N.J. Admin. Code § 7:7-9.15

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

Section 7:7-9.15 - Intertidal and subtidal shallows

(a) Intertidal and subtidal shallows means all permanently or temporarily submerged areas from the spring high water line to a depth of four feet below mean low water.

(b) Development, filling, new dredging, or other disturbance is discouraged but may be permitted in accordance with (c), (d), (e), (f), (g), and (h) below and with 7:7-12.2 through 12.24.

(c) Maintenance dredging of intertidal and subtidal shallows is acceptable to maintain adequate water depths in accordance with 7:7-12.6.

(d) New dredging, as defined in 7:7-12.7, in intertidal and subtidal shallows is discouraged, unless it complies with the following conditions:

1. There is a need for the proposed facility that requires the dredging that cannot be met by other similar facilities in reasonable proximity taking into account scope and purpose of the proposed facility;

2. There is no feasible alternative location for the proposed facility that requires the dredging, which would eliminate or reduce the amount of disturbance to intertidal and subtidal shallows without increasing impacts on other special areas; and

3. The proposed dredging and the facility that requires the dredging have been designed to minimize impacts to intertidal and subtidal shallows.

(e) The installation of submerged infrastructure within intertidal and subtidal shallows is conditionally acceptable, provided:

1. Directional drilling is used unless it can be demonstrated that the use of directional drilling is not feasible;

2. Where directional drilling is not feasible, there is no feasible alternative route that would not disturb intertidal and subtidal shallows;

3. The infrastructure is located deeply enough to avoid exposure or hazard; and

4. All trenches are backfilled to the preconstruction depth with naturally occurring sediment.

(f) The filling of intertidal and subtidal shallows for beach nourishment is conditionally acceptable provided it meets the requirements of the filling rule at 7:7-12.11(f) and the coastal engineering rule at 7:7-15.11(f).

(g) The establishment of a living shoreline in intertidal and subtidal shallows to address the loss of vegetated shorelines and habitat in the littoral zone is conditionally acceptable provided the living shoreline complies with 7:7-12.23.

(h) The construction and/or replacement of a bulkhead within intertidal and subtidal shallows is conditionally acceptable provided the bulkhead meets the requirements of the filling rule at 7:7-12.11(f) and the coastal engineering rule at 7:7-15.11(d).

(i) Mitigation shall be required for the destruction of intertidal and subtidal shallows in accordance with N.J.A.C. 7:7-17. Mitigation shall not be required for the following:

1. Filling in accordance with 7:7-12.11(c) and (f)1, 2, and 3;

2. Maintenance dredging in accordance with 7:7-12.6;

3. Beach nourishment in accordance with 7:7-15.11(f);

4. New dredging in accordance with 7:7-12.7 to a depth not to exceed four feet below mean low water;

5. Construction of a replacement bulkhead in accordance with 7:7-15.11(d)2 i or ii; and

6. The establishment of a living shoreline to address the loss of vegetated shorelines and habitat in the littoral zone.

(j) Rationale: Intertidal and subtidal shallows play a critical role in estuarine ecosystems. They are a land-water ecotone, or ecological edge where many material and energy exchanges between land and water take place. They are critical habitats for many benthic organisms and are critical forage areas for fishes and many migrant waterfowl. The sediments laid down in intertidal and subtidal flats contain much organic detritus from decaying land and water's edge vegetation, and the food webs in these areas are an important link in the maintenance of estuarine productivity. Preservation is, therefore, the intent of these rules, with limited exceptions to allow for needed water-dependent uses and submerged infrastructure. In most cases, mitigation is required to offset habitat losses where new disturbance of intertidal and subtidal shallows is permitted.

New Jersey's coastal environment is dynamic and shaped by natural forces such as wind, waves, and storms. Shorelines lost due to erosion eliminate intertidal habitat, reduce the amount of sandy beach, and decrease the amount of organic matter necessary to maintain tidal wetlands. This results in the degradation of the coastal environment through impacts to natural habitats, such as tidal wetlands, intertidal and subtidal shallows, and spawning grounds. Coastal states are seeking natural solutions, such as the creation of living shorelines, to address erosion as an alternative that adds diversity to other shore protection measures. Living shorelines are a shoreline management practice that addresses erosion by providing protection, restoration, or enhancement of vegetated shoreline habitats.

N.J. Admin. Code § 7:7-9.15

Renumbered from 7:7E-3.15 by 47 N.J.R. 1392(a), effective 7/6/2015