N.J. Admin. Code § 7:20A-2.5

Current through Register Vol. 56, No. 11, June 3, 2024

Section 7:20A-2.5 - Application requirements and procedures for a new water usage certification, renewal of a certification with major modification, or major modification of a certification

(a) In addition to the requirements in 7:20A-2.3, the applicant for a new water usage certification, renewal of a certification with major modification, or major modification of a certification shall also submit to the appropriate county agricultural agent a completed application form including the following information:

1. The name, address, and telephone number of the property owner and authorized representative, if different;

i. In those instances where the owner of the farm management unit allows an authorized representative to utilize the property included in the water usage certification or agricultural water usage registration for agricultural, aquacultural or horticultural purposes, the owner shall provide in writing any subsequent changes in the authorized representative information to the county agricultural agent within 30 days of the change. The county agricultural agent shall notify the Department in writing of the change within 30 days of notification from the owner;

2. The total number of acres owned or operated for agricultural, aquacultural, or horticultural purposes, the number of acres actively being farmed or otherwise utilized for agricultural, aquacultural, or horticultural purposes, the number of acres planned to be farmed or otherwise utilized for agricultural, aquacultural, or horticultural purposes, and the crop types by acre identified in the agricultural development plan required at 7:20A-2.4(d)3, the U.S. Department of Agriculture soil mapping unit, the amount of impervious surface in acres currently on the entire farm management unit and/or planned in the future, the acreage planted in each crop type, and the number of acres of each crop type that is under irrigation;

3. A description of the location of each diversion source, and the name and pumping capacity for each diversion source;

4. The location of each diversion source shall be identified in accordance with the requirements at 7:20A-2.3(e);

5. If the diversion source is a well, the State of New Jersey assigned well permit number, the well depth and diameter, installed pump capacity, and the date the well was drilled;

6. If the diversion source is a surface water body other than an off-stream pond, the drainage area in square miles, upstream of the intake. Drainage area information is available from the United States Geological Survey by calling 609-771-3900 or from its web site at www.usgs.gov;

7. If the diversion source is an on-stream or off-stream pond, the average depth, surface area in acres, and the source of water, including any wells or stream that are used for supplementation;

8. A description of the irrigation or water use practices and irrigation equipment used;

9. A description of the method used to measure the amounts of water diverted from each diversion source;

10. For a renewal with major modification and for a major modification, in order to demonstrate the method used to determine water use, a copy of the daily and/or monthly hours of operation of each diversion source, and the quantity of water diverted monthly for calculated diversions or a copy of the month end flow meter readings from each diversion source for metered diversions for the last month of operation prior to application, as taken from the log or other appropriate record, as required pursuant to 7:20A-2.6(a)4.

i. For a cranberry growing operation, the applicant shall provide the method used to measure water usage to ensure the same volume of water is not counted multiple times if it is transferred within the bog system of the cranberry growing operation; and

11. Sufficient information to demonstrate that under standard operating conditions:

i. The diversion of the quantity of water requested shall not unduly interfere with other existing diversions;

ii. The diversion shall not exceed the natural replenishment or safe yield of a water resource or threaten to exhaust the water resource or to render it unfit for use;

iii. In the case of a ground water diversion, the diversion shall not cause an increase in saltwater intrusion that renders the water resource unfit for use; shall not spread ground water contamination; and shall not interfere with any ground water remediation plan or activity;

iv. The diversion shall not reduce the dry season flow or level of a river, stream, lake, or pond so as to adversely affect sanitary conditions downstream, ecologically based flows as determined by the Department, or otherwise unduly injure public or private interests, including the maintenance of fish life; and

v. The diversion shall not reduce surface flow or water levels of freshwater wetlands so as to adversely affect the viability of the wetland to support sustainable and diverse flora and fauna populations, or adversely impact the wetlands functions and values as determined by the Department.

(b) An applicant for a new water usage certification, or for a modification where an increase in allocation is requested, from a source that is located within the Highlands Preservation Area as defined in N.J.A.C. 7:38 shall submit:

1. A copy of an approved farm conservation plan, prepared in accordance with the Highlands Water Protection and Planning Act, 13:20-1 et seq., and the implementing rules at N.J.A.C. 2:92, Agriculture Development in the Highlands, if any agricultural or horticultural development results individually or cumulatively in an increase in new agricultural impervious surface as defined at N.J.A.C. 2:92 of at least three percent but less than nine percent of the total land area of the farm management unit since August 10, 2004; or

2. A copy of an approved resource management plan, prepared in accordance with the Highlands Water Protection and Planning Act, 13:20-1 et seq., and the implementing rules at N.J.A.C. 2:92, Agriculture Development in the Highlands, if any agricultural or horticultural development results individually or cumulatively in an increase in new agricultural impervious surface as defined at N.J.A.C. 2:92 of nine percent or greater of the total land area of the farm management unit since August 10, 2004.

(c) The appropriate county agricultural agent shall notify the applicant if the application submitted under (a) and (b) above is incomplete, and shall request that the applicant submit any necessary information within 30 days of the date of notification.

(d) Upon receipt of a complete application, the appropriate county agricultural agent shall calculate a water allocation adequate to meet the applicant's water usage requirements based upon the information submitted under (a) and (b) above and the agent's knowledge of agriculture, aquaculture, and horticulture conditions.

1. The amount of water requested shall be limited to the type of crop under cultivation and the area in acres of the farm management unit actually under cultivation or where there is a formal written agricultural development plan or an alternate plan pursuant to 7:20A-2.4(d)4, the amount of water requested shall be based on future use or expansion into non-cultivated areas during the effective term of the water usage certification. If upon renewal of the water usage certification the amount of water allocated has not been utilized or the area in the agricultural development plan or an alternate plan pursuant to 7:20A-2.4(d)4 has not been cultivated in accordance with the plan, the Department may reduce the amount of water, in accordance with 7:20A-2.4(h), in the water usage certification that had been allocated to that area or for that purpose.

(e) The county agent shall submit to the Department the application, the recommendation of an adequate water allocation calculated under (d) above, and recommended additional conditions, if any.

(f) The Department shall review the application and any other relevant information to determine if the requirements of (a)11 above are met. The Department shall, in consultation with the county agricultural agent, request any additional information necessary for this determination.

(g) Upon completion of its review under (f) above, the Department shall:

1. Notify the county agricultural agent and the applicant; and

2. Issue a Notice of Application that shall be sent to the governing bodies of all municipalities and counties and water supply allocation permit holders and water usage certification holders within a one-mile radius of the proposed diversion. The Notice shall contain information as described below in (h)1 and 2 below and shall provide a 30-day period for submission of comments and/or a request for a public hearing on the application to the Department.

(h) The Department, in consultation with the county agricultural agent, shall publish a notice of application in a newspaper of general circulation in the area of the applicant's diversion source. The applicant shall pay to the Department the cost of publishing the notice. The certification shall not be issued by the Department until such time as the applicant pays the cost of publishing the notice in full to the Department. The notice shall:

1. Describe the diversion for which the application has been submitted, including the name and location of the diversion source, and the quantity and allocation of water to be diverted;

2. State that the application is available for review at the office of the county agricultural agent and at the Department; and

3. Provide an opportunity for submission to the Department, within 30 days after the date on which the newspaper notice is published, of written comments and/or requests for a public hearing on the application.

(i) After the close of the comment period established under (g) and (h) above, the Department shall review any written comments received, and all other relevant data including the county agricultural agent's recommendation of water allocation.

(j) If the Department does not receive a request for a public hearing on an application within the public comment period established under (g) and (h) above, the application shall be processed as follows:

1. For each application, the Department, in consultation with the appropriate county agricultural agent, shall issue an approval or denial of the application, provide the basis for the decision, and incorporate a summary of responses to all comments timely received;

2. If the decision at (j)1 above is to approve the application, the applicant shall be notified and issued a certification as follows:

i. For the approval of a new water usage certification, the Department, in consultation with the appropriate county agricultural agent, shall issue the certification with the appropriate allocation and conditions as outlined at 7:20A-2.6(a);

ii. For the approval of an application for a major modification of a water usage certification or for renewal of a water usage certification with major modification, the Department shall issue the certification with the appropriate allocation and conditions as outlined at 7:20A-2.6(a); and

3. If the decision at (j)1 above is to deny the application, the applicant shall be notified as follows:

i. For the denial of a new water usage certification, the Department, in consultation with the appropriate county agricultural agent, shall issue a letter of denial, which shall state the reasons for the denial; and

ii. For the denial of a major modification of a water usage certification or renewal of a water usage certification with major modification, the Department shall issue a letter of denial, which shall state the reasons for denial.

(k) If the Department receives a request for a public hearing on an application within the public comment period established under (g) and (h) above, the application will be processed as follows:

1. The Department shall notify the applicant, the appropriate county agricultural agent and the Department of Agriculture of the request and shall convene an informal advisory panel, consisting of a representative of the Bureau of Water Allocation, the designated representative of the Secretary of Agriculture, and a representative of the Dean of Cook College, Rutgers University, The State University of New Jersey;

2. The advisory panel shall schedule an informal meeting including the applicant or their authorized representative, the advisory panel, any person(s) who have requested a public hearing on the application, and, if appropriate, the County Agricultural Development Board (if one has been established in the county where the diversion source is located) to discuss the application;

3. If the meeting results in an agreement among the involved parties regarding the application that obviates the need for a public hearing on the application, the advisory panel shall prepare a report outlining the agreement and, based upon the report, a certification, incorporating the agreed upon conditions resulting from the meeting, shall be issued by the Department in accordance with (j)2 above;

4. If the meeting of the advisory panel does not result in an agreement regarding the application, the Department shall schedule a public hearing on the application and designate a hearing officer. The Department shall notify the applicant, the advisory panel, all persons who submitted written comments during the comment period established under (g) and (h) above, and all other persons who participated in the informal meeting with the advisory panel and shall, in addition, publish notice of the public hearing on the application in a newspaper of general circulation in the area of the applicant's diversion source at least 30 days before the date of the scheduled public hearing. The notice shall contain a description of the application, the date, time and place of the public hearing, and a statement that written comments on the application may be submitted until 14 days after the scheduled public hearing date, or as may be extended by the hearing officer at the public hearing;

5. For each application, the Department shall prepare written findings regarding the application and shall present the findings at the pubic hearing on the application if one is held under (k)4 above. In addition, the Department shall, at least five days before the date of the public hearing, provide the findings to any person who submits a written request for it;

6. The hearing shall be held before a hearing officer appointed by the Department, and the hearing officer shall have reasonable discretion to conduct the public hearing and shall:

i. Allow the Department an opportunity to present their findings on the application;

ii. Allow the applicant an opportunity to make a presentation on the application;

iii. Allow other persons an opportunity to comment in favor of or in opposition to the application;

iv. Set the date the hearing record closes;

v. Give the applicant reasonable time to respond to comments received at the hearing;

vi. Review all comments received to ensure they have been addressed and indicate in the hearing officer's report that all comments received during the public comment period and the public hearing have been addressed; and

vii. Submit the hearing officer's report to the decision maker or his/her designee within the Department;

7. The Chief, Bureau of Water Allocation or other person so delegated by the Commissioner, as decision maker on the application, shall review the hearing officer's report, the application, the water allocation recommended by the appropriate county agricultural agent, the Department's findings and recommendations, any written comments received, the transcripts from the public hearing, the Department's responses to the comments, and any other information relevant to the application, and shall approve or deny the application as follows:

i. If the application is denied, the applicant shall be so notified in a letter of denial, which shall state the reasons for the denial. The letter of denial shall be issued in accordance with (j)3 above, and a copy of the letter of denial shall be sent to each person who submitted written comments or who attended the public meeting regarding the application and requested a copy of the decision;

ii. If the application is approved, the applicant shall be so notified in a letter of approval, which shall state the reasons for approval. The water usage certification, with the appropriate allocation and conditions as outlined in 7:20A-2.6(a) shall be issued in accordance with (j)2 above. A copy of the letter of approval, the signed certification document, and the hearing officer's report shall be sent to each person who submitted written comments or who attended the public hearing regarding the application and requested a copy of the decision; and

8. The Department shall certify the costs of the public hearing on the application, including the costs for advertisement and of the stenographic record but excluding expenses for the Department's hearing officer and Department staff, and shall bill such costs to the applicant. The Department, in consultation with the county agricultural agent, shall not issue either a denial letter or an approval letter and water usage certification under (k)7 above unless the applicant pays the costs in full no later than 30 days after the date of the bill.

N.J. Admin. Code § 7:20A-2.5

New Rule, R.1999 d.7, effective 1/4/1999.
See: 30 N.J.R. 3410(a), 31 N.J.R. 45(a).
Former N.J.A.C. 7:20A-2.5, Applications for renewal or modification of existing water usage certifications, recodified to N.J.A.C. 7:20A-2.4.
Administrative correction.
See: 31 N.J.R. 638(c).
Amended by R.2007 d.6, effective 1/2/2007.
See: 38 N.J.R. 2947(a), 39 N.J.R. 39(a).
Rewrote (a), (b), (d), and (f) through (k).