N.J. Admin. Code § 7:7A-5.7

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

Section 7:7A-5.7 - Conditions applicable to an authorization pursuant to a general permit-by-certification or a general permit

(a) A person conducting regulated activities pursuant to an authorization under a general permit-by-certification or a general permit shall comply with:

1. The conditions set forth in the general permit-by-certification or general permit itself;

2. The conditions that apply to all general permits-by-certification and general permits set forth at (b) below;

3. The conditions that apply to all permits at N.J.A.C. 7:7A-20.2;

4. The limits on the use of multiple general permits-by-certification or general permits in N.J.A.C. 7:7A-5.4;

5. If required under a particular general permit, mitigation pursuant to N.J.A.C. 7:7A-11; and

6. Any additional conditions imposed under (f) below.

(b) The following conditions apply to all activities conducted under the authority of a general permit-by-certification or general permit:

1. Activities performed under a general permit-by-certification or general permit shall be associated with a proposed project. The Department shall not authorize activities under a general permit-by-certification or general permit for the purpose of eliminating a natural resource in order to avoid regulation. For the purposes of this subsection, project shall mean the use and configuration of all buildings, pavements, roadways, storage areas and structures, and all associated activities;

2. The regulated activities shall not occur in the proximity of a public water supply intake;

3. The activities shall not destroy, jeopardize, or adversely modify a present or documented habitat for threatened or endangered species; and shall not jeopardize the continued existence of any local population of a threatened or endangered species;

4. The activities will not occur in a component of either the Federal or State Wild and Scenic River System; nor in a river officially designated by Congress or the State Legislature as a "study river" for possible inclusion in either system while the river is in an official study status; except that the activity may occur in these waters if approved by the National Park Service in accordance with 40 CFR 233;

5. The activities shall not adversely affect properties which are listed or are eligible for listing on the New Jersey or National Register of Historic Places unless the applicant demonstrates to the Department that the proposed activity avoids or minimizes impacts to the maximum extent practicable or the Department determines that any impact to the affected property would not impact the property's ability to continue to meet the criteria for listing at N.J.A.C. 7:4-2.3 or otherwise negatively impact the integrity of the property or the characteristics of the property that led to the determination of listing or eligibility. The Department shall not issue a conditional permit if it finds that the mitigation proposed is inadequate to compensate for the adverse effect. Any permit for an activity which may adversely affect a property listed or eligible for listing on the New Jersey or National Register of Historic Places shall contain conditions to ensure that any impact to the property is minimized to the maximum extent practicable and any unavoidable impact is mitigated.

i. If the permittee, before or during the work authorized, encounters a possible historic property, as described at N.J.A.C. 7:7A-19.5(l), that is or may be eligible for listing in the New Jersey or National Register, the permittee shall preserve the resource, immediately notify the Department and proceed as directed.

ii. The Department shall not issue a general permit-by-certification or general permit authorization if the applicant, its consultants, engineers, surveyors and/or agents significantly adversely affect a historic property to which the general permit-by-certification or general permit authorization applies, unless the Department determines that circumstances justify issuing the general permit-by-certification or general permit authorization;

6. Any discharge of dredged or fill material shall consist of clean, suitable material free from toxic pollutants (see 40 CFR 401 ) in toxic amounts, and shall comply with all applicable Department rules regarding use of dredged or fill material;

7. Any structure or fill authorized shall be maintained as specified in the construction plans;

8. The activities will not result in a violation of the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50, or implementing rules at N.J.A.C. 7:13;

9. If activities under the general permit meet the definition of "major development" at 7:8-1.2, then the project of which the activities are a part shall comply in its entirety with the Stormwater Management Rules at N.J.A.C. 7:8.

10. If activities under the general permit-by-certification or general permit involve excavation or dredging, the applicant shall use an acceptable disposal site for the excavated or dredged material. No material shall be deposited or dewatered in freshwater wetlands, transition areas, State open waters or other environmentally sensitive areas. The Department may require testing of dredged material if there is reason to suspect that the material is contaminated. If any dredged material is contaminated with toxic substances, the dredged material shall be removed and disposed of in accordance with Department-approved procedures;

11. The amount of rip-rap or other energy dissipating material shall not exceed the minimum necessary to prevent erosion, as calculated under the Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90;

12. Best management practices shall be followed whenever applicable;

13. If the general permit activities are subject to the Department's Water Quality Management Planning rules at N.J.A.C. 7:15, the activities shall be consistent with those rules and with the applicable approved Water Quality Management Plan (208 Plan) adopted under the New Jersey Water Quality Planning Act, 58:11A-1 et seq.;

14. The timing requirements at (c) below shall be met; and

15. Activities authorized under a general permit-by-certification or general permit shall not take place in a vernal habitat, or in a transition area adjacent to a vernal habitat, with the exception of activities associated with general permits 1, 6, 6A, and 16, which shall be reviewed on a case-by-case basis in accordance with N.J.A.C. 7:7A-5.3(e).

(c) In order to protect the fishery resources and/or the spawning of the fish population, any activity which may introduce sediment into a stream or cause a stream to become turbid shall not be performed during the time periods listed in Table 5.7 below:

Table 5.7<1>

RESTRICTED TIME PERIODS FOR WATERS WITH FISHERY RESOURCES

Water and classification	Time period (inclusive) during which activities are prohibited
1. Trout Waters
-- All trout production waters except rainbow trout	September 15 through March 15
-- Rainbow trout production waters	February 1 through April 30
-- Trout stocked waters
-- Trout maintenance waters	March 15 through June 15
-- All regulated waters located within 1 mile upstream of a trout stocked or a trout maintenance water
2. Non-Trout Waters
-- Regulated waters that support general game fish located north of Interstate 195	May 1 through July 31
-- Regulated waters that support general game fish located south of Interstate 195	May 1 through June 30
-- Regulated waters that support pickerel	Ice out through April 30
-- Regulated waters that support walleye	March 1 through May 30
3. Anadromous Waters
-- All unimpeded tidal regulated waters open to the Atlantic Ocean or any coastal bay	April 1 through June 30
-- All regulated waters identified as anadromous migratory pathways
-- Delaware River upstream of U.S. Route 1	April 1 through June 30 and September 1 through November 30
-- Delaware River between U.S. Route 1 and Interstate 295 (Delaware Memorial Bridge)	March 1 through June 30 and
-- Tidal portions of Raccoon Creek, Rancocas Creek, Crosswicks Creek, and Cooper River	September 1 through November 30
-- All unimpeded tidal regulated waters open to the Delaware River downstream of Interstate 295(Delaware Memorial Bridge)	March 1 through June 30 and
-- Tidal portions of the Maurice River, Cohansey River, and Salem River	October 1 through November 30

<1>Note that the Delaware River Basin Commission (DRBC) imposes additional timing restrictions on certain activities in waters under DRBC jurisdiction. Contact the U.S. Fish and Wildlife Service's River Basin Coordinator through the DRBC at (609) 883-9500 for information on these additional timing restrictions.

(d) The Department shall reduce, extend, or otherwise modify a timing restriction listed in Table 5.7, if it determines that one or more of the following requirements is satisfied:

1. Potential adverse impacts to the fishery resource are likely to be reduced if a regulated activity occurs during a restricted time period rather than during an unrestricted time period;

2. A regulated activity is subject to more than one restricted time period, the combined effect of which would limit the regulated activity to fewer than 183 calendar days per year. In such a case, the Department shall allow regulated activities to occur for up to 183 calendar days, provided the applicant demonstrates that additional measures will be taken to reduce potential adverse impacts to fishery resources to a level acceptable to the Department. Note that the 183-calendar day period during which the Department determines that activities may occur need not be consecutive. For example, the Department may determine that restricting activities for three months in the spring and three months in the fall best protects fishery resources in a particular case;

3. The observance of a timing restriction would adversely impact public health, safety, and/or welfare, and the applicant demonstrates that additional measures are taken where necessary to reduce adverse impacts to fishery resources to an acceptable level; or

4. Due to the nature of the project or an unusual circumstance on site, the timing restriction must be modified in order to prevent a substantial adverse impact to the fishery resource, to the aquatic environment, or to a threatened or endangered species or its habitat.

(e) If an activity will take place in a non-delegable water, and the activity requires approval from the USACE under the Federal 404 program, the activities authorized under the general permit or general permit-by-certification shall not begin until the permittee obtains the required Federal 404 program approval.

(f) In addition to the conditions that apply to every authorization pursuant to a general permit under (a) above, the Department shall establish additional conditions in a specific authorization pursuant to a general permit, on a case-by-case basis in accordance with N.J.A.C. 7:7A-20.3, as required to ensure the authorized regulated activity meets all applicable requirements of this chapter and its enabling statutes.

N.J. Admin. Code § 7:7A-5.7

Amended and recodified from 7:7A-4.3 by 49 N.J.R. 3849(a), effective 12/18/2017