N.J. Admin. Code § 7:7A-11.13

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

Section 7:7A-11.13 - Requirements for upland preservation

(a) The Department shall approve mitigation through preservation of uplands only if the uplands meet the requirements in this section.

(b) Preserved uplands shall be valuable for the protection of a freshwater wetlands ecosystem. Factors the Department shall consider in evaluating an area for upland preservation include, but are not limited to:

1. The size and configuration of the uplands in relation to freshwater wetlands and/or State open waters, and the effect the preservation of these uplands would have on the wetlands or waters;

2. The diversity of the ecological communities on the entire site;

3. Whether the uplands to be preserved are located in the same watershed management area as the disturbance;

4. Whether the uplands to be preserved are adjacent to a freshwater wetland that:

i. Contains exceptional resource value wetlands;

ii. Contains critical habitat for flora or fauna;

iii. Contains wetlands or waters draining to trout maintenance waters, as defined at N.J.A.C. 7:9B, or into public drinking water sources;

iv. Is adjacent to public lands containing wetland preserves, such as Federal wildlife refuges, State wildlife management areas, State parks or forests, State, County or local wetland preservation areas, or wetland preservation areas held by non-profit conservation organizations;

v. Has unique aspects or characteristics that contribute to its ecological value, such as an unusual or regionally rare type of wetland;

5. The relationship of the proposed uplands to existing and planned development;

6. Whether the uplands have been designated for preservation in a watershed management area plan approved by the Department under the Water Quality Management Planning Act, N.J.S.A. 58:11A-1 et seq., and implementing rules at N.J.A.C. 7:15; and

7. Whether the site contains solid or hazardous waste, or contains water or soil pollution. Uplands that contain waste or pollution shall not be considered valuable for the protection of a freshwater wetlands ecosystem.

(c) The amount of uplands preserved shall be sufficient to ensure that the functions and values resulting from the preservation of the uplands will fully compensate for the loss of functions and values caused by the disturbance. In determining if an upland preservation proposal will fully compensate for a disturbance, the Department shall consult the sources, and consider the conditions, referenced in N.J.A.C. 7:7A-11.2(a). At a minimum, the uplands preserved shall be:

1. At least five acres in size, and significantly larger than the area that would be required for any other mitigation alternative, to compensate for the fact that uplands preservation, unlike other mitigation alternatives, does not directly replace the wetland values and functions destroyed by a disturbance; and

2. If adjacent to a wetland, the uplands preserved shall include the standard transition area required for the wetlands under N.J.A.C. 7:7A-3.3, plus an additional area at least 150 feet wide, measured from the outer edge of the transition area.

(d) The Department shall declare mitigation through upland preservation successful upon:

1. Demonstration that any required conservation restriction has been recorded in accordance with N.J.A.C. 7:7A-12;

2. Documentation that the property has been transferred in fee simple to a government agency or Department approved charitable conservancy; and

3. Documentation that a maintenance fund for maintenance and supervision of the mitigation area has been transferred to the governmental agency or charitable conservancy. The amount of the maintenance fund shall be determined by agreement between the mitigator and the agency or conservancy.

N.J. Admin. Code § 7:7A-11.13

Amended and recodified from 7:7A-15.9 by 49 N.J.R. 3849(a), effective 12/18/2017