N.J. Admin. Code § 7:7A-4.2

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

Section 7:7A-4.2 - General provisions

(a) A letter of interpretation (LOI) provides the Department's official determination of one or more of the following:

1. Whether there are any freshwater wetlands, transition areas, and/or State open waters present on a site or portion of a site;

2. Where the boundaries of freshwater wetlands, transition areas and/or State open waters are located on a site; and/or

3. What resource value classification under N.J.A.C. 7:7A-3.2 applies to the freshwater wetlands on a site.

(b) A letter of interpretation does not grant approval to conduct any regulated activities. The sole function of a letter of interpretation is to provide or confirm information about the presence or absence, boundaries, and/or resource value classification of freshwater wetlands, transition areas, and/or State open waters.

1. For planning approvals, for demonstrating compliance with ordinances, or for other purposes, a municipality or county may require an applicant to obtain an LOI as a condition of application completeness or as a condition of approval.

(c) The Department issues the following three types of LOIs:

1. A presence/absence LOI, in which the Department determines whether any freshwater wetlands, transition areas, and/or State open waters exist on a site or on a portion of a site (also called a footprint of disturbance LOI). See N.J.A.C. 7:7A-4.3 for further details regarding presence/absence LOIs;

2. A line delineation LOI, in which the Department delineates the boundary lines of freshwater wetlands, transition areas, and/or State open waters for an applicant. See N.J.A.C. 7:7A-4.4 for further details regarding line delineation LOIs; and

3. A line verification LOI, in which the Department confirms or modifies a delineation proposed by the applicant. See N.J.A.C. 7:7A-4.5 for further details regarding line verification LOIs.

(d) If an area with hydric soils has been drained for farming or other purposes through the use of drainage structures or features, such as tiles or ditches, the Department shall, in the absence of compelling scientific information that wetland hydrology has been effectively removed by factors other than the drainage structures, presume that the area maintains wetlands hydrology for the purpose of identifying a freshwater wetland under N.J.A.C. 7:7A-3.1. To rebut this presumption of wetlands hydrology, all drainage structures shall be removed or completely disabled and the area shall be left undisturbed for at least one normal rainfall year, after which the presence or absence of wetlands hydrology shall be determined through use of technical criteria, field indicators, and other information, in accordance with the 1989 Federal Manual.

(e) Each LOI that indicates the presence of freshwater wetlands shall state the resource value classification of the wetlands under N.J.A.C. 7:7A-3.2 and will specify the width of the transition area. However, in some cases, seasonal conditions make it difficult to determine the resource value classification of a wetland. For example, if there has been a past sighting of a bog turtle (an endangered species) in the area, and an LOI application is submitted in December when the early successional habitat needed by bog turtles may be impossible to identify under snow cover, Department staff cannot determine if the habitat remains suitable for bog turtles until the snow melts. In such a case, the Department shall notify the applicant that seasonal conditions do not permit an accurate assessment of resource value, shall provide an explanation of the seasonal conditions involved, and shall give the applicant the option to accept an exceptional resource value classification, or to wait for the LOI until the Department can determine the resource value classification of the wetland.

(f) The Department shall issue an LOI for a portion of a site, also called a footprint of disturbance, under N.J.A.C. 7:7A-4.3(c)2 or 4.5(b)3. Special application requirements shall apply to such an LOI, in order to ensure that the portion of the site is clearly marked on the plan and on the ground. These requirements are described at N.J.A.C. 7:7A-16.3(a)4i and (b)4.

(g) The Department shall not issue an LOI if the Department determines that the information submitted in the application for the LOI is inaccurate. In such a case, the applicant may provide corrected information upon the Department's request, or may apply directly for a permit without obtaining an LOI. If the applicant applies for the permit without first obtaining an LOI, the permit application must include all information that would be necessary for the Department to issue an LOI for the site, in accordance with N.J.A.C. 7:7A-16.8(b)1, 16.9(b)1, or 16.10(b)1, as applicable. The Department will then review the submitted wetland delineation as part of the permit review process.

(h) Except for a presence/absence LOI for an entire site under N.J.A.C. 7:7A-4.3(c)1, all LOI applicants shall provide the Department with a survey in accordance with N.J.A.C. 7:7A-16.3(a)4. If the Department requires adjustments to the delineated wetlands and/or State open waters boundary after the survey is submitted, the applicant shall resurvey the delineated boundary after the adjustments are made and the Department has approved the boundary. The issued LOI will reference the approved and surveyed boundary line.

N.J. Admin. Code § 7:7A-4.2

Amended and recodified from 7:7A-3.1 by 49 N.J.R. 3849(a), effective 12/18/2017

Administrative Change, 50 N.J.R. 1147(a).