How Are â€å“waters Of The United Statesã¢â‚¬â Defined And Managed By The Clean Water Act?

The U.s.a. Ecology Protection Agency
and its relationship with the
New Jersey Section of Environmental Protection
&
The Partition of Land Use Regulation

The Environmental Protection Agency (EPA) is a Federal agency tasked with protecting human health and the surroundings. The national headquarters is in Washington, D.C. New Jersey is more directly served past EPA Region 2 located in New York City.

EPA oversees the NJDEP's wetland program by reviewing certain wetland applications identified every bit "major discharges," by acting as an arbiter when needed between the State and other Federal agencies such as the ACOE or U.S. Fish and Wildlife Service, and by keeping the State informed of changes at the Federal level that could affect the State'south program. It also helps the State place "waters of the The states" in accord with electric current Federal standards.

"Major discharge" means a discharge or activity that the Department must transmit to EPA for review in accordance with the Department's 1993 Memorandum of Understanding with EPA regarding assumption of the Federal 404 program. Provisions regarding EPA review of major discharges are establish at N.J.A.C. seven:7A-12.ii. The following are major discharges:

1. A typhoon general allow;
2. A discharge with reasonable potential to impact Federally listed or proposed endangered or threatened species equally determined by the U.Due south. Fish and Wild animals Service;
3. A discharge of dredged or fill material which has the potential for adverse impacts on the waters of a land other than New Bailiwick of jersey;
4. A discharge known or suspected to comprise:
   1. Toxic pollutants as identified by Department 307(a)(1) of the Federal deed;
   2. Hazardous substances identified pursuant to Section 311 of the Federal act and Section 101(14) of the Comprehensive Environmental Response Bounty and Liability Act, 42 U.S.C. §§9601 et seq.;
   3. Toxic substances as defined by Department iii of the Toxic Substances Control Deed, 15 U.Southward.C. §§2601 et seq.; or
   4. Hazardous waste product equally defined by Department 1004(5) of the Resource Conservation and Recovery Act, 42 United statesC. §§6901 et seq.;
5. A discharge located in the proximity of a public water supply intake;
6. A discharge within a critical area established under State or Federal law, including but not limited to a National or State park; fish or wildlife sanctuary or refuge; National or historical monument; wilderness area or preserve; a site identified or proposed under the National Historic Preservation Act; or a component of the National Wild and Scenic Rivers organisation;
7. The filling of five or more acres of freshwater wetlands and/or State open up waters;
8. Whatever regulated activity that results in a significant reduction in the ecological, commercial, or recreational values of five or more acres of freshwater wetlands or Country open waters;
9. A culvert enclosure longer than 100 feet; or
10. Channelization of more than 500 feet of a river or stream.

Under the Federal Clean Water Human action (FCWA) (33 The statesC. 1251 et seq.), passed in 1972 and amended in 1977 to address the discharge of dredge or fill material into Waters of the Us (commonly known every bit Department 404 of the Clean Water Human activity), EPA gave the Country of New Jersey approval to operate the Country Freshwater Wetlands Protection Deed program in place of the Federal 404 program. That is, applicants who obtain a wetlands permit from the Land of New Jersey satisfy the Federal wetland permit requirements in most cases (NOTE: there are some parts of the Land that remain under joint jurisdiction of the State and Federal regime).

EPA's approval of the Land'southward program is conditioned on the State maintaining standards that are as strict every bit those implemented by the Federal Army Corps of Engineers (ACOE), the Federal agency that implements the Make clean Water Deed throughout the nation.

"Delegable waters" means all waters of the United States, as defined in this section, inside New Jersey, except waters which are presently used, or are susceptible to utilize in their natural status or by reasonable improvement, equally a means to ship interstate or foreign commerce, shoreward to their ordinary high h2o mark. This term includes all waters which are subject to the ebb and menstruum of the tide, shoreward to their mean high water mark, including wetlands that are partially or entirely located inside 1000 feet of their ordinary high water mark or mean high tide. Waters that are not delegable waters include, but are not limited to:

1. The entire length of the Delaware River inside the State of New Jersey;
2. Waters of the United states under the jurisdiction of the Hackensack Meadowlands Development Committee; and
3. Greenwood Lake.
   

"EPA priority wetlands" means wetlands which are designated equally priority wetlands by EPA, and are listed on the "Priority Wetlands List for the State of New Jersey," which is available from the Department'south Function of Maps and Publications at the accost listed at Due north.J.A.C. 7:7A-i.3.

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Delight Annotation: The Department has made every try to ensure that the text of the regulation provided through this web page is identical to the official, legally effective version of the regulation, set forth in the New Bailiwick of jersey Register. All the same, should there be whatsoever discrepancies between the text on this web site and the official version of the dominion, the official version will govern. For more information on obtaining official versions of the rules, see "How To Get a Paper Copy of Department of Environmental Protection Rules".

Northward.J.A.C. vii:7A-12.2 USEPA review

(a) Considering the Section has assumed responsibleness for the Federal 404 program in near freshwater wetlands and State open waters in New Jersey, the Federal Act requires that the USEPA oversee the State'south administration of the program prepare along in this affiliate. The procedures in (b) through (j) beneath explain USEPA'southward oversight role, and the procedures which the State volition follow to facilitate USEPA'south oversight. In areas where the Section has assumed the Federal 404 program, the Section's freshwater wetlands or open up water fill allow constitutes the let required nether this affiliate as well every bit the Federal 404 allow, unless the permit specifies otherwise.

(b) The Section shall transmit the following items to USEPA for review:

1. Each new proposed draft full general permit. In general, an awarding for dominance to act under an adopted general permit will non require USEPA review, unless the activity proposed under the general permit itself constitutes a major discharge;
2. Each application involving a major discharge, as defined at  N.J.A.C. vii:7A-ane.4;
3. Any permit awarding, or category of let applications, that the Department determines is advisable for USEPA review;
4. Any permit application that USEPA requests to review;
5. Any additions or changes made to an awarding listed at (b)2 through four above afterward the application has been submitted to USEPA, as a issue of a contested example proceeding in the Part of Administrative Constabulary; and
6. For advisory purposes, an initial decision issued by an administrative law approximate in a contested example proceeding which involves an awarding listed at (b)two through four above.

(c) For an particular that requires USEPA review nether (b) above, the Department shall promptly transmit to the Regional Administrator:

1. A consummate copy of the detail;
2. Notice of every significant activeness taken by the Department related to the consideration of the let application or other detail; and
3. A copy of whatsoever decision on the application or other particular.

(d) If USEPA intends to comment upon, object to, or make recommendations with respect to an item, or with respect to the Department'southward failure to have the recommendations of an afflicted country pursuant to N.J.A.C. 7:7A-12.three(d), USEPA may notify the Section of this intent within 30 days of receipt of the permit awarding or other item. If the Department has been so notified, the permit or other item shall not exist issued until after the receipt of such comments or within 90 days of the USEPA's receipt of the application or other particular, or the Section response, whichever comes first. The USEPA may notify the Department inside 30 days of receipt that there is no annotate merely that USEPA reserves the correct to object within xc days of receipt, based on any new data brought out by the public during the comment catamenia or at a hearing.

(e) When the Section has received a USEPA objection or requirement for a permit condition nether this department, the Land shall not result the Federal 404 permit unless the steps required by the USEPA to eliminate the objection have been taken. However, the Section may issue a freshwater wetlands let. Such a permit shall satisfy only the requirements of the New Jersey Freshwater Wetlands Protection Human action and the permit shall non establish a 404 permit. In such a case, the applicant would be responsible for obtaining any necessary 404 plan approvals from the ACOE.

(f)   Within 90 days after receiving an objection or requirement for a permit status by the USEPA, the Department or any interested person may request that the USEPA hold a public hearing on the objection or requirement. USEPA shall conduct a public hearing if requested by the Department, or if warranted by pregnant public involvement based on requests received.

(thousand) If USEPA holds a public hearing under (f) above, USEPA shall, following that hearing, reaffirm, modify or withdraw the objection or requirement for a permit condition. USEPA shall notify the Section of this decision.

(h) If USEPA holds a public hearing, the Section shall have 30 days afterward USEPA gives the Department notice of its determination under (g) above to take either of the actions at
(i)1 or 2 below. If USEPA does not hold a public hearing, the Department shall have 90 days afterward receiving USEPA's original objection or requirement for a permit status to accept either of the deportment at (i)i or 2 below.

(i)   The Section shall take i of the following deportment within the applicable deadline in (thou) or (h) to a higher place:

1. If the USEPA has withdrawn the objection or requirement for a let condition, the State may event the Federal 404 let; or
2. If the USEPA has non withdrawn the objection or requirement for a permit condition, the Department must do 1 of the post-obit:
   1. Event a revised permit satisfying the USEPA's objection or including the required let condition;
   2. Notify USEPA of its intent to deny the let. If the Department intends to deny the permit information technology shall notify EPA of this intent within 30 days after receiving USEPA'due south notification; or
   3. Issue a State freshwater wetlands permit that does non constitute a Federal 404 permit and require the applicant to utilize to the appropriate Federal agency for a permit under the Federal 404 program.

(j)   No Federal 404 permit shall exist issued by the Section in the following circumstances, although the Department may issue a State freshwater wetlands allow that does not constitute a Federal 404 let:

1. When the Regional Ambassador has objected to issuance of the permit and the objection has not been resolved;
2. When the proposed discharges would be in an area which has been prohibited, withdrawn, or denied as a disposal site by the USEPA under Section 404(c) of the Federal Act, or when the belch would fail to comply with a brake imposed thereunder; or
3. If the Ground forces Corps of Engineers determines, later consultation with the Secretary of the Section in which the Coast Guard is operating, that anchorage and navigation of whatsoever of the navigable waters would be substantially impaired.

(k) The Department shall submit an application to the U.S. Fish and Wildlife Service for review of the potential for impacts on Federally listed threatened or endangered species in accordance with the 1993 Memorandum of Agreement between the Department and the U.S.  Fish and Wildlife Service, and all modifications, addenda, and clarifications thereto, executed in gild for the Department to assume responsibility for the Federal 404 program.

(l)   The Section shall identify all wetland permit applications for proposed projects that may affect properties which are listed, or are eligible for listing, on the New Jersey or National Annals of Historic Places. In accordance with Due north.J.A.C. seven:4-eight.i(a), an "issue" on "holding which is listed or is eligible for listing on the New Jersey or National Register of Historic Places" tin be direct or indirect and occurs whenever whatsoever aspect of the project causes or may crusade any alter, beneficial or agin, in the quality of the historical, architectural, archaeological, or cultural characteristics that qualified a celebrated holding to come across the criteria of evaluation for inclusion in the New Jersey or National Annals. Applications reflecting any of the post-obit characteristics shall be deemed to nowadays a loftier probability of the presence of historic and archaeological resources, requiring assessment and shall require, with the wetlands permit application, the submittal of a Phase IA historical and archaeological survey, and an architectural survey, divers at Northward.J.A.C. 7:7A-1.four:

1. Proposed projects containing known historic or archaeological resources, based upon information independent within the application, or as identified on copies of historic property maps prepared by the Section;
2. Proposed projects on sites that exceed xx acres in size which include a permanent water body (for instance wetlands, swimming, lake, river or perennial stream) or are located within 250 feet of a permanent h2o trunk;
3. Proposed projects for which available maps, photographs, or other information, or observations made during a site visit, indicate the presence of buildings, structures, or ruins over 50 years old that could potentially be affected by the proposed project;
4. Proposed projects including new, replacement, reconstructed, or rehabilitated bridges or culverts; and
5. Proposed projects on which letters are received from concerned citizens or others indicating the possible presence of celebrated properties within or side by side to the project.

(1000) In order to demonstrate due diligence in identifying historic sites that may be affected by a wetlands let application, as well every bit provide the Department with information regarding sites with historic or potentially historic resources, the applicant shall submit with each permit application:

1. Clear color photographs of all buildings, structures, ruins of buildings and structures, and burial grounds on the site;
2. A key map of the site locating all photographs provided in 1. above; and
3. All information and copies of correspondence, known, received or in the possession of  projection representatives or the applicant, regarding historic districts, buildings, structures, ruins, burial grounds, and archaeological sites on or near the projection site.

(n) Applicants who are or volition be pursuing Federal financial assistance, permits, licenses, or other approvals for the projection that is the subject area of the freshwater wetlands permit application, shall supply a copy of the consultation comments provided by the Department's Historic Preservation Office (HPO) in its role as staff to the Federally designated State Historic Preservation Officer (SHPO) nether Department 106 of the National Celebrated Preservation Act (16 U.Southward.C. § 470(f)), together with a statement detailing how the comments accept been incorporated into the project, with the State freshwater wetlands permit application. The Section volition consider that information as a office of its review under this chapter.

1. If an applicant is non and will not be pursuing Federal fiscal assistance as described in (northward) in a higher place, the applicant shall provide the Department with a argument to that effect.

(o) Public entities that are or volition exist pursuing a project authorization application, pursuant to N.J.A.C. 7:4-7, for the project that is the subject of the freshwater wetlands permit application shall comply with either (o)1 or 2 below. For the purposes of this subsection, "public entities" means the State, canton, municipality, or an bureau or instrumentality thereof:

1. If the public entity has received a project potency from the Section pursuant to N.J.A.C. seven:4-vii prior to applying for a Land freshwater wetlands permit, a re-create of the project authorisation shall exist submitted with the permit awarding. The Department will consider that authorization every bit a part of its review under this affiliate; or
2. If the public entity has not yet begun the procedure for obtaining a projection authorization pursuant to N.J.A.C. 7:4-seven at the fourth dimension of application for a State freshwater wetlands let, the applicant shall consult directly with the Department's Celebrated Preservation Office to initiate the project authorization procedure at the same time as the permit application is processed.

(p)  At sites where activities  require a freshwater wetlands and/or Country open h2o let, the demolition of buildings or structures potentially over 50 years of age, or the disturbance of soils, shall non be undertaken prior to receipt of such permit.  Undertaking such activities without a permit shall be considered a violation of this affiliate.

Source: https://www.nj.gov/dep/landuse/lu_epa.html

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