Forests are a defining visual and functional feature of the Highlands Area. Forests provide habitat and sustenance for a diverse array of plants and animals and are essential to maintaining biodiversity. Forests protect against soil erosion, provide filtration for groundwater recharge, and assist in protecting stream water quality. Forests retain moisture and sequester atmospheric carbon, thus helping to stabilize weather patterns and mitigate global warming. Forested areas of the Highlands Area offer important recreational resources, contribute to its unique scenic quality, and, when managed sustainably, can provide a long-term source of wood and wood products.
All portions of the Highlands Area identified by the Highlands Council as containing forest (as defined at § 102A-3.2) appear as Total Forest Area in the map titled "Forest Resource Area, Total Forest Area" (Exhibit 2),[1] adopted and incorporated as a component of this part pursuant to § 102A-4.4, above. The Total Forest Area includes forested portions of lands designated as Forest Resource Area, as provided at § 102A-4.3.1, above.
[1]
Editor's Note: Exhibit 2 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
Clear-cutting is prohibited in any forested portion of the Highlands Area, whether the affected lands are delineated as Total Forest Area or Forest Resource Area, or consist of lands containing upland forest, as determined under the procedures provided at Appendix A.[1]
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
Any forest disturbance (as defined at § 102A-3.2) other than that authorized pursuant to an HPAA issued by the NJDEP, shall be permitted only upon a finding by the reviewing board or other applicable municipal authority that the following requirements have been satisfactorily addressed:
A. 
Demonstration that the proposed disturbance can neither be avoided nor reduced in extent, while adequately providing for a proposed use that otherwise addresses the requirements of this part;
B. 
Incorporation of low-impact development techniques (see § 102A-7.2) appropriate to the activity or development project proposed;
C. 
For any proposed disturbance of 1/2 acre or more, other than that associated with the maintenance of a legally preexisting use or structure (expressly excluding the expansion of any such use or structure), submission, approval and implementation of a forest mitigation plan designed to minimize the extent of such disturbance, protect forest areas adjacent or proximate to the disturbance area, and mitigate for loss of trees or other forest vegetation removed during the course of such disturbance; and
D. 
Notwithstanding the preceding provisions, in the case of any proposed disturbance that by definition constitutes deforestation, submission, approval and implementation of a forest mitigation plan designed to minimize the extent of deforestation, protect forest areas to remain, and restore or mitigate for forest area loss.
With the exception of forest disturbance authorized pursuant to an HPAA issued by the NJDEP, any application proposing a disturbance requiring a forest mitigation plan pursuant to § 102A-6.1.4 above, shall be accompanied by a forest impact report containing, at minimum, the items listed in this subsection.
A. 
All forest impact reports.
(1) 
A map of upland forest area located on or within 500 feet of the subject property, as determined in accordance with Appendix A.[1] A map indicating any on-site areas designated as Forest Resource Area or Total Forest (Exhibit 2).[2] Where access is not available to adjacent properties, the municipal environmental resource inventory, and any updated Highlands Council GIS data delineating the Forest Resource Area and Total Forest may be relied upon for off-site forest identification.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
[2]
Editor's Note: Exhibit 2 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
(2) 
A description of the nature, density and intensity of the proposed use or activity.
(3) 
A plan indicating the extent of the forest disturbance area, identifying the number, location, species, and for trees of greater than six inches in caliper (measured at 4.5 feet above grade level), the caliper of any trees proposed for removal.
(4) 
A description of the site alternatives analysis undertaken to, in this order: a) avoid forest disturbance; b) minimize forest disturbance; and c) ensure that any forest disturbance that cannot be avoided results in the least impact.
(5) 
A description of the low-impact development practices to be used to minimize the disturbance area and its impact; design details to be indicated in development plans, if applicable.
(6) 
If the applicant proposes site-specific forest information that differs from mapped forest resources in Exhibit 2,[3] including information based on the method in Appendix A,[4] it must be provided in a format and with sufficient information that the findings may be submitted for verification by the Highlands Council as an RMP update.
[3]
Editor's Note: Exhibit 2 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
[4]
Editor's Note: Appendix A is included as an attachment to this chapter.
(7) 
An analysis of the effects (direct and indirect) of the proposed use or activity upon forests, including forest areas adjacent and proximate to the disturbance area.
B. 
Deforestation impact reports. In addition to the items required above for all forest impact reports, any application proposing disturbance that, by definition (see § 102A-3.2), constitutes deforestation shall include:
(1) 
A description of the area surrounding the subject property within a radius of 0.5 mile.
(2) 
A map of all forest resources, as described in the Environmental Resources Inventory, within a radius of 0.5 mile of the property, including any areas designated as Forest Resource Area or Total Forest (Exhibit 2).[5] Highlands Council interactive website mappings may be utilized to address this requirement in the event the affected land area extends into adjoining municipalities.
[5]
Editor's Note: Exhibit 2 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
(3) 
A field survey and description of the local ecological community type(s) on the site and a description of the surrounding, macro-scale ecological community type(s) of which the property is part.
(4) 
An inventory of forest community composition and stand structure. The inventory shall include a description of vegetation species richness, vegetation species composition, stand density and basal area, connectivity with surrounding forested lands, and the survey method.
(5) 
An impact analysis documenting and describing any increase in forest fragmentation, creation of forest edge, disruption of forest area on steep slopes or riparian areas, or disruption of core forest areas that will occur as a result of the proposed use or activity.
All forest mitigation plans must be prepared by a State of New Jersey approved forester or other qualified professional. A forest mitigation plan must include each of the components listed herein.
A. 
Mitigation Priority Area Map. Priority Areas are forested locations within the site having the highest ecological value to be targeted for conservation, restoration, or mitigation, including such areas as:
(1) 
Highlands Open Waters and Buffers.
(2) 
Riparian Areas, including floodplains and flood-prone areas.
(3) 
Critical Habitat.
(4) 
Steep slopes and ridgelines.
(5) 
Core forests and contiguous forest patches.
B. 
Protection plan. A plan providing the proposed methodology appropriate to, and by which the applicable mitigation priority areas will be protected throughout the period of forest disturbance and thereafter.
C. 
Forest protection plan. A plan incorporating preconstruction and construction best management practices to ensure the well-being of forest areas adjacent or proximate to the disturbance area. Such plans shall include prescribed limits of disturbance to be mapped, field marked, and provided with protective fencing prior to the start of any construction activity. Plans shall indicate installation of tree protection fencing along the dripline of trees to be protected, with instructions barring encroachment by machinery or heavy equipment of any kind, and requiring regular inspection and maintenance of fencing throughout the construction period.
D. 
Mitigation description. A description of the proposed forest restoration, tree planting plan or other mitigation initiative proposed to provide equivalent or enhanced forest ecosystem benefit in consideration of the extent and type of disturbance or deforestation that would result if the use or activity is approved.
E. 
Planting plan. A detailed plan indicating the specific plantings proposed for restoration, reforestation or mitigation, including size, species, quantity, location, separation distances, planting details, deer and pest management protections, and maintenance plans.
F. 
Maintenance agreement. A minimum three-year maintenance agreement that outlines caretaking responsibilities of the applicant once the proposed planting has been completed. The maintenance agreement must include monitoring of newly planted stands, provide for protection devices in working order for three years, and ensure at least a survival rate of 75% after three years.
A. 
Highlands Open Waters (Exhibit 3)[1] include all springs, streams (including intermittent streams), wetlands and bodies of surface water, whether natural or artificial (excluding swimming pools), located wholly or partially within the boundaries of the Highlands Area. Highlands Open Waters contribute to the water resources of the Highlands Region, and ultimately to the water supply of millions of New Jersey citizens. They are essential to the ecologic function of the plant and animal communities of the Highlands Area that depend upon them for survival. Highlands Open Waters are also an important physical feature of the Township, contributing to its character, aesthetics, history and development, and to its recreational opportunities.
[1]
Editor's Note: Exhibit 3 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
B. 
Protection of Highlands Open Waters is vital not only to the municipality, but to the Highlands Region and the State of New Jersey. The provision or preservation/enhancement of buffer areas adjacent to Highlands Open Waters is an integral component to ensuring such protection. Key functional values that buffers provide or contribute to, include but are not limited to: habitat for flora and fauna, stormwater and floodwater retention and filtration, water quality protection, temperature moderation, aquatic ecosystem integrity and channel integrity. Highlands Riparian Areas (Exhibit 4)[2] are lands associated with and bordering on Highlands Open Waters, often extending beyond Highlands Open Water buffers. These lands are likewise essential to providing critical hydrologic, ecologic and pollutant attenuation functions for Highlands Open Waters. Riparian areas moderate fluctuations in water temperature, help maintain groundwater recharge and stream base flow, stabilize stream banks, and provide flood storage areas. During high flow or overland runoff events, riparian areas reduce erosion and sediment loads to surface water and remove excess nutrients and contaminants from floodwater. Riparian areas also provide habitat for a variety of animal species and support terrestrial and aquatic food webs through deposition of woody debris.
[2]
Editor's Note: Exhibit 4 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
C. 
It is in the interest of the local community, the Highlands Region, and the State of New Jersey that the Highlands Open Waters of the Township, including associated buffers and Riparian Areas, receive the highest level of protection possible. The map of Highlands Riparian Areas (Exhibit 4)[3] includes all Highlands Open Waters and associated flood-prone areas, riparian soils and wildlife corridors.
[3]
Editor's Note: Exhibit 4 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
All Highlands Open Waters shall include a minimum three-hundred-foot-wide protection buffer, as measured from the edge of the discernible bank of the Highlands Open Waters feature, or from the center line where no discernible bank exists. These buffers are included in the map of Highlands Open Waters at Exhibit 3[1] with respect to streams, rivers, ponds, lakes and reservoirs. With respect to wetlands and other Highlands Open Waters features not mapped in Exhibit 3 (e.g., seeps, springs), each shall include a three-hundred-foot-wide protection buffer measured from: for the Planning Area, a delineated wetlands line described in a letter of interpretation (LOI), or from a field-delineated boundary line for other features; or for the Preservation Area, the delineated limits of the feature, as indicated by a Highlands Resource Area determination issued by the NJDEP.
[1]
Editor's Note: Exhibit 3 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
Highlands Open Waters buffers shall be maintained in their undisturbed or preexisting condition, unless a disturbance is approved in accordance with the provisions of this section.
A. 
Preexisting structures or improvements. Any lawfully preexisting structure or improvement located within a Highlands Open Waters protection buffer area as of the effective date of this part may remain and be maintained or rehabilitated, provided that the existing area of disturbance attributed to or associated with such structure or improvement shall not be increased.
B. 
Agricultural and horticultural land uses. For purposes of this section, existing agricultural and horticultural uses, whether or not under active management or operation, shall not be included in any assessment of "previously disturbed" buffer areas with regard to proposals for nonagricultural development.
C. 
Approvals subject to outside agency approvals. Approval of any application involving the disturbance of a Highlands Open Waters buffer pursuant to this section shall not be construed to relieve the applicant from the applicable rules, regulations or legal requirements of any other agency having jurisdiction over such buffers, including but not limited to: the NJDEP (e.g., Freshwater Wetland Rules, N.J.A.C. 7:7, Stormwater Management Rules, N.J.A.C. 7:8, Flood Hazard Area Rules, N.J.A.C. 7:13, NJPDES Rules, N.J.A.C. 7:14A); a Soil Conservation District pursuant to its authority under New Jersey Soil Erosion and Sediment Control Act Rules, N.J.A.C. 2:90; or any county or other regional entity having authority pursuant to a regional stormwater plan adopted by NJDEP under N.J.A.C. 7:8 and 7:15.
D. 
Municipal stormwater management requirements. Where the provisions of this section are in conflict with the provisions of an adopted municipal stormwater management ordinance, the more restrictive of the two shall apply.
E. 
Stream corridor protection/restoration plan. Where the provisions of this section are in conflict with the provisions of an adopted stream corridor protection/restoration plan, the provisions of the adopted plan shall override.
F. 
Protection buffer expansion. The provisions of this section shall not be construed to preclude the imposition of a wider protection buffer requirement where site-specific analysis and evaluation by a qualified professional indicates that such expansion is essential to the protection of Highlands Open Waters, associated Riparian Areas, or the habitat of water or wetlands-dependent species (particularly in the case of rare, threatened or endangered species) located therein.
G. 
Preservation Area standards. Any disturbance of a Highlands Open Water buffer proposed in connection with a major Highlands development shall be authorized and regulated only by the NJDEP in accordance with NJDEP Preservation Area Rules (N.J.A.C. 7:38) and all other applicable requirements.
H. 
Planning Area standards. Disturbance is prohibited within all Highlands Open Waters and adjacent three-hundred-foot buffers except for linear development, which shall be permitted only provided that there is no feasible alternative for the linear development outside the Highlands Open Waters or Highlands Open Water buffer. The provisions of this subsection shall apply until and unless overridden by ordinance provisions adopted pursuant to a Highlands Council-approved stream corridor protection and mitigation plan.
(1) 
To address the "no feasible alternative for linear development" standard, the applicant shall demonstrate that there is no other location, design or configuration for the proposed linear development that would reduce or eliminate the disturbance. For proposed linear development that would provide access to an otherwise developable lot, the applicant shall, in addition, show that:
(a) 
The proposed linear development is the only point of access for roadways or utilities to an otherwise developable lot; and
(b) 
Shared driveways are used to the maximum extent possible to access multiple lots.
(2) 
An alternative shall not be excluded from consideration under this subsection merely because it includes or requires an area not owned by the applicant that could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed linear development.
(3) 
The reviewing municipal authority shall not approve any application pursuant to this subsection if, after review of the information provided to support an approval, it finds that there is a reasonable alternative to the proposed linear development.
Disturbance of any portion of a Highlands Riparian Area is prohibited except for linear development, which shall be permitted only provided that there is no feasible alternative for the linear development outside of the Riparian Area. All provisions of § 102A-6.2.3H above shall apply with regard to the "no feasible alternative" standard. These provisions shall apply until and unless Riparian Area disturbances are otherwise authorized under implementing ordinance provisions adopted pursuant to a Highlands Council-approved stream corridor protection and mitigation plan.
A. 
Disturbance of steep slopes can trigger soil erosion and sedimentation, resulting in the loss of topsoil. Steep slope disturbance can contribute to siltation of wetlands, lakes, ponds and streams, which damages and degrades wetland and aquatic habitats. Steep slope disturbance can also result in alteration of drainage patterns, which, when severe, can result in land slumping and landslides. Protection of steep slope areas is essential to the safety and stability of the human and nonhuman environment. Avoiding disturbance of steep slopes protects surface water quality, plant and wildlife habitat, and habitat quality. It also protects ridgelines, hillsides, and mountainous features that provide variation in the landscape, contribute to scenic viewsheds, offer unique recreational opportunities, and in many instances define the character of an area or region.
B. 
The severity and extent of steep slopes, in conjunction with applicable soil characteristics and type and extent of land cover, all affect the potential for damages from the disturbance of steep slopes. The provisions of this section are intended to protect the citizens, buildings and structures, and the natural environment and living ecosystems of the community from harm due to disturbance of steep slopes.
The provisions of this section shall apply to the Steep Slope Protection Area (Exhibit 5)[1] and to any other portion of the Highlands Area determined to consist of 5,000 square feet or more of contiguous steep slope(s) (as defined at § 102A-3.2). For purposes of making such determinations, slopes shall be calculated for every two-foot contour interval over the full extent of the existing slope features, regardless of the location of property or other jurisdictional boundary lines.
[1]
Editor's Note: Exhibit 5 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
A. 
Severely and moderately constrained slopes. Disturbance of severely constrained and moderately constrained slopes is prohibited, with the exception of that required in connection with a linear development. Such linear development, however, shall be permitted only in the event that there is no feasible alternative for such development outside of the severely constrained or moderately constrained slopes.
(1) 
To address the "no feasible alternative for linear development" standard, the applicant shall demonstrate that there is no other location, design or configuration for the proposed linear development that would reduce or eliminate the disturbance of severely constrained or moderately constrained slopes. For proposed linear development that would provide access to an otherwise developable lot the applicant shall, in addition, show that:
(a) 
The proposed linear development is the only point of access for roadways or utilities to an otherwise developable lot; and
(b) 
Shared driveways are used to the maximum extent possible to access multiple lots.
(2) 
An alternative shall not be excluded from consideration under this subsection merely because it includes or requires an area not owned by the applicant that could reasonably be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed linear development.
(3) 
The reviewing municipal authority shall not approve any application pursuant to this subsection if, after review of the information submitted to support an approval, it finds that there is a reasonable alternative to the proposed linear development.
B. 
Constrained or limited constrained slopes. Disturbance shall be permitted only upon a finding by the reviewing board or other applicable municipal authority that the application includes or satisfactorily addresses each of the requirements following:
(1) 
Demonstration that the proposed steep slope disturbance can neither be avoided nor reduced in extent, while adequately providing for the proposed use.
(2) 
Incorporation of low-impact development techniques (pursuant to § 102A-7.2) appropriate to both the proposed activity and the steep slope environment, designed to reduce the extent of disturbance areas, stabilize areas that are disturbed, provide for stormwater management, and protect adjacent areas during site construction.
(3) 
Development layout shall be designed to:
(a) 
Minimize the need for landform grading and retaining structures;
(b) 
Incorporate a cluster development format, where feasible, to minimize the extent of development on steep slopes; and
(c) 
Disturb steep slopes (where such disturbance cannot be avoided) having the minimum potential for slope instability.
(4) 
Site design shall:
(a) 
Incorporate stabilization techniques that emphasize bioengineering;
(b) 
Ensure minimized soil loss during and after construction through steep-slope-appropriate soil erosion and sediment control techniques;
(c) 
Prevent direct discharge of stormwater into Highlands Open Waters features;
(d) 
Provide for control of stormwater velocity and volume such that no net increase in runoff rates occurs between pre- and post-conditions; and
(e) 
Provide for maximum protection of existing trees, woodlands and surrounding natural vegetated areas.
A. 
Habitat protection is critical to maintaining biodiversity and providing for the needs of rare, threatened and endangered plant and animal species. Biodiversity is the variety of plant species, animal species and all other organisms found in a particular environment, and is a critical indicator of ecological integrity. This part establishes three categories of Critical Habitat in the Highlands Area, as set forth at § 102A-4.3.5, above. Critical Wildlife Habitat includes lands containing habitat for rare, threatened and endangered wildlife species. Significant Natural Areas are those Natural Heritage Program (NHP) Priority Sites within the Highlands Region that are regionally significant due to the presence of either rare or endangered plant species or of unusual or exemplary natural ecological communities. Vernal pools are unique ecosystems that: provide critical breeding habitat for a variety of amphibian and invertebrate species; contribute to local biodiversity by supporting plants, animals and invertebrates that would otherwise not occur in the landscape; and contribute significant amounts of food to adjacent habitats.
B. 
Protection of Critical Habitat is essential to the well-being of a wide variety of plants and animals making up the unique ecosystems of the Highlands Area. Such protection is vital to the survival of numerous rare, threatened and endangered species. Protection of Critical Habitat is in the interest of the Township and the Highlands Region, as a whole, not only for its contributions to ecosystem stability and biodiversity, but for its role in the health and stability of the human environment, and its contributions to aesthetic values.
Upon Township adoption of a habitat conservation and management plan, which, inclusive of any accompanying ordinances, rules or regulations, shall be approved by the Highlands Council, all applications proposing disturbance of a Critical Habitat area shall be filed, reviewed and considered in accordance with the provisions and criteria provided therein.
A. 
The Carbonate Rock Area identifies portions of the Highlands Area underlain by carbonate bedrock or known to contain karst topography. Solution (by water) of carbonate rocks such as limestone and dolomite by surface water or groundwater can cause surface depressions and development of irregular, subsurface rock topography known as karst. These conditions make such areas unstable and susceptible to subsidence and surface collapse. Karst conditions can lead to formation of sinkholes, sinking streams, enlarged bedrock fractures, caves and underground streams. Sinkholes function as funnels, directing surface water runoff into karst aquifers with little or no attenuation of transported contaminants. Stormwater basins, septic system leachfields, sewers, agricultural runoff, lawn runoff, underground pipelines, and soil disturbance all can contribute contaminants directly to groundwater through karst features. Soils in sinkhole bottoms may be thin or nonexistent. In addition to potential for groundwater contamination, karst features present a threat to public safety. Sinkholes and other karst formations can undermine buildings and structures, including infrastructure facilities, such as roads, natural gas lines, water supply and sewer lines, septic systems and stormwater basins.
B. 
The provisions of this section are intended to protect the citizens, buildings and structures, and the natural environment, particularly the groundwater resources of the Highlands Area from the potential for harm or physical damage associated with land development in areas that may develop karst features.
The provisions of this section shall apply to all proposed development in the Carbonate Rock Area (Exhibit 7),[1] including that in both the Preservation Area and the Planning Area.
[1]
Editor's Note: Exhibit 7 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
Any application for development within the limits of the Carbonate Rock Area shall be preceded by a geotechnical investigation, as provided in this subsection, unless certification is provided by a qualified engineering/geotechnical/geological professional indicating that the area in question is neither underlain by, nor has the potential to develop, karst topography. No such development application shall be deemed complete or considered for review by the applicable land use board or other designated municipal authority until such time as the geotechnical investigation program described herein has been satisfactorily completed, as certified by the individual(s) designated to review and make such findings on behalf of the municipality (see Subsection C, below). The Code of Bethlehem Township regulates development, sets forth design standards, and identifies the Carbonate Rock District and Carbonate Rock Drainage Area in § 102-39.2. These regulations shall retain jurisdiction where they are more restrictive than Highlands Regional Master Plan restrictions.
A. 
Purpose. The purpose for the geotechnical investigation is to locate carbonate rock features that may be affected by the development proposal, to reveal the potential threats to public health, safety or welfare, or groundwater quality that may result, and to determine the most appropriate ways to address these issues in the design and implementation of the project proposal.
B. 
Professional required. The geotechnical investigation must be conducted by a qualified professional, such as geologist, soils or geotechnical engineer, or other licensed professional engineer having experience in karst area investigations and associated development.
C. 
Municipal review. Review and oversight of geotechnical investigations shall fall under the purview of the Municipal Engineer. For purposes of this subsection, the "Municipal Engineer" shall refer to the qualified professional engineer or geological expert designated by the municipality to provide review and recommendations concerning matters of a geotechnical nature.
D. 
Program. The investigation shall occur in two phases, wherein the results of the first shall determine the need for and extent of requirements pertinent to the second.
(1) 
Phase I investigation.
(a) 
The investigation shall commence with completion of a Phase I Geological Investigation which shall identify the geologic nature of the materials underlying the site. This assessment shall be based on review of existing available information, such as prior investigation reports on properties proximate to the subject parcel(s), aerial photography, as well as on-site field investigation.
(b) 
Phase I findings shall be provided in a summary report including: a description of the site geology; groundwater conditions such as depth to water table and direction of flow; an evaluation of the potential impact of the project on groundwater quality; and identification of any karst features observed. In addition, the report shall include the geological professional's recommendations as to whether, in light of the proposed development plan, a Phase II Geological Investigation should be prepared and submitted, and whether any portion of the requirements of the Phase II investigation should be waived.
(c) 
The applicant's geological professional and the Municipal Engineer shall review the applicant's Phase I findings in the field.
(d) 
The Municipal Engineer shall determine whether a Phase II investigation shall be required, based on the data submitted and the recommendation of the applicant's geological professional. The Municipal Engineer may grant a waiver from parts of the Phase II geotechnical evaluation or from part or all of the reporting requirements if, in his/her professional opinion, such aspects are not relevant or necessary in formulating the proposed development plan for the site or property in question.
(e) 
In the event that a Phase II investigation is not required, the Municipal Engineer shall provide written certification that the applicant has satisfactorily completed the requirements of the geotechnical investigation. Such certification shall include any conditions pertinent to the issuance of such certification that the Municipal Engineer may deem necessary or appropriate to ensure the geotechnical sufficiency of the proposed development plan. All materials developed in the course of the Phase I investigation, inclusive of the Municipal Engineer's evaluation report(s) and recommendations, shall be provided to the municipal board or authority having jurisdiction over the development application.
(2) 
Phase II investigation.
(a) 
The purpose of the Phase II investigation is to delineate and define potential karst areas noted or suspected in the Phase I Geological Investigation, to evaluate the effects of those of the proposed development on such areas, and to propose methods of protection and mitigation if needed.
(b) 
A Phase II investigation plan shall include a narrative describing the types of features to be investigated, their locations, the types of direct/indirect methods to be used and the reasons for their use. Indirect methods include the use of aerial photography, satellite imagery and geophysical procedures, such as ground-penetrating radar, electrical conductivity, electrical resistivity, magnetic field, very low frequency measurement, gravity field recording and seismic velocity measurements. Direct methods shall include test pits, test probes, test borings or other appropriate methods. A plan indicating the areas of investigation, proposed locations of testing and types of testing shall accompany the Phase II investigation plan.
(c) 
After the Phase II investigation plan has been approved by the Municipal Engineer, formal notification shall be issued to the applicant authorizing the commencement of the testing procedures. The development site shall be subject to inspection by the Municipal Engineer or designated municipal inspectors at any time. All testing data and results shall be made available to municipal officials and inspectors upon request. Any samples taken shall be properly preserved and shall be available for examination by the Municipal Engineer until final action is taken by the approval authority on the application.
(d) 
At the completion of the Phase II investigation, a formal geotechnical evaluation report shall be submitted which shall include a geologic interpretation of the observed subsurface conditions, including soil and rock type, geologic unit, jointing, faulting, voids, fracturing, grain size and sinkhole formation. In addition:
[1] 
The report shall provide all information gathered in the course of the testing protocol, including, as applicable: logs of all borings, test pits, and probes including evidence of cavities; loss of drilling fluid circulation during drilling; voids encountered and similar cavities; type of drilling or excavation technique employed; drawings of monitoring or observation wells as installed; time and dates of explorations and tests; reports of chemical analyses of on-site surface and groundwater; names of individuals conducting tests if other than the applicant's designated professional; analytical methods used on soils, water samples, and rock samples; a one-inch-equals-one-hundred-feet scale topographic map of the site (at a contour interval of two feet) locating all test pits, borings, wells, seismic or electromagnetic conductivity or other geophysical surveys; and analysis of the groundwater including any potentiometric maps constructed from site data or aquifer tests with rate and direction of flow.
[2] 
The report shall include an evaluation of the geotechnical findings in relation to the proposed development, and recommendations for the planning, engineering design and construction techniques to be utilized in accomplishing the project. All design recommendations shall minimize, to the greatest extent practical, impacts upon water quality and structural hazards associated with carbonate rock formations. The engineering solutions proposed to minimize environmental and structural impacts must be clearly detailed.
(e) 
The Municipal Engineer shall consider the data, formal reports, maps, drawings and related submission materials and determine whether the proposed design satisfactorily provides:
[1] 
Sufficient design, construction and operational information to ensure that the proposed development of the tract will not adversely affect the health, safety and welfare of the community;
[2] 
Specific details demonstrating that the proposed method of development of the tract will minimize any adverse effects on the quality of surface or subsurface water, and will not alter the character of surface and/or subsurface water flow in a manner detrimental to known on-site or off-site conditions;
[3] 
Specific details ensuring that design concepts and construction and operational procedures intended to protect surface and subsurface waters will be properly implemented; and
[4] 
Specific details on inspection procedures to be followed during construction and after project completion.
(f) 
The Municipal Engineer shall, within 45 days of submission of the Phase II geotechnical evaluation report, provide the applicant with a written response, evaluating the adequacy of the investigation, the sufficiency of information to make the necessary findings, and a review and recommendations, if any, concerning the geotechnical aspects of the proposed development plan and associated construction and mitigation techniques.
(g) 
Upon a finding of sufficiency, the Municipal Engineer shall certify that the applicant has satisfactorily completed the geotechnical investigation, and all materials developed in the course of the investigation process, inclusive of the Municipal Engineer's evaluation report(s) and recommendations, shall be provided to the municipal board or authority having jurisdiction over the development application.
Applicants seeking approval of development activities in subwatersheds that drain directly to the Carbonate Rock Area shall conduct a Phase I Geological Investigation. The Phase I investigation and Municipal Engineer's review shall ensure that any proposed development activity having potential to alter the types, volumes, or rates of runoff entering the Carbonate Rock Area, shall be designed to prevent the formation or enlargement of sinkholes, the introduction of contaminated surface water into groundwater aquifers via sinkholes or cavities, or the lowering of the water table.
Where a geotechnical investigation is required in connection with a development application that will subsequently be filed with the Planning Board or Zoning Board of Adjustment, the Municipal Engineer shall provide recommendations to the Board concerning the application during the course of its review and decisionmaking. For all other applications requiring a geotechnical investigation, the recommendations and requirements of the Municipal Engineer shall have final force and authority and shall be incorporated into any approval issued by the reviewing authority.
A. 
In no case shall an application for development, in either the Carbonate Rock Area or in a subwatershed that drains directly to the Carbonate Rock Area, be approved unless the applicant has demonstrated to the satisfaction of the reviewing board or other municipal authority (in consultation with the Municipal Engineer) that all potential hazards to public health and safety, structures and groundwater are fully addressed and mitigated, with the maximum emphasis given to nonstructural measures, such as avoidance of modifications to areas having karst potential, use of dry swales to divert runoff away from carbonate rock areas, minimization of site disturbance, and removal or minimization of impervious surface.
B. 
The following conditions shall accompany the approval of any application for development in the Carbonate Rock Area:
(1) 
The location of all sinkholes, disappearing streams or karst features shown on documents submitted under the Phase I and/or Phase II Geologic Investigations shall be drawn on all preliminary and final plats, site plans and parcel plans. These shall also note any site remediation techniques to be utilized to stabilize any solution channels or subsidence karst features.
(2) 
In the event a previously unidentified carbonate rock feature posing a geologic hazard is discovered during construction, the applicant shall:
(a) 
Report the occurrence of the hazard to the Municipal Engineer within 24 hours of discovery;
(b) 
Halt construction activities which would affect the geologic hazard;
(c) 
Prepare a report on the geologic hazard which analyzes the impact of the hazard and details a remediation plan for review and approval by the Municipal Engineer;
(d) 
After obtaining approval from the Municipal Engineer, perform necessary remediation of the hazard to prevent or minimize damage to buildings, structures, utilities, driveways, parking areas, roadways and other site improvements, and to minimize pollution of the groundwater;
(e) 
Repair any damage to improvements and restore ground cover and landscaping;
(f) 
In those cases where the hazard cannot be repaired without adversely affecting the site plan or subdivision, the applicant shall file an amended application for a site plan or subdivision approval in compliance with the provisions of the municipal ordinances.
Where any use or structure classified as a major potential contaminant source (PCS) (as listed at Appendix B[1]) is proposed to be located or expanded within a Carbonate Rock Area determined to contain or have potential to develop karst features, or within any area discharging surface water into a Carbonate Rock Area containing or having potential to develop karst features, the standards of approval provided at § 102A-6.9.3, below, shall apply in addition to the preceding requirements.
[1]
Editor's Note: Appendix B is included as an attachment to this chapter.
The water resources of the Highlands Area are critical to supporting the life of the community. Groundwater supplies represent the primary source of potable water in the Highlands Region and provide base flow to the region's streams. The importance of ensuring the high quality and sustainable use of Highlands groundwater supplies cannot be overstated. The availability of clean water for human use is critical to the life and economic vitality of the Highlands Area. The availability of water for ecological purposes is critical to sustaining the aquatic ecosystems of streams, ponds and lakes as well as the riparian flora and fauna that depend upon them. When water withdrawals exceed the rate of recharge, groundwater supplies diminish, making access more difficult, reducing reliability, and ultimately leading to loss of the potable water source. Overuse of groundwater reduces stream base flows, impairs ecological function and integrity, and threatens the long-term reliability of potable water supplies that the community depends upon. The provisions of this section are intended to protect groundwater supplies from depletion resulting from unsustainable use. Where groundwater supplies are already depleted, these provisions require measures to enhance and restore this vital resource.
The provisions of § 102A-6.7.3 below shall apply to all development within the Highlands Area. The remaining provisions of this section shall apply to any development application proposing a new or increased use of potable or nonpotable water averaging 6,000 gallons per day or more, derived from: a) any groundwater source in a Highlands Area HUC14 subwatershed, whether through a public community or noncommunity water supply system well, a nonpublic well, or an individual private well; or b) any surface water source in a Highlands Area HUC14 subwatershed that is not associated with a safe yield determined by the NJDEP through a water allocation permit. Specifically excluded from these provisions (§§ 102A-6.7.4 through 102A-6.7.7) are modifications or improvements to existing uses and structures that do not result in an increase in water demand by an average of 6,000 gallons per day or more. The Code of the Township of Bethlehem § 102-65 requires aquifer tests and analysis. To the extent the Township regulations are more restrictive than Highlands Council or NJDEP regulations, the Township regulations shall supercede.
All development proposals shall incorporate, as applicable, the following water conservation measures to promote sound resource use, reduce supply deficits, and reduce the need for additional utility infrastructure:
A. 
Meet all applicable building code requirements for the use of water conservation fixtures and appliances in new or rehabilitated structures;
B. 
Provide automatic controls based on rain sensors (or soil moisture) for all new and replacement lawn irrigation systems, as required by the electrical subcode at N.J.A.C. 5:23-3.16;
C. 
Design all nonpotable irrigation water uses to ensure that only the necessary amounts of water are used to achieve optimum plant growth, to the maximum extent practicable;
D. 
Provide for internal recycling or beneficial reuse of reclaimed water in new commercial development projects, to the maximum extent practicable;
E. 
Rely on stormwater for irrigation purposes to the maximum extent practicable, including but not limited to methods recommended by the U.S. Green Building Council through its Leadership in Energy and Environmental Design (LEED) program;
F. 
Reduce water losses to the maximum extent practicable, in the rehabilitation of on-site water supply utility infrastructure, through such means as application of American Water Works Association/International Water Association water loss analysis methods (AWWA Manual M-36 or most recent version).
Net water availability has been calculated by the Highlands Council for each HUC14 subwatershed located within or partially within the Highlands Area (Exhibit 10)[1]. Expressed in million gallons per day (MGD), the values assigned to each HUC14 subwatershed derive from subtracting consumptive and depletive surface and groundwater uses for a baseline year, from total groundwater availability. Where net water availability figures are negative numbers, the subwatershed is identified as a current deficit area, meaning existing uses exceed sustainable supplies. The map of net water availability by HUC14 subwatershed provided at Exhibit 10 is herewith adopted and incorporated as a component of this part.
[1]
Editor's Note: Exhibit 10 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
For subwatersheds designated as current deficit areas, the Highlands Council has assigned a limited amount of conditional water availability, the use of which is conditioned upon satisfying certain mitigation requirements. Jurisdiction over the use of conditional water availability lies solely with the Highlands Council and shall apply in the case of current deficit areas until such time as a water use and conservation management plan for such subwatersheds has been adopted and put into effect.
Where a Highlands Council-approved water use and conservation management plan has been established for a municipality, HUC14 subwatershed, or group of HUC14 subwatersheds, any development application involving the use of water derived from such subwatershed(s) shall be regulated fully in accordance with the requirements of such plan. Adherence to the provisions of an adopted water use and conservation management plan shall constitute satisfactory compliance with all of the provisions of this section, including those pertaining to net water availability and conditional water availability.
In the absence of a Highlands Council-approved water use and conservation management plan for a municipality, HUC14 subwatershed, or group of HUC14 subwatersheds, any development application involving the use of water derived from such subwatershed(s) shall be subject to requirements of this subsection.
A. 
Net water availability. The provisions of this subsection shall apply to any development application proposing the use of net water availability. These requirements shall apply regardless of whether such water is supplied from an on-site well or through a water supply utility.
(1) 
Highlands Council findings required. No application shall be deemed complete or considered for review by the applicable board until or unless the Highlands Council has determined that the proposed consumptive or depletive water use will not exceed the remaining net water availability for the source HUC14 subwatershed(s). Such finding shall be provided by formal notification from the Executive Director of the Highlands Council, indicating by reference to specified application submittals (as required by the Highlands Council) that the Highlands Council has reviewed the specific development proposal at issue, and authorizes the increased use of potable or nonpotable water therein specified.
(2) 
Findings determinative. Any application revised from that reviewed by the Highlands Council pursuant to Subsection A(1), above, shall in no case be approved by the reviewing board unless the proposed use of net water availability remains equal to or less than that authorized by the Highlands Council through its formal findings. Nothing herein shall be construed to preclude the applicant from seeking a revised Highlands Council determination as to net water availability, however.
B. 
Conditional water availability. The provisions of this subsection shall apply to any development application proposing the use of conditional water availability. These requirements shall apply regardless of whether such water is supplied from an on-site well or through a water supply utility.
(1) 
Highlands Council findings required. No application shall be deemed complete or considered for review by the applicable board until or unless a finding has been issued by the Highlands Council indicating that: a) the proposed consumptive or depletive water use will not exceed the remaining conditional water availability for the source HUC14 subwatershed(s); b) that the applicant has correctly determined the associated mitigation requirement; c) that the proposed development plan will incorporate or otherwise provide for acceptable methods of deficit mitigation; and d) that the mitigation measures proposed by the applicant can be reasonably anticipated to meet the required level of mitigation. Such findings shall be provided by formal notification from the Executive Director of the Highlands Council, indicating by reference to specified application submittals (as required by the Highlands Council) that the Highlands Council has reviewed the relevant components of the development proposal and authorizes it to proceed to the municipal review authority.
(2) 
Findings determinative. Any application revised from that reviewed by the Highlands Council pursuant to Subsection B(1), above, shall in no case be approved by the reviewing board unless: a) the proposed use of conditional water availability remains equal to or less than that authorized by the Highlands Council through its formal findings; b) the proposed methods of deficit mitigation are consistent with those so approved; and c) the anticipated levels of mitigation are sufficient to meet the associated mitigation requirements. Nothing herein shall be construed to preclude the applicant from seeking a revised Highlands Council determination as to conditional water availability, however.
(3) 
Deficit mitigation requirements. Applicants proposing the use of conditional water availability shall comply with the deficit mitigation requirements herein.
(a) 
The mitigation requirement applicable to any development project derives from the Highlands Council Scaled Mitigation Requirements Table, provided below (Table 1). The figures represent the applicable recharge requirement as a percentage of consumptive/depletive water use.
Table 1. Scaled Mitigation Requirements
Proposed Consumptive or Depletive Water Use (gpd)
Deficit
(MGD)
Less Than or Equal to 1,000
1,001 to 5,000
5,001 to 10,000
10,001 to 25,000
Greater Than 25,000
0.0001 to 0.050
125%
125%
125%
150%
150%
0.051 to 0.100
125%
125%
125%
150%
150%
0.101 to 0.250
125%
125%
150%
150%
175%
0.251 to 0.500
125%
150%
150%
175%
200%
0.501 to 1.000
125%
150%
175%
175%
200%
1.000 to 7.100
150%
175%
175%
200%
200%
(b) 
Deficit mitigation must be provided within the same HUC14 subwatershed as from which the source conditional water availability derives. If the project and water source are not located in the same subwatershed, however, only mitigation measures that benefit the source HUC14 subwatershed may be utilized to mitigate the deficit.
(c) 
The approval of any application proposing off-site deficit mitigation measures, whether through enhanced recharge or offsets from water conservation, shall be subject to the receipt of approvals from the Highlands Council and any other entities having jurisdiction over the activities proposed at the off-site location (whether located within or outside of the municipality).
(d) 
On-site deficit mitigation measures, whether from enhanced recharge or offsets from water conservation, shall be subject to the following criteria:
[1] 
Water conservation measures. Water conservation measures may be credited toward mitigation requirements only with respect to existing land uses with consumptive or depletive water uses. (Such measures must be incorporated into the design of any new improvements, in accordance with § 102A-6.7.3, above.) Approval of any application proposing such measures shall be conditioned upon implementation of the measures prior to receipt of any certificate of occupancy or approval for the project improvements. If conservation measures include such methods as reduced irrigation of landscaping, protective covenants (e.g., homeowner's association by-laws) or other such legal mechanisms must be established to ensure their enforceability.
[2] 
Recharge measures. The applicant shall include the proposed mitigation measures in the project stormwater management plan, stormwater operation and maintenance manual, and applicable components of site design. The stormwater management plan and O&M manual shall achieve permanent maintenance and routine monitoring of the mitigation measure(s) so that the required rate of recharge is continuously achieved.
(e) 
Any application for which deficit mitigation requirements cannot be achieved shall not be approved by the reviewing authority. The applicant may modify any such proposal, however, to reduce the consumptive or depletive water uses to a level at which achieving deficit mitigation requirements is feasible. All applicants shall demonstrate compliance with these standards through submission of a deficit mitigation plan, as provided below.
(4) 
Deficit mitigation plans. All applicants proposing deficit mitigation shall prepare and submit deficit mitigation plans for approval which shall include the following elements:
(a) 
Detailed justification for the proposed conditional water availability use and documentation that the amount of consumptive or depletive use is minimized (including the conservation measures outlined in § 102A-6.7.3, above).
(b) 
Engineering plans and drawings of mitigation facilities proposed to provide the necessary mitigation in the source HUC14 subwatershed.
(c) 
Sufficient information to demonstrate that the mitigation measures are individually feasible and in the aggregate will meet or exceed the mitigation requirement.
(d) 
Sufficient information to substantiate that the facility will recharge the groundwater table such that it reasonably can be expected (e.g., using general groundwater flow models) to support aquifer recharge, or to support stream flow with a travel time in excess of one month.
(e) 
Proposed implementation schedule demonstrating compliance with the following time frame targets:
[1] 
Satisfaction of mitigation requirements within one year of issuance of building permit(s) if the consumptive or depletive water use is less than 20,000 gpd in the Planning Area or 10,000 gpd in the Preservation Area, on average.
[2] 
Satisfaction of mitigation requirements within a longer time period for larger amounts, up to five years from issuance of building permit(s), but no later than upon initiation of the consumptive or depletive water use, except for projects that involve a combination of high current water deficits and large proposed consumptive and depletive water uses as shown in the shaded areas of the table Scaled Mitigation Requirements (Table 1, above), in which case on-site mitigation shall be successfully completed prior to initiation of the water use but may be implemented concurrent with on-site construction. Off-site mitigation shall be successfully completed prior to any on-site construction.
[3] 
Mitigation requirements may be phased in keeping with the level of consumptive and depletive water use that actually occurs based on phased construction of a project.
(f) 
Proposed operation, maintenance and monitoring requirements to ensure that sufficient recharge is maintained over time. These requirements shall at a minimum be sufficient to comply with N.J.A.C. 7:8 stormwater maintenance requirements.
(5) 
Conditions of approval. As a condition of any approval of a development application, inclusive of the proposed deficit mitigation plan, pursuant to this subsection, the applicant shall:
(a) 
Demonstrate that the entity designated to implement the deficit mitigation plan is qualified and capable of carrying out the plan, regardless of the time frame involved.
(b) 
Provide proof of acceptance of all responsibilities for implementation of the deficit mitigation plan by the responsible entity.
(c) 
Provide a cost estimate for implementation of the deficit mitigation plan, inclusive of a ten-percent contingency.
(d) 
Provide performance and maintenance guarantees in accordance with all municipal and MLUL requirements in amounts as approved by the municipal engineer, sufficient to ensure the installation and implementation of all required deficit mitigation plan measures. Such guarantees shall be available to the municipality and, secondarily, to the Highlands Council for implementation of the necessary deficit mitigation measures should the applicant fail to properly implement the measures according to the deficit mitigation plan schedule. If the implementing entity is a public agency, the commitment must be in the form of a binding resolution or ordinance of the governing body, and the cost of implementation must be bonded to ensure sufficient resources.
(e) 
Ensure that the responsible entity shall report annually to the Highlands Council and the municipality regarding implementation of the deficit mitigation plan until fully implemented, unless reporting is achieved through effectuation of a water use and conservation management plan.
(f) 
Establish an ongoing system of such reporting which must operate until the relevant subwatershed is no longer in deficit, or until the reporting responsibility is absorbed into implementation of an approved water use and conservation management plan.
Prime Groundwater Recharge Areas are those lands within a HUC14 subwatershed that most efficiently provide, in the aggregate, 40% of total drought recharge volume for the HUC14 subwatershed. Protection of such areas is vital to maintaining the quality and quantity of the groundwater resources upon which both human and nonhuman communities in the Highlands Area heavily rely. It is the intent of the provisions herein to ensure that Prime Groundwater Recharge Areas of the Highlands Area receive the highest possible protection from intrusion to protect both the recharge capacity that they provide and the quality of the groundwater supplies that they replenish.
The provisions of this section shall apply to any development application involving the Prime Groundwater Recharge Area (Exhibit 7),[1] whether in the Preservation Area or the Planning Area.
[1]
Editor's Note: Exhibit 7 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
Disturbance of Prime Groundwater Recharge Area (PGWRA) by any regulated development shall be permitted only upon a finding by the reviewing board or other applicable municipal authority that the proposal complies with the provisions of this subsection.
A. 
Avoidance. The proposed disturbance cannot be avoided. Development shall not occur in Prime Groundwater Recharge Areas unless either the entirety of the subject property is located within a Prime Groundwater Recharge Area and thus cannot be avoided, or the disturbance represents the only viable alternate means to avoid Critical Habitat, Highlands Open Waters buffers, moderately constrained steep slopes, or severely constrained steep slopes, to the extent that these resources are also present upon the subject property.
B. 
Minimization. The proposed disturbance cannot be minimized. Where total avoidance is not feasible, total recharge area disruption (i.e., alteration of natural recharge patterns or volumes) shall not exceed 15% of the Prime Groundwater Recharge Area located within the affected parcels, placed where feasible on those parts of the PGWRA having the lowest relative recharge rates and the least potential for aquifer recharge based upon site analysis.
C. 
Low-impact development. The proposal incorporates low-impact development practices. Low-impact development practices (see § 102A-7.2) shall be used in the design of the development proposal to reduce total recharge disruption to the minimum feasible, within the 15% cap.
D. 
Mitigation. The proposal includes a PGWRA mitigation plan. Any development application involving disturbance of a Prime Groundwater Recharge Area shall be accompanied by a mitigation plan, providing for an equivalent of 125% of preconstruction recharge volumes for that portion of the Prime Groundwater Recharge Area that will be disturbed. The recharge mitigation shall occur within the following areas, in order of priority: 1) the same development site to the maximum extent feasible; 2) the same HUC14 subwatershed; or 3) where no feasible option exists in the same HUC14 subwatershed, an interrelated HUC14 subwatershed approved by the Highlands Council.
Where any use or structure classified as a major potential contaminant source (PCS) (as listed at Appendix B[1]) is proposed to be located or expanded within a Prime Groundwater Recharge Area, the standards of approval provided at  102A-6.9.3, below, shall apply in addition to the preceding requirements.
[1]
Editor's Note: Appendix B is included as an attachment to this chapter.
Protection of groundwater resources that directly provide water to potable water supply wells is vital to the public health, safety and welfare of the community. It is also of primary importance to ensure continued availability of clean drinking water to all that rely upon it. Through regulation of land use, physical facilities and other activities within Wellhead Protection Areas (WHPAs), the potential for groundwater contamination can be reduced by preventing the introduction and migration of pollutants into groundwater sources that supply water supply wells.
The provisions of this section shall apply to all proposed development activities in designated Wellhead Protection Areas (Exhibit 7)[1] in the Highlands Area, whether in the Preservation Area or the Planning Area.
[1]
Editor's Note: Exhibit 7 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
Where any permitted use or structure classified as a major potential contaminant source (PCS) (as listed at Appendix B)[1] is proposed to be located or expanded within a Tier 1 Wellhead Protection Area, the standards of this subsection shall apply. As noted previously, these standards shall also apply to any major PCS proposed to be located or expanded in: a) any Carbonate Rock Area containing or having potential to develop karst features; b) any area discharging surface water into a Carbonate Rock Area determined to have or having potential to develop karst features; and c) any portion of a Prime Groundwater Recharge Area. These conditions shall not be construed to waive or obviate any rules, regulations, or other requirements pertinent to such uses that may derive from outside agencies having jurisdiction, such as the NJDEP.
A. 
Best management practices. All major PCS facilities shall be designed in a manner that prevents the unintentional discharge of toxic or hazardous pollutants to groundwater, surface water bodies, or the land surface from all internal and external areas, including loading, storage, and transfer areas, in accordance with the provisions of this section.
(1) 
All portions or areas of a facility in which hazardous substances or hazardous wastes are stored, processed, manufactured or transferred outdoors shall be designed so that the discharges of hazardous substances will be prevented from overflowing, draining, or leaching into the groundwater or surface waters.
(2) 
Containers in which regulated substances are stored must be clearly and visibly labeled and must be kept closed and sealed when material is not being transferred from one container to another.
(3) 
Wherever hazardous substances are stored, processed, manufactured or transferred outdoors, the design features shall include secondary containment and/or diversionary structures which may include but are not limited to any one or a combination of the following:
(a) 
Containers, dikes, berms or retaining walls sufficiently impermeable to contain spilled hazardous substances, for the duration of a spill event.
(b) 
Curbing.
(c) 
Gutter, culverts and other drainage systems.
(d) 
Weirs, booms and other barriers.
(e) 
Lined diversion ponds, lined lagoons and lined retention basins, holding tanks, sumps, slop tanks and other collecting systems.
(f) 
Drip pans.
(4) 
Secondary containment and/or diversionary systems, structure or equipment must meet the following standards:
(a) 
The system must block all routes by which spilled hazardous substances could be expected to flow, migrate, or escape into the groundwater or surface waters.
(b) 
The system must have sufficient capacity to contain or divert the largest probable single discharge that could occur within the containment area, plus an additional capacity to compensate for any anticipated normal accumulation of rainwater.
(c) 
In order to prevent the discharge of hazardous substances into groundwater, all components of the system shall be made of or lined with impermeable materials sufficient to contain the substance for the duration of a spill event. Such material or liner must be maintained in an impermeable condition.
(d) 
No manufacturing area, processing area, transfer area, dike storage area, or other storage area, or secondary containment/diversion system appurtenant thereto, shall drain into a watercourse, or into a ditch, sewer, pipe or storm drain that leads directly or indirectly into a surface or subsurface disposal area, unless provision has been made to intercept and treat any spilled hazardous substances in an NJDEP-approved industrial wastewater treatment or pretreatment facility, or other NJDEP-approved facility.
(e) 
Outdoor storage of regulated substances in regulated containers and the containment structure must include a cover to minimize accumulation of water in the containment area and contact between precipitation and storage container(s).
(5) 
Catchment basins, lagoons and other containment areas that may contain hazardous substances shall not be located in a manner that would subject them to flooding by natural waterways.
(6) 
Stormwater shall be managed so as to prevent contamination of groundwater, and so as to be in accordance with applicable laws and regulations of the State of New Jersey, and of the municipality.
(7) 
All transfers of petroleum from delivery trucks and storage containers over five gallons in capacity shall be conducted over an impervious surface having a positive limiting barrier (e.g., berm lip) at its perimeter.
B. 
Compliance mechanisms. Any of the following permits and authorizations shall be considered equivalent to the best management practices of this part. As applicable to the PCS involved, these may also be submitted in lieu of an operations and contingency plan, as otherwise required under § 102A-6.9.3C, following.
(1) 
A NJPDES permit approved by NJDEP pursuant to N.J.A.C. 7:14A;
(2) 
An underground storage tank approved by NJDEP under N.J.A.C. 7:14B;
(3) 
A discharge prevention, containment and countermeasure plan (DPCC) approved by NJDEP pursuant to N.J.A.C. 7:1E;
(4) 
A hazardous waste remedial action approved by NJDEP pursuant to N.J.A.C. 7:26B, 7:26C, 7:26D or 7:26E, or by the United State Environmental Protection Agency pursuant to the Resource Conservation Recovery Act (RCRA) or the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA);
(5) 
A hazardous waste facility approved by NJDEP pursuant to N.J.A.C. 7:26G;
(6) 
Approval by the SCD of a farm conservation plan or resource system management plan pursuant to N.J.A.C. 2:92 (see § 102A-6.10.4 below and Appendix E[2]);
[2]
Editor's Note: Appendix E is included as an attachment to this chapter.
(7) 
A solid waste facility approved by NJDEP pursuant to N.J.A.C. 7:26H; and
(8) 
A high-density animal waste management plan, an animal waste management plan, or a comprehensive nutrient management plan, as appropriate, developed pursuant to N.J.A.C. 2:91.
C. 
Operations and contingency plans. Unless one of the permits or approvals listed at § 102A-6.9.3B(1) through (8) above is provided, or the applicant certifies that no potential contaminants will be stored, discharged, manufactured or used on site, as a condition of approval of any application involving a major PCS, the applicant shall prepare and obtain approval of an operations and contingency plan in accordance with the requirements herein. No certificate of occupancy or approval (as appropriate) for the development shall be issued until or unless the qualified professional authorized to administer these provisions verifies that the operations and contingency plan has been approved and is on file with the appropriate entities.
D. 
Approval of operations and contingency plans. The proposed operations and contingency plan shall be submitted to the Board of Health (or equivalent acting authority), Fire Department, Police Departments and Office of Emergency Management, as applicable. These agencies shall review and make any appropriate recommendations for approval or modifications of the operations and contingency plan. The applicant shall incorporate the recommendations to produce a final document, for review by the designated municipal professional and each of the participating agencies. The designated municipal professional shall coordinate the agencies' responses to ensure that the final plan addresses all concerns of substance. Upon approval by the designated municipal professional, the plan shall be filed with all applicable entities and put into effect as indicated therein. In the event of any irreconcilable issue in developing or finalizing the plan, it shall be provided as proposed, to the reviewing board, along with the recommendations of the designated professional, the participating agencies, and the applicant and applicant's agents and professionals. A decision by the reviewing board shall be final.
E. 
Required content of operations and contingency plans. An operations and contingency plan shall be developed, where required under this part, for each major PCS or group thereof (where multiple sources exist within a single facility owned and operated by a single entity) and shall address the following elements. The operations and contingency plan must demonstrate that the potential for a significant discharge is the lowest technologically feasible:
(1) 
Documentation of the applicable major potential contaminant sources existing and proposed for the site;
(2) 
Types and quantities of hazardous substances or wastes that may be used, discharged or stored on site;
(3) 
Means used to prevent the spillage, leakage or discharge of such materials;
(4) 
Means to be used to contain or remedy accidental spillage, leakage, discharge or migration of such materials from the site directly or indirectly into groundwater;
(5) 
At a minimum, utilize best management practices as defined by § 102A-6.9.3 and as specified by NJDEP and the United States Environmental Protection Agency, including but not limited to the regulations and guidance in the following areas: discharge prevention containment and countermeasures [N.J.A.C. 7:1E-4.2 (or most current)], spill prevention control and countermeasures [40 CFR 112.3 et seq. (or most current)], Stormwater and Nonpoint Source Pollution Control Best Management Practices Manual [NJDEP, April 2004 (or most current)].
(6) 
Specific training of facility personnel to contain or remedy accidental spillage, leakage, discharge or migration of such materials from the site directly or indirectly into groundwater, or surface water bodies or the land surface that provide recharge to the underlying aquifer.
(7) 
Procedures including a contact list and phone numbers for notifying the appropriate administrative authorities, including but not limited to NJDEP, the local fire and police, local office of emergency management and the Board of Health, regarding any spillage or discharge of such materials; and
(8) 
Demonstration that the proposed facility is designed to employ best management practices to the maximum extent feasible.
F. 
Confidentiality protections. Any information included in an operations and contingency plan which constitutes proprietary commercial or financial information, or is otherwise protected from disclosure under 7 CFR Part 205.501 and 205.504 or the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., shall be held confidential by all local entities participating in its review or implementation, subject to the limitations set forth therein.
[1]
Editor's Note: Appendix B is included as an attachment to this chapter.
The Highlands Area contains fertile soils, receives plentiful rainfall, and is characterized by a moderate climate favorable to agricultural and horticultural production. The agricultural industry is vital to the state, the region and the community not only for local provision of agricultural products, but for the economic benefits associated with agricultural production and for maintenance of the rural character associated with agricultural lands. It is the intent of this section to promote sustainable agriculture (as defined at § 102A-3.2) in the Highlands Area by ensuring the long-term sustainability of agricultural resources and the viability of the agricultural industry. These provisions are intended to ensure a healthy agricultural environment and a sufficient agricultural land base, by protecting farmland and farm soils, promoting farmland preservation, and providing the allowances necessary to permit and support farming and farm operations.
The provisions of this section apply to agricultural and horticultural uses in the Highlands Area and to the lands of the Agricultural Resource Area (Exhibit 8),[1] specifically. The Agricultural Resource Area (ARA) consists of the areas of most concentrated and contiguous agricultural uses in the Highlands Area and contains major areas of important farmland soils. These provisions shall apply to both the Preservation Area and the Planning Area.
[1]
Editor's Note: Exhibit 8 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.
A. 
Agricultural and horticultural development. In accordance with the provisions of § 102A-5.2.1 above, permitted uses in the ARA (with the exception of any forested portions also designated as Forest Resource Areas) include agricultural and horticultural uses (as defined at § 102A-3.2). Accessory uses permitted in conjunction with such uses include ancillary, incidental or otherwise related supporting uses and the accessory structures devoted to such uses. The specific permitted uses and other applicable requirements pertaining to agricultural and horticultural development in the ARA include the following:
(1) 
Permitted uses and accessory uses. All uses permitted by the Bethlehem Township Land Development Code Chapter 81, Farming, and § 81-1, Right to farm activities protected.
(2) 
Bulk and other requirements. The bulk and design requirements for agricultural and horticultural uses shall be as set forth in the Bethlehem Township Land Development Code Article V, Chapter 102. Section 102-17D specifically excludes farm silos and barns from all height restrictions.
(3) 
Other regulations. Approval of any application proposing agricultural or horticultural development pursuant to this subsection shall, in addition, be subject to the provisions of §§ 102A-6.10.4 through 102A-6.10.6, below.
B. 
Residential development. Pursuant to § 102A-5.2.1 above, where the underlying zoning permits residential development within any portion of the ARA, the only form of such development permitted is residential cluster development in accordance with the provisions of § 102A-8.1, below, provided the minimum thresholds (see § 102A-8.1.6) can be satisfied. Where such thresholds cannot be met, the allowances for residential development provided in the underlying Zoning Ordinance apply to applications for such development, subject to all density and resource protection requirements of this part. Lawfully existing residential development in the ARA that does not meet the cluster development requirements of § 102A-8.1 is permitted to continue; it remains under the regulations of the underlying Zoning Ordinance, and is not made nonconforming by the provisions of § 102A-5.2.1.
C. 
Other development. Where the underlying Zoning Ordinance provides for other permitted uses within the ARA, such uses shall remain as permitted uses, unless eliminated or reverted to a conditional or prohibited use by the other provisions of § 102A-5.2.
The approval of any application for agricultural or horticultural development in the Highlands Area is subject to specific requirements concerning the development and implementation of farm conservation plans, as provided in this subsection.
A. 
Preservation Area. The approval of any proposal for agricultural or horticultural development in the Preservation Area is subject to specific requirements of the Highlands Act, as provided at Appendix D,[1] enforceable by the NJDA or the local Soil Conservation District in accordance with the NJDA Agricultural Development in the Highlands Rules (N.J.A.C. 2:92, Appendix E).
[1]
Editor's Note: Appendix D is included as an attachment to this chapter.
B. 
Planning Area. The approval of any proposal for agricultural or horticultural development in the Planning Area is subject to the specific requirements listed at Subsection B(1) through (3), below, which are enforceable by the Highlands Council. As a condition of any local approval, the owner or operator of the farm management unit or his/her agent shall be required to obtain a release from the Highlands Council indicating that these requirements have been or will, by formal agreement or other appropriate means, be satisfactorily addressed. This condition shall be satisfied only by submission of a copy of formal notice of such release issued by the Executive Director of the Highlands Council. No permit(s) shall be issued and no land disturbance in connection with the approval shall be permitted until or unless this condition has been satisfied.
(1) 
Farm conservation plan. The development and implementation of a farm conservation plan (prepared by the USDA NRCS, TSP, appropriate agent, or NJDA staff, and approved by the local SCD) is required as a condition of approval for any agricultural or horticultural development that would result in the increase, since the date of enactment of the Highlands Act (August 10, 2004), either individually or cumulatively, of new agricultural impervious cover of greater than 3% but less than 9% to the total land area of a farm management unit (as defined at § 102A-3.2 above). Solar panels (as defined at Article III) shall not be included in any calculation of agricultural impervious cover pursuant to this subsection.
(2) 
Resource management system plan. The development and implementation of a resource management system plan (prepared by the USDA NRCS, TSP, appropriate agent, or NJDA staff, and approved by the local SCD) is required as a condition of approval for any agricultural or horticultural development that would result in the increase, since the date of enactment of the Highlands Act (August 10, 2004), either individually or cumulatively, of new agricultural impervious cover by 9% or greater to the total land area of a farm management unit (as defined at § 102A-3.2 above). Solar panels (as defined at Article III) shall not be included in any calculation of agricultural impervious cover pursuant to this subsection.
(3) 
Plan requirements. Any farm conservation plan required pursuant to this section shall be prepared in conformance with Sections III and IV of the June 1, 2005, NRCS New Jersey Field Office Technical Guide (available electronically at http://www.nrcs.usda.gov/technical/efotg/), as may be amended and supplemented by the NRCS, and shall include all items required under N.J.A.C. 2:92-3.1 for same (see applicable provisions at Appendix E[2]). Any resource management systems plan required pursuant to this section shall be prepared in conformance with all sections of the same guide, inclusive of all items required under N.J.A.C. 2:92-4.1, as also provided in Appendix E.
[2]
Editor's Note: Appendix E is included as an attachment to this chapter.
Nothing in these provisions or in the whole of this part shall be construed to alter or compromise the goals, purposes, policies and provisions of, or lessen the protections afforded to farmers by, the Right to Farm Act, P.L. 1983, c. 31 (N.J.S.A. 4:1C-1 et seq.), and any rules or regulations adopted pursuant thereto.
The provisions of this section shall not be construed to alter or obviate the requirements of any other applicable state or county laws, rules, or regulations, including specifically N.J.A.C. 2:92, Agricultural Development in the Highlands, as promulgated by the New Jersey Department of Agriculture, or those of the SADC, the CADB, the Soil Conservation Districts, or the NJDEP.
The scenic resources of the Township are part of the unique landscape that defines the Highlands Region. These resources are essential to the character and aesthetic quality of the Highlands Area and of the wider region. Protecting these resources and maintaining the visual integrity and scenic beauty of noteworthy viewsheds and natural and cultural features of significance in the Highlands Region adds social, economic, and environmental benefits to the community. It is the intent of these provisions to ensure the protection of Highlands Area Scenic Resources, both from disturbances that may alter or damage such resources directly, or by intrusion(s) into scenic viewsheds that provide visual access to them, and of which they are a part.
Any development application involving property containing Highlands Scenic Resources pursuant to Exhibit 9[1] (and listed as such in the Highlands Element of the Master Plan), or which lies adjacent to any property containing or partially containing a Highlands Scenic Resource, shall comply with all requirements and ordinance provisions adopted pursuant to any Highlands Council approved scenic resources management plan. This will occur once the municipality has, pursuant to all applicable provisions of the MLUL (N.J.S.A. 40:55D-1 et seq.) established an Historic/Scenic Resources Preservation Commission authorized to survey, advise and make recommendations concerning scenic resources, adopted an Historic/Scenic Resources Preservation Ordinance, listed a resource included among the Highlands Scenic Resources (Exhibit 9) in the Historic/Scenic Preservation Element of the Master Plan, and by ordinance designated such resource as a historic/scenic site or district in accordance with duly established criteria.
[1]
Editor's Note: Exhibit 9 is included in Appendix G, Exhibits, which appendix is included as an attachment to this chapter.