N.J. Admin. Code § 7:7-17.5

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

Section 7:7-17.5 - Property suitable for mitigation

(a) Mitigation under this subchapter may be carried out on private or public property.

(b) Except as provided in (c) below, the Department shall approve mitigation on property that is owned in fee simple and under the full legal control of the person responsible for performing the mitigation, unless the person responsible for performing the mitigation demonstrates that they have legal rights to the property sufficient to enable compliance with all requirements of this chapter.

(c) The Department shall approve mitigation on public property if:

1. The public entity gives written permission to allow the mitigation to be conducted on the property;

2. The public entity is willing to allow a conservation restriction to be placed on the area of the mitigation project, in accordance with N.J.A.C. 7:7-18, or can demonstrate that an existing conservation restriction will protect the mitigation project area in perpetuity; and

3. If the land was acquired using Green Acres funding or is encumbered with Green Acres restrictions, as defined at N.J.A.C. 7:36-2.1, the use of the area for mitigation purposes is approved by the Green Acres Program.

(d) The following shall not constitute mitigation under this subchapter:

1. The installation of, or improvement to, an existing public facility intended for human use, such as a ball field, nature trail, or boardwalk; or

2. A stormwater management facility, such as a basin.

(e) The Department shall not approve creation, enhancement, or restoration of a wetland in an area that the Department has determined is currently of high ecological value.

(f) The Department shall not approve mitigation or a mitigation bank that would:

1. Destroy, jeopardize, or adversely modify a present or documented habitat for threatened or endangered species; or

2. In any way jeopardize the continued existence of any local population of a threatened or endangered species.

(g) The Department shall not approve mitigation or a mitigation bank in an area where the proposed mitigation poses an ecological risk. For purposes of this section, ecological risk means that the mitigation or mitigation bank activities have the potential to result in the reintroduction of contamination to ecological communities, the exposure of humans to contamination, or the contamination of the mitigation site by subsequent exposure to new areas of contamination requiring remediation. The proposed mitigation site shall be properly characterized to determine ecological risk. The mitigator shall prepare this characterization and assessment in accordance with the Technical Requirements for Site Remediation at N.J.A.C. 7:26E-1.16 and 4.9.

1. If the Department determines based on the characterization and assessment that the mitigation activities at the proposed site do not pose an ecological risk, the mitigator shall proceed with the mitigation project.

2. If the Department determines based on the characterization and assessment that the proposed mitigation activities at the proposed site do pose an ecological risk, the mitigator shall remediate the site pursuant to the Technical Requirements for Site Remediation at N.J.A.C. 7:26E-4.8, 5.1, and 5.2. The mitigator shall proceed with the mitigation project only after it demonstrates that the remediation and/or mitigation activities will fully address the ecological risk.

(h) Properties where a substantial amount of soil must be removed in order to achieve suitable wetland hydrology are not acceptable mitigation sites.

N.J. Admin. Code § 7:7-17.5

Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

Amended by 50 N.J.R. 361(a), effective 1/16/2018