N.J. Admin. Code § 7:7-29.5

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:7-29.5 - Civil administrative penalties for failure to obtain a permit prior to conducting regulated activities

(a) For the failure to obtain a permit prior to conducting regulated activities, the Department may assess a civil administrative penalty pursuant to this section of not more than $ 25,000 for each violation of 7:7-2.2, 2.3, or 2.4. For the purposes of this section, a permit shall mean an authorization under a general permit-by-certification, authorization under a general permit, individual permit, emergency authorization, letter of authorization, memorandum of agreement, or other written authorization, or other approval issued pursuant to 13:19-1 et seq., 12:5-1 et seq., or 13:9A-1 et seq.

(b) Each violation of N.J.A.C. 7:7-2.2, 2.3, and 2.4, shall constitute an additional, separate, and distinct violation.

(c) Each day during which the violation continues or remains in place without the required permit shall constitute an additional, separate, and distinct offense.

(d) To assess a civil administrative penalty pursuant to this section, the Department shall identify the civil administrative base penalty within the table in (f) below by determining the number of points pursuant to (e) below. The civil administrative penalty shall be the amount within the table in (f) below, unless adjusted pursuant to (g) and/or (h) below.

(e) The Department shall use the two factors described in (e)1 and 2 below to determine the number of points assigned to each violation.

1. The conduct factor of the violation shall be classified as major, moderate, or minor and assigned points as follows:

i. Major shall include any intentional, deliberate, purposeful, knowing, or willful act or omission by the violator and is assigned five points;

ii. Moderate shall include any unintentional but foreseeable act or omission by the violator and is assigned two points; and

iii. Minor shall include any other conduct not included in (e)1i or ii above and is assigned one point.

2. The seriousness factor of the violation is assigned points as provided below and shall be based on the type, size, and location of the violation as provided at (e)2i or ii below, whether the activity also constitutes a Tidelands violation as provided at (e)2iii below, and whether the activity was conducted in a special area as provided at (e)2iv below:

i. The area of the violation shall be assessed points in accordance with (e)2i(1) through (13) below for violations located in an area regulated under CAFRA as set forth at N.J.A.C. 7:7-2.2, and upland waterfront development areas as set forth at 7:7-2.4(a)3 ii. A violation that disturbed:

(1) Greater than 200,000 square feet is assigned 13 points;

(2) Greater than 150,000 square feet up to and including 200,000 square feet is assigned 12 points;

(3) Greater than 100,000 square feet up to and including 150,000 square feet is assigned 11 points;

(4) Greater than 70,000 square feet up to and including 100,000 square feet is assigned 10 points;

(5) Greater than 40,000 square feet up to and including 70,000 square feet is assigned is assigned nine points;

(6) Greater than 20,000 square feet up to and including 40,000 square feet is assigned is assigned eight points;

(7) Greater than 10,000 square feet up to and including 20,000 square feet is assigned seven points;

(8) Greater than 5,000 square feet up to and including 10,000 square feet is assigned six points;

(9) Greater than 2,000 square feet up to and including 5,000 is assigned five points;

(10) Greater than 750 square feet up to and including 2,000 square feet is assigned four points;

(11) Greater than 500 square feet up to and including 750 square feet is assigned three points;

(12) Greater than 50 square feet up to and including 500 square feet is assigned two points; and

(13) Up to and including 50 square feet is assigned one point.

ii. The area and/or type of the violation shall be assessed points, in accordance with (e)2ii(1) through (3) below for violations located in areas regulated pursuant to the Wetlands Act of 1970 as set forth at 7:7-2.3, and waterfront development areas as set forth at 7:7-2.4(a)1, 2, and 3i:

(1) A violation comprised of excavation or filling, construction, or placement of structures such as pilings, boat lifts, docks, piers, breakwaters, bulkheads, or other disturbance:

(A) Greater than 20,000 square feet is assigned 10 points;

(B) Greater than 15,000 square feet up to and including 20,000 square feet is assigned nine points;

(C) Greater than 10,000 square feet up to and including 15,000 square feet is assigned eight points;

(D) Greater than 7,500 square feet up to and including 10,000 square feet is assigned seven points;

(E) Greater than 5,000 square feet up to and including 7,500 square feet is assigned six points;

(F) Greater than 2,000 square feet up to and including 5,000 is assigned five points;

(G) Greater than 1,000 square feet up to and including 2,000 square feet is assigned four points;

(H) Greater than 500 square feet up to and including 1,000 square feet is assigned three points;

(I) Greater than 100 square feet up to and including 500 square feet is assigned two points; or

(J) Up to and including 100 square feet is assigned one point;

(2) A violation comprised of dredging within a natural waterbody is assigned 10 points; and

(3) A violation comprised of dredging within a man-made lagoon is assigned four points.

iii. In addition to the points assessed in accordance with (e)2i and ii above, for a violation located in a State-owned Tidelands area for which a current tidelands instrument has not been obtained, or for which payment is in arrears, the Department shall assess an additional one point.

iv. In addition to the points assessed in accordance with (e)2i through iii above, for a violation located in a special area described at N.J.A.C. 7:7-9, the Department shall assess an additional one point per special area.

(f) The Department shall sum the total points assigned according to the two factors in (e) above, and shall determine the base penalty amount per day using the following table:

Base Penalty Points Table

Points	Base Penalty
1-3	$ 500
4-6	$ 1,000
7-8	$ 2,000
9-10	$ 3,000
11-12	$ 6,000
13-14	$ 8,000
15-16	$ 10,000
17-19	$ 15,000
20-22 points	$ 20,000
23 or more	$ 25,000

(g) The Department shall adjust the amount of the base penalty assessed pursuant to (f) above based upon the mitigating penalty component as calculated in (g)1i or ii below, if applicable.

1. The Department shall multiply the base penalty dollar amount by the multiplier for either of the applicable mitigating factors in (g)1i or ii below to obtain the mitigating penalty component. Where neither mitigating factor in (g)1i or ii below applies, the civil administrative penalty shall be the civil administrative base penalty determined pursuant to (f) above, unless adjusted pursuant to (h) below.

Mitigating Factor	Multiplier
i Where the nature, timing, and effectiveness of any measures taken by the violator to remove the unauthorized development and to mitigate the effects of the violation for which the penalty is being assessed results in compliance within 30 calendar days of receipt of the notice of violation from the Department; or	0.50
ii Where a complete application is submitted within 30 calendar days of receipt of the notice of the violation from the Department and a permit is subsequently obtained for the unauthorized development without the need of any modification, mitigation or restoration.	0.50

2. To obtain the civil administrative penalty, the Department shall subtract the mitigating penalty component calculated pursuant to (g)1 above, where applicable, from the base penalty.

(h) The Department may, in its discretion, adjust the amount of any penalty assessed pursuant to (f) and, where applicable, (g) above based upon any or all of the factors listed in (h)1 through 4 below. No such factor constitutes a defense to any violation. The factors are:

1. The compliance history of the violator;

2. The frequency with which any violation of 13:19-1 et seq., 12:5-1 et seq., 13:9A-1 et seq., or rules, permit, or order adopted or issued pursuant thereto occurred, including environmental impacts;

3. The deterrent effect of the penalty; and/or

4. Any other mitigating, extenuating or aggravating circumstances.

(i) Notwithstanding the maximum civil administrative penalty of $ 25,000 pursuant to this subsection, the Department may add to a civil administrative penalty assessed under this subchapter the amount of economic benefit in dollars that the violator has realized as the result of not complying, or by delaying compliance with, an applicable law and/or condition.

N.J. Admin. Code § 7:7-29.5

Adopted by 47 N.J.R. 1392(a), effective 7/6/2015