[Added 11-19-2013 by Ord.
No. 2013-9]
The purpose of this article is to designate riparian zones and
to provide for land use regulation therein in order to protect the
streams, lakes, and other surface water bodies of the Borough of Penns
Grove in order to provide compliance with N.J.A.C. 7:15-5.25(g)3 which
requires municipalities to adopt an ordinance that prevents new disturbance
for projects or activities in riparian zones. Authority is provided
or limited as follows:
A.
Compliance with the riparian zone requirements of this article does
not constitute compliance with the riparian zone or buffer requirements
imposed under any other federal, state or local statute, regulation
or ordinance.
B.
Use powers given to the Borough of Penns Grove under the provisions
of the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.,
which authorizes each municipality to plan and regulate land use in
order to protect public health, safety, and welfare through the protection
and maintenance of native vegetation in riparian areas. The Borough
of Penns Grove is also empowered to adopt and implement this article
under provisions provided by the following legislative authorities
of the State of New Jersey:
(1)
Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.
(2)
Water Quality Planning Act, N.J.S.A. 58:11A-1 et seq.
(3)
Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq.
(4)
Soil Erosion and Sediment Control Act, N.J.S.A. 4:24-39 et seq.
(5)
Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq.
As used in this article, the following terms shall have the
meanings indicated:
Soils that contain geologic deposits of iron sulfide minerals
(pyrite and marcasite) which, when exposed to oxygen from the air
or from surface waters, oxidize and produce sulfuric acid. Acid-producing
soils, upon excavation, generally have a pH of 4.0 or lower. After
exposure to oxygen, these soils generally have a pH of 3.0 or lower.
Information regarding the location of acid-producing soils in New
Jersey can be obtained from local Soil Conservation District offices.
A person, corporation, government body or other legal entity
applying to the Planning Board or the Construction Code Official proposing
to engage in an activity that is regulated by the provisions of this
article and that would be located in whole or in part within a regulated
riparian zone.
[Amended 7-5-2017 by Ord.
No. 2017-5]
Shall have the meaning ascribed to this term by the Surface
Water Quality Standards, N.J.A.C. 7:9B, for the purposes of implementing
the anti-degradation policies set forth in those standards, for protection
from measurable changes in water quality characteristics because of
their clarity, color, scenic setting, and other characteristics of
aesthetic value, exceptional ecological significance, exceptional
recreational significance, exceptional water supply significance,
or exceptional fisheries resources.
A surface water body with definite bed and banks in which
there is not a permanent flow of water and shown on the New Jersey
Department of Environmental Protection Geographic Information System
(GIS) hydrography coverages or, in the case of a special water resource
protection area (SWRPA) pursuant to the stormwater management rules
at N.J.A.C. 7:8-5.5(h), C1 waters as shown on the USGS quadrangle
map or in the county soil surveys.
Any surface water body shown on the New Jersey Department
of Environmental Protection Geographic Information System (GIS) hydrography
coverages or, in the case of a special water resource protection area
(SWRPA), pursuant to the quadrangle map or in the county soil surveys
that is an impoundment, whether naturally occurring or created in
whole or in part by the building of structures, for the retention
of surface water. This excludes sedimentation control and stormwater
retention/detention basins and ponds designed for treatment of wastewater.
A surface water body that flows continuously throughout the
year in most years and shown on the New Jersey Department of Environmental
Protection Geographic Information System (GIS) hydrography coverages
or, in the case of a special water resource protection area (SWRPA)
pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h),
C1 waters as shown on the USGS quadrangle map or in the county soil
surveys.
The land and vegetation within and directly adjacent to all
surface water bodies, including but not limited to lakes, ponds, reservoirs,
and perennial and intermittent streams, up to and including their
point of origin, such as seeps and springs, as shown on the New Jersey
Department of Environmental Protection's GIS hydrography coverages
or, in the case of a special water resource protection area (SWRPA)
pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h),
C1 waters as shown on the USGS quadrangle map or in the county soil
surveys. There is no riparian zone along the Atlantic Ocean nor along
any man-made lagoon or oceanfront barrier island, spit or peninsula.
A three-hundred-foot area provided on each side of a surface
water body designated as a C1 water or tributary to a C1 water that
is a perennial stream, intermittent stream, lake, pond, or reservoir,
as defined herein and shown on the USGS quadrangle map or in the county
soil surveys within the associated HUC 14 drainage, pursuant to the
stormwater management rules at N.J.A.C. 7:8-5.5(h).
Any perennial stream, intermittent stream, lake, pond, or
reservoir, as defined herein. In addition, any regulated water under
the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-2.2 or state
open waters identified in a letter of interpretation issued under
the Freshwater Wetlands Protection Act rules at N.J.A.C. 7:7A-3 by
the New Jersey Department of Environmental Protection, Division of
Land Use Regulation, shall also be considered surface water bodies.
A species identified pursuant to the Endangered and Nongame
Species Conservation Act, N.J.S.A. 23:2A-1 et seq., the Endangered
Species Act of 1973, 16 U.S.C. § 1531 et seq., or the Endangered
Plant Species List, N.J.A.C. 7:5C-5.1, and any subsequent amendments
thereto.
A section of water designated as trout maintenance in the
New Jersey Department of Environmental Protection's Surface Water
Quality Standards at N.J.A.C. 7:9B.
A section of water identified as trout production in the
New Jersey Department of Environmental Protection's Surface Water
Quality Standards at N.J.A.C. 7:9B.
A.
Riparian zones adjacent to all surface water bodies shall be protected
from avoidable disturbance and shall be delineated as follows:
(1)
The riparian zone shall be 300 feet wide along both sides of any
Category One water (C1 water) and all upstream tributaries situated
within the same HUC 14 watershed.
(2)
The riparian zone shall be 150 feet wide along both sides of the
following waters not designated as C1 waters:
(a)
Any trout production water and all upstream waters (including
tributaries);
(b)
Any trout maintenance water and all upstream waters (including
tributaries) within one linear mile as measured along the length of
the regulated water;
(c)
Any segment of a water flowing through an area that contains
documented habitat for a threatened or endangered species of plant
or animal, which is critically dependent on the surface water body
for survival, and all upstream waters (including tributaries) within
one linear mile as measured along the length of the regulated water;
and
(d)
Any segment of a water flowing through an area that contains
acid-producing soils.
(3)
For all other surface water bodies, a riparian zone of 50 feet wide
shall be maintained along both sides of the water.
B.
The portion of the riparian zone that lies outside of a surface water
body is measured landward from the top of bank. If a discernible bank
is not present along a surface water body, the portion of the riparian
zone outside the surface water body is measured landward as follows:
(1)
Along a linear fluvial or tidal water, such as a stream, the riparian
zone is measured landward of the feature's center line;
(2)
Along a nonlinear fluvial water, such as a lake or pond, the riparian
zone is measured landward of the normal water surface limit;
(3)
Along a nonlinear tidal water, such as a bay or inlet, the riparian
zone is measured landward of the mean high water line; and
(4)
Along an amorphously shaped feature such as a wetland complex, through
which water flows but which lacks a discernible channel, the riparian
zone is measured landward of the feature's center line.
C.
The applicant or designated representative shall be responsible for
the initial determination of the presence of a riparian zone on a
site and for identifying the area on any plan submitted to the Borough
of Penns Grove in conjunction with an application for a construction
permit, subdivision, land development, or other improvement that requires
plan submissions or permits. This initial determination shall be subject
to review and approval by the Municipal Engineer, governing body,
or its appointed representative, and, where required, by the New Jersey
Department of Environmental Protection.
A.
The following new disturbances for projects or activities in riparian
zones are excepted:
(1)
Redevelopment
within the limits of existing impervious surfaces; or
(2)
New
disturbance in the riparian zone necessary to protect public health,
safety or welfare; to provide an environmental benefit; to prevent
extraordinary hardship on the property owner peculiar to the property;
or to prevent extraordinary hardship, provided that the hardship was
not created by the property owner, that would not permit a minimum
economically viable use of the property based upon reasonable investment.
B.
An exception to any of the disturbances listed in Subsection A(1) above shall be granted by the Borough Engineer upon proof, by virtue of submission of appropriate maps and drawings, that the proposed redevelopment is within the limits of impervious surfaces that existed at the time of passage of this article and shall be in conformance with the Stormwater Management Rules, N.J.A.C. 7:8, and the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13.
C.
For all riparian zones an exception to any of the disturbances listed in Subsection A(2) above shall be granted by the Planning Board upon proof, by virtue of submission of appropriate maps, drawings, reports and testimony, that the disturbance protects public health, safety or welfare; provides an environmental benefit; prevents extraordinary hardship on the property owner peculiar to the property; or prevents extraordinary hardship, provided the hardship was not created by the property owner, that would not permit a minimum economically viable use of the property based upon reasonable investment. Hardship variances may be granted by the Planning Board in cases of preexisting lot (existing at the time of adoption of this article) when there is insufficient room outside the riparian zone for uses permitted by the underlying zoning and there is no other reasonable or prudent alternative to placement in the riparian zone, including obtaining variances from setback or other requirements that would allow conformance with the riparian zone requirements.
Adjustments to the riparian zones established by this article
are allowed to the extent they comply with the Stormwater Management
Rules (N.J.A.C. 7:8), the Flood Hazard Area Control Act Rules (N.J.A.C.
7:13), and the Highlands Water Protection and Planning Act Rules (N.J.A.C.
7:38) and shall be subject to review and approval by the New Jersey
Department of Environmental Protection, unless exempt. The following
adjustments to riparian zones are allowed:
A.
The proposed disturbance in a riparian zone is for a linear development
with no feasible alternative route. If the riparian zone is associated
with Category One waters, the linear development must also meet the
requirements for special water resource protection areas under the
stormwater management rules at N.J.A.C. 7:8-5.5(h);
B.
The proposed disturbance in a riparian zone is in accordance with
a stream corridor restoration or stream bank stabilization plan or
project approved by the New Jersey Department of Environmental Protection;
C.
The proposed disturbance of a riparian zone is necessary to provide
for public pedestrian access or water-dependent recreation that meets
the requirements of the Freshwater Wetlands Protection Act Rules,
N.J.A.C. 7:7A, the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13;
or the Coastal Zone Management Rules, N.J.A.C. 7:7; or
D.
The proposed disturbance of a riparian zone is required for the remediation
of hazardous substances performed with the New Jersey Department of
Environmental Protection or federal oversight pursuant to the Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11a et seq., or the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. § 9601 et seq.
A.
Any party aggrieved by the location of the riparian zone boundary
determination under this article may appeal to the Borough Engineer
under the provisions of this article. The party contesting the location
of the riparian zone boundary shall have the burden of proof in case
of any such appeal.
B.
Any party aggrieved by any determination or decision of the Borough
Engineer under this article may appeal to the Borough Council of Penns
Grove. The party contesting the determination or decision shall have
the burden of proof in case of any such appeal.
C.
Conflicts. All other ordinances, parts of ordinances or other local
requirements that are inconsistent or in conflict with this article
are hereby superseded to the extent of any inconsistency or conflict,
and the provisions of this article apply.
[Amended 7-5-2017 by Ord.
No. 2017-5]
A prompt investigation shall be made by the appropriate personnel
of the Borough of Penns Grove of any person or entity believed to
be in violation hereof. If, upon inspection, a condition which is
in violation of this article is discovered, the Borough may initiate
a civil action in the Special Part of the Superior Court, or in the
Superior Court, if the primary relief sought is injunctive or if penalties
may exceed the jurisdictional limit of the Special Civil Part, by
the filing and serving of appropriate process. Nothing in this article
shall be construed to preclude the right of the Borough of Penns Grove
pursuant to N.J.S.A. 26:3A2-25 to initiate legal proceedings hereunder
in Municipal Court. The violation of any section or subsection of
this article shall constitute a separate and distinct offense independent
of the violation of any other section or subsection or of any order
issued pursuant to this article. Each day a violation continues shall
be considered a separate offense.