N.J. Admin. Code § 7:7A-8.3

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

Section 7:7A-8.3 - Special activity transition area waiver

(a) The Department shall issue a transition area waiver for certain special activities meeting the criteria in this section. However, the Department will issue a special activity waiver under this section only if the activities will not result in a substantial impact on the adjacent freshwater wetlands, and the proposed project will minimize impacts to the freshwater wetland and transition area.

(b) The Department shall issue the following types of special activity transition area waivers:

1. A stormwater management transition area waiver under (d) below;

2. A linear development transition area waiver under (e) below;

3. A redevelopment transition area waiver under (f) below; and

4. An individual permit transition area waiver under (g) below.

(c) When considering alternative locations under this section:

1. The Department shall consider an alternative location feasible if it is available and capable of being used after taking into consideration cost, existing technology, and logistics in light of the overall project purpose; and

2. The Department shall consider an alternative location infeasible if its use for the project would cause other, more significant adverse environmental consequences.

(d) The Department shall issue a special activity transition area waiver for stormwater management if there is no feasible alternative onsite location for the stormwater management facility. An alternative onsite location shall not be considered infeasible merely because it would require one or more of the following:

1. Relocating part or all of the facility outside of the transition area and into the upland;

2. Modifying the type of facility;

3. Redesigning the layout, size, scope or configuration of the buildings, roads or other aspects of the project in order to accommodate the facility; or

4. Reducing the scope, size, or density of the project.

(e) The Department shall issue a special activity transition area waiver for linear development if there is no feasible alternative location for the linear development. In considering alternative locations, the Department shall consider the factors at (c) above and the following:

1. An alternative location shall be considered feasible when the proposed linear development can be located outside of the transition area by:

i. Modifying the route of the linear development to avoid or reduce impacts to freshwater wetlands and transition areas; or

ii. Reducing the width of the linear development; and

2. An alternative shall not be excluded from consideration merely because it includes or requires an area not owned by the applicant which could reasonably have been or be obtained or used to fulfill the basic purpose of the proposed activity.

(f) The Department shall issue a special activity transition area waiver for redevelopment of a significantly disturbed area if all of the following conditions are met:

1. The area of proposed activity is significantly disturbed, so that it is not functioning as a transition area at the time of application, for example, the area is covered by an impervious surface such as pavement, by gravel or paver blocks, or by a deck that is less than five feet off the ground;

2. The significant disturbance in the area of proposed activity was legally existing in the transition area prior to July 1, 1989, or has been permitted under this chapter;

3. No additional disturbance is proposed that would expand the disturbed area; and

4. Where practicable, any remaining disturbed portion of the transition area shall be planted with indigenous plants that are beneficial to the wetland and protected from future development by a conservation restriction that meets the requirements at N.J.A.C. 7:7A-12.

(g) The Department shall issue a special activity transition area waiver for an activity if the applicant demonstrates that, if the activity were instead proposed in a freshwater wetland, it would meet the standards for a freshwater wetlands individual permit at N.J.A.C. 7:7A-10.2 and 10.3, and mitigation in accordance with N.J.A.C. 7:7A-11.

N.J. Admin. Code § 7:7A-8.3

Amended and recodified from 7:7A-6.3 by 49 N.J.R. 3849(a), effective 12/18/2017