Current through Register Vol. 56, No. 18, September 16, 2024
(a) A prospective mitigation bank operator
may obtain conceptual review of a proposed mitigation bank before buying land
or preparing a detailed mitigation bank proposal. In a conceptual review,
Department staff will discuss the apparent strengths and weaknesses of the
proposed mitigation bank. Guidance provided through a conceptual review is not
binding on the Department and shall not be relied upon by the applicant in
purchasing a proposed mitigation area. A conceptual review does not grant any
property or other rights or in any way imply that the Department has or will
authorize any mitigation activities at the proposed mitigation area or issue
any other approval.
(b) To obtain
conceptual review of a proposed mitigation bank, an applicant shall submit the
following to the Department:
1. A letter of
interpretation covering the entire proposed mitigation bank site, issued by the
Department under N.J.A.C. 7:7A-3;
2. Information on previous uses of the site,
including the presence of historic or archaeological resources in accordance
with N.J.A.C. 7:7A-19.5 or the potential of mitigation activities to pose an
ecological risk as defined in N.J.A.C. 7:7A-11.4(h).
i. If available, the applicant shall provide
a copy of the characterization and other information required at N.J.A.C.
7:7A-11.4(h) to determine ecological risk;
3. The proposed mitigation alternative(s)
being considered, such as creation, restoration, and/or enhancement;
4. Whether the credits generated by the bank
will be used solely by the mitigation bank operator, or will be available for
use by others;
5. Maps,
photographs, diagrams, delineations and/or other visual materials necessary for
the Department to generally evaluate the proposed mitigation bank;
6. The names and addresses of all current
owner(s) of the mitigation bank site, and any prospective owner(s), as of the
date the request for conceptual review is submitted; and
7. Consent from the owner of the proposed
mitigation bank site, allowing Department representatives to enter the property
in a reasonable manner and at reasonable times to inspect the site.
(c) To obtain Department approval
of a proposed mitigation bank, an applicant shall submit the information
required by the wetlands mitigation bank proposal checklist, available from the
Department at the address set forth at N.J.A.C.
7:7A-1.4
. The checklist shall
require a draft mitigation banking instrument that includes the following:
1. A letter of interpretation covering the
entire proposed mitigation bank site, issued by the Department under N.J.A.C.
7:7A-4;
2. A functional assessment
of the bank site prior to construction and proposed site conditions after
construction;
3. The goals and
objectives of the bank;
4.
Ownership of the bank site including disclosure of any leases, easements, or
other encumbrances;
5. The size of
the bank site, as well as type and amount of the resources for which credits
from the bank could serve as suitable compensation;
6. A description of baseline conditions on
the bank site, including all relevant natural features and parameters, as well
as pollutants, contamination, and other factors that could affect the bank's
ability to provide mitigation credits;
7. For a bank proposal that includes
creation, restoration, and/or enhancement of wetlands or waters, a projected
water budget prepared in accordance with N.J.A.C. 7:7A-
11.6(i);
8. The proposed service
area within which the mitigation bank credits can be used to compensate for a
disturbance. The service area shall be designated to give priority to
mitigation for impacts in the same watershed management area(s) as the proposed
bank;
9. Method for determining
credits and debits;
10. Accounting
procedures;
11. Performance
standards to enable the Department to determine when credits may be released
under N.J.A.C. 7:7A-11.25(e);
12.
Performance standards to enable the Department to determine if and when the
mitigation bank is successful;
13.
Reporting protocols and a monitoring plan;
14. Contingency and corrective actions that
will be taken by the mitigation bank operator in case the bank fails;
15. Financial assurances meeting the
requirements of N.J.A.C. 7:7A-11.17;
16. Provisions for long-term management and
maintenance of the mitigation bank site;
17. Site plans, cost estimates and schedules
for construction, completion, and transfer of the mitigation bank;
18. Draft legal instruments necessary to meet
the requirements of this chapter, including a conservation restriction,
financial assurance, property transfer, and/or agreement with a charitable
conservancy to maintain the site;
19. Identification of the persons who will
construct, operate, and maintain the mitigation bank and mitigation bank site;
and
20. Documentation that public
notice of the proposed mitigation bank was provided in accordance with
N.J.A.C. 7:7A-17.
(d) The Department's approval of a mitigation
bank shall incorporate conditions necessary to ensure that the requirements of
this subchapter are met.
