New Jersey Administrative Code › Title 7 - ENVIRONMENTAL PROTECTION › Chapter 7A - FRESHWATER WETLANDS PROTECTION ACT RULES › Subchapter 11 - MITIGATION › Section 7:7A-11.2 - General mitigation requirements

Current through Register Vol. 56, No. 14, July 15, 2024
(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.