Current through Register Vol. 56, No. 18, September 16, 2024
(a) The Department shall approve mitigation
through preservation of uplands only if the uplands meet the requirements in
this section.
(b) Preserved uplands
shall be valuable for the protection of a freshwater wetlands ecosystem.
Factors the Department shall consider in evaluating an area for upland
preservation include, but are not limited to:
1. The size and configuration of the uplands
in relation to freshwater wetlands and/or State open waters, and the effect the
preservation of these uplands would have on the wetlands or waters;
2. The diversity of the ecological
communities on the entire site;
3.
Whether the uplands to be preserved are located in the same watershed
management area as the disturbance;
4. Whether the uplands to be preserved are
adjacent to a freshwater wetland that:
i.
Contains exceptional resource value wetlands;
ii. Contains critical habitat for flora or
fauna;
iii. Contains wetlands or
waters draining to trout maintenance waters, as defined at N.J.A.C. 7:9B, or
into public drinking water sources;
iv. Is adjacent to public lands containing
wetland preserves, such as Federal wildlife refuges, State wildlife management
areas, State parks or forests, State, County or local wetland preservation
areas, or wetland preservation areas held by non-profit conservation
organizations;
v. Has unique
aspects or characteristics that contribute to its ecological value, such as an
unusual or regionally rare type of wetland;
5. The relationship of the proposed uplands
to existing and planned development;
6. Whether the uplands have been designated
for preservation in a watershed management area plan approved by the Department
under the Water Quality Management Planning Act,
58:11A-1 et seq., and implementing
rules at N.J.A.C. 7:15; and
7.
Whether the site contains solid or hazardous waste, or contains water or soil
pollution. Uplands that contain waste or pollution shall not be considered
valuable for the protection of a freshwater wetlands ecosystem.
(c) The amount of uplands
preserved shall be sufficient to ensure that the functions and values resulting
from the preservation of the uplands will fully compensate for the loss of
functions and values caused by the disturbance. In determining if an upland
preservation proposal will fully compensate for a disturbance, the Department
shall consult the sources, and consider the conditions, referenced in
N.J.A.C.
7:7A-11.2(a)
. At a
minimum, the uplands preserved shall be:
1.
At least five acres in size, and significantly larger than the area that would
be required for any other mitigation alternative, to compensate for the fact
that uplands preservation, unlike other mitigation alternatives, does not
directly replace the wetland values and functions destroyed by a disturbance;
and
2. If adjacent to a wetland,
the uplands preserved shall include the standard transition area required for
the wetlands under N.J.A.C. 7:7A-3.3
, plus an additional area at least 150 feet wide, measured from the
outer edge of the transition area.
(d) The Department shall declare mitigation
through upland preservation successful upon:
1. Demonstration that any required
conservation restriction has been recorded in accordance with N.J.A.C.
7:7A-12;
2. Documentation that the
property has been transferred in fee simple to a government agency or
Department approved charitable conservancy; and
3. Documentation that a maintenance fund for
maintenance and supervision of the mitigation area has been transferred to the
governmental agency or charitable conservancy. The amount of the maintenance
fund shall be determined by agreement between the mitigator and the agency or
conservancy.
