N.J. Admin. Code § 7:7A-11.12

Current through Register Vol. 56, No. 24, December 18, 2024

Section 7:7A-11.12 - Requirements for restoration, creation, or enhancement

(a) This section sets forth the requirements that apply to a creation, restoration, or enhancement mitigation project.

(b) If creation or restoration is the mitigation alternative, wetlands shall be created or restored at a creation or restoration to lost or disturbed ratio of 2:1, unless the applicant demonstrates in accordance with (b)1 below that creation or restoration at a ratio of less than 2:1 will provide equal ecological functions and values. The mitigation project shall be designed to include a wetlands transition area pursuant to (c) below. The wetlands transition area shall not be counted in the acreage of mitigation provided by the wetlands creation or restoration.

1. A mitigator may create or restore wetlands at a ratio of less than 2:1 if the mitigator demonstrates through the use of productivity models or other similar studies that restoring or creating a lesser area of wetlands will result in replacement wetlands of equal ecological value to those lost or disturbed. However, in no case shall the Department approve a ratio of less than 1:1. In order to demonstrate equal ecological value, the mitigator shall survey and provide written documentation regarding, at a minimum, existing soil, vegetation, water quality functions; flood storage capacity; soil erosion and sediment control functions; and wildlife habitat conditions and detail how the mitigation proposal will replace the ecological values of the wetlands lost or disturbed.

(c) A mitigation area involving restoration or creation shall include a transition area. The transition area shall not be counted in calculating the acreage of mitigation required. For example, if a person must create one acre of wetlands, the mitigation area shall include one acre of created wetlands and, in addition, a transition area around the created wetlands. The width of the transition area around a wetland resulting from mitigation shall be determined as follows:

1. If the mitigation area includes or will include exceptional resource value wetlands, the transition area shall be 150 feet wide;

2. If mitigation is restoration under N.J.A.C. 7:7A-11.8(b)1 of an area temporarily disturbed, the transition area shall be that which was required for the wetland prior to the temporary disturbance; and

3. For all mitigation not listed at (c)1 or 2 above, the transition area shall be 50 feet wide.

(d) If enhancement is the mitigation alternative, the Department shall determine, on a case-by-case basis, the amount of enhancement required to ensure that the mitigation results in wetlands of equal or better functions and values to those lost.

(e) Within 60 calendar days after construction of a creation, restoration, or enhancement wetlands mitigation project is completed, the mitigator shall submit a construction completion report to the Department. The Department may establish a different timeframe for the submittal of the construction completion report if it determines that doing so would better facilitate assessing the progress and success of the mitigation. The construction completion report shall include:

1. An as-built plan of the completed mitigation area, showing grading, plantings (including species, size, and densities), and any structures included in the approved mitigation proposal;

2. Photographs of the completed mitigation; and

3. An explanation for any deviation from the approved mitigation proposal.

(f) In addition to the construction completion report required under (e) above, the mitigator shall submit a post-construction monitoring report to the Department each year for five years after completion of construction, unless a different timeframe for submittal is specified in the approved mitigation proposal. The Department may modify the frequency and/or duration of required reporting if it determines that such modification is necessary to ensure the success of the mitigation. Post-construction monitoring shall begin the first full growing season after the mitigation project is completed.

(g) The post-construction monitoring reports required under (f) above shall be submitted to the Department by December 31 of each reporting year, and shall include:

1. A monetary contribution in accordance with N.J.A.C. 7:7A-15.21;

2. The requirements and goals of the approved mitigation proposal;

3. A detailed explanation of the ways in which the mitigation has or has not achieved progress toward the goals of the approved mitigation proposal. If mitigation has not achieved anticipated progress, the report shall also include a list of corrective actions to be implemented and a timeframe for completion;

4. Information required by the wetlands mitigation monitoring project checklist available from the Department at the address set forth at N.J.A.C. 7:7A-1.4. For a wetlands mitigation project, the checklist requires the following information:

i. A USGS quad map and an aerial photograph on which the limits of the mitigation site and all proposed access points are clearly indicated;

ii. Photographs of the mitigation site with a location map indicating the location and direction of each photograph;

iii. An assessment of the success of the planted vegetation; a separate assessment of the species that are naturally colonizing the mitigation site; and an overall assessment of plant coverage including documentation concerning invasive or noxious plant species and the percent coverage of these species on the site;

iv. An assessment of the hydrology of the mitigation site including, where appropriate, monitoring well data, stream gauge data, relevant tidal data, photographs, and field observation notes collected throughout the monitoring period;

v. A field delineation of the wetlands at the wetlands mitigation project site, based on techniques specified in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands, published in 1989 by the USEPA, USACE, USFWS, and U.S. Department of Agriculture's Conservation Services, incorporated herein by reference, available at https://digitalmedia.fws.gov/digital/collection/document/id/1341; and

vi. A plan showing the flagged wetlands delineation and global positioning system data points.

(h) The standards by which the wetlands mitigation project shall be determined to be successful are set forth at (h)1 through 5 below. The mitigator shall submit a post-construction monitoring report as required at (g) above demonstrating that these standards have been met. The standards are:

1. The goals of the approved mitigation proposal (including the required transition area) have been achieved;

2. The mitigation site is a wetland, as documented through monitoring well data, stream gauge data, relevant tidal data (when appropriate), photographs, and field observation notes collected throughout the monitoring period;

3. The wetland community comprised of the planted vegetation or targeted hydrophytes as detailed in the approved mitigation proposal and permit conditions has been achieved, or, if not yet achieved, all site indicators suggest that the site is on a positive trajectory to meeting the desired wetland plant community;

4. The mitigation provided meets all applicable requirements of this subchapter; and

5. The mitigator has executed and recorded a conservation restriction for the mitigation area that meets the requirements of N.J.A.C. 7:7A-12.

(i) If a mitigation project does not meet the success criteria in (h) above, the Department, in consultation with the permittee, shall determine the appropriate corrective action(s) that the mitigator shall implement. Corrective action may include regrading or replanting the mitigation site, relocation of the mitigation project to another, more suitable site, and/or extending the monitoring period as necessary to ensure success of the mitigation.

(j) If the mitigator makes the demonstrations required for a restoration, creation, or enhancement project at (h) above, the Department shall issue a declaration that the mitigation is successful.

N.J. Admin. Code § 7:7A-11.12

Amended and recodified from 7:7A-15.16 by 49 N.J.R. 3849(a), effective 12/18/2017

Administrative Change, 51 N.J.R. 1193(a).