[HISTORY: Adopted by the Township Committee of the Township of Cranbury 8-26-1985.
Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Flood Fringe Ordinance
of the Township of Cranbury."
It is hereby determined that the flood fringe areas of delineated streams
within the Township of Cranbury 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 Township of Cranbury of Middlesex
County and State of New Jersey; 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 Township of Cranbury. 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 Township of Cranbury 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.
Word usage. 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
ALTERATION
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
Definitions. 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.
Changes in banks, bed and vicinity of a stream which may affect its
flood-carrying capacity or environment.
The owner of the property on which the permit is applied for or his
legal agent.
The Board's application form.
The Planning Board of the Township of Cranbury.
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 the dam.
A stream that has a delineated floodway that has been officially
adopted by the New Jersey Department of Environmental Protection and published
in 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 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 of 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.
It includes, 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 172. 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 groundwater 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 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. 7:13-5.
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 NJ.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, railroad, 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.
A.
This chapter shall apply to all regulated uses within
the flood fringe of delineated streams. Regulated uses within the delineated
floodway and the one-hundred-year floodplains of nondelineated streams require
the approval of NJDEP. Regulated uses are defined in N.J.A.C. 7:13-4.7 and
below:
(1)
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.
(2)
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.
(3)
Prohibited uses. 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 shall be as follows:
(2)
Nonregulated uses must satisfy the conditions of Subsection B(1)(a) above and may include, but are not limited to, the following:
(a)
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.
(b)
Private and public recreation: playing fields, bike paths,
picnic grounds, fences, swimming areas, parks, wildlife and nature preserves,
gamefarms, hunting and fishing areas, shooting preserves, hiking and horseback
riding trails, tennis courts, basketball courts, driving ranges, fish hatcheries
and anchored auxiliary utility buildings.
(c)
Agriculture: general cultivation, pasture, grazing, fences,
irrigation, outdoor plants, nurseries, horticulture, viticulture, truck farming,
forestry, sod farming and wild crop harvesting.
[1]
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.
[2]
Anchored plastic covered greenhouses and other anchored
auxiliary utility buildings constructed without permanent foundations and
fences associated with agricultural uses, are nonregulated.
(d)
Utility poles and towers.
A.
Required information for all applications submitted to
the Township Planning Board.
(1)
The application form must be completed by the applicant
or his agent including all signatures and seals. Notarization is not necessary.
(2)
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.
(4)
Certification of notification required by § 88-5B for major projects and projects of special concern must be included with the application.
(5)
Five sets of plans prepared in accordance with requirements
outlined on the engineering data sheet.
(6)
Hydrologic and hydraulic computations (for major projects
only) must be supplied as outlined in the engineering data sheet.
(7)
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.
B.
Notice.
(1)
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:
(a)
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 be notified;
(b)
All abutting property owners;
(c)
County Planning Board, Engineer and Mosquito Control
Commission;
(d)
The Soil Conservation District; and
(e)
Any other agencies or bodies as requested by the Board
or the county.
(2)
Notice sent pursuant to the Ninety-Day Rules or the MLUL
to the above listed parties will satisfy the requirement of this section.
C.
Preapplication conference.
(1)
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.
(2)
A preapplication conference may also be used to deliver
an application to the Board and to be checked for completeness and accepted
for review.
(3)
A preapplication conference will be scheduled by appointment
only.
D.
Applications.
(1)
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.
(2)
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.
(3)
Upon receipt of the application, the Board will within
45 days either:
(a)
Declare the application complete for the purpose of making
a review for determination and decision;
(b)
Return the application as unacceptable for further review;
the applicant shall be notified in writing of the reasons for such action;
or
(c)
Request in writing that the applicant submit, within
a specific period of time, additional information to assist in its review.
(4)
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:
(a)
The Docket number.
(b)
The applicant.
(c)
The date the application was declared complete by the
Board.
(d)
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.
(e)
The date by which the Board shall approve, condition
or disapprove the application.
(f)
A description of the proposed project.
(5)
The Board shall render its decision and notify the applicant
in writing within 90 days as follows:
(6)
The Board shall notify all persons who have submitted
comments concerning the application of the decision within five working days
after the decision.
(7)
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.
E.
Appeals and hearings.
(1)
Persons adversely affected shall file an appeal with
the Township Committee within 15 days of the issuance or denial of the permit.
(2)
Within 30 days of the filing of the notice of appeal,
the party taking the appeal shall provide the Township Committee with a verbatim
transcript of the proceedings before the Board, if available, together with
copies of the application and any other documentation submitted to the Board
in support of the application, and the minutes of the Board applicable to
the application. Copies of the notice of appeal must also be filed with the
Board and in the case of an appeal of a grant of a permit, shall be served
upon the applicant. Any party interested in the appeal may provide written
argument to the Township Committee in support of their position.
(3)
The Township Committee shall schedule a hearing on the appeal to be held within 30 days after the submission of the documentation required in Subsection E(2) above. Within 45 days after the conclusion of the hearing, the Township Committee shall notify all interested parties of its decision.
(4)
No project may commence construction pending the completion
of all appeal processes.
The standards outlined in this section 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 ordinance
to be nonregulated may be regulated under the Flood Damage Prevention Ordinance.
A.
Structures.
(1)
Requirements for structures under regulated use shall
be as follows:
(a)
Within the flood fringe area of delineated streams, all
proposed structures must be designed and anchored to prevent collapse, lateral
movement and buoyancy.
(b)
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.
[1]
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(1)(b) above.
[2]
Recreation areas may be allowed to be inundated in low
areas where it is determined that there is acceptable flood damage potential.
(c)
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 also delineated streams.
[1]
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.
[2]
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 associated flood factors.
[3]
All or any of the following floodproofing measures may
be required so as to result in a dry floodproofed structure:
[a]
Installation of watertight doors, bulkheads and shutters
or similar devices;
[b]
Reinforced walls to resist water pressure;
[c]
Use of membrane or mortars to reduce seepage of water
through walls;
[d]
Installation of pumps to remove water from the structures;
[e]
Construction of water supply and wastewater treatment
systems in a manner which prevents the entrance of floodwaters;
[f]
Pumping facilities, or comparable measures, for the subsurface
drainage systems of buildings to relieve external foundation wall and basement
flood pressures;
[g]
Construction that resists rupture or collapse caused
by water pressure or floating debris;
[h]
Installation of valves or controls on sanitary and storm
drains which will permit the drains to be closed to prevent backup of sewage
or storm waters into the structure. Gravity drainage of basements may be eliminated
by mechanical devices;
[i]
Location or floodproofing of all electrical equipment,
in a manner which will assure that it is not subject to flooding; and
[j]
Adequate emergency electrical power supplies.
(d)
Parking lots and recreation areas may be allowed to be
inundated where it is determined by the Board that the risk is acceptable.
(2)
Lawful preexisting prohibited structures.
(a)
Lawful preexisting prohibited structures damaged by any
means other than flooding may be restored, provided that:
(b)
Lawful preexisting prohibited structures damaged by flooding
may be restored, provided that:
[1]
Any expansion or enlargement will not increase the flood
damage potential;
[2]
The owner submits an application together with drawings
of the proposed reconstruction and the application is approved by the Board
and Building Subcode Official; and
[3]
Efforts are made to provide floodproofing or other similar
techniques to minimize flood damage to structures.
B.
Fill.
(1)
Requirements for fill under regulated uses.
(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 areas of delineated streams
or within the one-hundred-year floodplain, but outside of encroachment lines,
of nondelineated streams; and
[2]
Which 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.
(d)
Fill shall be placed so that the 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
the 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 subsection may
be granted by the NJDEP, on 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 subsection 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 subsection.
C.
Soil erosion and sediment control.
(1)
Soil erosion and sediment control measures are required
on all submissions under this subchapter 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.
(2)
The latest revised version of the Standards for Erosion
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.
(3)
The following additional soil erosion and sediment control
requirements shall also be met:
(a)
The area of soil disturbance shall be no larger than
that which is necessary for the conduct of the project.
(b)
Soil disturbance schedules shall be formulated to provide
minimum practicable exposure of soils to erosion.
(c)
If erosion and sediment control measures such as diversions,
sediment basins, or sediment barriers, which 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.
(d)
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.
[1]
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.
[2]
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.
(e)
Pumping of sediment-laden water from the dewatering of
trenches or other excavations directly into waterways is prohibited.
[1]
Pump intakes shall be placed near the water surface to
minimize the sediment content of pumpage.
[2]
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.
[3]
As a last resort, special approval may be granted for
the pumpage to be spread onto land as far from the streambank as possible,
providing that care is taken to avoid damaging trees not slated for removal.
D.
Excavation requirements under regulated uses.
(1)
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.
(2)
Excavation projects shall not be so deep as to affect
any wells in the surrounding areas or to cause any groundwater pollution.
E.
Disposal of spoil requirements under regulated uses.
(1)
Material being disposed of within the flood fringe area
shall be spread evenly and should not inhibit the drainage of the area. Such
spoil material shall be established 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.
(2)
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.
F.
Retention and detention basins for stormwater management.
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
the NJDEP where appropriate.
G.
Manhole requirements under regulated use. If manholes
are to be located within the flood fringe area along delineated streams, they
shall be flush with ground level and provided with watertight manhole covers.
H.
Minimization of environmental damage.
(1)
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.
(2)
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.
I.
Sewage disposal requirements under regulated uses. Individual
sewage disposal systems within the flood fringe area shall be constructed
in accordance with the New Jersey State's Standards for the Construction
of Individual Subsurface Sewage Disposal Systems, N.J.A.C. 7:9-2.
A.
General provisions.
(1)
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:
(a)
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.
B.
Projects of special concern.
(1)
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:
(a)
Channelization or relocation of a stream for a distance
over 100 feet (except for lowflow channels constructed as part of a detention
basin) or for a distance over 300 feet on either side of a bridge or culvert.
(b)
Loss of more than 6,000 square feet of the existing woodland
within 25 feet of the banks.
(2)
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 in Subsection B(1) above.
(3)
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:
(a)
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.
(b)
Potential serious degradation of water quality below
the NJDEP's Surface Water Quality Standards or Ground-Water Quality Standards.
(c)
Potential serious adverse effects on water resources,
including, but not limited to, adverse effects on potable 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:
[a]
Stream 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; or
[b]
Construction of low dams across perennial, trout-associated
streams, except for the reconstruction or repair of existing dams.
[2]
Stream encroachment projects causing the 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.
(e)
Projects 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 § 88-6B of this chapter, shall be considered projects of special concern.
(f)
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.
C.
Tidal waters. 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 § 88-6B, 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.
D.
Dams. All dams, as defined by the New Jersey Safe Dam
Act, and this chapter must be submitted to NJDEP for a dam permit.
E.
Bridges. 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.
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 void or substantially reduce any anticipated adverse
effects and where the waive is consistent with the reasonable requirements
of the public health, safety and welfare; or
(2)
Cases in which the Board determines that the cost of
strict compliance are unreasonably high in relationship to the benefits achieved
by strict compliance.
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 § 88-5E 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 chapter would
result in exceptional and undue hardship upon the applicant in question.
(2)
That the waiver will not substantially impair the appropriate
use or 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.
(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 § 88-5B.
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
his 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 cite the reasons for this denial.
I.
The denial of a waiver shall be treated as the denial
of an 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 Flood Plain Management.
In addition to any fee due to the Township as a result of the applicant's
underlying application for a Township approval, there shall be due to the
Township 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 areas more than 320 acres and/or project with
drainage area less than 320 acres but not approved by the appropriate Municipal
or County Engineer
|
$100.00
|
|
Projects within the 100-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 of an encroachment line along
a delineated floodway
|
$100.00
| ||
|
Projects with drainage areas less than 320 acres and approved by the
appropriate Municipal and/or County Engineer
|
None
| ||
|
Major
| |||
|
All projects
|
Projects with drainage areas 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
|
$1,000.00
| |
|
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
|
$1,000.00, fee includes channel work for a distance of 300 feet upstream
and down- stream for projects, such as bridges and culverts
| |
|
Each succeeding segment of 1,000 feet or part thereof
|
$1,000.00
| ||
|
Major
| |||
|
Projects, such as fill, structures and subdivisions
|
Each project or portion thereof up to 1,000 feet outside the channel
within 100-year flood hazard area and requiring the establishment of an encroachment
line
|
$1,000.00 for each 1,000 feet
| |
|
Each succeeding 1,000 feet or portion thereof
|
$1,000.00
| ||
|
Project with a 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
|
$50.00
| |
|
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.
| |||
Any person, firm or corporation that shall violate any of the provisions
of this chapter shall, upon conviction thereof by any court authorized by
law to hear and determine the matter, be fined such sum not exceeding $500
as such court, in its discretion, may impose; or, if the person so convicted
is a natural person, such person may be imprisoned for such term not exceeding
90 days as such court, in its discretion, may impose or be fined a sum not
exceeding $500 as such court, in its discretion, may impose; or such natural
person may be both imprisoned and fined not exceeding the maximum limit set
forth herein as such court, in its discretion, may impose. Each day that such
violation continues shall constitute a separate offense.
Should any section or provision of this chapter be declared invalid
by a court of competent jurisdiction, such a declaration shall not affect
the remaining sections or provisions of this chapter which are hereby declared
to be severable.
This chapter shall take effect upon final passage and publication according
to law.
