N.J. Admin. Code § 7:38-6.5

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

Section 7:38-6.5 - Waiver for the protection of public health and safety

(a) If an activity is necessary to protect public health and safety and the anticipated threat or loss may occur before the Department can review an application for an HPAA, an applicant shall follow the procedure to obtain an emergency HPAA at N.J.A.C. 7:38-7.

(b) For the purposes of this section, an activity is necessary to protect public health and safety if there is no other practicable means to meet the established public need and the activity:

1. Will correct or avoid a threat to life or health, severe loss of property, or severe environmental degradation that is occurring or will occur if the activity is not permitted;

2. Will serve an essential health or safety need or correct severe environmental degradation; and

3. Is required to serve existing public health and safety needs or to correct existing severe environmental degradation and is not intended or designed to support future development.

(c) Examples of activities that satisfy the requirement of protecting public health and safety include, but are not limited to:

1. The construction of new or expanded police, fire and first aid facilities to serve an existing community;

2. The replacement of failing septic systems with new septic systems or other sewage treatment facilities sized specifically to serve only the existing development currently served by the failing systems; and

3. The replacement of wells or other water supplies serving legally existing development with new wells or water sources when such replacement is necessary for the protection of human health.

(d) An applicant shall not be eligible for a waiver under this section unless he or she demonstrates that a proposed activity:

1. Is necessary to protect public health and safety as described in (b) above;

2. Has no practicable alternative that:

i. Would have less or no adverse impact on all Highlands resource areas on the site for which the HPAA is sought; and

ii. Would not have other significant adverse environmental consequences, that is, will not merely substitute other significant environmental consequences for those attendant on the original purpose;

3. Is designed to comply with all of the preservation area standards contained at N.J.A.C. 7:38-3 to the maximum extent feasible while still addressing the identified health and safety need; and

4. Has been designed to meet the requirements at 7:38-6.2 to the maximum extent possible.

(e) In addition to meeting the requirements at (a) through (d) above, an applicant proposing a regulated activity within a Highlands open water that is also a freshwater wetland or State open water, as defined in the Freshwater Wetlands Protection Act rules at 7:7A-1.4, shall provide mitigation in accordance with N.J.A.C. 7:7A in order to compensate for impacts to a freshwater wetland or State open water resulting from the approval of a waiver under this section.

N.J. Admin. Code § 7:38-6.5