Current through Register Vol. 56, No. 18, September 16, 2024
(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.
