New Jersey Administrative Code
Title 7 - ENVIRONMENTAL PROTECTION
Chapter 7A - FRESHWATER WETLANDS PROTECTION ACT RULES
Subchapter 22 - ENFORCEMENT
Section 7:7A-22.20 - Grace period applicability; procedures
Universal Citation: NJ Admin Code 7:7A-22.20
Current through Register Vol. 56, No. 18, September 16, 2024
(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 |
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