N.J. Admin. Code § 7:7A-22.20

Current through Register Vol. 57, No. 1, January 6, 2025

Section 7:7A-22.20 - Grace period applicability; procedures

(a) Each violation identified in Table 22.20 at (f) below by an "M" in the Type of Violation column for which the conditions of (d)1 through 6 below are satisfied, and each violation determined under (c) below as minor for which the conditions of (d)1 through 9 below are satisfied, is a minor violation and is subject to a 30-calendar-day grace period as described at (e) below.

(b) Each violation identified in Table 22.20 at (f) below by an "NM" in the Type of Violation column is a non-minor violation and is not subject to a grace period.

(c) If a violation is not listed in Table 22.20 at (f) below, the designation of the violation as minor or non-minor is determined as follows:

1. If the violation is not listed in Table 22.20 at (f) below but is comparable to a violation designated as "M" in Table 22.20 and the violation meets all of the criteria of (d)1 through 6 below, then the violation is minor. The minor violation shall be subject to a grace period of 30 calendar days as described at (e) below.

2. If the violation is not listed in Table 22.20 at (f) below and is not comparable to a violation listed in Table 22.20 but the violation meets all of the criteria of (d)1 through 9 below, then the violation is minor. The minor violation shall be subject to a grace period of 30 calendar days as described at (e) below.

3. If the violation is not listed in Table 22.20 at (f) below but is comparable to a violation designated as "NM" in Table 22.20, then the violation is a non-minor violation and is not subject to a grace period.

4. If the violation is not listed in Table 22.20 at (f) below and is not comparable to a violation listed in Table 22.20, and the violation does not meet all of the criteria at (d)1 through 9 below, the violation is non-minor and is not subject to the grace period.

5. Comparability of a violation to a violation in Table 22.20 at (f) below is based on the nature of the violation (for example, recordkeeping, accuracy of information provided to the Department, amount and type of impacts to the protected resources). A violation shall not be considered comparable to any violation designated as "M" in Table 22.20 unless the violation also meets the criteria at (d)7 through 9 below.

(d) The Department shall provide a grace period of 30 calendar days for any violation identified as minor provided the following conditions are met:

1. The violation is not the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation;

2. The activity or condition constituting the violation has existed for less than 12 months prior to the date of discovery by the Department or local government agency;

3. In the case of a violation that involves a permit, the person responsible for the violation has not been identified in a previous enforcement action by the Department or a local government agency as responsible for a violation of the same requirement of the same permit within the preceding 12-month period;

4. In the case of a violation that does not involve a permit or waiver, the person responsible for the violation has not been identified in a previous enforcement action by the Department or a local government agency as responsible for the same or a substantially similar violation at the same facility within the preceding 12-month period;

5. In the case of a violation of N.J.S.A. 13:9B-1 et seq., or any rule or regulation promulgated thereunder, or permit issued pursuant thereto, the person responsible for the violation has not been identified in a previous enforcement action by the Department or a local government agency as responsible for the same or a substantially similar violation at the same site or any other site within the preceding 12-month period;

6. In the case of any violation, the person responsible for the violation has not been identified by the Department or a local government agency as responsible for the same or substantially similar violations at any time that reasonably indicate a pattern of illegal conduct and not isolated incidents on the part of the person responsible;

7. The violation poses minimal risk to the public health, safety and natural resources;

8. The violation does not materially and substantially undermine or impair the goals of the regulatory program; and

9. The activity or condition constituting the violation is capable of being corrected and compliance achieved within the time prescribed by the Department.

(e) For a violation determined to be minor under (a) or (c) above, the following provisions apply:

1. The Department shall issue a notice of violation to the person responsible for the minor violation that:

i. Identifies the condition or activity that constitutes the violation and the specific regulatory provision or other requirement violated; and

ii. Specifies that a penalty may be imposed unless the minor violation is corrected and compliance is achieved within the specified grace period of 30 calendar days.

2. If the person responsible for the minor violation corrects that violation and demonstrates, in accordance with (e)3 below, that compliance has been achieved within the specified grace period, the Department shall not impose a penalty for the violation.

3. In response to a notice of violation, the person responsible for the minor violation shall submit to the Department, before the end of the specified grace period, written information, signed and certified to be true by the responsible person or his or her designee, detailing the corrective action taken or how compliance was achieved.

4. If the person responsible for the minor violation seeks additional time beyond the specified grace period to achieve compliance, the person shall request an extension of the specified grace period in writing no later than one week before the expiration of the specified grace period. The request shall include the anticipated time needed to achieve compliance, the specific cause or causes of the delay, and any measures taken or to be taken to minimize the time needed to achieve compliance. The request shall be signed and certified to be true by the responsible party or their designee. The Department may, in its discretion, approve in writing an extension which shall not exceed 90 calendar days, to accommodate the anticipated delay in achieving compliance. In exercising its discretion to approve a request for an extension, the Department may consider the following:

i. Whether the violator has taken reasonable measures to achieve compliance in a timely manner;

ii. Whether the delay has been caused by circumstances beyond the control of the violator;

iii. Whether the delay will pose a risk to the public health, safety and natural resources; and

iv. Whether the delay will materially and substantially undermine or impair the goals of the regulatory program.

5. If the person responsible for the minor violation fails to demonstrate to the Department that the violation has been corrected and compliance achieved within the specified grace period, or within any approved extension, the Department may, in accordance with the provisions of this chapter, impose a penalty that is retroactive to the date on which the notice of violation under (e)1 above was issued.

6. The person responsible for a minor violation shall not request more than one extension of a grace period specified in a notice of violation.

(f) The designations of violations of the Freshwater Wetlands Protection Act Rules as minor (M) or non-minor (NM) are set forth in Table 22.20 below. The violation descriptions are provided for informational purposes only. In the event that there is a conflict between a violation description in Table 22.20 and the rule to which the violation description corresponds, the rule shall govern.

Table 22.20

Rule Citation	Violation Description	Type of Violation
N.J.A.C. 7:7A-2. 1(a), 2.2(a) and (b), 3.3(e), 2.3(a)	Conducting regulated or prohibited activities in a freshwater wetland, transition area and/or State open water without prior Department approval.	NM
N.J.A.C. 7:7A-5.7 and 9.2	Failure to comply with conditions of a Department permit or authorization not related to submission of documentation to the Department.	NM
N.J.A.C. 7:7A-5.7 and 9.2	Failure to submit to the Department documentation as required by a permit condition.	M
N.J.A.C. 7:7A-8.	Failure to execute and record the	NM
2(f) and 12	required conservation restriction prior to the beginning of activities authorized under a transition area waiver, or transfer of the site.
N.J.A.C. 7:7A-16	Failure to provide in the application all information required in this chapter of which the applicant, its consultants, engineers, surveyors, or agents is or should be aware	NM
N.J.A.C. 7:7A-17	Failure to provide appropriate public notice during the permit application process	NM
N.J.A.C. 7:7A-20.2 and 20.3	Failure to comply with conditions of a Department permit or authorization not related to submission of documentation to the Department.	NM
N.J.A.C. 7:7A-20.2 and 20.3	Failure to submit to the Department documentation as required by a permit condition.	M
N.J.A.C. 7:7A-20.8	Failure to comply with a permit suspension order	NM
N.J.A.C. 7:7A-20.9	Failure to comply with a permit termination order.	NM
N.J.A.C. 7:7A-11. 2(e)	Failure to conduct mitigation as required by a Department approval or administrative order	NM
N.J.A.C. 7:7A-11. 3(a)	Failure to conduct mitigation as required by a Department approval or administrative order	NM
N.J.A.C. 7:7A-11. 6(a)	Failure to submit a mitigation proposal to the Department as required by a Department approval or order	NM
N.J.A.C. 7:7A-11. 12(g)5	Failure to execute and record the conservation restriction that meets the requirements of N.J.A.C. 7:7A-12 prior to the start of mitigation activities	NM
N.J.A.C. 7:7A-11. 12(d)	Failure to submit a construction completion report within the required timeframe of completion of construction and planting of a restoration, creation or enhancement project	M
N.J.A.C. 7:7A-11. 12(e) and (f)	Failure to submit an annual post-construction monitoring report at the required intervals following the completion of the construction and planting associated with mitigation	M
N.J.A.C. 7:7A-11. 12(g)	Failure to demonstrate to the Department at the end of the post-construction monitoring period that the mitigation project is successful	M
N.J.A.C. 7:7A-11. 13(d)2	Failure to transfer the mitigation area in fee simple to a government agency or charitable conservancy within 60 days after the Department declares mitigation through upland preservation successful	NM
N.J.A.C. 7:7A-11. 13(e)	Failure to provide the government agency or charitable conservancy with a maintenance fund for the mitigation area transferred to the government agency or charitable conservancy	NM
N.J.A.C. 7:7A-11. 16(b)1	Failure to apply to the Wetlands Mitigation Council for approval of the amount of monetary contribution following the Department's determination that monetary contribution is an appropriate mitigation alternative	NM
N.J.A.C. 7:7A-11. 15(a)	Failure to apply to the Wetlands Mitigation Council for approval of the particular parcel of land to be donated following the Department's determination that land donation is an appropriate mitigation alternative	NM

N.J. Admin. Code § 7:7A-22.20

Amended and recodified from 7:7A-16.20 by 49 N.J.R. 3849(a), effective 12/18/2017