N.J. Admin. Code § 7:38-3.9

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:38-3.9 - Upland forested areas

(a) A major Highlands development in an upland forested area shall meet the requirements of this section.

(b) The applicant shall identify on a site plan submitted to the Department all forest in existence on the lot as of August 10, 2004 as well as those forest areas that have subsequently developed.

1. The limit of the forest shall be identified using aerial photographs obtained from the Department, free of charge, at www.state.nj.us/dep/gis/; and

2. If the aerial photograph contains areas of sporadic coverage that have not been identified as forest by the applicant, the applicant shall lay a one-half acre grid system over the photograph. A standard 142 foot square grid block provided by the Department at its website shall be used. Any grid block containing 33 percent or greater forest cover, shall be considered as forest for the purposes of this chapter, unless the applicant demonstrates otherwise using the procedure established in (c) below.

(c) If the Department identifies forest areas on a lot that have not been so identified by the applicant, the Department shall require an applicant to measure the trees and determine density of the trees on the lot using the following method:

1. Select two 25-foot by 25-foot plots in every acre of the site suspected of being a forest.

i. The plots shall be located in the portion of each acre with the highest density of trees as determined by a visual inspection.

ii. If the tree size and density are very uniform over some or all of the site, one plot may be selected in the area of uniformity. However, the point total from the one plot shall be doubled to determine the total point value for the sampled acre under (c)5 below.

2. In each plot, measure the diameter of each tree at four and one-half feet above ground (dbh).

3. Score each tree as follows:

Diameter of tree	Points
One to three inches	2
>Three to seven inches	4
>Seven to 12 inches	6
>12 inches	8

4. Add together the scores for all of the trees in each plot.

5. If the total score for both plots is equal to or greater than 16, the sampled acre is regulated as a forest under this chapter. For example, if the two 25-foot by 25-foot plots contain a total of three trees which are two inches in diameter, two trees which are six inches in diameter, and one tree which is 15 inches in diameter, the score for the sampled area would be: (3x2)+(2x4)+(1x8)=22, and the sampled acre is considered a forest.

6. If a sampled acre is a forest, the Department shall assume that a half-acre of ground surrounding all sides of the sampled acre is also forest except for the surrounding areas that are sampled by the applicant and score under 16. In that case, a sufficient number of plots in the surrounding area shall be sampled by the applicant to delineate the forest portion of the surrounding area.

7. For a newly planted or regenerating forest, an area shall be considered forest if there are 408 seedlings or saplings per sampled acre, that is, the total number of seedlings or saplings in the two sample plots is 12 or more. For the purposes of this section, a tree will be considered a seedling or sapling if it is has a caliper (diameter) of less than one-inch.

8. Orchards, Christmas tree farms and nurseries are not considered forest under this section. As agricultural or horticultural uses, they are not regulated under this chapter. See 7:38-2.2(b).

(d) The limit of the forest shall be the outermost edge of the canopy of the forest area identified in (a) through (c) above.

(e) The Department shall not issue an HPAA for an activity that would result in disturbance to an upland forest located on a slope greater than 10 percent, except for linear development which meets the criteria in 7:38-3.6(b)1 and 2.

(f) The Department shall issue an HPAA for an activity that would result in disturbance to an upland forest if:

1. The proposed activity complies with all of the other standards of this chapter;

2. There is no alternative that:

i. Would have less adverse impact on the upland forest or could be located outside the upland forest. To minimize impact, disturbance shall be located outside the drip line of a tree canopy and at least 100 feet away from all trees of four inches or greater dbh; shall not result in a significant increase in the amount of forest edge; and shall avoid mature specimens; and

ii. Would not merely substitute adverse consequences to other Highlands resource areas for those caused by the proposed activity;

3. The disturbance to the upland forested area is limited to:

i. Twenty feet directly next to a lawfully constructed structure or the perimeter of a septic disposal bed; or

ii. Ten feet on each side of a driveway width that is required by municipal code; and

4. The total acreage of upland forested area to be removed or damaged as a result of an activity approved under an HPAA is mitigated in accordance with (g) below.

(g) Mitigation for upland forested areas shall comply with all other standards of this chapter and replace upland forest with forest of equal ecological value and function. The Department will require mitigation in accordance with the following hierarchy:

1. Planting trees onsite;

2. If planting trees onsite is not feasible, planting trees offsite in the preservation or planning area, provided that the mitigation site is in the same HUC 14 as the site where upland forest was removed or damaged by the activity approved under the HPAA;

3. If (g)1 and 2 are not feasible, planting trees offsite in the preservation area; or

4. If (g)1 through 3 are not feasible, paying into a fund dedicated to the purchase of upland forested areas in the Highlands Region.

(h) In order to be considered successful, an 85 percent survival rate of the planted trees shall be demonstrated at the end of three years. Tree planting as described in (g)1, 2 and 3 above shall be conducted in accordance with the following:

1. The replacement of trees shall be determined by a tree replacement factor (TRF) resulting in 204 trees per acre of tree cover;

2. In implementing the TRF, the following number of stems shall be calculated for seeding, caliper and whip/container trees. TRF equals:

i. 204 (two-inch to 2.5-inch) caliper trees per acre; or

ii. 408 whip/container (four-foot to six-foot) trees per acre;

3. Trees shall be planted in a cluster, spaced from six to 10 feet apart, and shall be planted in a staggered, non-linear pattern;

4. All trees shall be native and adapted to the substrate and other environmental conditions of the site. More than one species shall be included in the planting;

5. Two thirds of the trees planted shall be:

i. Canopy or dominant tree species, which typically grow taller than 50 feet at maturity; and

ii. A minimum of two inches in diameter at the base;

6. The remaining one third of the trees planted shall be:

i. Understory or subcanopy tree species, which typically grow to a height of less than 50 feet at maturity; and

ii. A minimum of four to six feet in height;

7. Newly planted trees shall be monitored by the applicant for a period of two years in accordance with the following:

i. Trees shall be weeded, watered and protected from deer grazing and deer rubs;

ii. If a tree has lost more than 50 percent of its canopy at the end of two years, it shall be replaced with another tree as large as the first tree when planted;

iii. Trees shall be supported by staking with guy wires, that shall be removed after two years;

8. The boundaries of the tree cluster shall be clearly marked with permanent, visible markers such as concrete blocks or posts, metal stakes, or other easily seen, permanent, immovable markers;

9. The tree cluster shall be protected from any future development by a recorded conservation restriction; and

10. An annual post-planting monitoring report shall be submitted to the Department each year for a period of three years following the planting. The monitoring report shall include:

i. A brief description of the tree planting that was approved, when it was completed, and the types of maintenance activities that have been conducted;

ii. A statement whether the mitigation has successfully achieved the required survival rate and if not, the remedial actions that will be taken to accomplish the survival rate; and

iii. For the final report, an analysis of the mitigation, and whether it has successfully achieved the required 85 percent survival rate. If it has not, the Department will require additional planting and additional years of monitoring until the 85 percent survival rate is achieved.

(i) If the applicant is proposing mitigation in accordance with (g)4 above, the applicant shall specify the total area for which mitigation is required, the number and size of trees that would be required using the TRF in (h) above, and an estimate of the cost to purchase and plant trees at the required TRF, including a cost quotation from a tree farm or nursery.

N.J. Admin. Code § 7:38-3.9

Amended by R.2006 d.420, effective 12/4/2006.
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
Rewrote the section.