Current through Register Vol. 56, No. 18, September 16, 2024
(a) This section sets forth the requirements
that apply to a creation, restoration, or enhancement mitigation
project.
(b) If creation or
restoration is the mitigation alternative, wetlands shall be created or
restored at a creation or restoration to lost or disturbed ratio of 2:1, unless
the applicant demonstrates in accordance with (b)1 below that creation or
restoration at a ratio of less than 2:1 will provide equal ecological functions
and values. The mitigation project shall be designed to include a wetlands
transition area pursuant to (c) below. The wetlands transition area shall not
be counted in the acreage of mitigation provided by the wetlands creation or
restoration.
1. A mitigator may create or
restore wetlands at a ratio of less than 2:1 if the mitigator demonstrates
through the use of productivity models or other similar studies that restoring
or creating a lesser area of wetlands will result in replacement wetlands of
equal ecological value to those lost or disturbed. However, in no case shall
the Department approve a ratio of less than 1:1. In order to demonstrate equal
ecological value, the mitigator shall survey and provide written documentation
regarding, at a minimum, existing soil, vegetation, water quality functions;
flood storage capacity; soil erosion and sediment control functions; and
wildlife habitat conditions and detail how the mitigation proposal will replace
the ecological values of the wetlands lost or disturbed.
(c) A mitigation area involving restoration
or creation shall include a transition area. The transition area shall not be
counted in calculating the acreage of mitigation required. For example, if a
person must create one acre of wetlands, the mitigation area shall include one
acre of created wetlands and, in addition, a transition area around the created
wetlands. The width of the transition area around a wetland resulting from
mitigation shall be determined as follows:
1.
If the mitigation area includes or will include exceptional resource value
wetlands, the transition area shall be 150 feet wide;
2. If mitigation is restoration under
N.J.A.C. 7:7A-11.8(b)1 of an area temporarily disturbed, the transition area
shall be that which was required for the wetland prior to the temporary
disturbance; and
3. For all
mitigation not listed at (c)1 or 2 above, the transition area shall be 50 feet
wide.
(d) If enhancement
is the mitigation alternative, the Department shall determine, on a
case-by-case basis, the amount of enhancement required to ensure that the
mitigation results in wetlands of equal or better functions and values to those
lost.
(e) Within 60 calendar days
after construction of a creation, restoration, or enhancement wetlands
mitigation project is completed, the mitigator shall submit a construction
completion report to the Department. The Department may establish a different
timeframe for the submittal of the construction completion report if it
determines that doing so would better facilitate assessing the progress and
success of the mitigation. The construction completion report shall include:
1. An as-built plan of the completed
mitigation area, showing grading, plantings (including species, size, and
densities), and any structures included in the approved mitigation
proposal;
2. Photographs of the
completed mitigation; and
3. An
explanation for any deviation from the approved mitigation proposal.
(f) In addition to the
construction completion report required under (e) above, the mitigator shall
submit a post-construction monitoring report to the Department each year for
five years after completion of construction, unless a different timeframe for
submittal is specified in the approved mitigation proposal. The Department may
modify the frequency and/or duration of required reporting if it determines
that such modification is necessary to ensure the success of the mitigation.
Post-construction monitoring shall begin the first full growing season after
the mitigation project is completed.
(g) The post-construction monitoring reports
required under (f) above shall be submitted to the Department by December 31 of
each reporting year, and shall include:
1. A
monetary contribution in accordance with
N.J.A.C.
7:7A-15.21;
2. The requirements and goals of the approved
mitigation proposal;
3. A detailed
explanation of the ways in which the mitigation has or has not achieved
progress toward the goals of the approved mitigation proposal. If mitigation
has not achieved anticipated progress, the report shall also include a list of
corrective actions to be implemented and a timeframe for completion;
4. Information required by the wetlands
mitigation monitoring project checklist available from the Department at the
address set forth at
N.J.A.C.
7:7A-1.4. For a wetlands mitigation project,
the checklist requires the following information:
i. A USGS quad map and an aerial photograph
on which the limits of the mitigation site and all proposed access points are
clearly indicated;
ii. Photographs
of the mitigation site with a location map indicating the location and
direction of each photograph;
iii.
An assessment of the success of the planted vegetation; a separate assessment
of the species that are naturally colonizing the mitigation site; and an
overall assessment of plant coverage including documentation concerning
invasive or noxious plant species and the percent coverage of these species on
the site;
iv. An assessment of the
hydrology of the mitigation site including, where appropriate, monitoring well
data, stream gauge data, relevant tidal data, photographs, and field
observation notes collected throughout the monitoring period;
v. A field delineation of the wetlands at the
wetlands mitigation project site, based on techniques specified in the Federal
Manual for Identifying and Delineating Jurisdictional Wetlands, published in
1989 by the USEPA, USACE, USFWS, and U.S. Department of Agriculture's
Conservation Services, incorporated herein by reference, available at
https://digitalmedia.fws.gov/digital/collection/document/id/1341;
and
vi. A plan showing the flagged
wetlands delineation and global positioning system data points.
(h) The standards by
which the wetlands mitigation project shall be determined to be successful are
set forth at (h)1 through 5 below. The mitigator shall submit a
post-construction monitoring report as required at (g) above demonstrating that
these standards have been met. The standards are:
1. The goals of the approved mitigation
proposal (including the required transition area) have been achieved;
2. The mitigation site is a wetland, as
documented through monitoring well data, stream gauge data, relevant tidal data
(when appropriate), photographs, and field observation notes collected
throughout the monitoring period;
3. The wetland community comprised of the
planted vegetation or targeted hydrophytes as detailed in the approved
mitigation proposal and permit conditions has been achieved, or, if not yet
achieved, all site indicators suggest that the site is on a positive trajectory
to meeting the desired wetland plant community;
4. The mitigation provided meets all
applicable requirements of this subchapter; and
5. The mitigator has executed and recorded a
conservation restriction for the mitigation area that meets the requirements of
N.J.A.C. 7:7A-12.
(i) If
a mitigation project does not meet the success criteria in (h) above, the
Department, in consultation with the permittee, shall determine the appropriate
corrective action(s) that the mitigator shall implement. Corrective action may
include regrading or replanting the mitigation site, relocation of the
mitigation project to another, more suitable site, and/or extending the
monitoring period as necessary to ensure success of the mitigation.
(j) If the mitigator makes the demonstrations
required for a restoration, creation, or enhancement project at (h) above, the
Department shall issue a declaration that the mitigation is
successful.
