N.J. Admin. Code § 7:38-2.4

Current through Register Vol. 56, No. 17, September 3, 2024

Section 7:38-2.4 - Highlands applicability determination

(a) A Highlands Applicability and Water Quality Management Plan Consistency Determination (Highlands Applicability Determination) answers the following questions:

1. Is the proposed development or activity a major Highlands development pursuant to 7:38-2.2 ?

2. Is the proposed development or activity a major Highlands development that is exempt from the Highlands Act, pursuant to 7:38-2.3 ?

3. Regardless of the answer to (a)1 or 2 above, is the proposed development or activity consistent with the applicable areawide Water Quality Management Plan?

(b) Any person proposing to undertake any activity in the preservation area that requires any environmental land use or water permit from the Department other than, as provided at (c) below, a NJPDES permit or TWA, shall either clearly stipulate that the proposed activity is subject to the Highlands Act in an application to the Department for an HPAA, or obtain a Highlands Applicability Determination, before submitting an application for the environmental land use or water permit unless the activity is one of the following:

1. The following improvements to a lawfully existing single family dwelling in existence on August 10, 2004, provided that the lot upon which the home is situated has not been further subdivided:

i. Driveway, garage or shed;

ii. An addition for residential purposes attached to the home;

iii. Deck, patio or porch;

iv. Swimming pool; or

v. Septic system;

2. Routine maintenance and operations, preservation, or repair of transportation systems by a State entity or local government unit provided such activity is confined to the existing footprint of development, and does not create new travel lanes or increase the length of an existing travel lane by more than 2,640 feet, not including tapers;

3. Rehabilitation or reconstruction of transportation systems by a State entity or local government unit provided such activity:

i. Does not result in a cumulative increase in impervious surface by 0.5 acres or more;

ii. Does not involve the ultimate disturbance of one or more acres of land; and

iii. Does not create new travel lanes or increase the length of an existing travel lane by more than 2,640 feet, not including tapers;

4. Routine maintenance and operations, rehabilitation, preservation, reconstruction and repair of infrastructure systems by a State entity or local government unit provided such activity is confined to the existing footprint of development, and does not increase the conveyance capacity, for example, by increasing the pipe size of a sewer or water system;

5. The construction of transportation safety projects and bicycle and pedestrian facilities by a State entity or local government unit provided the activity does not:

i. Create a new travel lane or increase the length of an existing travel lane by more than 2,640 linear feet, not including tapers;

ii. Result in a cumulative increase in impervious surface of one acre or more; or

iii. Involve the ultimate disturbance of two or more acres of land;

6. Any activity that is part of an agricultural or horticultural development or agricultural or horticultural use;

7. Any activity conducted by a landowner in accordance with an approved woodland management plan issued pursuant to the Farmland Assessment Act, 54:4-23.3, or the normal harvesting of forest products in accordance with a forest management plan approved by the State Forester;

8. The remediation of any contaminated site pursuant to 58:10B-1 et seq., provided no residential, commercial, or industrial development is undertaken concurrently with, or subsequent to, the remediation. Any concurrent or subsequent development at the site is subject to the requirements of this chapter for a Highlands applicability determination and HPAA as applicable;

9. The addition of telecommunications equipment or antennas to a telecommunication facility existing on August 10, 2004, provided the equipment is located within the existing fenced compound or on lawfully existing impervious surface so that it does not increase impervious surface; or

10. Installation of cellular equipment on a legally existing overhead utility tower and the construction of the attendant 10-foot by 20-foot pad, when located within the four footings of such tower within a right-of-way owned or controlled by a public utility, constructed with the consent of the public utility.

(c) Following submission under N.J.A.C. 7:14A of an application for a TWA or an individual NJPDES permit, or a request for authorization (RFA) under a general NJPDES permit for an activity in the Highlands preservation area, the Department will notify the applicant whether the activity that is the subject of the application or RFA is a major Highlands development that requires a Highlands Applicability Determination under this section. This section does not apply to NJPDES Permit No. NJ0088323 (see 7:38-2.6(d) ) .

(d) Nothing in (b) or (c) above shall exempt any person from the obligation to obtain a formal consistency determination from the Department if required by the Water Quality Management Planning Rules at N.J.A.C. 7:15-3.

(e) If the Department determines that a proposed activity is inconsistent with the applicable areawide Water Quality Management Plan (WQMP), the Department shall not issue any permits or approvals for the activity, even if it is exempt from the Highlands Act or does not qualify as major Highlands development. The activity shall not proceed until the applicant applies for and receives an amendment to the areawide WQMP that includes the proposed activity in the WQMP and complies with all Federal, State, county or municipal requirements applicable to the proposed project.

(f) If the Department determines the proposed activity is a major Highlands development subject to the permitting requirements of the Highlands Act and consistent with the applicable areawide WQMP, the activity shall not commence until an HPAA is issued for the proposed development.

(g) If the Department determines the proposed activity is a major Highlands development subject to the permitting requirements of the Highlands Act but is inconsistent with the applicable areawide WQMP, the applicant may apply for an HPAA as long as the application also includes an administratively complete request for an amendment to the areawide WQMP pursuant to 7:38-9.6(c).

N.J. Admin. Code § 7:38-2.4

Amended by R.2006 d.420, effective 12/4/2006.
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
Section was "Applicability determination". Rewrote (a) and (b); in (c), substituted "or" for a comma following "TWA" and inserted the last sentence; and in (d), substituted "if required by" for "pursuant to".
Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
See: 41 N.J.R. 4467(a).
In (b)8, substituted "58:10C-1 et seq." for "58:10B-1 et seq. conducted in accordance with a memorandum of agreement or remedial action workplan".
Administrative correction.
See: 42 N.J.R. 1862(a).
Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
Provisions of R.2009 d.361, readopted with changes incorporated at 42 N.J.R. 1862(a).