				  commercial harvest or production of a crop on or from the lands shall not be a
				  determining factor as to whether the agricultural use has been
				  abandoned.
"Excavation" means the removal of soil, rocks, or other
				  material resulting in a change in site elevation.
"Fair market value" or "market value" means the most probable
				  price for which land will sell in a competitive and open market under all
				  conditions requisite to a fair sale, the buyer and seller each acting prudently
				  and knowledgeably, and assuming the price is not affected by any unusual
				  benefit to the purchaser.
"Farmed wetland" means a freshwater wetland, as defined in
				  this section, which was both manipulated and cropped before December 23, 1985,
				  and has been in active agricultural use continuously since then. This term also
				  includes a wetland that was manipulated and used for pasture or hayland before
				  December 23, 1985, which has been in active use for pasture or hayland
				  continuously since then. An area that lies fallow as part of a conventional
				  rotational cycle that does not exceed five years is considered to be in active
				  agricultural use.
"Federal act" means the Federal Water Pollution Control Act,
				  33 U.S.C.
				  §§
										1251 et seq., including any
				  amendments and supplements, and implementing regulations. This statute is
				  sometimes referred to as the Federal Clean Water Act.
"Federal 404 program" means the program regulating the
				  discharge of dredged or fill materials pursuant to Section 404 of the Federal
				  Act.
"Fill" means the deposition or placement of material such as
				  soil, sand, earth, rock, concrete, pavement, or solid material of any kind, so
				  as to change the ground elevation in relation to surface water or groundwater
				  level. "Fill" also means the material deposited.
"Forested" means that tree species with an average height
				  greater than 20 feet are the predominant vegetation present.
"FW" means the general surface water classification applied
				  to fresh waters in the Department's Surface Water Quality Standards, N.J.A.C.
				  7:9B.
"FW1 waters" means waters designated as FW1 waters in the
				  Department's Surface Water Quality Standards,
N.J.A.C.
				  7:9B
.
"FW2 waters" means waters designated as FW2 waters in the
				  Department's Surface Water Quality Standards, N.J.A.C. 7:9B.
"Freshwater wetland" or "wetland" means an area that is
				  inundated or saturated by surface water or groundwater at a frequency and
				  duration sufficient to support, and that under normal circumstances does
				  support, a prevalence of vegetation typically adapted for life in saturated
				  soil conditions, commonly known as hydrophytic vegetation; provided, however,
				  that the Department, in designating a wetland, shall use the three-parameter
				  approach (that is, hydrology, soils and vegetation) enumerated in the 1989
				  Federal Manual as defined in this section. These include tidally influenced
				  wetlands which have not been included on a promulgated map pursuant to the
				  Wetlands Act of 1970,
				  13:9A-1
				  et seq.
"Freshwater wetlands permit" means a permit or authorization
				  to engage in a regulated activity in a freshwater wetland issued pursuant to
				  the Freshwater Wetlands Protection Act and this chapter.
"Gabion" means a shore or stream bank protection structure,
				  that is made of wire mesh basket(s) or mattress(es) filled with rocks and
				  usually used in multiples as a structural unit installed to withstand the
				  forces of waves and currents.
"General permit-by-certification" means a permit to undertake
				  a regulated activity for which the terms and conditions are established in
				  rules promulgated under this chapter at N.J.A.C. 7:7A-5 and 6, and which may be
				  conducted upon Department approval through the electronic permitting process
				  set forth at
N.J.A.C. 7:7A-16.6
.
"Government agency" means any department, division,
				  authority, board, commission, office, bureau, agency, committee or other
				  instrumentality of the United States, or of the State or any political
				  subdivision thereof.
"Grace period" means the period of time afforded under the
				  Grace Period Law,
				  13:1D-125
				  et seq., for a person to correct a minor violation in order to avoid imposition
				  of a penalty that would otherwise be applicable for such violation.
"Harvesting" means physical measures employed directly upon
				  farm, forest, or ranch crops within established agricultural and silvicultural
				  lands to bring about their removal from farm, forest, or ranch land, but does
				  not include the construction of farm, forest, or ranch roads or other
				  engineering practices such as drainage which would alter the existing character
				  of the farm, forest or ranch land.
"Historic preservation restriction or easement" means an
				  interest in land less than fee simple absolute, stated in the form of a right,
				  restriction, easement, covenant, or condition, in any deed, will or other
				  instrument, other than a lease, executed by or on behalf of the owner of the
				  land, appropriate to preserving a structure or site which is historically
				  significant for its architecture, archeology or associations, to forbid or
				  limit any or all:
1. Alteration in exterior or interior feature of such
				  structure;
2. Changes in appearance or condition of such site;
3. Uses of such structure or site which are not historically
				  appropriate; and/or
4. Other acts or uses detrimental to the appropriate
				  preservation of such structure or site.
"Hoophouse" or "polyhouse" means a temporary pipe-frame
				  structure covered with plastic sheeting, with a dirt or fabric floor, that
				  provides for a controlled growing environment to create more favorable growing
				  conditions for crops grown within the covered space. For the purposes of this
				  chapter, a "hoophouse" or "polyhouse" shall not include permanent
				  footings.
"HUC" means the hydrologic unit code system developed by the
				  United States Geological Service for delineating and identifying drainage
				  areas. The system starts with the largest possible drainage areas and
				  progressively smaller subdivisions of the drainage area are delineated and
				  numbered in a nested fashion. As used in this chapter, "HUC 14" indicates a
				  drainage area with a hydrologic unit code designation with 14 numbers. "HUC 11"
				  indicates a larger subwatershed that is composed of several HUC 14
				  subwatersheds. There are 921 HUC 14 subwatersheds in New Jersey that range in
				  size from 0.1 to 42 square miles. The boundaries are included in the United
				  States Geological Survey, Water Resources Investigations Report 95-4134, 1995,
				  entitled "Development of a 14-digit Hydrologic Coding Scheme and Boundary Data
				  Set for New Jersey." The HUC codes for New Jersey can be downloaded from
http://www.nj.gov/dep/gis
. The
				  HUC 11 data is entitled "subwatersheds." Software designed for use with
				  Geographic Information Systems (GIS) will be required to view the downloaded
				  data.
"Hydric soil" means a soil that in its undrained condition is
				  saturated, flooded, or ponded long enough during the growing season to develop
				  anaerobic conditions that favor the growth and regeneration of hydrophytic
				  vegetation. These soils may be described in several places, including New
				  Jersey's Official List of Hydric Soils, developed by the Natural Resources
				  Conservation Service; the National Wetlands Inventory, entitled "The Wetlands
				  of New Jersey," published in 1985 by the United States Fish and Wildlife
				  Service; or in the 1989 Federal manual. Alluvial land, as mapped on soil
				  surveys, or other soils exhibiting hydric characteristics identified through
				  field investigation as described in Part III of the 1989 Federal Manual may
				  also be considered a hydric soil for the purposes of wetland classification.
				  Also, wet phases of somewhat poorly drained soils not on New Jersey's Official
				  List of Hydric Soils may be associated with a wetland and therefore for the
				  purposes of this chapter shall be considered a hydric soil.
"Hydrophyte" means plant life adapted to growth and
				  reproduction under periodically saturated root zone conditions during at least
				  a portion of the growing season. A listing of these plants can be found in the
				  "National List of Plant Species that Occur in Wetlands: 1988-New Jersey" and
				  amendments thereto, compiled by the USFWS, USACE, USEPA, and the Natural
				  Resources Conservation Service.
"Impervious surface" means a surface that is covered with a
				  layer of material, so that it is highly resistant to infiltration by
				  water.
"Individual permit" means a freshwater wetlands permit or
				  open water fill permit that is issued by the Department after an alternatives
				  analysis and other site-specific and project-specific reviews required at
				  N.J.A.C. 7:7A-10.
"Intermittent stream" means surface water drainage channels
				  with definite bed and banks in which there is not a permanent flow of water.
				  Most intermittent streams are shown on Soil Conservation Service county soil
				  surveys.
"Isolated wetlands" means a freshwater wetland that is not
				  "part of a surface water tributary system," as defined in this section.
"Lake, pond, or reservoir" means any impoundment of water,
				  whether naturally occurring or created in whole or in part by the building of
				  structures for the retention of surface water.
"Letter of interpretation" or "LOI" means the document issued
				  by the Department under N.J.A.C. 7:7A-4, indicating the presence or absence of
				  wetlands, State open waters, or transition areas; verifying or delineating the
				  boundaries of freshwater wetlands, State open waters, and/or transition areas;
				  or assigning a wetland a resource value classification.
"Linear development" means a development with the basic
				  function of connecting two points, such as a road, drive, public walkway,
				  railroad, sewerage pipe, stormwater management pipe, gas pipeline, water
				  pipeline, or electric, telephone, or other transmission line. Linear
				  development shall not mean residential, commercial, office, or industrial
				  buildings, improvements within a development, such as utility lines or pipes,
				  or internal circulation roads.
"Loss" means, with respect to freshwater wetlands or State
				  open waters, an alteration of a wetland or water to the extent that the wetland
				  or water, or portion thereof, no longer retains the functions and
				  characteristics of a wetland or water.
"Major discharge" means a discharge or activity that the
				  Department must transmit to USEPA for review in accordance with the
				  Department's 1993 MOA with the USEPA regarding assumption of the Federal 404
				  program. Provisions regarding USEPA review of major discharges are found at
				  N.J.A.C.
				  7:7A-19.5. The following are major
				  discharges:
1. A draft general permit;
2. A discharge with reasonable potential to affect Federally
				  listed or proposed endangered or threatened species as determined by the
				  USFWS;
3. A discharge of dredged or fill material which has the
				  potential for adverse impacts on the waters of a state other than New
				  Jersey;
4. A discharge known or suspected to contain:
i. Toxic pollutants as identified by Section 307(a)(1) of the
				  Federal act;
ii. Hazardous substances identified pursuant to Section 311
				  of the Federal act and Section 101(14) of the Comprehensive Environmental
				  Response Compensation and Liability Act,
				  42
				  U.S.C. §§
										9601 et seq.;
iii. Toxic substances as defined by Section 3 of the Toxic
				  Substances Control Act,
				  15 U.S.C. §§
										2601 et seq.; or
iv. Hazardous waste as defined by Section 1004(5) of the
				  Resource Conservation and Recovery Act,
				  42 U.S.C. §§
										6901 et seq.;
5. A discharge located in the proximity of a public water
				  supply intake;
6. A discharge within a critical area established under State
				  or Federal law, including but not limited to a National or State park; fish or
				  wildlife sanctuary or refuge; National or historical monument; wilderness area
				  or preserve; a site identified or proposed under the National Historic
				  Preservation Act; or a component of the National Wild and Scenic Rivers
				  system;
7. The filling of five or more acres of freshwater wetlands
				  and/or State open waters;
8. Any regulated activity that results in a significant
				  reduction in the ecological, commercial, or recreational values of five or more
				  acres of freshwater wetlands or State open waters;
9. A culvert enclosure longer than 100 feet; or
10. Channelization of more than 500 feet of a river or
				  stream.
"Maximum extent practicable" means to the maximum extent
				  after weighing, evaluating and interpreting alternatives to protect the
				  ecological integrity of a wetland or State open water.
"Mitigation" means activities carried out pursuant to
				  N.J.A.C. 7:7A-11in or der to compensate for freshwater wetlands or State open
				  waters loss or disturbance caused by regulated activities.
"Mitigation bank" means an operation in which wetlands,
				  uplands, and/or other aquatic resources are restored, created, enhanced, or
				  preserved by a mitigation bank operator for the purpose of providing
				  compensatory mitigation for disturbances to freshwater wetlands and/or State
				  open waters.
"Natural Resources Conservation Service" or "NRCS" means the
				  arm of the U.S. Department of Agriculture (USDA) that provides technical
				  assistance with USDA conservation programs associated with soil, water, and
				  other related natural resources. The Natural Resources Conservation Service was
				  previously known as the Soil Conservation Service.
"1989 Federal Manual" means the Federal Manual for
				  Identifying and Delineating Jurisdictional Wetlands, published in 1989 by the
				  USEPA, USACE, USFWS, and the U.S. Department of Agriculture's Natural Resources
				  Conservation Service (formerly the Soil Conservation Service), as amended
				  and/or supplemented, which Manual is incorporated herein by reference.
"Non-delegable waters" mean waters that are not delegable
				  waters.
"Normal rainfall year" means a 12 month period in which the
				  precipitation at a location is within 10 percent of the average annual
				  precipitation for that location, calculated using the standard averaging period
				  for "normals," established by the World Meteorological Organization, except
				  that the Department may determine normal rainfall on a case-by-case basis in
				  unusual situations, such as where the sampling period begins immediately
				  following prolonged drought conditions. As of September 4, 2001, the World
				  Meteorological Organization has defined the standard averaging period as 1961
				  through 1990. Information regarding the standard averaging period can be found
				  in the USDA's Natural Resources Conservation Service website at
http://www.wcc.nrcs.usda.gov/climate
.
"Offsite" means the area not onsite.
"Onsite" means the area located within the site, as defined
				  in this section.
"Open water fill permit" means the type of New Jersey
				  Pollution Discharge Elimination System permit or authorization issued pursuant
				  to this chapter and N.J.S.A. 58:10A-1 et seq., which governs the discharge of
				  dredged or fill material into State open waters.
"Ordinary high water mark" means that line on the shore
				  established by the fluctuations of water and indicated by physical
				  characteristics such as clear, natural line impressed on the bank, shelving,
				  changes in the character of soil, destruction of terrestrial vegetation,
				  presence of litter and debris, or other appropriate means that consider the
				  characteristics of the surrounding areas.
"Palustrine emergent" means a wetlands vegetation pattern in
				  which persistent and non-persistent grasses, rushes, sedges, forbs, and other
				  herbaceous or grass-like plants are the dominant vegetation.
"Part of a surface water tributary system" means connected to
				  a surface water that discharges into a lake, pond, river, stream or other
				  surface water feature. The connection may be through any surface water feature,
				  whether regulated or not, including a stormwater or drainage pipe. The
				  connection may be through a secondary flow channel or other feature. However,
				  the connection may be through overland flow only if there is evidence of
				  scouring, erosion, or concentrated flows. The connection may not be through
				  groundwater alone. Wetlands adjacent to a surface water are connected to the
				  surface water and are part of the surface water tributary system.
"Permit" means a permit or authorization issued under this
				  chapter pursuant to the Freshwater Wetlands Protection Act or the Water
				  Pollution Control Act to engage in a regulated activity in a freshwater
				  wetland, State open water, or transition area.
"Permittee" means a person to whom the Department has issued
				  a permit or a waiver under this chapter.
"Person" means an individual, corporation, corporate officer
				  or official, partnership, association, the Federal government, the State,
				  municipality, commission or political subdivision of the State or any
				  interstate body.
"Phase IA historical and archaeological survey" means an
				  archaeological survey the purpose of which is to identify resources completed
				  by an archaeologist whose qualifications meet the Secretary of the Interior's
				  Professional Qualifications Standards and related guidance as part of the
				  larger Secretary of the Interior's Standards and Guidelines for Archaeology and
				  Historic Preservation as referenced in 36 CFR 61, as amended and supplemented,
				  incorporated herein by reference.
"Pilings" means timber, metal, concrete or other similar
				  structures driven, dropped, poured, or placed to support a vertical
				  load.
"Plowing" means all forms of primary tillage, including
				  moldboard, chisel, or wide-blade, plowing, discing, harrowing, and similar
				  physical means utilized on farm, forest or ranch land for the breaking up,
				  cutting, turning over, or stirring of soil to prepare it for the planting of
				  crops. The term does not include the redistribution of dredged material, rock,
				  sand, or other surface materials in a manner which changes any area of wetlands
				  to dry land. For example, the redistribution of surface materials by blading,
				  grading, or other means to fill in wetland areas is not plowing. Rock crushing
				  activities which result in the loss of natural drainage characteristics, the
				  reduction of water storage and recharge capabilities, or the overburden of
				  natural water filtration capacities do not constitute plowing. Plowing will
				  never involve a discharge of material.
"Practicable alternative" means other choices available and
				  capable of being carried out after taking into consideration cost, existing
				  technology, and logistics in light of overall project purposes, and may require
				  an area not owned by the applicant which could reasonably have been or be
				  obtained, utilized, expanded, or managed in order to fulfill the basic purpose
				  of the proposed activity.
"Preliminary approval" means the conferral of certain rights
				  pursuant to the Municipal Land Use Law at
				  40:55D-46,
				  48 and 49 prior to final approval after specific elements of a development plan
				  have been agreed upon by the planning board and the applicant.
"Project" means the following:
1. For the purpose of a transition area exemption under
N.J.A.C.
				  7:7A-2.4(f)
based
				  on the application for or the grant of a preliminary site plan approval:
i. All buildings, structures, pavements, and other
				  improvements specifically depicted on the site plans referenced in the
				  resolution approving the site plan; and
2. For the purpose of a transition area exemption under
N.J.A.C. 7:7A-2.4
, based
				  on the application for or the grant of a preliminary subdivision approval:
i. Where subdivision approval is the last stage of municipal
				  review before the owner/applicant may apply for a building permit to begin
				  construction, the "project" is the development of the subdivision consistent
				  with the lot coverage, use, and density restrictions of the zoning ordinance in
				  effect at the time of the subdivision approval; or
ii. Where site plan approval is required prior to
				  construction, "project" means the proposed economic development, whether
				  commercial, industrial or residential, intended to be constructed on that
				  portion of a tract of land that is the focus of the qualifying approval.
				  Although "project" is not limited to specific structures shown on the
				  subdivision plans, it is limited to development on those portions of a tract of
				  land that were the focus of the qualifying subdivision application or approval.
				  Development on other lands, such as development on the remainder of a larger
				  tract or on a contiguous property in common ownership, are not included within
				  a "project."
In order to determine if an applicant qualifies for an
				  exemption under this definition, the Department will determine the existence of
				  a proposed economic development at the time of the subdivision application.
				  Because the purpose of the exemption is to protect that degree of investment in
				  planning and development that the preliminary site plan or subdivision
				  application normally represents, where the subdivision is merely a division of
				  land and no substantial investment was made in planning or development, there
				  can be no exempted project. Therefore, an application for the subdivision of
				  lands simply for future development, yet to be planned, or simply for resale
				  shall not qualify for an exemption. To determine the existence of a proposed
				  economic development and to determine which portion of a tract was the focus of
				  subdivision approval or application, the Department will examine the resolution
				  granting approval and any documentation submitted with the application,
				  including, but not limited to, drainage, engineering, traffic, utility,
				  landscaping, soil and environmental plans and reports as well as the
				  subdivision plan. In cases where the above information is unclear, the
				  Department may consider money spent or obligated on engineering and design in
				  the preparation of the subdivision application to determine if a substantial
				  investment has been made in an economic development. Money spent or obligated
				  for the initial purchase, carrying costs, or legal services will not be
				  considered in determining the existence of a proposed economic
				  development.
iii. The following are examples of how the Department will
				  determine the "project" exempted on the basis of the application for or grant
				  of preliminary subdivision approval:
(1) Where a project was to be developed in three sections but
				  a complete application for preliminary approval was submitted, accepted and
				  subsequently approved for only one section, only the development planned for
				  that section is exempt and the development envisioned for sections two and
				  three is not exempt. This is not altered by the fact that some depiction of
				  that future development on the remainder of the parcel might be required by a
				  local planning board in concept or sketch form;
(2) Where an entire parcel is subdivided into five conforming
				  residential lots, the residential development planned on all five lots is
				  exempt. However, where the focus of the subdivision application and approval is
				  on less than the entire tract of land, which lesser portion is divided into
				  five single family house lots, and the remainder of the tract is left as a bulk
				  parcel for further subdivision or other planning board approval, only
				  development on the five lots is exempt. It is irrelevant that the configuration
				  of the remainder lot has been changed by the subdivision or that the remainder
				  lot has been renumbered;
(3) Where the land to be divided for a commercial industrial
				  park straddles two townships and the developer received approval to subdivide
				  the land in township A and sold the unsubdivided portion in township B to
				  another developer, only the development on the land in township A could be
				  considered the subject of township A's subdivision approval. Therefore, only
				  the development on the land in township A is exempt. It is irrelevant that the
				  original developer had, from the start, contemplated a commercial industrial
				  park for the property in both townships or that the office building
				  contemplated on the land in township B did not require further
				  subdivision;
(4) Where land is divided for the sole purpose of bequeathing
				  it sometime in the future to one's children to be developed as they wish, no
				  economic development was contemplated when the application was made or approval
				  granted. After the land passes to the children and one of them decides to
				  build, that development is not exempt. The purpose of the exemption is to
				  protect that degree of investment in planning and development that the
				  preliminary site plan or subdivision application normally represents. Where the
				  subdivision is merely a division of land and no investment was made in the
				  planning or development, there can be no exempted project; and
(5) Where land is subdivided but requires further
				  subdivision, other than
de minimis
changes for road
				  rights-of-way or other infrastructure, before the applicant can proceed to the
				  next step of municipal approval (either building permits or site plan
				  approvals), there is no evidence of intended economic development at the time
				  of initial subdivision application or approval, because the proposed economic
				  development only comes into being with the subsequent, untimely subdivision.
				  Therefore, there is no basis for exemption.
"Property as a whole" means all property assembled as one
				  investment or to further one development plan. The property as a whole may
				  include more than one municipal tax block or lot. The property as a whole may
				  also include blocks or lots that were previously sold or developed, if those
				  blocks or lots and the remaining unsold or undeveloped blocks or lots were part
				  of one investment or development plan. In determining the property as a whole
				  in a particular case, the Department shall consider existing legal precedent
				  regarding what constitutes "property as a whole" at the time of the
				  determination.
"Public hearing" means an administrative non-adversarial type
				  hearing before a representative or representatives of the Department providing
				  the opportunity for public comment, but does not include
				  cross-examination.
"Redevelopment" means the construction of structures or
				  improvements on or below impervious surfaces, as defined in this section, or
				  other significantly disturbed area.
"Regulated activity" means any of the activities described at
N.J.A.C. 7:7A-2.2
or at
N.J.A.C. 7:7A-2.3
.
"Seeding" means the sowing of seed and placement of seedlings
				  to produce farm, ranch, or forest crops and includes the placement of soil beds
				  for seeds or seedlings on established farm and forest lands.
"Silviculture" means the art and science of controlling the
				  establishment, growth, composition, health, and quality of forests and
				  woodlands to meet the diverse needs and values of landowners and society on a
				  sustainable basis. The normal harvesting of forest products is a part of some
				  silviculture operations. Orchards, tree farms and nurseries are not
				  silviculture but are farming.
"Site plan" or "plan" means a graphic depiction of land,
				  vegetation, water, structures, and other physical features on paper, such as a
				  blueprint, construction plan, cross-section, topographic map, architectural
				  rendering, or other similar illustration, which is submitted to the Department
				  to describe an existing or proposed activity or condition.
"Soil Conservation District" means a governmental subdivision
				  of this State, and a public body corporate and politic, organized in accordance
				  with
N.J.S.A.
				  4:24-1
et seq. Each Soil
				  Conservation District administers New Jersey Department of Agriculture programs
				  for one or more counties. Soil Conservation Districts are overseen by the New
				  Jersey State Soil Conservation Committee in the New Jersey Department of
				  Agriculture, which promulgates the Standards for Soil Erosion and Sediment
				  Control in New Jersey at
N.J.A.C. 2:90
. For the purposes of
				  this chapter only, the term "Soil Conservation District" shall include any
				  exempt municipality authorized to enforce the Standards for Soil Erosion and
				  Sediment Control by ordinance pursuant to
N.J.S.A.
				  4:24-48
.
"Special aquatic site" means a site described in subpart E of
				  the 404(b)1 guidelines ( 40 C.F.R. 230 et seq.), except freshwater wetlands
				  which, for the purposes of this chapter, shall not be considered special
				  aquatic sites. In general, special aquatic sites are geographic areas, large or
				  small, possessing special ecological characteristics of productivity, habitat,
				  wildlife protection, or other important and easily disrupted functions and
				  values. These areas are generally recognized as significantly influencing or
				  positively contributing to the general overall environmental health or vitality
				  of the entire ecosystem of a region. As of September 4, 2001, the following
				  special aquatic sites are described in subpart E of the 404(b)1 guidelines ( 40
				  C.F.R. 230 et seq.): sanctuaries and refuges, wetlands (note: while freshwater
				  wetlands are excluded from the definition of a special aquatic site for
				  purposes of this chapter, other wetlands, such as most coastal wetlands, would
				  be considered special aquatic sites), mud flats, vegetated shallows, coral
				  reefs, and riffle and pool complexes.
"State Forester" means the chief forester employed by the
				  Department.
"State open waters" means all waters of the State as defined
				  in this section, including waters of the United States as defined in this
				  section, but excluding ground water as defined at N.J.A.C. 7:14A, and excluding
				  freshwater wetlands as defined in this section. The following waters will
				  generally not be considered State open waters for the purposes of this chapter.
				  However, the Department shall determine, on a case-by-case basis, if a
				  particular watercourse or water body listed below is a State open water:
1. Non-tidal drainage and irrigation ditches excavated on dry
				  land;
2. Artificially irrigated areas which would revert to upland
				  if the irrigation ceased;
3. Artificial lakes or ponds created by excavating and/or
				  diking dry land to collect and retain water and which are used exclusively for
				  such purposes as stock watering, irrigation, settling basins, or rice
				  growing;
4. Artificial reflecting or swimming pools or other small
				  ornamental bodies of water created by excavating and/or diking dry land to
				  retain water for primarily aesthetic reasons;
5. Water-filled depressions created in dry land incidental to
				  construction or remediation activity and pits excavated in dry land for the
				  purpose of obtaining fill, sand, or gravel unless and until the construction or
				  excavation operation is abandoned and the resulting body of water meets the
				  definition of "waters of the United States";
6. Waste treatment systems, including treatment ponds or
				  lagoons designed to meet the requirements of the Federal act (other than
				  cooling ponds);
7. Erosional channels less than two feet wide and six inches
				  deep in upland areas resulting from poor soil management practices; and
8. Stormwater management facilities created in uplands.
"Stormwater management facility" means a facility which
				  receives, stores, conveys or discharges stormwater runoff and is designed in
				  accordance with applicable local, county and State regulations. These
				  facilities may include retention basins, detention basins, infiltration
				  structures, grassed swales, rip-rap channels and/or stormwater outfalls.
"Swale" means a linear topographic depression, either
				  naturally occurring or of human construction, which meets all of the following
				  criteria:
1. It is surrounded by uplands except where runoff flows out
				  of it.
i. A depression is not a swale if it is located within a
				  larger wetland or if it is merely an undulation in a wetland boundary;
ii. A depression is not a swale if it is naturally occurring,
				  contains palustrine forest, and is located within an upland forest;
2. It has formed or was constructed in uplands to convey
				  surface water runoff from the surrounding upland areas;
3. It drains less than 50 acres;
4. It is not a seep or spring;
5. It is not an intermittent stream;
6. It has no definite bed and banks; and
7. At its widest point, it is generally 50 feet wide or
				  narrower.
"Technically complete" means that each item included in an
				  application for a letter of interpretation or a permit provides sufficient
				  information for the Department to declare the application complete for
				  review.
"Temporary disturbance" means a regulated activity that
				  occupies, persists, and/or occurs on a site for no more than six months. Where
				  a disturbance associated with certain regulated activities, such as hazardous
				  substance remediation or solid waste facility closure, is intended to be
				  temporary, but will exceed six months in duration because of the nature of the
				  activity, the Department will consider the disturbance to be temporary for
				  purposes of this subchapter provided the disturbed areas are restored to their
				  original topography, and all necessary measures are implemented to ensure that
				  the original vegetative cover onsite is restored to its previous (or an
				  improved) condition.
"Threatened or endangered species" means a species identified
				  pursuant to the Endangered and Nongame Species Conservation Act,
				  23:2A-1 et
				  seq., or those identified pursuant to the Endangered Species Act of 1973,
				  16
				  U.S.C. §§
										1531 et seq., and
				  subsequent amendments thereto.
"Tidal waters" means fresh or saline waters under tidal
				  influence, up to the head of the tide.
"Transition area" means an area of upland adjacent to a
				  freshwater wetland which minimizes adverse impacts on the wetland or serves as
				  an integral component of the wetlands ecosystem.
"Transition area waiver" or "waiver" means a waiver issued by
				  the Department under this chapter, authorizing any of the regulated activities
				  enumerated at
N.J.A.C.
				  7:7A-2.3
in a transition
				  area.
"Tree" means a woody plant which is five inches or greater in
				  diameter at a height of four and one half feet above the ground.
"Trout production waters" means waters designated in the
				  Department's Surface Water Quality Standards, N.J.A.C. 7:9B, for use by trout
				  for spawning or nursery purposes during their first summer.
"USACE" means the United States Army Corps of
				  Engineers.
"USEPA" means the United States Environmental Protection
				  Agency.
"USFWS" means the United States Fish and Wildlife
				  Service.
"USGS" means the United States Geological Survey.
"USGS quad map" means a topographic quadrangle map issued by
				  the USGS, 7.5 minute series, drawn at a scale of 1:24,000.
"Utility line" means a pipe, cable, line, or wire for the
				  transport or transmission of gases, liquids, electrical energy, or
				  communications. This term includes a pole or tower required to support a
				  utility line, but does not include a tower that only transmits or receives
				  electromagnetic waves through the air, such as for radio, television, or
				  telephone transmission. The term "utility line" does not include a stormwater
				  pipe, or a pipe that drains a wetland or State open water, such as a drainage
				  tile.
"Vernal habitat" means a wetland as identified at
N.J.A.C. 7:7A-3.1
, or
				  State open water, as defined above in this section that meets all of the
				  criteria at 1 through 4 below. Evidence of breeding by an obligate species
				  under 2i below creates a rebuttable presumption that the criteria at 3 and 4
				  below are met:
1. Occurs in or contains a confined basin depression without
				  a permanent flowing outlet;
2. Features evidence of breeding by one or more species of
				  fauna adapted to reproduce in ephemeral aquatic conditions, identified in
				  N.J.A.C. 7:7A, Appendix 1, incorporated herein by reference. The following
				  shall constitute evidence of breeding by such a species:
i. One or more obligate species listed in Appendix 1, or
				  evidence of such a species, is found in or immediately adjacent to the area of
				  ponded water; or
ii. Two or more facultative species listed in Appendix 1, or
				  evidence of the presence of such a species, are found in or immediately
				  adjacent to the area of ponded water;
3. Maintains ponded water for at least two continuous months
				  between March and September of a normal rainfall year; and
4. Is free of reproducing fish populations throughout the
				  year, or dries up at some time during a normal rainfall year.
"Water dependent activity" means an activity that cannot
				  physically function without direct access to the body of water along which it
				  is proposed. Uses, or portions of uses, that can function on sites not adjacent
				  to the water are not considered water dependent regardless of the economic
				  advantages that may be gained from a waterfront location. Maritime activity,
				  commercial fishing, public waterfront recreation, and marinas are examples of
				  water dependent uses, but only the portion of the development requiring direct
				  access to the water is water dependent. The test for water dependency shall
				  assess both the need of the proposed use for access to the water and the
				  capacity of the proposed water body to satisfy the requirements and absorb the
				  impacts of the proposed use. A proposed use will not be considered water
				  dependent if either the use can function away from the water or if the water
				  body proposed is unsuitable for the use. For example, in a maritime operation,
				  a dock or quay and associated unloading area would be water dependent, but an
				  associated warehouse would not be water dependent.
1. Examples of water dependent uses include: docks, piers,
				  marina activities requiring access to the water, such as commissioning and
				  decommissioning new and used boats, boat repairs and short-term parking for
				  boaters, storage for boats that are too large to be feasibly transported by car
				  trailer (generally greater than 24 feet), rack systems for boat storage,
				  industries, such as fish processing plants and other commercial fishing
				  operations, port activities requiring the loading and unloading of vessels, and
				  water-oriented recreation.
2. Water dependent uses exclude, for example: housing,
				  hotels, motels, restaurants, warehouses, manufacturing facilities (except for
				  those which receive and quickly process raw materials by ship), dry boat
				  storage for boats that can be transported by car trailer, long-term parking,
				  parking for persons not participating in a water dependent activity, boat
				  sales, automobile junk yards, and non-water oriented recreation, such as roller
				  rinks and racquetball courts.
"Water Pollution Control Act" means the New Jersey Water
				  Pollution Control Act,
				  58:10A-1
				  et seq.
"Water quality certificate" means a determination by the
				  Department of the consistency with this chapter of an activity that proposes a
				  discharge to waters of the United States that requires a Federal license or
				  permit pursuant to Section 401 of the Federal Clean Water Act,
33 U.S.C. §
											1341.
Federal licenses and permits
				  for which water quality certificates are issued include, but are not limited
				  to:
1. NJPDES permits by USEPA under Section 402 of the Federal
				  Clean Water Act,
33 U.S.C. §
											1342;
2. Permits for the discharge of dredged or fill material
				  issued by the USACE under Section 404 of the Federal Clean Water Act,
33 U.S.C. §
											1344;
3. Permits for activities that have a potential to discharge
				  in navigable waters issued by the USACE under Sections 9 and 10 of the Rivers
				  and Harbors Act,
33
				  U.S.C. §§
											403
and 404;
				  and
4. Hydropower licenses issued by the Federal Energy
				  Regulatory Commission under Sections 3(11), 4(e) and 15 of the Federal Power
				  Act,
16 U.S.C. §§
											796
(11), 797(e), and 808.
"Waters of the State" means the ocean and its estuaries, all
				  springs, streams, wetlands, and bodies of surface or ground water, whether
				  natural or artificial, within the boundaries of the State of New Jersey or
				  subject to its jurisdiction.
"Waters of the United States" means:
1. All waters which are currently used, were used in the
				  past, or may be susceptible to use in interstate or foreign commerce, including
				  all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate
				  wetlands;
3. All other waters such as intrastate lakes, rivers, streams
				  (including intermittent streams), wetlands, mudflats, sandflats, sloughs, wet
				  meadows, or natural ponds the use, degradation, or destruction of which would
				  affect or could affect interstate or foreign commerce including any such
				  waters:
i. Which are or could be used by interstate or foreign
				  travelers for recreational or other purposes;
ii. From which fish or shellfish are or could be taken and
				  sold in interstate or foreign commerce;
iii. Which are used or could be used for industrial purposes
				  by industries in interstate commerce;
iv. Which are or would be used as habitat by birds protected
				  by Migratory Bird Treaties;
v. Which are or would be used as habitat by other migratory
				  birds which cross state lines;
vi. Which are or would be used as habitat for endangered and
				  threatened species; or
vii. Which are used to irrigate crops sold in interstate
				  commerce;
4. All impoundments of waters otherwise defined as waters of
				  the United States under this definition;
5. Tributaries of waters identified in paragraphs 1 through 4
				  of this definition;
6. The territorial seas; and
7. Wetlands adjacent to waters identified in paragraphs 1
				  through 6 of this definition other than those that are themselves wetlands.
The following waters are generally not considered "waters of
				  the United States." However, the right is reserved to determine on a case by
				  case basis, if particular watercourses or waterbodies are "waters of the United
				  States":
1. Non-tidal drainage and irrigation ditches excavated on dry
				  land;
2. Artificially irrigated areas which would revert to upland
				  if the irrigation ceased;
3. Artificial lakes or ponds created by excavating and/or
				  diking dry land to collect and retain water and which are used exclusively for
				  such purposes as stock watering, irrigation, settling basins, or rice
				  growing;
4. Artificial reflecting or swimming pools or other small
				  ornamental bodies of water created by excavating and/or diking dry land to
				  retain water for primarily aesthetic reasons;
5. Waterfilled depressions created in dry land incidental to
				  construction activity and pits excavated in dry land for the purpose of
				  obtaining fill, sand, or gravel unless and until the construction or excavation
				  operation is abandoned and the resulting body of water meets the above
				  definition of "waters of the United States";
6. Waste treatment systems, including treatment ponds or
				  lagoons designed to meet the requirements of the CWA (other than cooling
				  ponds); and
7. Erosional channels less than two feet wide and six inches
				  deep in upland areas resulting from poor soil management practices.
"Working day" means a day on which the offices of the New
				  Jersey Department of Environmental Protection are open for
				  business.