N.J. Admin. Code § 7:38-4.1

Current through Register Vol. 56, No. 19, October 7, 2024

Section 7:38-4.1 - Highlands Resource Area Determinations

(a) A person may apply to the Department for a Highlands Resource Area Determination (HRAD) by which the Department determines one or more of the following:

1. The location of any Highlands Resource Area on a site or a portion of a site; or

2. The location of all Highlands open waters and their buffers on a site. The Department shall locate Highlands open waters and their buffers on an entire site but not on a portion of a site.

(b) An HRAD is not a permit or approval to conduct any regulated activity on a site. An HRAD confirms the presence or absence of a Highlands Resource Area on a site, and the location and, as applicable, the boundary of each Highlands Resource Area. A person may apply for an HRAD only, or in connection with an application for an HPAA.

(c) The Department issues the following three types of HRADs:

1. A Footprint of Disturbance HRAD, in which the Department verifies the boundaries of all Highlands open waters and their buffers present on the site as plotted by the applicant and determines whether any other Highlands Resource Area exists inside the footprint of disturbance proposed on a site. For a Footprint of Disturbance HRAD, the applicant must submit all of the information required at 7:38-9.3 and 9.4(b) and (c);

i. An applicant may apply for a Footprint of Disturbance HRAD for more than one portion of a site, provided that:

(1) Each portion is no larger than one acre;

(2) The applicant submits a separate fee for each portion; and

(3) No more than three Footprints of Disturbance HRADs are sought for a single site;

2. A Boundary Delineation HRAD, in which the Department itself delineates the boundaries of all Highlands open waters, their buffers, and upland forest on a site of one acre or less total area and determines the presence, absence and location of all other Highlands Resource Areas on that site. For a boundary delineation HRAD, the applicant shall submit all of the information required in 7:38-9.3 and 9.4(b) and (d). The Department will issue boundary delineation HRADs only for an entire site; and

3. A Boundary Verification HRAD, in which the Department confirms and modifies, as appropriate, the applicant's delineation of Highlands open waters, buffers and upland forest on an entire site and confirms or modifies, as appropriate, the applicant's conclusions as to the presence, absence or location of all other HRAs on the site. For a boundary verification HRAD, the applicant shall submit all of the information required in 7:38-9.3 and 9.4(b) and (e).

(d) Each HRAD issued by the Department will address the presence, absence, or location, as specified in (c) above, of Highlands resource areas as follows:

1. Highlands open waters and the applicable buffers, as described at 7:38-3.6;

i. Each HRAD will identify the location of Highlands open waters on or adjacent to the applicant's site;

ii. Highlands open waters that are freshwater wetlands shall be identified and delineated as set forth at N.J.A.C. 7:7A-2;

iii. Highlands open waters that are forest shall be identified and used in the forest calculation required in 7:38-3.4.

2. Steep slopes, as described at 7:38-3.8;

3. Rare, or threatened and/or endangered wildlife habitat, as described at 7:38-3.11;

i. Each HRAD issued by the Department will identify the location of any area on or adjacent to the site that is suitable habitat for any rare, threatened or endangered animal species or species of special concern. "Suitable habitat" means habitat featuring ecological characteristics that may provide for the breeding, feeding, resting or sheltering of any rare, threatened and/or endangered species. Ecological characteristics may include, but are not limited to, seasonal wetland or dry land, roost sites, nesting grounds, spawning sites, feeding sites, vegetative community size, age, structure, or diversity; waterway or pond water quality, size, or substrate; and soil types or hydrologic characteristics;

ii. Each applicant shall submit with the application for an HRAD or HPAA, a letter from the Department's Natural Heritage Program, obtained at the address listed at 7:38-1.2, stating if (d)3ii(1) and/or (2) below applies to the site. If the letter states that (d)3ii(1) and/or (2) does apply to the site, the Department shall presume the site constitutes rare, or threatened and/or endangered animal or plant species habitat unless a habitat evaluation by the applicant pursuant to N.J.A.C. 7:38-5 provides evidence sufficient for the Department to issue a written determination to the contrary;

(1) The presence of rare, threatened or endangered wildlife habitat ranked 3, 4, or five according to the Landscape Maps;

(2) The presence of a rare, threatened or endangered wildlife species.

iii. In addition to the information provided under (d)3ii above, the Department may consider other pertinent information in determining the existence of rare, or threatened and/or endangered wildlife habitat includeing, but not limited to, records of documented species occurrences, public comments, and the results of any available species surveys or scientific information related to the life history characteristics and habitat needs of rare, or threatened and/or endangered wildlife species;

iv. In some cases, seasonal conditions make it difficult to determine habitat suitability. For example, if there has been a past sighting of a bog turtle (an endangered species) in the area, and an HRAD application is submitted in December when the early successional habitat needed by bog turtles is under snow and cannot be identified, Department staff will not issue an HRAD until the snow melts and appropriate investigation is concluded. In such a case, the Department will notify the applicant that seasonal conditions do not permit an accurate assessment of habitat, explain the seasonal conditions involved, and give the applicant the option of either accepting a finding that the site constitutes suitable habitat for that species, or waiting until the Department can determine the suitability of habitat and issue an HRAD;

4. Rare or Endangered Plant Species Habitat, as described at 7:38-3.11;

i. Each HRAD issued by the Department will identify the location of any area on or adjacent to the site that is habitat for rare or endangered plant species;

ii. Each applicant shall submit with the application for an HRAD or HPAA a letter from the Department's Natural Heritage Program stating if any plant listed in the Natural Heritage database exists on or near the site or footprint of disturbance. If the letter states that any listed plant exists on or near any portion of the site or footprint of disturbance, the Department shall presume the site is rare or endangered plant species habitat unless a subsequent habitat evaluation by the applicant pursuant to N.J.A.C. 7:38-5 provides evidence sufficient for the Department to issue a written determination to the contrary;

iii. In addition to the information provided under (d)4ii above, the Department may consider other pertinent information in determining the existence of rare or endangered plant habitat including, but not limited to, any records of documented occurrences, public comments, and the results of any available species surveys or scientific information related to the life history characteristics and habitat needs of rare or endangered plant species;

iv. In some cases, seasonal conditions make it difficult to determine the presence of rare or endangered plant species habitat. In such a case, the Department will notify the applicant that seasonal conditions do not permit an accurate assessment of habitat, explain the seasonal conditions involved, and give the applicant the option of either accepting a finding that the site constitutes habitat for that species, or waiting until the Department can determine the presence of habitat;

5. Upland forest area, as described at 7:38-3.9;

6. Unique or irreplaceable land types, as described at 7:38-3.12;

i. Each applicant shall submit with the application for an HRAD or HPAA a letter from the Department's Natural Heritage Program identifying any unique and irreplaceable ecological community on or adjacent to the site; and

7. Historic and archaeological areas, as described at 7:38-3.10.

(e) The Department shall not issue an HRAD if it determines that the information in the application is inaccurate. In such a case, the applicant may provide corrected information upon the Department's request or may apply directly for a HPAA and provide complete and correct information regarding Highlands resource areas as a part of that application.

(f) Each applicant shall submit a survey of Highlands open water boundaries on the site either as part of the HRAD application, or if the applicant prefers, after the Department inspects the site and approves the delineation as marked on the site with flags or other markers. If the Department requires adjustments to the delineated Highlands open waters boundary after the survey is submitted, the applicant shall re-survey the delineated boundary after the adjustments are made. An HRAD will carry a notation referring to the approved and surveyed boundary line. The Department shall waive the survey requirement if an entire site is covered by Highlands open waters and/or their buffers.

(g) If an HRAD is sought only for a footprint of disturbance, the applicant shall provide a survey of the boundaries of the footprint of disturbance covered by the HRAD, in addition to the survey required at (f) above.

N.J. Admin. Code § 7:38-4.1

Amended by R.2006 d.420, effective 12/4/2006.
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
Added new (d)1iii; recodified (f) through (h) as (e) through (g) to correct the omission of designation (e) in 37 N.J.R. 2050(a); and in new (g), substituted "(f)" for "(g)".