New Jersey Administrative Code › Title 7 - ENVIRONMENTAL PROTECTION › Chapter 38 - HIGHLANDS WATER PROTECTION AND PLANNING ACT RULES › Subchapter 1 - GENERAL INFORMATION › Section 7:38-1.4 - 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:
"Agricultural or horticultural development" means construction for the purposes of supporting common farmsite activities, including, but not limited to: the 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 or horticultural use" means the use of land for common farmsite activities, including, but not limited to: the 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.
"Aquatic ecosystem" means waters of the Highlands Region, including wetlands, which serve as habitat for interrelated and interacting communities and populations of plants and animals.
"Capability class and subclass" is a numeric and alphabetic ranking system, respectively, provided in Soil Surveys that identifies limitations in soils for agricultural usage according to the following:
1. Class I soils have few limitations;
2. Class II soils have moderate limitations;
3. Class IIe soils have moderate limitations due to risk of erosion;
4. Class IIs soils have moderate limitations due to shallow, droughty or stony conditions;
5. Class IIw soils have moderate limitations due to wetness; and
6. Class III through VIII soils have various severe limitations.
"Capital improvement" or "capital project" means any facility for the provision of public services with a life expectancy of three or more years, owned and operated by or on behalf of the State or a political subdivision thereof.
"Conservation restriction" means a restriction, easement, covenant, or condition, in any deed, will or other legally binding instrument, other than a lease, that is executed by or on behalf of the owner of the land, that is appropriate to retaining land or water areas predominantly in their natural, scenic or open or wooded conditions for purposes of conservation of soil or wildlife; for outdoor recreation or park use; or for creation or maintenance of suitable habitat for fish or wildlife; that grants the Department and the Highlands Council and their staff access to the property for the purpose of determining compliance with the Highlands Act and/or the terms of any HPAA, HRAD, order, decision, agreement or settlement entered pursuant to the Highlands Act, and that forbids or limits on that land any or all:
1. Construction or placing of buildings, paved 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, except to replace dead or diseased mitigation plantings or as necessary to maintain the conservation restriction to accomplish the purpose for which the conservation restriction was created;
4. Excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance, except to replace dead or diseased mitigation plantings or as necessary to maintain the conservation restriction to accomplish the purpose for which the conservation restriction was created;
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
7. Other acts or uses detrimental to the retention of land or water areas in accordance with the Highlands Act and this chapter.
"Conservation Zone" means those areas identified on the Land Use Capability Zone Map of the regional master plan consisting of significant agricultural lands and limited low-density development interspersed with environmental features that should be preserved whenever possible.
"Construction beyond site preparation" means having completed the foundation for a building or structure, and does not include the clearing, cutting, or removing of vegetation, bringing construction materials to the site, or site grading or other earth work associated with preparing a site for construction.
"Construction materials facility" means any facility or land upon which the activities of production of ready mix concrete, bituminous concrete, or class B recycling occurs.
"Contaminated site" means, in accordance with the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, all portions of environmental media at a site and any location where contamination is emanating, or which has emanated, therefrom, that contain one or more contaminants at a concentration which fails to satisfy any applicable remediation standard.
"Contamination" or "contaminant" means a discharged hazardous substance as defined in N.J.S.A. 58:10-23.1 1b, hazardous waste as defined in 13:1E-38 and/or a pollutant as defined in 58:10A-3.
"Contiguous" means adjacent lots, even if they are separated by human-made barriers or structures or legal boundaries such as a public road or a creek.
"Department" means the Department of Environmental Protection.
"Designated planning agency" means an agency designated by the Governor to conduct areawide WQM planning pursuant to 58:11A-4.
"Development" means the same as that term is defined in the Municipal Land Use Law, 40:55D-4.
"Development regulation" means the same as that term is defined in the Municipal Land Use Law, 40:55D-4.
"Discharge" means an action or omission defined as such pursuant to the Technical Requirements for Site Remediation, at 7:26E-1.8.
"Disturbance" means the placement of impervious surface, the exposure or movement of soil or bedrock, or the clearing, cutting, or removing of vegetation.
"Ecological community" means an interacting assemblage of plants, animals and other organisms, their physical environment and the natural processes that affect them.
"Endangered species" means species included on the list of endangered species that the Department promulgates pursuant to the Endangered and Nongame Species Conservation Act, 23:2A-13 et seq., and the Endangered Plant Species List Act, 13:1B-15.1 51 et seq., and any species or subspecies of wildlife appearing on any Federal endangered species list or any species or subspecies of plant designated as listed, proposed, or under review by the Federal government pursuant to the Endangered Species Act of 1973, 16 U.S.C. §§
										1531 et seq.
"Environmental land use or water permit" means a permit, approval, or other authorization issued by the Department of Environmental Protection pursuant to the Freshwater Wetlands Protection Act, 13:9B-1 et seq., the Water Supply Management Act, 58:1A-1 et seq., the Water Pollution Control Act, 58:10A-1 et seq., The Realty Improvement Sewerage and Facilities Act (1954), 58:11-23 et seq., the Water Quality Planning Act, 58:11A-1 et seq., the Safe Drinking Water Act, 58:12A-1 et seq., or the Flood Hazard Area Control Act, 58:16A-50 et seq.
"Existing Community Zone" means those areas identified on the Land Use Capability Zone Map of the regional master plan consisting of extensive and intensive existing development, which may have capacity to support additional human development without adversely affecting the ecological value of the Highlands Region.
"Facility expansion" means the expansion of the capacity of an existing capital improvement in order that the improvement may serve new development.
"Federal Act" means the Federal Water Pollution Control Act, 33 U.S.C. §§
										1251 et seq., also known as the Federal Clean Water Act, and its implementing regulations.
"Final remediation document" means a document defined as such pursuant to the Administrative Requirements for the Remediation of Contaminated Sites rules, at 7:26C-1.3.
"Forest" means a biological community as determined by the method set forth at 7:38-3.9.
"Hazardous substance" means petroleum, petroleum products, pesticides, solvents and other substances as set forth in 7:1E-1.7.
"Highlands Act" means the Highlands Water Protection and Planning Act, 13:20-1 et seq.
"Highlands Council" means the Highlands Water Protection and Planning Council established by 13:20-4.
"Highlands open waters" means all springs, streams including intermittent streams, wetlands, and bodies of surface water, whether natural or artificial, located wholly or partially within the boundaries of the Highlands Region, but shall not mean swimming pools.
"Highlands Preservation Area Approval" or "HPAA" means a permit to engage in a regulated activity in the Highlands preservation area issued pursuant to the Highlands Act and these regulations, including an HPAA that contains a waiver pursuant to N.J.S.A. 13:20-33b. "Highlands Preservation Area Approval" includes Highlands general permits issued pursuant to N.J.S.A. 13:20-33d and promulgated at N.J.A.C. 7:38-12. "HPAA," when used in these rules, includes Highlands general permits unless explicitly excluded.
"Highlands Region" means that region so designated by 13:20-7.
"Highlands Resource Area Determination" or "HRAD" means the document issued by the Department under N.J.A.C. 7:38-4indicating the location of any Highlands Resource Area on a site or portion of a site.
"Highlands resource areas" means those features of the Highlands that merit special protection pursuant to N.J.S.A. 13:20-32b, such as Highlands open waters; flood hazard areas; steep slopes; forested areas; rare, threatened or endangered species habitat; rare or threatened plant habitat; areas with historic or archaeological features; and unique or irreplaceable land types.
"HUC 14" means an area within which water drains to a particular receiving surface-water body, which is identified by a 14-digit number, or "hydrologic unit code." The HUC codes were developed by the U.S. Geological Survey. In New Jersey, a HUC14 correlates to a subwatershed. There are 921 HUC 14 subwatersheds in New Jersey that range in size from 0.1 to 42 square miles. The boundaries of HUC 14 subwatersheds in New Jersey are available from the Department's Geographic Information Systems (GIS) downloads web page, http://www.nj.gov/dep/gis/download.htm.
"Immediate family member" means spouse, child, parent, sibling, aunt, uncle, niece, nephew, first cousin, grandparent, grandchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half brother, or half sister, whether the individual is related by blood, marriage, or adoption.
"Impervious surface" means any structure, surface, or improvement that reduces or prevents absorption of stormwater into land, and includes porous paving, paver blocks, gravel, crushed stone, decks, patios, elevated structures, and other similar structures, surfaces, or improvements.
"Landscape Maps of Habitat for Endangered, Threatened and Other Priority Wildlife" or "Landscape Maps" means the Department's maps delineating areas used by or necessary for endangered and threatened species and other priority wildlife to sustain themselves successfully. The maps depict areas of contiguous habitat types (forest, grassland, forested wetland, emergent wetland and beach/dune) that are ranked based upon intersection with documented occurrences of endangered and threatened and priority wildlife species. Mapped habitat areas are classified based upon the status of the wildlife species whose presence is documented. Rank 5 is assigned to areas containing one or more documented occurrences of at least one wildlife species listed as endangered or threatened on the Federal list of endangered and threatened species. Rank 4 is assigned to areas with one or more documented occurrences of at least one State endangered species. Rank 3 is assigned to areas containing one or more documented occurrences of at least one State threatened species. Rank 2 is assigned to areas containing one or more documented occurrences of at least one non-listed State priority wildlife species. The maps also delineate, as Rank 1, habitat areas that meet habitat-specific suitability requirements, such as minimum area criteria for endangered, threatened and priority wildlife species, but that do not intersect with any documented occurrences of such species. The report entitled New Jersey's Landscape Project provides additional information on mapping methodology and is available at the website
www.nj.gov/dep/fgw/ensphome.htm
or by contacting the address given below. The Department's Landscape Maps may be updated periodically and may be obtained via file download from
www.nj.gov/dep/fgw/ensphome.htm
or through the Interactive ImapNJ website: www.state.nj.us/dep/gis/imapnj/imapnj.htm or by writing to the Division of Fish and Wildlife, Endangered and Nongame Species Program at:
The Landscape Project
NJ Division of Fish and Wildlife
Endangered and Nongame Species Program
PO Box 400
Trenton, NJ 08625-0400
"Licensed site remediation professional" means an individual who has been issued a license pursuant to 58:10C-1 et seq.
"Linear development" means infrastructure, utilities and the rights-of-way therefor, such as sewerage and stormwater management pipes; gas and water pipelines; electric, telephone and other transmission lines; and the rights-of-way therefor. "Infrastructure" includes access roads and drives. Linear development shall not include residential, commercial, office, or industrial buildings, improvements within a development such as utility lines or pipes, or internal circulation roads.
"Local government unit" means a municipality, county, or other political subdivision of the State, or any agency, board, commission, utilities authority or other authority, or other entity thereof.
"Lot" means a designated parcel, tract or area of land established by a plat or otherwise, as permitted by law and to be used, developed or built upon as a unit pursuant to the Municipal Land Use Law, 40:55D-1 et seq.
"Major Highlands development" means, except as otherwise provided pursuant to N.J.S.A. 13:20-28a:
1. Any non-residential development in the preservation area;
2. Any residential development in the preservation area that requires an environmental land use or water permit or that results in the ultimate disturbance of one acre or more of land or a cumulative increase in impervious surface by one-quarter acre or more;
3. Any activity undertaken or engaged in the preservation area that is not a development but results in the ultimate disturbance of one-quarter acre or more of forested area or that results in a cumulative increase in impervious surface by one-quarter acre or more on a lot; or
4. Any capital or other project of a State entity or local government unit in the preservation area that requires an environmental land use or water permit or that results in the ultimate disturbance of one acre or more of land or a cumulative increase in impervious surface by one-quarter acre or more.
Major Highlands development shall not mean an agricultural or horticultural development or agricultural or horticultural use in the preservation area.
"Mine" means any mine, whether on the surface or underground, and any mining plant, material, equipment, or explosives on the surface or underground, which may contribute to the mining or handling of ore or other metalliferous or non-metalliferous products. The term "mine" shall also include a quarry, sand pit, gravel pit, clay pit, or shale pit.
"Mine site" means the land upon which a mine, whether active or inactive, is located, for which the Commissioner of Labor and Workforce Development has granted a certificate of registration pursuant the Mine Safety Act, 34:6-98.4, and the boundary of which includes all contiguous parcels, except as provided below, of property under common ownership or management, whether located in one or more municipalities, as such parcels are reflected by lot and block numbers or metes and bounds, including any mining plant, material, or equipment. "Contiguous parcels" as used in this definition of "mine site" shall not include parcels for which mining or quarrying is not a permitted use or for which mining or quarrying is not permitted as a prior nonconforming use under the Municipal Land Use Law, 40:55D-1 et seq.
"Natural Heritage Database" means the manual and computerized file maintained by the Department at
http://www.nj.gov/dep/parksandforests/natural/heritage/index.html
that includes continuously updated information on the location and status of rare plant and animal species and ecological communities in New Jersey.
"New Jersey Pollutant Discharge Elimination System" or "NJPDES" means the Department's program for the issuance of permits pursuant to the New Jersey Water Pollution Control Act, 58:10A-1 et seq., as amended, and its implementing rules, N.J.A.C. 7:14A.
"Non-contiguous" means a lot or lots that do not meet the definition of "contiguous" set forth elsewhere in this section.
"Oversight document" means any document that the Department or a court issues to define the role of a person participating in the remediation of a contaminated site or area of concern, and may include, without limitation, an administrative order, administrative consent order, court order memorandum of understanding, memorandum of agreement, or remediation agreement.
"Person" means an individual, corporation, corporate official, partnership, association, the Federal government, the State, municipality, commission or political subdivision of the State or any interstate body.
"Planning area" means that portion of the Highlands Region not included within the preservation area.
"Preliminary assessment" or "PA" means the first phase in the process of identifying areas of concern pursuant to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E-3.
"Preservation area" means that portion of the Highlands Region so designated by N.J.S.A. 13:20-7b.
"Property as a whole" means all lots 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.
"Protection Zone" means those areas identified on the Land Use Capability Zone Map of the regional master plan consisting primarily of high resource value lands in terms of forest resources, critical habitat, water quality and quantity, and ecological function, and having limited or no capacity to support human development without adversely affecting overall ecological function of the Highlands Region.
"Public community water system" means a public water system which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.
"Public noncommunity water system" means a public water system that is not a public community water system and is either a "public nontransient noncommunity water system" or a "public transient noncommunity water system" as defined in this section.
"Public nontransient noncommunity water system" means a public water system that is not a public community water system and that regularly serves at least 25 of the same persons for more than six months in any given calendar year.
"Public transient noncommunity water system" means a public water system that is not a public community or a public nontransient noncommunity water system and that serves at least 25 transient individuals for at least 60 days in any given calendar year.
"Public utility" means the same as that term is defined in 48:2-13. That is, the term "public utility" shall include every individual, copartnership, association, corporation or joint stock company, their lessees, trustees or receivers appointed by any court whatsoever, their successors, heirs or assigns, that now or hereafter may own, operate, manage or control within this State any railroad, street railway, traction railway, autobus, charter bus operation, special bus operation, canal, express, subway, pipeline, gas, electricity distribution, water, oil, sewer, solid waste collection, solid waste disposal, telephone or telegraph system, plant or equipment for public use, under privileges granted or hereafter to be granted by this State or by any political subdivision thereof.
"Public water system" means a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least 15 service connections or regularly serves at least 25 individuals daily for at least 60 days out of the year. Such term includes any collection, treatment, storage and distribution facilities under control of the operator of such system and used primarily in connection with such system, and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. A public water system is either a "public community water system" or a "public noncommunity water system" as defined in this section.
"Rare species" means wildlife species that are not endangered or threatened wildlife species and considered by the Department to be species of special concern as determined by a panel of experts or that are ranked S1 (critically imperiled in New Jersey because of extreme rarity), S2 (imperiled in New Jersey because of rarity), S3 (rare in New Jersey), G1(critically imperiled globally), G2 (imperiled globally because of rarity) or G3 (globally very rare and local throughout its range or found locally in a restricted range) in the Natural Heritage Database, and Plant Species of Concern listed pursuant to 7:5C-3.1. "Species of special concern" means wildlife species that warrant special attention because of evidence of population decline or inherent vulnerability to environmental deterioration or habitat modification that would result in the species becoming threatened if conditions surrounding the species begin or continue to deteriorate. The term includes species for which there is little knowledge of current population status in the State.
"Recreation and conservation purposes" means the same as that term is defined in the Garden State Preservation and Trust Act, 13:8C-3.
"Regional master plan" means the standards established in the Highlands regional master plan or any revision thereof adopted by the Highlands Council pursuant to 13:20-8 including all goals, requirements, provisions, and any municipal master plans and development regulations or county master plans and associated regulations that are formally approved by the Highlands Council pursuant to the Highlands Act.
"Regulated activity" means an activity that is a major Highlands development, and that is regulated in any manner pursuant to the Highlands Act and/or this chapter.
"Remedial action workplan" or "RAW" means a plan for the remedial action to be undertaken a contaminated site defined as such pursuant to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E-6.
"Sanitary landfill facility" means a solid waste facility at which solid waste is deposited on or in the land as fill for the purpose of permanent disposal or storage for a period exceeding six months, except that it shall not include any waste facility approved for disposal of hazardous waste.
"Site investigation" or "SI" means the collection and evaluation of data adequate to determine whether or not discharged contaminants exist at a site or have migrated or are migrating from the site at levels in excess of the applicable remediation standards. A site investigation shall be developed based upon the information collected pursuant to the preliminary assessment. Site investigations are governed by the Department's Technical Requirements for Site Remediation, N.J.A.C. 7:26E-3.
"Soil conservation district" means the same as that term is defined in 4:24-2.
"Soil Survey" means a document published by the United States Department of Agriculture and available from the Natural Resource Conservation Service or online at www.soildatamart.nrcs.usda.gov that contains descriptions of soil series on a county by county basis.
"State entity" means any State department, agency, board, commission, or other entity, district water supply commission, independent State authority or commission, or bi-state entity.
"Steep slope" means a land area with a grade greater than 10 percent and includes, but is not limited to, natural swales, ravines and manmade areas such as those created for road grading or mining for sand, gravel or fill.
"Swimming pool" means a man-made structure that impounds water where none would under natural circumstances be collected and that is regularly maintained for recreational use. "Maintained for recreational use" means the water is chemically treated on a regular basis to protect the health of users, and the structural integrity of the pool is monitored regularly. A naturally occurring lake or pond used for swimming is not a swimming pool.
"Threatened species" means an indigenous nongame wildlife species of New Jersey designated pursuant to the Endangered and Nongame Species Conservation Act, 23:2A-13 et seq., and its implementing rules, 7:25-4.17, as most recently amended.
"Treatment works approval" or "TWA" means an approval issued pursuant to the Water Pollution Control Act, 58:10A-6, and N.J.A.C. 7:14A-22 or 7:9A-3.9, or the former N.J.S.A. 58:12-3.
"Upland forested area" means a biological community that is a "forest" and that is not a Highlands open water.
"Waters of the Highlands" means all springs, streams including intermittent streams, and bodies of surface or ground water, whether natural or artificial, located wholly or partially within the boundaries of the Highlands Region, but shall not include swimming pools.
"WQMP" or "Water quality management plan" means a plan prepared pursuant to sections 208 and 303 of the Federal Clean Water Act, 33 U.S.C. §§
										1251 et seq., ( 33 U.S.C. §§
										1288 and 1313, respectively) and the Water Quality Planning Act, 58:11A-1 et seq., including the Statewide WQMP, or areawide or county WQMP as defined under N.J.A.C. 7:15.