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N.J.A.C. 7:38-3.12
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NEW JERSEY ADMINISTRATIVE CODE
Copyright (c) 2007 by the New Jersey Office of Administrative Law
*** THIS FILE INCLUDES ALL REGULATIONS ADOPTED AND PUBLISHED THROUGH THE ***
*** NEW JERSEY REGISTER, VOL. 39. NO. 2, JANUARY 16, 2007 ***
TITLE 7. DEPARTMENT OF ENVIRONMENTAL PROTECTION
CHAPTER 38. HIGHLANDS WATER PROTECTION AND PLANNING ACT RULES
SUBCHAPTER 3. PRESERVATION AREA STANDARDS
N.J.A.C. 7:38-3.12 (2007)
§ 7:38-3.12 Unique or irreplaceable land types and existing public scenic attributes
(a) Unique or irreplaceable land types include vernal habitats as defined in (b) below, and those ecological communities that are identified in the Natural Heritage Database.
(b) "Vernal habitat" means a water of the Highlands or Highlands open water that meets all of the criteria at (b)1
through 4 below. Evidence of breeding by an obligate species under (b)2i below creates a rebuttable presumption that
the criteria at (b)3 and 4 below are met:
1. Occurs in a confined basin depression without a permanent flowing outlet;
2. Features evidence of breeding by one or more species of fauna adapted to reproduce in ephemeral aquatic conditions, identified in the Freshwater Wetland Protection Act (FWPA) regulations, N.J.A.C. 7:7A, Appendix 1. The following shall constitute evidence of breeding by such a species:
i. One or more obligate species listed in N.J.A.C. 7:7A, Appendix 1, or evidence of such a species, is found in the
area of ponded water; or
ii. Two or more facultative species listed in the N.J.A.C. 7:7A, Appendix 1 or evidence of the presence of such a
species, are found in the area of ponded water;
3. Maintains ponded water for at least two continuous months between March and September of a normal rainfall
year. For the purposes of this section, "normal rainfall year" means a 12-month period in which the precipitation at a
location is within 10 percent of the average annual precipitation for that location, calculated using the standard averaging period for "normals," established by the World Meteorological Organization, except that the Department may determine normal rainfall on a case-by-case basis in unusual situations, such as where the sampling period begins immediately following prolonged drought conditions. As of September 4, 2001, the World Meteorological Organization has
defined the standard averaging period as 1961 through 1990. Information regarding the standard averaging period can
be found in the USDA's Natural Resources Conservation Service website at www.nrcs.usda.gov/water/climate; and
4. Is free of fish throughout the year, or dries up at some time during a normal rainfall year.
(c) "Existing public scenic attributes" are any Federal, State, county or municipal parks, forests, wildlife management areas and natural areas, any areas acquired for recreation and conservation purposes with Green Acres funding,
program or a non-profit conservation organization, any lands preserved as open space by a non-profit conservation organization and other areas as identified by the Highlands Council.
(d) The Department shall not issue an HPAA unless the proposed activity would result in the minimum practicable
degradation to a unique or irreplaceable land type or existing scenic attributes on the site or within the immediate area
of the proposed project.
HISTORY:
Amended by R.2006 d.420, effective December 4, 2006.
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N.J.A.C. 7:38-3.12
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
Section was "Unique or irreplaceable land types and existing scenic attributes". In (c), inserted "public" and "Federal".
NOTES:
Chapter Notes