The purpose of this division is to designate riparian zones, and to provide for land use regulation therein, in order to protect the streams, lakes, and other surface water bodies of the Township of South Brunswick and to comply with N.J.A.C. 7:15-5.25(g)3, which requires municipalities to adopt regulations that prevent new disturbance for projects or activities in riparian zones as described herein. Compliance with the riparian zone requirements of this division does not constitute compliance with the riparian zone or buffer requirements imposed under any other federal, state or local statute, regulation or ordinance.

The protection and proper management of riparian zones within the township is essential to the well-being and welfare of its residents. The further intent of this division is to promote a desirable physical and visual environment through creative development techniques that promote conservation of historic sites and land features, open space, energy, and natural resources. Creative development techniques will preserve the natural vegetation of riparian zones; prevent environmental degradation and urban sprawl; and increase the quality of the riparian zone and its associated habitat.

This division applies to the use and development of all lands impacting township waters to protect the public health, safety, morals and general welfare by regulating the cutting of existing natural vegetation and land clearing/grading, preserving critical wildlife habitat, controlling erosion, reducing effluent and nutrient flow, the protection of scenic areas, and to promote the acquisition of open space or conservation easements wherever possible on existing improved lands.

(Ord. No. 2011-23, § I, 7-26-2011)

Acid producing soils means soils that contain geologic deposits of iron sulfide minerals (pyrite and marcasite) which, when exposed to oxygen from the air or from surface waters, oxidize to produce sulfuric acid. Acid producing soils, upon excavation, generally have a pH of 4.0 or lower. After exposure to oxygen, these soils generally have a pH of 3.0 or lower. Information regarding the location of acid producing soils in New Jersey can be obtained from local soil conservation district offices.

Added protection zone means a protection area provided for the lakes, ponds, streams, brooks, and runs regulated under this ordinance, which shall include their shorelines and landward 200 feet from the top of bank of each watercourse, or landward 100 feet from the 100-year flood zone edge, whichever is the greater distance. All distances shall be measured in horizontal feet.

Applicant means a person, corporation, government body or other legal entity applying to the planning board, board of adjustment or the construction office proposing to engage in an activity that is regulated by the provisions of this division, and that would be located in whole or in part within a regulated riparian zone.

Category One waters or C1 waters shall have the meaning ascribed to this term by the surface water quality standards, N.J.A.C. 7:9B, for purposes of implementing the antidegradation policies set forth in those standards, for protection from measurable changes in water quality characteristics because of their clarity, color, scenic setting, and other characteristics of aesthetic value, exceptional ecological significance, exceptional recreational significance, exceptional water supply significance, or exceptional fisheries resources.

Disturbance means the placement of impervious surface, the exposure or movement of soil or bedrock, or the clearing, cutting, or removing of vegetation.

Intermittent stream means a surface water body with definite bed and banks in which there is not a permanent flow of water and shown on the New Jersey Department of Environmental Protection Geographic Information System (GIS) hydrography coverages or as determined by site analysis or, in the case of a special water resource protection area (SWRPA) pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h), C1 waters as shown on the USGS quadrangle map or in the county soil surveys.

Lake, pond, or reservoir means any surface water body shown on the New Jersey Department of Environmental Protection Geographic Information System (GIS) hydrography coverages or, in the case of a special water resource protection area (SWRPA) pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h), C1 waters as shown on the USGS quadrangle map or in the county soil surveys; that is an impoundment, whether naturally occurring or created in whole or in part by the building of structures for the retention of surface water. This excludes sedimentation control and stormwater retention/detention basins and ponds designed for treatment of wastewater.

Perennial stream means a surface water body that flows continuously throughout the year in most years and shown on the New Jersey Department of Environmental Protection Geographic Information System (GIS) hydrography coverages or as determined by site analysis or, in the case of a special water resource protection area (SWRPA) pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h), C1 waters as shown on the USGS quadrangle map or in the county soil surveys.

Riparian zone means the land and vegetation within and directly adjacent to all surface water bodies including, but not limited to lakes, ponds, reservoirs, perennial and intermittent streams, up to and including their point of origin, such as seeps and springs, as shown on the New Jersey Department of Environmental Protection's GIS hydrography coverages or as determined by site analysis or, in the case of a special water resource protection area (SWRPA) pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h), C1 waters as shown on the USGS quadrangle map or in the county soil surveys.

Special Water Resource Protection Area or SWRPA means a 300-foot area provided on each side of a surface water body designated as a C1 water or tributary to a C1 water that is a perennial stream, intermittent stream, lake, pond, or reservoir, as defined herein and shown on the USGS quadrangle map or in the county soil surveys within the associated HUC 14 drainage, pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h).

Surface water body(ies) means any perennial stream, intermittent stream, lake, pond, or reservoir, as defined herein. In addition, any regulated water under the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-2.2, or state open waters identified in a letter of interpretation issued under the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A3 by the New Jersey Department of Environmental Protection Division of Land Use Regulation shall also be considered surface water bodies.

Threatened or endangered species means a species identified pursuant to the Endangered and Nongame Species Conservation Act, N.J.S.A. 23:2A-1 et seq., the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq. or the Endangered Plant Species List, N.J.A.C. 7:5C-5.1, and any subsequent amendments thereto.

Trout maintenance water means a section of water designated as trout maintenance in the New Jersey Department of Environmental Protection's Surface Water Quality Standards at N.J.A.C. 7:9B.

(Ord. No. 2011-23, § I, 7-26-2011)

(a)

Except as provided in sections 62-258 and 62-259, riparian zones adjacent to all surface water bodies shall be protected from disturbance, including compliance with the provisions of subsection (d) of this section, and shall be delineated as follows and in subsections (b) and (c) of this section:

(1)

The riparian zone shall be 300 feet wide along both sides of any Category One water (C1 water), and all upstream tributaries situated within the same HUC 14 watershed.

(2)

The riparian zone shall be 150 feet wide along both sides of the following waters not designated as C1 waters:

a.

Any trout maintenance water and all upstream waters (including tributaries) within one linear mile as measured along the length of the regulated water;

b.

Any segment of a water flowing through an area that contains documented habitat for a threatened or endangered species of plant or animal, which is critically dependent on the surface water body for survival, and all upstream waters (including tributaries) within one linear mile as measured along the length of the regulated water; and

c.

Any segment of a water flowing through an area that contains acid producing soils.

(3)

For all other surface water bodies, a riparian zone of 50 feet wide shall be maintained along both sides of the water.

(b)

The portion of the riparian zone that lies outside of a surface water body is measured landward from the top of bank. If a discernible bank is not present along a surface water body, the portion of the riparian zone outside the surface water body is measured landward as follows:

• Along a linear fluvial water, such as a stream, the riparian zone is measured landward of the feature's centerline or 50 feet landward from the 100-year flood zone edge, whichever is greater;

• Along a non-linear fluvial water, such as a lake or pond, the riparian zone is measured landward of the normal water surface limit;

• Along an amorphously-shaped feature such as a wetland complex, through which water flows but which lacks a discernible channel, the riparian zone is measured landward of the feature's centerline;

• For areas adjacent to surface water bodies for which wetlands have been delineated per the Freshwater Wetland Protection Act Rules at N.J.A.C. 7:7A, the landward limit of the riparian zone shall be taken as the limit of the unmodified wetland transition area; and

• For areas adjacent to surface water bodies for which the floodway has been delineated per the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-3 or the state's adopted floodway delineations, the riparian zone shall cover the entire floodway area plus 50 feet, or the area described in section 62-257(a)(1) or section 62-257(a)(2), whichever area has the greatest extent. Requests for alterations to the adopted delineations can be provided to the New Jersey Department of Environmental Protection for consideration if site specific information is available.

(c)

The applicant or designated representative shall be responsible for the initial determination of the presence of a riparian zone on a site, based on this section and a site evaluation, and for identifying the area of the riparian zone on any plan submitted to the township in conjunction with an application for a construction permit, subdivision, land development, or other improvement that requires plan submissions or permits. This initial determination shall be subject to review and approval by the municipal engineer, governing body, or its appointed representative, and, where required by state regulation, the New Jersey Department of Environmental Protection.

(d)

All encroachments proposed into riparian zones in C1 waters shall comply with the requirements of the stormwater management rules at N.J.A.C. 7:8-5.5(h) and the Flood Hazard Area Control Act rules, N.J.A.C. 7:13, and shall be subject to review and approval by the New Jersey Department of Environmental Protection, unless exempt. For all other riparian zones, the following conditions shall apply:

(1)

All new major and minor subdivisions and site plans shall be designed to provide sufficient areas outside of the riparian zone to accommodate primary structures, any normal accessory uses appurtenant thereto, as well as all planned lawn areas.

(2)

Portions of lots within the riparian zone, and within the added protection area in conjunction with other regulatory lines such as stream encroachment and freshwater wetlands transition areas, must be permanently restricted by deed or conservation easement held by the Township of South Brunswick, its agent, or another public or private land conservation organization which has the ability to provide adequate protection to prevent adverse impacts within the riparian zone. A complete copy of the recorded conservation restriction that clearly identifies the deed book and pages where it has been recorded in the Office of the Clerk/Register of Deeds and Mortgages of Middlesex County must be submitted to the township. The applicant shall not commence with the project or activity prior to making this submittal and receiving actual approval of the plan modification and receipt of any applicable permits from the New Jersey Department of Environmental Protection. The recorded conservation restriction shall be in a form approved by the township and shall run with the land and be binding upon the property owner and the successors in interest in the property or in any part thereof. The conservation restriction may include language reserving the right to make de minimus changes to accommodate necessary regulatory approvals upon the written consent of the township, provided such changes are otherwise consistent with the purpose and intent of the conservation restriction. The recorded conservation restriction shall, at a minimum, include:

• A written narrative of the authorized regulated activity, date of issuance, and date of expiration, and the conservation restriction that, in addition, includes all of the prohibitions set forth at N.J.S.A. 13:8B-2b(1) through (7);

• Survey plans for the property as a whole and, where applicable, for any additional properties subject to the conservation restrictions. Such survey plans shall be submitted on the surveyor's letterhead, signed and sealed by the surveyor, and shall include metes and bounds descriptions of the property, the site, and the areas subject to the conservation restriction in New Jersey State Plan Coordinates, North American Datum 1983, and shall depict the boundaries of the site and all areas subject to the conservation restriction as marked with flags or stakes onsite. All such survey plans shall be submitted on paper and in digital CAD or GIS file on a media and format defined by the township. The flags or stakes shall be numbered and identified on the survey plan; and

• A copy or copies of deeds for the property as a whole that indicate the deed book and pages where it has been recorded in the Office of the Clerk/Register of Deeds and Mortgages of Middlesex County.

(3)

Any lands proposed for development which include all or a portion of a riparian zone shall as a condition of any major subdivision or major site plan approval, provide for the vegetation or revegetation of any portions of the riparian zone which are not vegetated at the time of the application or which were disturbed by prior land uses, including for agricultural use. Said vegetation plan shall utilize native and non-invasive tree and plant species to the maximum extent practicable.

(4)

For building lots which exist as of the effective date of this division, but for which a building permit or a preliminary site plan approval has not been obtained or is no longer valid, the required minimum front, side, and rear setbacks may extend into the riparian zone, provided that a deed restriction and/or conservation easement is applied which prohibits clearing or construction in the riparian zone.

(5)

All stormwater shall be discharged outside of but may flow through a riparian zone and shall comply with the standard for off-site stability in the "Standards for Soil Erosion and Sediment Control in New Jersey", established under the Soil Erosion and Sediment Control Act, N.J.S.A. 4:24-39 et seq. (see N.J.A.C. 2:90-1.3).

(6)

If stormwater discharged outside of and flowing through a riparian zone cannot comply with the standard for off-site stability cited in subsection (d)(5) above, then the proposed stabilization measures must meet the requirements of the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-1 et seq., and have an approved flood hazard area permit.

(7)

At least 50 percent of all areas within the delineated added protection area contiguous to, but exclusive of the conservation easement area, must be left in a natural condition via the limit of disturbance or through mitigation. The allowable disturbed area and any mitigation area shall be revegetated with trees, shrubs, wildflowers, and grasses native to Central New Jersey. These areas can be counted towards required landscaped areas as per the zoning requirements.

(Ord. No. 2011-23, § I, 7-26-2011)

To the extent allowed by the stormwater management rules (N.J.A.C. 7:8) and the Flood Hazard Area Control Act Rules (N.J.A.C. 7:13), new disturbances for projects or activities in the riparian zone established by this division may be allowed through the appropriate land use board review and approval of a variance, provided the disturbance is proposed to be located on a pre-existing lot (existing as of the effective date of this division) when there is insufficient room outside the riparian zone for the proposed use otherwise permitted by the underlying zoning; there is no other reasonable or prudent alternative to placement in the riparian zone, including obtaining variances from setback or other requirements that would allow conformance with the riparian zone requirements; and upon proof by virtue of submission of appropriate maps, drawings, reports and testimony, that the disturbance is:

(a)

Necessary to protect public health, safety or welfare, through which an applicant shall be deemed to have established compelling public need under this provision only if the applicant demonstrates there is no reasonable and feasible alternative available to meet the established public health or safety need;

(b)

To provide an environmental benefit that significantly outweighs the environmental damage caused by the loss of riparian zone;

(c)

To prevent extraordinary hardship on the property owner peculiar to the property; or

(d)

To prevent extraordinary hardship, provided the hardship was not created by the property owner, by not allowing a minimum economically viable use of the property based upon reasonable investment.

(Ord. No. 2011-23, § I, 7-26-2011)

To the extent allowed under the stormwater management rules (N.J.A.C. 7:8) and the Flood Hazard Area Control Act Rules (N.J.A.C. 7:13), and subject to review and approval by the New Jersey Department of Environmental Protection to the extent required by those rules, the following disturbances for projects or activities in the riparian zone established by this division are allowed:

(a)

Redevelopment within the limits of existing impervious surfaces;

(b)

Linear development with no feasible alternative route;

(c)

Disturbance that is in accordance with a stream corridor restoration or stream bank stabilization plan or project approved by the New Jersey Department of Environmental Protection;

(d)

Disturbance necessary to provide for public pedestrian access or water dependent recreation that meets the requirements of the Freshwater Wetlands Protection Act rules, N.J.A.C. 7:7A or the Flood Hazard Area Control Act rules, N.J.A.C. 7:13; or

(e)

Disturbance with no feasible alternative required for the remediation of hazardous substances performed with New Jersey Department of Environmental Protection or federal oversight pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11a et seq. or the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq.

(Ord. No. 2011-23, § I, 7-26-2011)

(a)

Any party aggrieved by the location of the riparian zone boundary determination under this division may appeal to the zoning officer. The party contesting the location of the riparian zone boundary shall have the burden of proof in case of any such appeal.

(b)

Any party aggrieved by any determination or decision of the zoning officer under this division may appeal to the Zoning Board of Adjustment of South Brunswick Township. The party contesting the determination or decision shall have the burden of proof in case of any such appeal.

(c)

Conflicts: All other South Brunswick Code Sections, ordinances, parts of ordinances, or other local requirements that are inconsistent or in conflict with this division are hereby superseded to the extent of any inconsistency or conflict, and the provisions of this division shall apply.

(d)

Severability:

(1)

Interpretation: This division shall be so construed as not to conflict with any provision of New Jersey or federal law.

(2)

Notwithstanding that any provision of this division is held to be invalid or unconstitutional by a court of competent jurisdiction, all remaining provisions of this division shall continue to be of full force and effect.

(3)

The provisions of this division shall be cumulative with, and not in substitution for, all other applicable zoning, planning and land use regulations.

(Ord. No. 2011-23, § I, 7-26-2011)

A prompt investigation shall be made by the zoning officer or his designee of any person or entity believed to be in violation hereof. If, upon inspection, a condition which is in violation of this division is discovered, a civil action may be filed in the special civil part of the superior court, or in the superior court if the primary relief sought is injunctive or if penalties may exceed the jurisdictional limit of the special civil part, by the filing and serving of appropriate process. Nothing in this division shall be construed to preclude the right of the township pursuant to N.J.S.A. 26:3A2-25, to initiate legal proceedings hereunder in municipal court. The violation of any section or subsection of this division shall constitute a separate and distinct offense independent of the violation of any other section or subsection, or of any order issued pursuant to this division. Each day a violation continues shall be considered a separate offense, subject to the penalties set forth in section 62-4.

(Ord. No. 2011-23, § I, 7-26-2011)