N.J. Admin. Code § 7:7A-11.9

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

Section 7:7A-11.9 - Mitigation hierarchy for a smaller disturbance

(a) This section governs, for a smaller disturbance, the mitigation alternative required and the location of mitigation in relation to the disturbance. However, if a smaller disturbance is a temporary disturbance, it is governed by N.J.A.C. 7:7A-11.8.

(b) A smaller disturbance is:

1. A disturbance of 1.5 acres or less of freshwater wetlands or State open water; or

2. A disturbance affecting only ordinary resource value wetlands.

(c) The Department presumes that onsite mitigation for a smaller disturbance is not feasible. Therefore, mitigation for a smaller disturbance shall be performed through the purchase of in-kind credits from a mitigation bank with a service area that includes the site of the disturbance in accordance with N.J.A.C. 7:7A-11.14, or, if that is not feasible, then either through onsite restoration, creation, or enhancement or offsite restoration, creation, or enhancement within the same watershed management area as the disturbance. In determining the feasibility of onsite or offsite mitigation for a smaller disturbance the Department shall consider the following factors regarding the proposed mitigation area:

1. Size. Generally, the larger a mitigation area, the greater its potential environmental benefit. A mitigation area that is associated with a large existing wetland complex is more likely to be environmentally beneficial;

2. Offsite restoration, creation, or enhancement, which is performed in the same HUC 11, as defined at N.J.A.C. 7:7A-1.4, as the disturbance, or performed in an adjacent HUC 11 within the same watershed management area as the disturbance.

3. Habitat value. A mitigation area that will provide valuable habitat for critical wildlife species or threatened or endangered species is more likely to be environmentally beneficial;

4. Interaction with nearby resources. A mitigation project is more likely to be environmentally beneficial if it complements existing nearby resources. For example, a mitigation project that adds riparian wetlands habitat adjacent to an existing stream enhances the environmental value of both the riparian area and the stream; and

5. Availability of parcels for offsite mitigation that meet the requirements of (f) below.

(d) If mitigation as described at (c) above is not feasible, mitigation shall be in the form of one or more of the following, as determined in consultation with the Department:

1. Monetary contribution to the ILF Program in accordance with N.J.A.C. 7:7A-11.16; and/or

2. Upland preservation in accordance with N.J.A.C. 7:7A-11.13.

(e) If mitigation as described at (d) above is not feasible, mitigation shall be in the form of a land donation in accordance with N.J.A.C. 7:7A-11.15.

(f) In order to demonstrate that offsite mitigation under (c) above is not feasible, an applicant shall provide to the Department a list of at least six sites within the same watershed management area to accommodate the required mitigation. With respect to each site on the list, the applicant shall explain why:

1. The site is not located at a practical elevation suitable for wetlands;

2. The site lacks an adequate water supply;

3. The site is not available for purchase; and

4. The site does not meet the requirements of N.J.A.C. 7:7A-11.4(i) regarding ecological risk.

N.J. Admin. Code § 7:7A-11.9

Amended and recodified from 7:7A-15.5 by 49 N.J.R. 3849(a), effective 12/18/2017