S936

An Act concerning aquaculture and amending various parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 3 of P.L.1997, c.236 (C.4:27-3) is amended to read as follows:

3. As used in sections 1 through 24 of [this act] P.L.1997, c.236 (C.4:27-1 et al.):

"Aquaculture" means the propagation, rearing, and subsequent harvesting of aquatic organisms in controlled or selected environments, and the subsequent processing, packaging and marketing, and shall include, but need not be limited to, activities to intervene in the rearing process to increase production such as stocking, feeding, transplanting and providing for protection from predators. "Aquaculture" shall [not] include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation.

"Aquaculture Development Plan" means the plan prepared by the Aquaculture Development Task Force, established pursuant to Executive Order No. 104 (1993).

"Aquaculturist" means a person engaging in aquaculture.

"Aquatic organism" means and includes, but need not be limited to, finfish, mollusks, crustaceans, and aquatic plants which are the property of a person engaged in aquaculture.

"Council" means the Aquaculture Advisory Council established pursuant to section 5 of [this act] P.L.1997, c.236 (C.4:27-1 et al.).

"Office" means the Office of Aquaculture Coordination established pursuant to section 4 of [this act] P.L.1997, c.236 (C.4:27-1 et al.).

"Secretary" means the Secretary of Agriculture.

(cf: P.L.1997, c.236, s.3)

2. Section 3 of P.L.1979, c.111 (C.13:18A-3) is amended to read as follows:

3. As used in [this act] P.L.1979, c.111 (C.13:18A-1 et seq.):

a. "Agricultural or horticultural purposes" or "agricultural or horticultural use" means any production of plants or animals useful to man, including but not limited to: forages or sod crops; grains and feed crops; dairy animals and dairy products; poultry and poultry products; livestock, including beef cattle, sheep, swine, horses, ponies, mules or goats, and including the breeding and grazing of any or all of such animals; bees and apiary products; fur animals; aquatic organisms as part of aquaculture; trees and forest products; fruits of all kinds, including grapes, nuts and berries; vegetables; nursery, floral, ornamental and greenhouse products; or any land devoted to and meeting the requirements and qualifications for payments or other compensation pursuant to a soil conservation program under an agency of the Federal Government;

b. "Application for development" means the application form and all accompanying documents required by municipal ordinance for approval of a subdivision plat, site plan, planned development, conditional use, zoning variance or other permit as provided in the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.), for any use, development or construction other than the improvement, expansion or reconstruction of any single-family dwelling unit or appurtenance thereto, or the improvement, expansion, construction or reconstruction of any structure used exclusively for agricultural or horticultural purposes;

c. "Commission" means the Pinelands Commission created by section 4 of [this act] P.L.1979, c.111 (C.13:18A-1 et seq.);

d. "Comprehensive management plan" means the plan prepared and adopted by the commission pursuant to section 7 of [this act] P.L.1979, c.111 (C.13:18A-1 et seq.);

e. "Council" means the Pinelands Municipal Council created by section 6.1 of [this act] P.L.1979, c.111 (C.13:18A-1 et seq.);

f. "Federal Act" means section 502 of the "National Parks and Recreation Act of 1978" (Pub.L. 95-625);

g. "Major development" means any division or subdivision of land into five or more parcels; any construction or expansion of any housing development of five or more dwelling units; any construction or expansion of any commercial or industrial use or structure on a site of more than three acres; or any grading, clearing or disturbance of any area in excess of 5,000 square feet for other than agricultural or horticultural purposes;

h. "Pinelands area" means that area so designated by subsection a. of section 10 of [this act] P.L.1979, c.111 (C.13:18A-1 et seq.);

i. "Pinelands National Reserve" means the approximately 1,000,000 acre area so designated by the Federal Act and generally depicted on the map entitled "Pinelands National Reserve Boundary Map" numbered NPS/80,011A and dated September, 1978;

j. "Preservation area" means that portion of the pinelands area so designated by subsection b. of section 10 of [this act] P.L.1979, c.111 (C.13:18A-1 et seq.);

k. "Protection area" means that portion of the pinelands area not included within the preservation area;

l. "Aquaculture" means the [propagation, rearing, and subsequent harvesting of aquatic organisms in controlled or selected environments, and the subsequent processing, packaging and marketing and shall include but need not be limited to, activities to intervene in the rearing process to increase production such as stocking, feeding, transplanting and providing for protection from predators. "Aquaculture" shall not include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any other State or federal law or regulation] same as the term is defined in section 3 of P.L.1997, c.236 (C.4:27-3);

m. "Aquatic organism" means and includes, but need not be limited to, finfish, mollusks, crustaceans, and aquatic plants which are the property of a person engaged in aquaculture.

(cf: P.L.1997, c.236, s.35)

3. Section 3 of P.L.1979, c.199 (C.23:2B-3) is amended to read as follows:

3. As used in [this act] P.L.1979, c.199 (C.23:2B-1 et al.):

a. "Aquaculture" means the [propagation and rearing of aquatic species in controlled or selected environments] same as the term is defined in section 3 of P.L.1997, c.236 (C.4:27-3);

b. "Commissioner" means the Commissioner of Environmental Protection;

c. "Council" means the Marine Fisheries Council created pursuant to [this act] P.L.1979, c.199 (C.23:2B-1 et al.), except in those sections of [this act] P.L.1979, c.199 (C.23:2B-1 et al.) amending sections of Title 50 of the Revised Statutes;

d. "Department" means the Department of Environmental Protection;

e. "Fish" means any marine or anadromous animal or plant, or part thereof, excepting mammals and birds;

f. "Fisheries management plans" means plans to prevent overfishing, achieve optimal yield from each fishery on a continuing basis, which are based on the best scientific information available, are in accordance with management plans promulgated pursuant to the Fisheries Conservation and Management Act of 1976 and any appropriate interstate programs, provide for the management of stock as a unit throughout their range, and allow for flexibility management; provided, however, that such plans, where practicable and feasible, give preference to the interests and concerns of fishermen in this State;

g. "Marine waters" means all the salt waters of this State, and none of the fresh waters of this State as defined in R.S.23:1-2. Specifically it includes the waters of the Atlantic ocean, and all bays, inlets and estuarine waters located below the mouth of any fresh water river, stream or creek;

h. "Optimum yield" means the amount of fish from a fishery which will provide the greatest overall benefit to the State, with particular reference to food production and recreational opportunities, and the amount of fish which is prescribed as such on the basis of the maximum sustainable yield from such fishery as modified by any relevant economic, social or ecological factor;

i. "Processing" means handling, storing, freezing, preparing, preserving, packing, transporting, holding, or selling fish or fish products;

j. "Taking" means to catch, net, capture, possess, or collect any fish or to attempt to engage in any such conduct;

k. "Fishery" means one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational and economic characteristics and any fishing for such stocks.

(cf: P.L.1979, c.199, s.3)

4. Section 3 of P.L.1981, c.262 (C.58:1A-3) is amended to read as follows:

3. As used in the provisions of P.L.1981, c.262 (C.58:1A-1 et seq.), P.L.1993, c.202 (C.58:1A-7.3 et al.) and P.L.2003, c.251 (C.58:1A-13.1 et al.):

a. "Commissioner" means the Commissioner of the Department of Environmental Protection or the commissioner's designated representative;

b. "Consumptive use" means any use of water diverted from surface or ground waters other than a nonconsumptive use as defined in this section;

c. "Department" means the Department of Environmental Protection;

d. "Diversion" means the taking or impoundment of water from a river, stream, lake, pond, aquifer, well, other underground source, or other water body, whether or not the water is returned thereto, consumed, made to flow into another stream or basin, or discharged elsewhere;

e. "Nonconsumptive use" means the use of water diverted from surface or ground waters in such a manner that it is returned to the surface or ground water at or near the point from which it was taken without substantial diminution in quantity or substantial impairment of quality;

f. "Person" means any individual, corporation, company, partnership, firm, association, owner or operator of a water supply facility, political subdivision of the State and any state, or interstate agency or Federal agency;

g. "Waters" or "waters of the State" means all surface waters and ground waters in the State;

h. "Safe or dependable yield" or "safe yield" means that maintainable yield of water from a surface or ground water source or sources which is available continuously during projected future conditions, including a repetition of the most severe drought of record, without creating undesirable effects, as determined by the department;

i. "Aquaculture" means the [propagation, rearing and subsequent harvesting of aquatic species in controlled or selected environments, and the subsequent processing, packaging and marketing, and shall include, but need not be limited to, activities to intervene in the rearing process to increase production such as stocking, feeding, transplanting, and providing for protection from predators. "Aquaculture" shall not include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation] same as the term is defined in section 3 of P.L.1997, c.236 (C.4:27-3);

j. "Aquatic organism" means and includes, but need not be limited to, finfish, mollusks, crustaceans, and aquatic plants which are the property of a person engaged in aquaculture;

k. "Six Mile Run Reservoir Site" means the land acquired by the State for development of the Six Mile Run Reservoir in Franklin Township, Somerset County, as identified by the Eastern Raritan Feasibility Study and the New Jersey Statewide Water Supply Plan prepared and adopted by the department pursuant to section 13 of P.L.1981, c.262 (C.58:1A-13).

(cf: P.L.2003, c.251, s.1)

5. Section 2 of P.L.1981, c.277 (C.58:1A-7.2) is amended to read as follows:

2. The provisions of any law, rule or regulation to the contrary notwithstanding, no tax, fee or other charge shall be imposed on the diversion, for agricultural or horticultural purposes, including aquaculture, of any ground or surface water of this State; provided, however, that nothing in this section shall prohibit the imposition of a fee, pursuant to law, for the cost of processing, monitoring and administering a water usage certification program for persons who divert any ground or surface water for agricultural and horticultural purposes, or other agriculturally-related purposes, including aquaculture.

As used in this section, "aquaculture" means the [propagation, rearing, and subsequent harvesting of aquatic organisms in controlled or selected environments, and the subsequent processing, packaging and marketing, and shall include, but need not be limited to, activities such as stocking, intervention in the rearing process to increase production, feeding, transplanting, and providing for protection from predators and shall not include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation] same as the term is defined in section 3 of P.L.1997, c.236 (C.4:27-3), and "aquatic organism" means and includes, but need not be limited to, finfish, mollusks, crustaceans, and aquatic plants which are the
property of a person engaged in aquaculture.

(cf: P.L.1997, c.236, s.31)

6. Section 3 of P.L.1977, c.74 (C.58:10A-3) is amended to read as follows:

3. As used in [this act] P.L.1977, c.74 (C.58:10A-1 et seq.), unless the context clearly requires a different meaning, the following words and terms shall have the following meanings:

a. "Administrator" means the Administrator of the United States Environmental Protection Agency or his authorized representative;

b. "Areawide plan" means any plan prepared pursuant to section 208 of the Federal Act;

c. "Commissioner" means the Commissioner of Environmental Protection or his authorized representative;

d. "Department" means the Department of Environmental Protection;

e. "Discharge" means an intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a pollutant into the waters of the State, onto land or into wells from which it might flow or drain into said waters or into waters or onto lands outside the jurisdiction of the State, which pollutant enters the waters of the State. "Discharge" includes the release of any pollutant into a municipal treatment works;

f. "Effluent limitation" means any restriction on quantities, quality, rates and concentration of chemical, physical, thermal, biological, and other constituents of pollutants established by permit, or imposed as an interim enforcement limit pursuant to an administrative order, including an administrative consent order;

g. "Federal Act" means the "Federal Water Pollution Control Act Amendments of 1972" (Public Law 92-500; 33 U.S.C. s.1251 et seq.);

h. "Municipal treatment works" means the treatment works of any municipal, county, or State agency or any agency or subdivision created by one or more municipal, county or State governments and the treatment works of any public utility as defined in R.S.48:2-13;

i. "National Pollutant Discharge Elimination System" or "NPDES" means the national system for the issuance of permits under the Federal Act;

j. "New Jersey Pollutant Discharge Elimination System" or "NJPDES" means the New Jersey system for the issuance of permits under [this act] P.L.1977, c.74 (C.58:10A-1 et seq.);

k. "Permit" means a NJPDES permit issued pursuant to section 6 of [this act] P.L.1977, c.74 (C.58:10A-1 et seq.). "Permit" includes a letter of agreement entered into between a delegated local agency and a user of its municipal treatment works, setting effluent limitations and other conditions on the user of the agency's municipal treatment works;

l. "Person" means any individual, corporation, company, partnership, firm, association, owner or operator of a treatment works, political subdivision of this State and any state or interstate agency. "Person" shall also mean any responsible corporate official for the purpose of enforcement action under section 10 of [this act] P.L.1977, c.74 (C.58:10A-1 et seq.);

m. "Point source" means any discernible, confined and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged;

n. "Pollutant" means any dredged spoil, solid waste, incinerator residue, sewage, garbage, refuse, oil, grease, sewage sludge, munitions, chemical wastes, biological materials, radioactive substance, thermal waste, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal or agricultural waste or other residue discharged into the waters of the State. "Pollutant" includes both hazardous and nonhazardous pollutants;

o. "Pretreatment standards" means any restriction on quantities, quality, rates, or concentrations of pollutants discharged into municipal or privately owned treatment works adopted pursuant to P.L.1972, c.42 (C.58:11-49 et seq.);

p. "Schedule of compliance" means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with water quality standards, an effluent limitation or other limitation, prohibition or standard;

q. "Substantial modification of a permit" means any significant change in any effluent limitation, schedule of compliance, compliance monitoring requirement, or any other provision in any permit which permits, allows, or requires more or less stringent or more or less timely compliance by the permittee;

r. "Toxic pollutant" means any pollutant identified pursuant to the Federal Act, or any pollutant or combination of pollutants, including disease causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism, either directly or indirectly by ingestion through food chains, will, on the basis of information available to the commissioner, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, including malfunctions in reproduction, or physical deformation, in such organisms or their offspring;

s. "Treatment works" means any device or systems, whether public or private, used in the storage, treatment, recycling, or reclamation of municipal or industrial waste of a liquid nature including intercepting sewers, outfall sewers, sewage collection systems, cooling towers and ponds, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions, and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any other works including sites for the treatment process or for ultimate disposal of residues resulting from such treatment. "Treatment works" includes any other method or system for preventing, abating, reducing, storing, treating, separating, or disposing of pollutants, including storm water runoff, or industrial waste in combined or separate storm water and sanitary sewer systems;

t. "Waters of the State" means the ocean and its estuaries, all springs, streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of this State or subject to its jurisdiction;

u. "Hazardous pollutant" means:

(1) Any toxic pollutant;

(2) Any substance regulated as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act, Pub.L.92-516 (7 U.S.C. s.136 et seq.);

(3) Any substance the use or manufacture of which is prohibited under the federal Toxic Substances Control Act, Pub.L.94-469 (15 U.S.C. s.2601 et seq.);

(4) Any substance identified as a known carcinogen by the International Agency for Research on Cancer;

(5) Any hazardous waste as designated pursuant to section 3 of P.L.1981, c.279 (C.13:1E-51) or the "Resource Conservation and Recovery Act," Pub.L.94-580 (42 U.S.C. s.6901 et seq.); or

(6) Any hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b);

v. "Serious violation" means an exceedance of an effluent limitation for a discharge point source set forth in a permit, administrative order, or administrative consent agreement, including interim enforcement limits, by 20 percent or more for a hazardous pollutant, or by 40 percent or more for a nonhazardous pollutant, calculated on the basis of the monthly average for a pollutant for which the effluent limitation is expressed as a monthly average, or, in the case of an effluent limitation expressed as a daily maximum and without a monthly average, on the basis of the monthly average of all maximum daily test results for that pollutant in any month; in the case of an effluent limitation for a pollutant that is not measured by mass or concentration, the department shall prescribe an equivalent exceedance factor therefor. The department may utilize, on a case-by-case basis, a more stringent factor of exceedance to determine a serious violation if the department states the specific reasons therefor, which may include the potential for harm to human health or the environment. "Serious violation" shall not include a violation of a permit limitation for color;

w. "Significant noncomplier" means any person who commits a serious violation for the same hazardous pollutant or the same nonhazardous pollutant, at the same discharge point source, in any two months of any six-month period, or who exceeds the monthly average or, in a case of a pollutant for which no monthly average has been established, the monthly average of the daily maximums for an effluent limitation for the same pollutant at the same discharge point source by any amount in any four months of any six-month period, or who fails to submit a completed discharge monitoring report in any two months of any six-month period. The department may utilize, on a case-by-case basis, a more stringent frequency or factor of exceedance to determine a significant noncomplier, if the department states the specific reasons therefor, which may include the potential for harm to human health or the environment. A local agency shall not be deemed a "significant noncomplier" due to an exceedance of an effluent limitation established in a permit for flow;

x. "Local agency" means a political subdivision of the State, or an agency or instrumentality thereof, that owns or operates a municipal treatment works;

y. "Delegated local agency" means a local agency with an industrial pretreatment program approved by the department;

z. "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with an effluent limitation because of an event beyond the reasonable control of the permittee, including fire, riot, sabotage, or a flood, storm event, natural cause, or other act of God, or other similar circumstance, which is the cause of the violation. "Upset" also includes noncompliance consequent to the performance of maintenance operations for which a prior exception has been granted by the department or a delegated local agency;

aa. "Bypass" means the anticipated or unanticipated intentional diversion of waste streams from any portion of a treatment works;

bb. "Major facility" means any facility or activity classified as such by the Administrator of the United States Environmental Protection Agency, or his representative, in conjunction with the department, and includes industrial facilities and municipal treatment works;

cc. "Significant indirect user" means a discharger of industrial or other pollutants into a municipal treatment works, as defined by the department, including, but not limited to, industrial dischargers, but excluding the collection system of a municipal treatment works;

dd. "Violation of this act" means a violation of any provisions of [this act] P.L.1977, c.74 (C.58:10A-1 et seq.), and shall include a violation of any rule or regulation, water quality standard, effluent limitation or other condition of a permit, or order adopted, issued, or entered into pursuant to [this act] P.L.1977, c.74 (C.58:10A-1 et seq.);

ee. "Aquaculture" means the [propagation, rearing, and subsequent harvesting of aquatic organisms in controlled or selected environments, and the subsequent processing, packaging and
marketing, and shall include, but need not be limited to, activities to intervene in the rearing process to increase production such as stocking, feeding, transplanting, and providing for protection from predators. "Aquaculture" shall not include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation] same as the term is defined in section 3 of P.L.1997, c.236 (C.4:27-3);

ff. "Aquatic organism" means and includes, but need not be limited to, finfish, mollusks, crustaceans, and aquatic plants which are the property of a person engaged in aquaculture.

(cf: P.L.1997, c.236, s.26)

7. Section 2 of P.L.1989, c.199 (C.58:10A-7.1) is amended to read as follows:

2. After December 31, 1991, the department may not issue a permit to any private, commercial, or industrial applicant for the discharge of any solid, semi-solid, or liquid wastes into the ocean waters of the State, the provisions of any other law, or rule or regulation to the contrary notwithstanding. Any permit issued by the department for the discharge of any such waste prior to January 1, 1992 shall expire on January 1, 1992, the provisions of any such permit to the contrary notwithstanding. The provisions of P.L.1989, c.119 shall not apply to permits applied for, or issued to, municipal treatment works, seafood processing facilities, public water supply desalinization plants, or aquaculture activities. As used in [this act] P.L.1989, c.199 (C.58:10A-7.1), "ocean waters" means those waters of the open seas lying seaward of the base line from which the territorial sea is measured, as provided for in the Convention on the Territorial Sea and the Contiguous Zone (15 UST 1606; TIAS 5639).

(cf: P.L.1997, c.236, s.28)

8. This act shall take effect immediately.

STATEMENT

This bill would modify the definition of “aquaculture” in various State laws to clarify that the term aquaculture includes the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation. According to current law, the term aquaculture does not include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation.

New Jersey’s aquaculture industry relies on both in-water farms and the land-based facilities that sustain them. Structures such as hatcheries, processing facilities, and equipment storage are just as vital to shellfish farming as barns and silos are to traditional agriculture. Recognizing these structures as aquaculture will provide much-needed clarity to attract investment and to position New Jersey as a competitor in a thriving and sustainable industry.