N.J. Admin. Code § 7:7-12.11

Current through Register Vol. 56, No. 24, December 18, 2024

Section 7:7-12.11 - Filling

(a) Filling is the deposition of material including, but not limited to, sand, soil, earth, and dredged material, into water areas for the purpose of raising water bottom elevations to create land areas.

(b) Filling is prohibited in lakes, ponds, reservoirs, and open bay areas at greater than 18 feet as defined at N.J.A.C. 7:7-12.1, unless the filling is consistent with the Freshwater Wetlands Protection Act (N.J.S.A. 13:9B-1 et seq.) and Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A.

(c) Filling in a man-made lagoon is discouraged unless:

1. The filling complies with (e) below; or

2. In those areas where two existing lawful bulkheads are not more than 75 feet apart and no limit of fill line has been promulgated by the Department, the connecting bulkhead may not extend seaward of a straight line connecting the ends of the existing bulkheads. Compliance with the mitigation rules at N.J.A.C. 7:7-17 shall not be required in such cases.

(d) Filling to establish a living shoreline to protect, restore or enhance a habitat area is conditionally acceptable provided the living shoreline complies with N.J.A.C. 7:7-12.23.

(e) Except as provided in (b) through (d) above, filling is discouraged in all other water areas. In cases where there is no alternative to filling, filling is conditionally acceptable provided:

1. The use that requires the fill is water dependent;

2. There is a demonstrated need that cannot be satisfied by existing facilities;

3. There is no feasible or practicable alternative site on an existing water's edge;

4. The minimum practicable area is filled;

5. The adverse environmental impacts are minimized, for example, by compensating for the loss of aquatic habitat by creation of an area of equivalent or greater environmental value elsewhere in the same estuary;

6. Minimal feasible interference is caused to special areas, as defined at N.J.A.C. 7:7-9; and

7. Pilings and columnar support or floating structures are unsuitable for engineering or environmental reasons.

(f) Mitigation shall be required for the filling of tidal water areas in accordance with N.J.A.C. 7:7-17. Mitigation shall not be required for the following:

1. Filling in accordance with N.J.A.C. 7:7-12.1 1(c);

2. Beach nourishment in accordance with N.J.A.C. 7:7-15.11(f);

3. Construction of a replacement bulkhead in accordance with N.J.A.C. 7:7-15.11(d)2 i or ii;

4. Establishment of living shorelines in accordance with N.J.A.C. 7:7-12.23; and

5. Construction of a boat ramp in accordance with N.J.A.C. 7:7-12.3.

(g) Filling of wetlands must comply with the wetlands rule, N.J.A.C. 7:7-9.27.

(h) Filling using clean sediment of suitable particle size and composition, or dredged material for which the Department has issued an acceptable use determination in accordance with Appendix G, is acceptable for beach nourishment and living shoreline projects provided it meets the standards of the coastal engineering rule, N.J.A.C. 7:7-15.11(f) or the living shoreline rule, N.J.A.C. 7:7-12.23, respectively.

(i) Standards for the removal of unauthorized fill are as follows:

1. For filling which took place prior to September 26, 1980 (the effective date of the Coastal Zone Management rules Statewide, or prior to September 28, 1978 for areas within the CAFRA area, removal shall be required only if the fill has resulted in ongoing significant adverse environmental impacts, such as the blocking of an otherwise viable tidal wetland or water body, and its removal will alleviate the adverse impact.

2. For filling which took place subsequent to September 26, 1980 (or subsequent to September 28, 1978 for areas within the CAFRA area removal shall be required if the fill does not comply with the standards of (b), (c), (d), or (e) above.

(j) Rationale: In general, filling is discouraged because it results in: loss of aquatic habitat including nursery areas for commercially or recreationally important species; loss of estuarine productivity since shallow estuarine water frequently has a higher biological value and is more important than deeper water; loss of habitat important for certain wading birds and waterfowl; and loss of dissolved oxygen in the water body since the shallows facilitate oxygen transfer from air to water.

Lagoons, as a result of limited freshwater inflow, multiple dead-end branches, and deeper bottoms than adjacent bay waters, have poor circulation which causes anoxic (devoid of oxygen) and stagnant bottoms. However, the shallow water edges of lagoons have been shown by the Department (1984) to support a wide variety of finfishes and shrimp. The above rules are intended to conserve this aquatic productivity found along shallow lagoon edges, while allowing use by the property owners.

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 erosion 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.

The use of dredged material of appropriate grain size and chemical composition in beach nourishment and living shoreline projects promotes the State's long-standing policy of treating dredged material as a resource.

N.J. Admin. Code § 7:7-12.11

Renumbered from 7:7E-4.10 by 47 N.J.R. 1392(a), effective 7/6/2015