N.J. Admin. Code § 7:7A-11.2

Current through Register Vol. 56, No. 16, August 19, 2024

Section 7:7A-11.2 - General mitigation requirements

(a) Mitigation shall be in-kind and shall fully compensate for any ecological loss. The Department will consider proposals for out-of-kind mitigation, provided the mitigator demonstrates to the Department that the mitigation meets the goals and objectives of this subchapter and would result in equal ecological functions and values as compared to the ecological functions and values of the resource(s) prior to loss or impact. In order to demonstrate equal ecological functions and values, the mitigator shall provide current scientific literature concerning wetlands, aquatic resources, and mitigation; as well as survey the conditions on the site of disturbance and on the proposed mitigation area and provide written documentation regarding the existing and proposed soil conditions, type and density of vegetation, any existing contamination or other degradation, sediment and pollution removal ability and flood storage capacity of the wetland resources, all proposed soil erosion protection measures, and existing, as well as any anticipated, wildlife habitat conditions. The documentation shall also detail how the mitigation proposal will replace the ecological values of the wetland resource lost or disturbed.

(b) Mitigation proposals may be submitted as part of a permit application for concurrent review. The determination as to whether a permit application should be approved shall be independent of the analysis of proposed mitigation for compliance with this subchapter. Where a mitigation proposal is not submitted as part of a permit application for an otherwise approvable project and this chapter requires mitigation for wetland, State open water, and/or transition area impacts proposed, the Department shall place a condition upon any permit issued requiring submission and Department approval of a mitigation proposal prior to the commencement of any regulated activities under the permit.

(c) A mitigator shall carry out the full acreage amount of mitigation required under this subchapter, unless the mitigator demonstrates, through use of productivity models or other similar studies, that a smaller mitigation area will result in replacement wetland resources of equal ecological value to those lost or disturbed. However, in no case shall the Department approve a mitigation ratio of less than 1:1. The mitigator shall demonstrate equal ecological value in accordance with (a) above.

(d) Mitigation for an individual permit is not required in cases where the Department determines that environmental impacts to the freshwater resources are de minimis and where the applicant demonstrates avoidance and minimization of impacts.

(e) When mitigation is required in order to compensate for impacts to a freshwater wetland, State open water, and/or transition areas resulting from regulated activities, the Department shall authorize any regulated activities required to undertake and complete the mitigation through:

1. An authorization under a general permit;

2. A freshwater wetlands individual permit;

3. An open water fill individual permit;

4. A special activity transition area waiver at N.J.A.C. 7:7A-8.3(g);

5. Approval of a mitigation proposal submitted to comply with a condition of a permit;

6. An enforcement document specifying mitigation requirements; or

7. Approval of a mitigation proposal submitted to comply with the requirements of an enforcement document.

(f) To be approved under this subchapter, mitigation must have a high probability of long-term success which, at a minimum, requires the following:

1. Adequate financial and other resources dedicated to the project;

2. A project design that takes advantage of and works within the existing conditions in the proposed mitigation area to the extent possible;

3. Hydrology in and around the mitigation area adequate to support wetland conditions year round and indefinitely into the future. The hydrology for a proposed wetland mitigation site shall not include discharged stormwater;

4. Soils in the mitigation area must be adequate to support wetland conditions; and

5. Assignment of responsibility for long-term maintenance of the mitigation area to an entity that has adequate resources to ensure maintenance as required by this subchapter.

(g) Mitigation shall not commence until the Department has approved a mitigation proposal through one of the approvals listed at (e) above. In addition, for mitigation through a monetary contribution to the in-lieu fee mitigation program or a land donation, the amount of money or the particular parcel of land must also be approved by the Wetlands Mitigation Council.

(h) Mitigation approved under this subchapter may also require additional State or Federal permits or approvals, such as a flood hazard area permit or a coastal permit from the Department or an approval from the USACE. Mitigation shall not commence until all necessary permits or approvals are obtained.

(i) If the Department requires mitigation as part of a remedy for a violation under this chapter, the Department shall determine the amount of mitigation necessary and the particular alternative required in consideration of the extent (area) and severity of the violation and the functions and values provided by the proposed mitigation. A mitigation proposal submitted as part of a remedy for a violation shall provide for mitigation that is at least as ecologically valuable as mitigation that would otherwise be required under this chapter under a permit. The Department may require a greater amount of mitigation than that required under a permit where necessary to provide at least equal ecological value due to the duration of time that the freshwater resource(s) was impaired as a result of the particular regulated activities undertaken in violation of this chapter.

(j) A mitigation area shall be permanently protected from future development by a conservation restriction in accordance with N.J.A.C. 7:7A-12.

(k) Mitigation may consist of one or more mitigation alternatives set forth under this subchapter.

(l) Mitigation for multiple disturbances by a single permittee may, upon Department approval, be aggregated into a single mitigation project. Such an aggregated mitigation project shall not be used as mitigation for disturbances by any person other than the permittee, unless the permittee obtains approval of the project as a mitigation bank under this subchapter.

(m) Mitigation provided to satisfy a mitigation requirement of a Federal or local law or another State law shall not substitute for, or otherwise satisfy, any mitigation requirement under this chapter unless the mitigation project also meets the requirements of this subchapter. For example, a mitigation project proposed to meet a mitigation requirement of the Coastal Zone Management Rules at N.J.A.C. 7:7 shall satisfy a mitigation requirement imposed under this chapter only if the proposed mitigation project meets the requirements of this subchapter.

(n) If the mitigator encounters a possible historic property that is or may be eligible for listing in the New Jersey or National Register, the mitigator shall preserve the resource, immediately notify the Department, and proceed as directed by the Department.

(o) Specific requirements for each type of mitigation project are located as follows:

1. Mitigation for temporary disturbance at N.J.A.C. 7:7A-11.8;

2. Requirements for wetland restoration, creation, or enhancement at N.J.A.C. 7:7A-11.12;

3. Requirements for upland preservation at N.J.A.C. 7:7A-11.13;

4. Requirements for credit purchase from an approved mitigation bank at N.J.A.C. 7:7A-11.14;

5. Requirements for land donation at N.J.A.C. 7:7A-11.15;

6. Requirements for a monetary contribution to the ILF Program at N.J.A.C. 7:7A-11.16; and

7. Requirements for mitigation for transition area impacts (N.J.A.C. 7:7A-8.3(g)) at N.J.A.C. 7:7A-11.11.

N.J. Admin. Code § 7:7A-11.2

Adopted by 47 N.J.R. 422(a), effective 2/2/2015

Amended and recodified from 7:7A-15.2 by 49 N.J.R. 3849(a), effective 12/18/2017