N.J. Admin. Code § 7:13-11.5

Current through Register Vol. 56, No. 19, October 7, 2024

Section 7:13-11.5 - Requirements for a regulated activity in or along a regulated water with fishery resources

(a) This section sets forth specific design and construction standards that apply to any regulated activity proposed in the channel and/or riparian zone of a regulated water containing fishery resources. Further standards for the construction of a bridge or culvert in or along waters with fishery resources are described at N.J.A.C. 7:13-12.7.

(b) The waters identified by the Department as containing fishery resources are listed in the Department's Surface Water Quality Standards at N.J.A.C. 7:9B, and are further supplemented by the following reports as updated, which are included here by reference. Copies of these reports are available from the Department at the website set forth at 7:13-1.4:

1. "Classification of New Jersey Waters as Related to Their Suitability for Trout";

2. "List of Waters Stocked with Trout by the New Jersey Division of Fish and Wildlife"; and

3. "Locations of Anadromous American Shad and River Herring During Their Spawning Period in New Jersey's Freshwaters Including Known Migratory Impediments and Fish Ladders."

(c) The Department shall issue an individual permit for a regulated activity in the channel and/or riparian zone of a regulated water containing fishery resources only if the following requirements are satisfied:

1. Except as provided in (e) below, the activity meets the timing restrictions of (d) below;

2. No logs or boulders that provide fish habitat are removed from the channel, unless the Department determines that such removal is necessary to accomplish the project; and

3. Low-flow aquatic passage is maintained in the channel throughout the entire area of disturbance during and after the performance of the regulated activity. In order to provide low-flow aquatic passage, the depth of flow in the modified channel during low-flow conditions must be equal to or greater than pre-project conditions. Where feasible, the applicant shall also provide low-flow aquatic passage in areas that do not currently contain low-flow aquatic passage.

(d) Except as provided at (e) below, certain activities are prohibited during times when fish are breeding or are especially sensitive to disturbance. The following activities are prohibited during the restricted periods listed in Table 11.5 below:

1. Any construction, excavation, filling or grading in the channel; and

2. Any construction, excavation, filling, or grading in the riparian zone, unless the applicant demonstrates that appropriate soil erosion and sediment control measures, as determined by the local Soil Conservation District having jurisdiction over the site, are in place to prevent sediment from reaching the channel.

Table 11.5

RESTRICTED TIME PERIODS FOR REGULATED WATERS WITH FISHERY RESOURCES

Water and classification	Time period (inclusive) during which activities are prohibited
1. Trout Waters
-- All trout production waters except rainbow trout	September 15 through March 15
-- Rainbow trout production waters	February 1 through April 30
-- Trout stocked waters -- Trout maintenance waters -- All regulated waters located within one mile upstream of a trout stocked or a trout maintenance water	March 15 through June 15
2. Non-Trout Waters
-- Regulated waters that support general game fish located north of Interstate 195	May 1 through July 31
-- Regulated waters that support general game fish located south of Interstate 195	May 1 through June 30
-- Regulated waters that support	Ice out through April 30
pickerel
-- Regulated waters that support walleye	March 1 through May 30
3. Anadromous Waters
-- All unimpeded tidal regulated waters open to the Atlantic Ocean or any coastal bay -- All regulated waters identified as anadromous migratory pathways	April 1 through June 30
-- Delaware River upstream of U.S. Route 1	April 1 through June 30 and September 1 through November 30
-- Delaware River between U.S. Route 1 and Interstate 295 (Delaware Memorial Bridge) -- Tidal portions of Raccoon Creek, Rancocas Creek, Crosswicks Creek, and Cooper River	March 1 through June 30 and September 1 through November 30
-- All unimpeded tidal regulated waters open to the Delaware River downstream of Interstate 295 (Delaware Memorial Bridge) -- Tidal portions of the Maurice River, Cohansey River, and Salem River	March 1 through June 30 and October 1 through November 30

(e) The Department shall reduce, extend, or otherwise modify a timing restriction listed in Table 11.5 if it determines that one or more of the following requirements is satisfied:

1. Potential adverse impacts to fishery resources are likely to be reduced if a regulated activity occurs during a restricted time period rather than during an unrestricted time period;

2. A regulated activity is subject to more than one restricted time period, the combined effect of which would limit the regulated activity to fewer than 183 calendar days per year. In such a case, the Department shall allow the regulated activity to occur for up to 183 calendar days, provided the applicant demonstrates that additional measures shall be taken to reduce potential adverse impacts to fishery resources to a level acceptable to the Department. Note that the 183-calendar-day period during which the Department determines that activities may occur need not be consecutive. For example, the Department may determine that restricting activities for three months in the spring and three months in the fall best protects fishery resources in a particular case;

3. The observance of a timing restriction would adversely impact public health, safety, and/or welfare, and the applicant demonstrates that additional measures are taken where necessary to reduce adverse impacts to fishery resources to an acceptable level; or

4. Due to the nature of the project or an unusual circumstance onsite, the timing restriction must be modified in order to prevent a substantial adverse impact to the fishery resource or to the environment.

(f) The Delaware River Basin Commission (DRBC) may impose timing restrictions in addition to those listed in Table 11.5 above on certain activities in waters under DRBC jurisdiction. Information related to the DRBC and its requirements can be obtained at http://www.nj.gov/drbc or by calling (609) 883-9500.

N.J. Admin. Code § 7:13-11.5

Amended and recodified from 7:13-10.5 by 48 N.J.R. 1067(a), effective 6/20/2016

Administrative Change, 51 N.J.R. 1193(a).