[HISTORY: Adopted by the Mayor and Council
of the Borough of Oradell 2-18-1986 by Ord. No. 782. Amendments noted where
applicable.]
This chapter shall be known and may be cited
as the "Flood-Fringe Ordinance of the Borough of Oradell."
It is hereby determined that the flood-fringe
areas of delineated stream within the Borough of Oradell are subjected
to flooding and that such flooding is a danger to the lives and properties
of the public; that such flooding is also a danger to the natural
resources of the Borough of Oradell, county and state; and that unregulated
development, the placement of fill or construction within these flood-fringe
areas results in increased flood damages, erosion damages and adverse
impacts on the ecological resources within and downstream of the Borough
of Oradell. It is, therefore, determined that it is in the public's
interest to regulate the development of real property within the flood-fringe
areas of delineated streams pursuant to the Flood Hazard Area Control
Act, N.J.S.A. 58:16A-50 et seq., and related rules, N.J.A.C. 7:13,
and to establish standards to regulate construction and the placement
of fill within these areas. The Borough of Oradell hereby accepts
the responsibility empowered to it by the Flood Hazard Area Control
Act to regulate stream encroachments within the flood-fringe areas
of delineated streams.
A.
Words and terms used in this chapter shall have the
meanings given to them in the state flood hazard area regulations,
N.J.A.C. 7:13-1.2.
B.
ACT
APPLICANT
APPLICATION
BOARD
DAM
DELINEATED STREAM
ENCROACHMENT LINE
EXCEPTIONAL AND UNDUE HARDSHIP
FLOOD DAMAGE POTENTIAL
FLOOD FRINGE
FLOOD HAZARD AREA
FLOOD HAZARD AREA DESIGN FLOOD
FLOOD HAZARD DESIGN ELEVATION
FLOODPLAIN
FLOODPROOFING
FLOODWAY
HAZARDOUS MATERIALS
(1)
(2)
MAJOR PROJECT
MANUAL
MINOR PROJECT
MLUL
NET FILL
NINETY-DAY RULES
NJDEP
NONREGULATED USE
NON-TROUT WATERS
PROHIBITED USE
PROJECTS OF SPECIAL CONCERN
REGULATED USE
STREAM ENCROACHMENT
STREAM ENCROACHMENT PERMIT
STRUCTURE
TROUT-ASSOCIATED STREAMS
(1)
(2)
(3)
(4)
TROUT MAINTENANCE WATERS
TROUT PRODUCTION WATERS
TROUT-STOCKED WATERS
The following words and terms, when used in this chapter,
shall have the following meanings unless the context clearly indicates
otherwise:
The Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et
seq.
The owner of the property on which the permit is applied
for or his legal agent.
The Board's application form.
That entity that has been given the authority to enforce
this chapter by the municipal governing body.
Any artificial dike, levee or other barrier, together with
appurtenant works, which is constructed for the primary purpose of
impounding water on a permanent or temporary basis, that raises the
water level five feet or more above its usual mean low-water height
to the emergency spillway crest or, in the absence of an emergency
spillway, the top of dam.
A stream that has a delineated floodway that has been officially
adopted by NJDEP and published in the New Jersey Register.
A line encompassing the channel of a natural stream and portions
of the one-hundred-year floodplain adjoining the channel which are
reasonably required to carry and discharge the floodwater or flood
flow of any natural stream. It is approximately equal to the floodway
line along delineated streams. Methods for determining this line are
set out in N.J.A.C. 7:13-1.8 and in the manual.
Situations in which strict compliance with this chapter would
result in peculiar and substantial burdens upon the applicant or owner
and where such compliance would not be necessary to avoid substantial
detriment to the public health, safety and general welfare.
The susceptibility at a particular site to damage by potential
floods at that site, as well as increased off-site flooding or flood-related
damages caused by such use.
That portion of the flood hazard area not designated as the
floodway.
The floodway and the flood-fringe area of a delineated stream.
The one-hundred-year storm in nondelineated areas and the
one-hundred-year storm, plus 25% in delineated areas.
The elevation of the flood hazard area design flood.
The relatively flat area adjoining the channel of a natural
stream which has been or may be hereafter covered by floodwater.
Any combination of structural and nonstructural design features,
additions, changes or adjustments to structures which reduce or eliminate
flood damage to real estate or improved real property, water and sanitary
facilities, structures and their contents.
The channel of a natural stream and portions of the flood
hazard area adjoining the channel which are reasonably required to
carry and discharge the floodwater or flood flow of any natural stream.
Any waste or combination of waste which poses a present or
potential threat to human health, living organisms or the environment.
It shall include:
Waste material that is toxic, carcinogenic,
genetically harmful, corrosive, irritating or sensitizing, radioactive,
biologically infectious, explosive or flammable.
But need not be limited to those materials and
concentrations of materials that are determined to be toxic by the
Federal Secretary of Health and Human Services pursuant to Section
20(6) of the Occupational Safety and Health Act of 1970 (Public Law
91-596, OSHA) and those materials listed in the current Part 1972,
Title 49, of the Code of Federal Regulations issued by the Federal
Department of Transportation.
That class of project defined as "major" in the ninety-day
rules, N.J.A.C. 7:1C-1.
The Technical Manual on Stream Encroachment published by
the Department of Environmental Protection (NJDEP) in draft form in
December 1981 and any subsequent amendments thereto.
That class of project defined as "minor" in the ninety-day
rules.
The Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.
Additional earth or other fill beyond the total quantity
already present above the low-water level of the stream or ground
water level, whichever is higher, in that portion of the project site
which is in the flood hazard area or one-hundred-year floodplain.
N.J.A.C. 7:1C (ninety-day construction permits).
The New Jersey Department of Environmental Protection.
Any use set forth in N.J.A.C. 7:13-3.2 and 4.5.
The non-trout waters identified in the NJDEP's surface water
quality standards (N.J.A.C. 7:9-4.1 et seq.).
A use which shall not be allowed under any circumstances.
Stream encroachment projects which must be permitted by the
NJDEP and which, because of their potentially serious adverse effects,
will be subject to the special conditions described in N.J.A.C. 7:13.
Any use which is subject to the provisions of the sections
of this chapter dealing with regulated uses.
Any structure, alteration, filling, construction or other
activity within the area which would be inundated by the one-hundred-year
flood of any nondelineated stream or within the flood hazard area
of a delineated stream.
A permit issued by the Department, delegated agency or municipality
under the provisions of N.J.S.A. 58:16A-50 et seq. and N.J.A.C. 7:13.
Any assembly of materials above or below the surface of land
or water, including but not limited to buildings, fences, except as
provided in this chapter, dams, fills, levees, bulkheads, dikes, jetties,
embankments, causeways, culverts, roads, railroads, bridges and the
facilities of any utility or governmental agency. Trees or other vegetation
shall not be considered to be "structures."
Streams that are:
Trout production waters;
Trout maintenance waters;
Non-trout waters upstream from trout production
waters (with or without intervening trout maintenance waters); or
Non-trout waters less than one mile upstream
from trout maintenance waters that are not upstream from trout production
waters.
The trout maintenance waters identified in the NJDEP's surface
water quality standards (N.J.A.C. 7:9-4).
The trout production waters identified in the NJDEP's surface
water quality standards (N.J.A.C. 7:9-4).
Waters that are stocked with trout by the NJDEP's Division
of Fish, Game and Wildlife, as listed in the Fish Code adopted by
the New Jersey Fish and Game Council.
This chapter shall apply to all regulated uses
within the flood fringe of delineated streams. Regulated uses within
the delineated streams require the approval of NJDEP. Regulated uses
are defined in N.J.A.C. 7:13-4.7 and below:
A.
Regulated uses are all land uses within the flood-fringe
area of delineated streams except for nonregulated uses and prohibited
uses as defined herein and N.J.A.C. 7:13-4.5 and 4.6.
B.
No person shall engage in a regulated use within a
delineated flood-fringe area or until he has received a stream encroachment
permit from the Board or NJDEP.
The disposal of pesticides, industrial wastes,
radioactive materials, petroleum products or other hazardous materials
shall not be permitted within the flood-fringe area. Wastewater and
water treatment plants may be permitted and shall comply with this
chapter.
B.
Nonregulated uses must satisfy the conditions of Subsection A above and may include, but are not limited to, the following:
(1)
Residential. Improvements, such as lawns, play areas,
gardens, landscaping, fences, anchored dog houses and auxiliary utility
buildings, driveways, barbecues and additions of no more than 200
square feet to existing residential structures.
(2)
Private and public recreation. Playing fields, bike
paths, picnic grounds, fences, swimming areas, parks, wildlife and
nature preserves, game farms, hunting and fishing areas, shooting
preserves, hiking and horseback riding trails, tennis courts, basketball
courts, driving ranges, fish hatcheries and anchored auxiliary utility
buildings.
(3)
Agriculture. General cultivation, pasture, grazing,
fences, irrigation, outdoor plants, nurseries, horticulture, viticulture,
truck farming, forestry, sod farming and wild crop harvesting.
(4)
Additionally, specific soil conservation practices,
such as terracing, construction of diversions, subsurface drainage
and the construction of grassed waterways and dug ponds, will be considered
nonregulated uses, but only when designed and constructed under the
supervision of the appropriate Soil Conservation District.
(5)
Anchored, plastic-covered greenhouses and other anchored
auxiliary utility buildings constructed without permanent foundations,
and fences associated with agricultural uses, are nonregulated.
(6)
Utility poles and towers.
Required information for all applications submitted
to the Borough Planning Board shall be as follows:
A.
The application form must be completed by the applicant
or his agent, including all signatures and seals. Notarization is
not necessary.
B.
The engineering data sheet must be completed and all
required information required by the engineering data sheet for the
type of project must be supplied.
D.
A certification of notification required by § 132-8 for major projects and projects of special concern must be included with the application.
E.
Five sets of plans prepared in accordance with requirements
outlined on the engineering data sheet.
F.
Hydrologic and hydraulic computations (for major projects
only) must be supplied as outlined in the engineering data sheet.
G.
Except for applications by government agencies, easements
or other property rights must be obtained before the Board will approve
an application where any work is outside of the applicant's property
or physically affects other properties.
A.
The applicant shall provide proof of notice with an
application for a stream encroachment constituting a major project
or with a request for a hardship exemption or with an appeal from
the decision of the Board. The notice shall include a description
of the nature and location of the proposed project, data on the application
and a request for written comment. It shall be sent to the following:
(1)
The Municipal Planning Board, Engineer, Environmental
Commission and Clerk's office where the project is located. The Clerk
of any municipality, directly across the stream, if any, and the municipality
next downstream on both sides of the waterway, if within one mile
of the project, must notified.
(2)
All abutting property owners.
(3)
The County Planning Board, engineer and Mosquito Control
Commission.
(4)
The Soil Conservation District.
(5)
Any other agencies or bodies as requested by the Board
or the county.
B.
Notice sent pursuant to the ninety-day rules or the
MLUL to the above-listed parties will satisfy the requirements of
this section.
A.
A preapplication conference is suggested and may be
requested by the applicant, his agent or his engineer to meet with
one of the representatives of the Board (or Municipal Engineer) to
discuss the requirements for preparation of a specific application.
Minutes of the conferences will be kept by the Board or Engineer.
B.
A preapplication conference may also be used to deliver
an application to the Board to be checked for completeness and accepted
for review.
C.
A preapplication conference will be scheduled by appointment
only.
A.
The Board will provide standard forms and procedures
for all applications and a docket number to identify each application.
This docket number shall be clearly marked on all correspondence and
submissions related to the application.
B.
The Board will retain at least one copy of the application,
including detailed drawings of the project showing the floodway line
and flood fringe line and of any additional information required,
on file for public review.
C.
Upon receipt of the application, the Board will, within
90 days, either.
(1)
Declare the application complete for the purpose of
making a review for determination and decision;
(2)
Return the application as unacceptable for further
review; the applicant shall be notified in writing of the reasons
for such action; or
(3)
Request in writing that the applicant submit, within
a specific period of time, additional information to assist in its
review.
D.
When the application is deemed complete, the Board
shall provide for public notice and review. One copy of the application
and other submitted information and a fact sheet stating the following
shall be made available for public review:
(1)
The docket number.
(2)
The applicant.
(3)
The date the application was declared complete by
the Board.
(4)
The date by which interested parties may submit comments
concerning the application. Such date shall be 30 days from the date
the application is declared complete.
(5)
The date by which the Board shall approve, condition
or disapprove the application.
(6)
A description of the proposed project.
E.
The Board shall render its decision and notify the
applicant in writing, within 90 days, as follows:
F.
The Board shall notify all persons who have submitted
comments concerning the application of the decision within five working
days after the decision.
G.
To give persons who may object to the issuance of
the permit time to appeal, the permit shall not be valid until 15
days following issuance of the permit.
A.
The municipality shall establish appeal procedures for application in the flood-fringe area which shall provide a fair hearing for persons adversely affected by the municipality's decision, including hardship waiver, as described in § 132-27, concerning an applicant's stream encroachment application.
B.
Persons adversely affected shall file an appeal with
the appropriate body within 15 days of the issuance of the permit.
D.
No project may commence construction pending the completion
of all appeal processes.
The standards outlined in this chapter shall
apply to all regulated uses in the flood-fringe area of delineated
streams. For the purposes of development subject to the Flood Damage
Prevention Ordinance,[1] the standards in that ordinance shall apply wherever stricter
than those described below. Additionally, uses considered by this
chapter to be nonregulated may be regulated under the Flood Damage
Prevention Ordinance.
A.
Requirements for structures under regulated use shall
be as follows:
(1)
Within the flood-fringe area of delineated streams,
all proposed structures must be designed and anchored to prevent collapse,
lateral movement and buoyancy.
(2)
All proposed hospitals, nursing homes, schools, day-care
centers, residences and similar noncommercial structures shall be
elevated so the lowest floor, including any basement, is at or above
the flood hazard design elevation along delineated streams.
(3)
At least one driveway and access route to any hospital, school, nursing home, day-care center or other similar noncommercial structure, except for individual residences, shall be elevated to comply with the requirements of Subsection A(2) above.
(4)
Recreation areas may be allowed to be inundated in
low areas where it is determined that there is acceptable flood damage
potential.
(5)
All proposed commercial and industrial structures,
including water supply and wastewater treatment facilities, shall
be elevated so that the lowest floor, including any basement, is at
or above the flood hazard design elevation along delineated streams.
(a)
An exception to this may be allowed if said
structures are floodproofed in a manner which reflects flood velocities,
durations, rates of rise, hydrostatic and hydrodynamic forces, probable
evacuation time available after flood warning and other similar factors.
(b)
The applicant shall submit a plan or document
certified by a licensed professional engineer that the floodproofing
measures are consistent with the design elevation and associates flood
factors.
(c)
All or any of the following floodproofing measures
may be required so as to result in a dry floodproofed structure:
[1]
Installation of watertight doors, bulkheads
and shutters or similar devices.
[2]
Reinforced walls to resist water pressures.
[3]
Use of membranes or mortars to reduce seepage
of water through walls.
[4]
Installation of pumps to remove water from the
structures.
[5]
Construction of water supply and wastewater
treatment systems in a manner which prevents the entrance of floodwaters.
[6]
Pumping facilities, or comparable measures,
for the subsurface drainage systems of buildings to relieve external
foundation wall and basement flood pressures.
[7]
Construction that resists rupture or collapse
caused by water pressure or floating debris.
[8]
Installation of valves or controls on sanitary
and storm drains which will permit the drains to be closed to prevent
backup of sewage or stormwaters into the structure. Gravity drainage
of basements may be eliminated by mechanical devices.
[9]
Location or floodproofing of all electrical
equipment, in a manner which will ensure that it is not subject to
flooding.
[10]
Adequate emergency electrical power supplies.
(6)
Parking lots and recreation areas may be allowed to
be inundated where it is determined by the Board that the risk is
acceptable.
B.
Lawful preexisting prohibited structures.
(1)
Lawful preexisting prohibited structures damaged by
any means other than flooding may be restored, provided that:
(2)
Lawful preexisting prohibited structures damaged by
flooding may be restored, provided that:
(a)
Any expansion or enlargement will not increase
the flood damage potential.
(b)
The owner submits an application together with
drawings of the proposed reconstruction and the application is approved
by the Board and Building Subcode Official.
(c)
Efforts are made to provide floodproofing or
other similar techniques to minimize flood damage to the structures.
A.
Within the flood-fringe area of delineated streams,
the volume of net fill and structures to be placed on an applicant's
site shall be limited to occupying 20% of the total volume of net
fill which:
(1)
Is from within the flood-fringe area of delineated
streams or within the one-hundred-year floodplain, but outside of
encroachment lines, of nondelineated streams; and
(2)
Is also from between the natural or existing ground
surface, whichever is lower, and the level of the flood hazard design
elevation along delineated streams or the one-hundred-year storm elevation
along nondelineated streams.
B.
It will have to be shown adequately on submitted plans
and in calculations that this limit of 20% is not being exceeded.
There shall be no net fill in the floodway or within stream encroachment
lines, except where a permit has been obtained from NJDEP.
C.
All fill shall be graded in a manner so as not to
adversely affect overland drainage flows.
D.
Fill shall be placed so that slopes are not steeper
than a ratio of two horizontal to one vertical.
E.
Fill shall be compacted and stabilized in accordance
with the Standards for Soil Erosion and Sediment Control in New Jersey
or latest amendment thereto, adopted pursuant to N.J.A.C. 2:90-1.3.
F.
When a stream encroachment permit has been granted
allowing the placement of fill, under the provisions of this chapter,
any subsequent subdivision of the property shall not have the effect
of increasing the total amount of fill allowed to be placed upon the
property covered by the previous permit. Additional fill may be placed
on the newly divided property only to the extent that the total amount
of fill allowed under these rules for the original defined property
has not been exceeded.
G.
A variance from the requirements of this section may
be granted by the NJDEP, on a case-by-case basis, for federal, state,
county or municipal highway or road construction projects, pursuant
to N.J.A.C. 7:13-5.4(b).
H.
The requirements of this section are not applicable
to flood control projects approved as flood control projects by the
NJDEP.
I.
Where dikes, levees, floodwalls or other structures,
not approved as flood control projects, impede the entry of floodwaters
into an enclosed space, the enclosed space shall be considered as
solid fill for the purposes of this section.
A.
Soil erosion and sediment control measures are required
on all submissions under this section, if such submissions require
disturbance of more than 5,000 square feet of the surface area of
land within the flood hazard area along delineated streams.
B.
The latest revised version of the Standards for Soil
Erosion and Sediment Control in New Jersey, promulgated by the New
Jersey State Soil Conservation Committee pursuant to the Soil Erosion
and Sediment Control Act of 1975, as amended (N.J.S.A. 4:24-39 et
seq.), and N.J.A.C. 2:90-1.3 shall be used in the preparation and
submission of stream encroachment applications.
C.
The following additional soil erosion and sediment
control requirements shall also be met:
(1)
The area of soil disturbance shall be no larger than
that which is necessary for the conduct of the project.
(2)
Soil disturbance schedules shall be formulated to
provide minimum practicable exposure of soils to erosion.
(3)
If erosion and sediment control measures, such as
diversions, sediment basins or sediment barriers, whose purpose is
to divert surface runoff before it reaches exposed soil or to intercept
sediment eroded from exposed soil, are part of the erosion and sediment
control plan, such measures shall be installed prior to any major
soil disturbance or in their proper sequence to minimize sediment
delivery to waterways. All soil erosion and sediment control practices
shall be left in place until the soil is stabilized by vegetation
or engineering measures.
(4)
In areas where vegetative methods, including mulch
only, are relied on for erosion and sediment control (without downslope
controls to intercept sediment, such as sediment basins or sediment
barriers), seeding, mulching or placement of sod shall be performed
within 48 hours of soil exposure in accordance with the standards
for Soil Erosion and Sediment Control. Seeding shall, in such areas,
always be accompanied by mulching.
(5)
If weather conditions are unfavorable for seeding,
sod placement or the subsequent establishment of such vegetation,
the area shall be mulched within 48 hours of soil exposure in accordance
with the Standards for Stabilization with Mulch Only in the Standards
for Soil Erosion and Sediment Control.
(6)
Slopes exceeding 15%, in areas without downslope sediment
controls, shall be protected within 48 hours of soil exposure by special
treatment, such as water diversion berms, sodding or approved mulch
netting, in accordance with the Standards for Soil Erosion and Sediment
Control.
(7)
Pumping of sediment-laden water from the dewatering
of trenches or other excavations directly into waterways is prohibited.
(a)
Pump intakes shall be placed near the water
surface to minimize the sediment content of pumpage.
(b)
Wherever possible, pumpage shall be piped to
sediment basins or sediment barriers that meet the Standards for Soil
Erosion and Sediment Control, or mechanical filtration or sedimentation
devices shall be used to minimize the discharge into waterways of
sediment in pumpage.
(c)
As a last resort, special approval may be granted
for the pumpage to be spread onto land as far from the stream bank
as possible, provided that care is taken to avoid damaging trees not
slated for removal.
A.
All projects involving permanent excavation within
the flood fringe, except as related to the installation of underground
utilities or foundation for structures, shall not have cut faces at
slopes steeper than a ratio of one vertical to two horizontal.
B.
Excavation projects shall not be so deep as to affect
any wells in the surrounding areas or to cause any groundwater pollution.
A.
Material being disposed of within the flood-fringe
area shall be spread evenly and should not inhibit the drainage of
the area. Such soil material shall be stabilized within 48 hours according
to the Standards for Soil Erosion and Sediment Control. Details of
the methods of stabilization shall be included on the plan.
B.
The Board may require information and set conditions
concerning excavation methods, contents and disposal sites of any
excavated materials, except material recovered from stream cleaning.
Retention and detention basins for stormwater
management within the flood-fringe area along delineated streams shall
be constructed in accordance with criteria of the state stormwater
management regulations (N.J.A.C. 7:8). Stormwater impoundments, including
berms, may be required to obtain a dam permit from NJDEP where appropriate.
If manhole areas to be located within the flood-fringe
area along delineated streams, they shall be flush with ground level
and provided with watertight manhole covers.
A.
Consideration shall be given to short- and long-term
primary environmental effects of any stream encroachment, whether
or not it is classified or handled as a project of special concern.
B.
Stream encroachment projects shall be carried out
in such a manner that the pollution, impairment or destruction of
the environment, as related to the flood hazard area, is minimized
to the extent practicable. Federal, state and local statutes, regulations
and ordinances designed to minimize or prevent such damage shall be
complied with.
Individual sewage disposal systems within the
flood-fringe area shall be constructed in accordance with the New
Jersey state standards for the construction of individual subsurface
sewage disposal systems, N.J.A.C. 7:9-2.
A.
To help assure adequate protection of the aquatic
life and water resources from the adverse impacts of some kinds of
stream encroachment, special procedures and standards have been prepared
to supplement the general standards. These special requirements include
the following:
(1)
The classification of some kinds of stream encroachments
as a project of special concern and must be reviewed and approved
by New Jersey Department of Environmental Protection.
A.
A project of special concern shall be any stream encroachment
project in perennial streams with over 50 acres of drainage area,
which involves either or both of the following:
(1)
Channelization or relocation of a stream for a distance
over 100 feet (except for low-flow channels constructed as part of
a detention basin) or for a distance over 300 feet on either side
of a bridge or culvert.
(2)
Loss of more than 6,000 square feet of the existing
woodland within 25 feet of the banks.
(a)
Construction of low dams across perennial, trout-associated
streams, except for the reconstruction or repair of existing dams.
(b)
Stream encroachment projects causing exposure
of acid-producing deposits along more than 50 feet of stream channel,
if the drainage area of the stream is over 50 acres. However, this
applies to smaller streams if the stream is trout-associated and if
the stream is perennial.
B.
Project for construction of federal, state, county or municipal highways or roads, where a variance is requested under N.J.A.C. 7:13-4.7(d)7, (e)3 or § 132-14 of this chapter, shall be considered projects of special concern.
C.
All regulated uses within the floodway of delineated
streams or within the one-hundred-year floodplain of nondelineated
streams require a NJDEP review and permit.
Activities otherwise regulated by this chapter that are located along tidal water bodies and segments of tidal water bodies shall be exempt from requirements of § 132-14, provided that the computed flood hazard area elevation at that point is not higher than the level of the one-hundred-year tidal surge at the mouth of the water body.
All dams, as defined by the New Jersey Safe
Dam Act[1] and in this chapter, must be submitted to NJDEP for a
dam permit.
[1]
Editor's Note: See N.J.S.A. 58:4-8.1 et seq.
A.
Bridge approaches within the flood fringe of delineated
streams for bridges that traverse the floodway shall be considered
as part of the permit application for the bridge and must be submitted
to NJDEP for review and approval.
B.
Where a project is performed in phases and two or
more applications are submitted, the total length of the affected
stream segment shall be used in applying the criteria.
C.
In addition, stream encroachment projects are projects
of special concern, if the Board or NJDEP determines that they would
be likely to produce serious adverse effects, including but not limited
to the following:
(1)
Potential serious adverse effects on the biota of
the stream, the adjoining wetlands or on the sites where dredge spoils
are to be disposed of, including but not limited to rare or endangered
species.
(2)
Potential serious degradation of water quality below
the NJDEP's surface water quality standards or groundwater quality
standards.
(3)
Potential serious adverse effects on water resources,
including but not limited to adverse effects on potable water supplies,
flooding, drainage, channel stability, navigation, energy production,
municipal, industrial or agricultural water supplies, fisheries or
recreation. Such adverse effects include damage to potential as well
as existing water uses.
D.
Projects affecting the following are always projects
of special concern in the indicated geographic areas:
(1)
Trout-associated streams: streams encroachment applications
requiring loss of more than 6,000 square feet of the existing woodland
within 50 feet of the banks of perennial trout-associated streams.
A.
A waiver from strict compliance with the requirements
of this chapter may be granted by the Board for any of the following
reasons:
(1)
Cases in which the Board determines that there is
no feasible and prudent alternative to the proposed project, including
the no-action alternative, which would avoid or substantially reduce
any anticipated adverse effects and where the waiver is consistent
with the reasonable requirements of the public health, safety and
welfare;
(2)
Cases in which the Board determines that the costs
of strict compliance are unreasonably high in relationship to the
benefits achieved by strict compliance; or
(3)
Cases in which the Board and applicant agree to alternative
requirements that, in the judgment of the Board, provide equal or
better protection to the public health, safety and welfare.
B.
No such waiver shall be granted without advance public
notice and, where requested or needed, a fact-finding meeting. These
requirements may be waived in emergency situations, as determined
by the Board.
C.
Where granted, such waivers are subject to the appeal procedures in § 132-11 of this chapter. Decisions to grant a hardship waiver may also be appealed to NJDEP under N.J.A.C. 7:13-2.11.
D.
In order for the Board to consider a hardship waiver,
the applicant must demonstrate the following:
(1)
That, by reason of the extraordinary or exceptional
situation or condition of the property, the strict enforcement of
this section would result in exceptional and undue hardship upon the
applicant in question;
(2)
That the waiver will not substantially impair the
appropriate use of development of adjacent property and will not pose
a threat to the public health, safety and general welfare;
(3)
That the hardship is unique or peculiar to the applicant;
and
(4)
That the exceptional or undue hardship claimed as
grounds for the waiver has not been created by the applicant.
E.
The applicant shall submit to the Board with an application
for a hardship waiver as much of the following information as is relevant
to the projects:
(1)
A plan for floodproofing, the implementation of which
shall be a condition of the waiver.
(2)
Proof that appropriate steps shall be taken to anchor
materials in order to prevent flotation, collapse or lateral movement.
(3)
The relationship of the proposed project to the comprehensive
land use plan and floodplain program for the area.
(4)
Proposed routes to and from the property during flood
times.
(5)
The projected height, velocity and duration of the
floodwaters expected at the site during the design flood.
(6)
The type of soil located at the proposed site.
(7)
A statement concerning the land use and value absent
the granting of the hardship waiver.
(8)
Information regarding the existing development of
the area and the impact of the additional work.
(9)
Evidence that the project will not distort the stream's
flood-carrying capacity so as to cause substantial problems along
the stream.
(10)
An analysis of the extent to which the sediment
regimen and water quality of the stream will be affected by the proposed
exemption.
(11)
A description of the potential effects of the
project upon the environment.
F.
The applicant shall also submit proof of required public notice for consideration of a hardship waiver as required by § 132-8.
G.
The applicant shall submit the request for a waiver
along with the appropriate documentation to the Board.
(1)
The Board shall notify the applicant of the results
of its review within 90 days.
(2)
Before making a decision, the Board may request that
additional information and/or documentation be supplied. When additional
information is not provided by the applicant as requested, the waiver
will be denied.
H.
If the material submitted to the Board by the applicant
in support of the petition for a hardship waiver does not satisfactorily
demonstrate that a hardship waiver is warranted, the Board shall so
notify the applicant by letter advising the applicant that the petition
for a hardship waiver has been denied by the Board and shall also
state the reasons for this denial.
I.
The denial of a waiver shall be treated as the denial
of the application without prejudice.
J.
A hardship waiver granted pursuant to this section
does not relieve the applicant from obtaining any other approvals,
certifications or permits required by law. A copy of the notification
granting the hardship waiver shall be forwarded to the Bureau of Floodplain
Management.
In addition to any fee due to the municipality
as a result of the applicant's underlying application for a municipal
approval, there shall be due to the municipality at the time of submission
of materials in support of this application a fee as follows.
Fee Schedule For Stream Encroachment Projects
| ||
---|---|---|
Type of Project
|
Limits and Descriptions
|
Fees
|
Minor headwalls, utility, crossings, cleaning
ponds, etc.
|
Project with drainage area more than 320 acres
and/or project with drainage area less than 320 acres but not approved
by the appropriate Municipal or County Engineer
|
$100
|
Projects within the one-hundred-year flood hazard
area that do not require the establishment of an encroachment line
and all property is outside the floodway, or those projects requiring
the establishment or an encroachment line along a delineated floodway
|
$100
| |
*Project with drainage area less than 320 acres
and approved by the appropriate Municipal and/or County Engineer
|
None
| |
Major, all projects
|
Projects with drainage area more than 150 acres
and/or a project with a drainage area less than 150 acres but not
approved by the appropriate Municipal or County Engineer
|
$1,000
|
Major bridge, culvert, channel relocation and
other projects
|
Each project in or along the channel, or portion
of the channel thereof up 1,000 feet
|
$1,000; including channel work for a distance
of 300 feet upstream and downstream for projects, such as bridges
and culverts
|
Each succeeding 1,000 feet segment or part thereof
|
$1,000
| |
Major projects, such as fill, structures and
subdivisions
|
Each project or portion thereof up to 1,000
feet outside the channel within one-hundred-year flood hazard area
and requiring the establishment of an encroachment line
|
$1,000 for each 1,000 feet
|
Each succeeding 1,000 feet or portion thereof
|
$1,000
| |
*Project with drainage area less than 150 acres
and approved by the appropriate municipal and/or County Engineer
|
None
| |
Extension of time for an approved project
|
Each project
|
$50
|
Modification-in-detail of project
|
Each project
|
50% of the total permit fee charged project
to be modified
|
*NOTE: Should be designed to the safe passage
of the one-hundred-year flood.
|
Penalties for noncompliance with the provisions
of this chapter shall be determined by the municipalities in accordance
within applicable provisions of the MLUL.