N.J. Admin. Code § 7:7A-11.6

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

Section 7:7A-11.6 - Basic requirements for mitigation proposals

(a) A mitigation proposal required under this chapter shall be submitted at least 90 calendar days prior to the commencement of regulated activities authorized by a permit.

(b) A mitigation proposal to remedy a violation under this chapter shall be submitted by the deadline set forth in the Department's enforcement document.

(c) A mitigation proposal shall include all information necessary for the Department to determine if the requirements of this subchapter are met.

(d) The applicant shall provide notification in accordance with N.J.A.C. 7:7A-17for all mitigation proposals to be carried out at a location that is not the location of the permit activity that include creation, enhancement, or restoration (except restoration for a temporary disturbance).

(e) The information required to be submitted in a mitigation proposal for restoration, creation, and/or enhancement, uplands preservation, and land donation is set forth in the appropriate mitigation proposal checklist, available from the Department's website at the address set forth at N.J.A.C. 7:7A-1.4 and described at (h) and (i) below.

(f) The information required to be submitted in a mitigation proposal for a monetary contribution to the Department's ILF Program in accordance with N.J.A.C. 7:7A-11.16 is set forth in the appropriate monetary contribution checklist, available from the Department's website at the address set forth at N.J.A.C. 7:7A-1.4. The checklists require the following information:

1. A copy of the permit (if issued) authorizing the impact(s) being mitigated; and

2. A demonstration that the contribution amount addresses the factors specified at N.J.A.C. 7:7A-11.16.

(g) A mitigation proposal for the purchase of bank credits shall consist of a description of the type and quantity of wetland resource disturbance for which mitigation is being proposed, a copy of the permit (if issued) authorizing the disturbance being mitigated, and identification of the mitigation bank from which appropriate credits will be purchased.

(h) The mitigation proposal checklists identified at (e) above require the following information:

1. Basic information regarding the applicant, the specific impacts for which the mitigation is intended to compensate, and a copy of the permit (if issued) or enforcement document that is the source of the mitigation requirement;

2. Information to enable the Department to determine the loss of functions and values caused by the disturbance for which the mitigation is required, including scientific information such as scientific literature, models or other studies concerning wetlands, soils, vegetation, hydrology, wildlife habitat and any other factors relevant to the functions and values of the site of the disturbance for which mitigation is required; previous Department approvals or correspondence regarding the disturbance; maps, photographs; soil or vegetation samples; delineations and/or other visual materials relating to the site of the disturbance;

3. Information demonstrating that the proposed mitigation alternative complies with N.J.A.C. 7:7A-11.9 or 11.10, as applicable, including information on the feasibility or practicability of other mitigation alternatives;

4. The names and addresses of all consultants, engineers, and other persons providing technical assistance in preparing the mitigation proposal;

5. Any letters, contracts, agreements, conservation restrictions, or other draft or executed documents necessary to ensure compliance with this subchapter;

6. Any information necessary to ensure compliance with the Federal rules governing the Department's assumption of the Federal 404 program at 40 CFR 233.30;

7. A certification of truth and accuracy in accordance with N.J.A.C. 7:7A-16.2(j);

8. Consent from the owner of the proposed mitigation area allowing the Department to enter the property in a reasonable manner and at reasonable times to inspect the proposed mitigation area;

9. The following material necessary to explain and illustrate the existing and proposed conditions at the mitigation site:

i. Visual materials, such as maps, site plans, planting plans, surveys, topography, diagrams, delineations, and/or photographs;

ii. A narrative describing the existing conditions and proposed mitigation, as well as supporting soil or vegetation samples; and

iii. A preventive maintenance plan detailing how invasive or noxious vegetation will be controlled, and how predation of the mitigation plantings will be prevented;

10. A specific breakdown of each resource for which mitigation is being proposed (for example, 0.01 acres of forested wetlands or 0.4 acres of scrub shrub wetlands) and the type and quantity of proposed mitigation for each resource;

11. Information and/or certifications regarding the presence or absence of endangered and/or threatened wildlife and plant species habitat, or other features on the proposed mitigation area that are relevant to determining compliance with this chapter.

12. A certification that the proposed mitigation will not adversely affect historic resources that are listed or are eligible for listing on the New Jersey or National Register of Historic Places;

13. Information regarding whether the proposed mitigation activities, including any restriction or transfer of the mitigation area, require approval by other Federal, interstate, State and local agencies, and information on any approvals or denials received;

14. Information regarding relevant features of other properties in the vicinity of the mitigation area, such as whether nearby properties are publicly owned, or contain preserved open space or significant natural resources;

15. Schedules describing in detail the sequence of mitigation activities and estimated dates for completion for each mitigation activity. For example, this might include approximate dates for completing each legal transaction involved in a land donation, or this might include site preparation and planting dates for a wetlands creation project;

16. Cost estimates to perform the mitigation and maintain the mitigation area after construction and/or transfer is completed;

17. A preliminary characterization and assessment of the site in accordance with N.J.A.C. 7:7A-11.4(h) to enable the Department to determine if contamination is present and if the proposed mitigation activities pose an ecological risk;

18. A description of post-construction activities, including schedules for monitoring, maintenance, and reporting; and

19. Contingency measures that will be followed if the mitigation project fails or shows indications of failing.

(i) In addition to the information required by the mitigation proposal checklist as set forth at (h) above, a proposal to create, restore, or enhance wetlands shall also include a projected water budget for the proposed mitigation site. The water budget shall:

1. Detail the sources of water for the mitigation project, as well as the water losses;

2. Document that an ample supply of water is available to create, enhance, or restore wetland conditions, as applicable;

3. Contain sufficient data to show that the mitigation project will, indefinitely into the future, have sustained wetland hydrology; and

4. Include the following regional information for the proposed and existing site conditions:

i. The tidal range (low, high, and spring high tide) over the course of a month (where applicable);

ii. The elevation of the existing reference wetland system in the vicinity of the project site;

iii. The salinity range of adjacent waters (where applicable); and

iv. A detailed discussion relating to the created substrate of the proposed mitigation site.

N.J. Admin. Code § 7:7A-11.6

Amended and recodified from 7:7A-15.11 by 49 N.J.R. 3849(a), effective 12/18/2017