New Jersey Department of Environmental Protection and Energy Section 404 Permit Program Approval

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 233

[FRL-4834-2]

New Jersey Department of Environmental Protection and Energy

Section 404 Permit Program Approval

AGENCY: Environmental Protection Agency.

ACTION: Final rule; approval of State program.

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SUMMARY: The State of New Jersey has submitted an application under

section 404(g) of the Clean Water Act for the approval of a program to

regulate the discharge of dredged or fill material into certain waters

of the United States within the State. After careful review of the

application and comments received from the public, the Agency has

determined that the State's program to regulate discharges of dredged

or fill material meets the requirements of section 404(h) of the Act.

Therefore, this application is approved.

EFFECTIVE DATE: This approval will become effective at 1 p.m. eastern

daylight time on March 2, 1994. The incorporation by reference of

certain publications listed in this approval is approved by the

Director of the Federal Register, as of 1 p.m. on March 2, 1994, in

accordance with 5 U.S.C. 552(a).

FOR FURTHER INFORMATION CONTACT: Mario Del Vicario, Chief, Marine &

Wetlands Protection Branch, Water Management Division, U.S.

Environmental Protection Agency, Region II, 26 Federal Plaza, New York,

NY 10278 or by telephone at (212) 264-5170. Copies of EPA's

responsiveness summary are available from the above address.

SUPPLEMENTARY INFORMATION: The Federal Clean Water Act (33 U.S.C. 1251

et seq., hereinafter the ``CWA'') established the section 404 Permit

Program, under which the Secretary of the Army, acting through the

Chief of Engineers of the U.S. Army Corps of Engineers (Corps), may

issue permits for the discharge of dredged or fill material into waters

of the United States at specified disposal sites. Section 404(g) of the

CWA provides that the Governor of any state desiring to administer its

own individual and general permit program for the discharge of dredged

or fill material into waters of the United States (other than those

waters which are presently used, or are susceptible for use in their

natural condition or by reasonable improvement as a means to transport

interstate or foreign commerce shoreward to the ordinary high water

mark, including all waters which are subject to the ebb and flow of the

tide shoreward to their mean high water mark, or mean higher high water

mark on the west coast, including wetlands adjacent thereto) within its

jurisdiction may submit to the Administrator of the USEPA a full and

complete description of the program it proposes to establish and

administer under State law, including a statement from the State

Attorney General that the laws of the State provide adequate authority

to carry out the described program. The Administrator is required to

approve such submitted program unless the program does not meet the

requirements of Section 404(h) of the CWA. Among other authorities, the

State must have:

(1) Adequate authority to issue permits which comply with all

pertinent requirements of the CWA, including the guidelines developed

under section 404(b)(1); (2) adequate authority, including civil and

criminal penalties, to abate violations of the permit or the permit

program; and (3) authority to ensure that the Administrator, the

public, any other affected State, and other affected agencies, are

given notice of each application for permit and are provided an

opportunity for a public hearing before a ruling on each such

application. The regulations establishing the requirements for the

approval of the 404 Permit Programs were published at 53 FR 20764 on

June 6, 1988 (40 CFR parts 232 and 233).

On June 15, 1993 the State of New Jersey completed the submission

of an application under section 404(g) for EPA approval of a program

administered by the New Jersey Department of Environmental Protection

and Energy (NJDEPE) to regulate the discharge of dredged or fill

material into waters of the United States within the State. On July 9,

1993 EPA published notice of its receipt of the application, requested

public comments, and scheduled three public hearings on the State's

submission (FR Doc. 93-16307). The public hearings were held throughout

the state on August 10, 11, and 12, 1993.

After careful review of this application, I have determined that

the State of New Jersey's Program submitted by the NJDEPE to regulate

discharges of dredged or fill material meets the requirements of

section 404(h) of the CWA, and hereby approve it. The effect of this

approval is to establish this program as the applicable regulatory

program under the CWA for discharges of dredged or fill material into

waters of the United States in New Jersey that are not presently used,

or susceptible for use in their natural condition or by reasonable

improvement as a means to transport commerce shoreward to the ordinary

high water mark, including wetlands adjacent thereto.

Since this approval, in large part, simply ratifies State

regulations and requirements already in effect under State law, EPA is

publishing this approval, effective immediately. This will enable New

Jersey to begin immediately regulating discharges of dredged or fill

material under the Federally approved program.

List of Subjects in 40 CFR Part 233

Environmental protection, Administrative practice and procedure,

Incorporation by reference, Intergovernmental relations, Water

pollution control.

Dated: January 25, 1994.

William J. Muszynski,

Acting Regional Administrator.

For the reasons set forth in the preamble, chpater I, title 40 of

the Code of Federal Regulations is amended as follows:

PART 233--404 STATE PROGRAM REGULATIONS

1. The authority citation for part 233 is revised to read as

follows:

Authority: 33 U.S.C. 1251 et seq.

Subpart H--Approved State Programs

2. Part 233 is amended by adding Sec. 233.71 to subpart H to read

as follows:

Sec. 233.71 New Jersey.

The applicable regulatory program for discharges of dredged or fill

material into waters of the United States in New Jersey that are not

presently used, or susceptible for use in their natural condition or by

reasonable improvement as a means to transport interstate or foreign

commerce shoreward to the ordinary high water mark, including wetlands

adjacent thereto, except those on Indian lands, is the program

administered by the New Jersey Department of Environmental Protection

and Energy, approved by EPA, pursuant to section 404 of the CWA. The

program becomes effective March 2, 1994. This program consists of the

following elements, as submitted to EPA in the State's program

application:

(a) Incorporation by reference. The requirements set forth in the

State statutes and regulations cited in paragraph (b) of this section

are hereby incorporated by reference and made a part of the applicable

404 Program under the CWA for the State of New Jersey, for

incorporation by reference by the Director of the Federal Register in

accordance with 552(a) and 1 CFR part 51. Material is incorporated as

it exists at 1 p.m. on March 2, 1994 and notice of any change in the

material will be published in the Federal Register.

(b) Copies of materials incorporated by reference may be inspected

at the Office of the Federal Register, 800 North Capitol Street, NW.,

suite 700, Washington, DC. Copies of materials incorporated by

reference may be obtained or inspected at the EPA OUST Docket, 401 M

Street, SW., Washington, DC 20460, and at the Library of the Region 2

Regional Office, Federal Office Building, 26 Federal Plaza, New York,

NY 10278.

(1) New Jersey Statutory Requirements Applicable to the Freshwater

Wetlands Program, 1994.

(2) New Jersey Regulatory Requirements Applicable to the Freshwater

Wetlands Program, 1994.

(c) Other laws. The following statutes and regulations, although

not incorporated by reference, also are part of the approved State-

administered program:

(1) Administrative Procedure Act, N.J.S.A. 52:14B-1 et. seq.

(2) New Jersey Uniform Administrative Procedure Rules, N.J.A.C.

1:1-1.1 et. seq.

(3) Open Public Meetings Act, N.J.S.A. 10:4-6 et. seq.

(4) Examination and Copies of Public Records, N.J.S.A. 47:1A-1 et.

seq.

(5) Environmental Rights Act, N.J.S.A. 2A:35A-1 et. seq.

(6) Department of Environmental Protection (and Energy), N.J.S.A.

13:1D-1 et. seq.

(7) Water Pollution Control Act, N.J.S.A. 58:10A-1 et. seq.

(d) Memoranda of agreement. The following memoranda of agreement,

although not incorporated by reference also are part of the approved

State administered program:

(1) The Memorandum of Agreement between EPA Region II and the New

Jersey Department of Environmental Protection and Energy, signed by the

EPA Region II Acting Regional Administrator on June 15, 1993.

(2) The Memorandum of Agreement between the U.S. Army Corps of

Engineers and the New Jersey Department of Environmental Protection and

Energy, signed by the Division Engineer on March 4, 1993.

(3) The Memorandum of Agreement between EPA Region II, the New

Jersey Department of Environmental Protection and Energy, and the U.S.

Fish and Wildlife Service, signed by all parties on December 22, 1993.

(e) Statement of legal authority. The following documents, although

not incorporated by reference, also are part of the approved State

administered program:

(1) Attorney General's Statement, signed by the Attorney General of

New Jersey, as submitted with the request for approval of The State of

New Jersey's 404 Program.

(2) The program description and any other materials submitted as

part of the original application or supplements thereto.

[FR Doc. 94-4651 Filed 3-1-94; 8:45 am]

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