081808a

NJ DEPARTMENT of ENVIRONMENTAL PROTECTION
COMPLIANCE AND ENFORCEMENT
LAND USE REGULATION

Notice of Rule Proposal
Freshwater Wetlands Protection Act Rule: N.J.A.C. 7:7A-16
Freshwater Wetlands Protection Act
Environmental Enforcement Enhancement Act amendments

Public Notice
Take notice that the NJ Department of Environmental Protection is proposing amendments to the Enforcement provisions of the Freshwater Wetlands Protection Act (FWPA) Rules, N.J.A.C. 7:7A-16 to incorporate and implement changes to the FWPA made by P.L. 2007, c. 246, commonly referred to as the Environmental Enforcement Enhancement Act (EEEA). On September 4, 2007, the Department published a proposal to readopt the FWPA rules, N.J.A.C. 7:7A, with amendments, including amendments to the Enforcement provisions in Subchapter 16.  See 39 N.J.R. 3587(a).  That proposal is pending adoption at this time.  However, in order to address the changes brought about by the enactment of the EEEA in the interim, the Department has determined to not adopt the amendments to N.J.A.C. 7:7A-16 published as part of the September 2007 proposal in order to separately propose, herein, amendments to N.J.A.C. 7:7A-16 that implement the EEEA as it applies to the FWPA enforcement program.  In addition to amendments implementing the EEEA changes, the Department is again proposing herein amendments to the enforcement provisions in N.J.A.C. 7:7A-16 that appeared in the September 2007 proposal, including those that reorganize, clarify, and correct the rules. A statement of the substance of the proposal follows:

Subchapter 16 is the enforcement subchapter for the Freshwater Wetlands Protection Act (FWPA) rules. It provides the authority and the processes for prosecution of violations of the rules, including the process to determine the amount of civil administrative penalties for various types of violation situations, the authority for civil actions, application falsifications, criminal actions, right of entry, economic benefit, grace periods, and recordation of notices of violation on the deed of property in violation.

The Department proposes to amend the rule to update the enforcement requirements and processes to conform to the Environmental Enforcement Enhancement Act (EEEA) adopted effective Jan. 4, 2008, which amended the FWPA at N.J.S.A. 13:9B-21, as well as update and clarify other provisions of enforcement of the FWPA.  As provided in the EEEA, pending the adoption of these proposed amendments, the DEP will assess penalties case-by-case using the criteria set forth in the FWPA, as amended by the EEEA.  The rules raise the maximum penalty amount for violations from $10,000 to $25,000 per violation per day, reflecting the EEEA. The rule ‘spreads out’ the point totals to assess a daily penalty to reflect the increased penalty authority and to more precisely utilize a mix of factors pertaining to each violation.  It will allow for a more fair and accurate reflection of the circumstances of a particular violation from which to determine an appropriate penalty assessment. The rule bifurcates the penalty assessment process to differentiate unpermitted illegal activity from violations of permit conditions and settlements. This is consistent with the CAFRA and Highlands enforcement rules and will be the uniform format for all LU penalty rules. Per the EEEA, the rule provides the recipient of an order 35 days to submit a hearing request vs. 20 days, as well as for penalty reductions of 50% and 25% for rapid curing of violations or eventual permitting of the violation w/o need for change in the project respectively.  Consistent with EEEA, the rule provides for the imposition of economic benefit above the daily maximum.

The proposal is scheduled to be published in the New Jersey Register dated August 18, 2008.  A copy of the proposal(PDF) is available from the DEP website.

Written comments may be submitted by October 17, 2008 to:

NJ Department of Environmental Protection
Janis Hoagland, Esq.
ATTN: DEP Docket No. 12-08-07/691
Office of Legal Affairs
Department of Environmental Protection
PO Box 402
Trenton, New Jersey 08625-0402