Current through Register Vol. 56, No. 18, September 16, 2024
(a) A transition
area averaging plan waiver modifies the overall shape of a transition area
without reducing its total square footage. The Department may approve a
transition area averaging plan waiver for activities adjacent to an
intermediate or exceptional resource value freshwater wetlands.
(b) The Department shall issue a transition
area averaging plan waiver only if the transition area, as modified, will
continue to serve the purposes of a transition area set forth in
N.J.A.C. 7:7A-3.3
. The
Department shall presume that the following will result in a transition area
that will not serve the purposes set forth in N.J.A.C.
7:7A-3.3
, and shall not issue a
transition area averaging plan waiver, unless the applicant demonstrates
otherwise under N.J.A.C.
7:7A-8.1(d)
:
1. The portion of the existing, pre-activity
transition area that will be reduced has a slope greater than 25 percent;
i. The percent slope shall be established by
measuring the distance perpendicular to the contour of the slope on the plan.
The percent slope shall be calculated for each two-foot contour interval at
10-foot intervals. For example, any location in the transition area where there
is a one-foot rise over a 10-foot horizontal run constitutes a 10 percent
slope; a two-foot rise over a 10-foot horizontal run constitutes a 20 percent
slope.
2. A new
individual subsurface sewage disposal (septic) system that discharges onsite
will be placed within the existing, pre-activity transition area;
3. An outfall structure that will discharge
unfiltered or untreated stormwater into wetlands will be placed within the
existing, pre-activity transition area; or
4. The proposed averaging compensation area
is separated from the wetland by an intervening structure.
(c) In addition to the presumptions at (b)
above, the Department shall also presume that, for a transition area adjacent
to an intermediate resource value wetland, the following will result in a
substantial impact on the adjacent freshwater wetlands, and the Department
shall not issue a transition area averaging plan waiver unless the applicant
demonstrates otherwise under N.J.A.C.
7:7A-8.1(d)
:
1. A structure, impervious surface, or
stormwater management facility will be placed within 20 feet of freshwater
wetlands; or
2. The transition area
averaging plan proposes to:
i. Reduce any
portion of the transition area to less than 10 feet wide:
ii. Reduce a transition area to less than 25
feet wide in an area containing critical habitat for fauna or flora;
iii. Reduce a transition area to 10 feet wide
for a continuous distance of 100 linear feet or more along the freshwater
wetlands boundary;
iv. Reduce a
transition area to less than 25 feet wide within the watershed of a current or
proposed National Wildlife Refuge;
v. Compensate for a decrease in a transition
area by increasing the width of any portion of the transition area to more than
75 feet; or
vi. Result in an
average transition area width that is less than 25 feet.
(d) In addition to the
presumptions at (b) and (c) above, the Department shall also presume that, for
a transition area adjacent to an exceptional resource value wetland, the
following will result in a substantial impact on the adjacent freshwater
wetlands, and the Department shall not issue a transition area averaging plan
waiver unless the applicant demonstrates that the activity would qualify for an
individual permit under this chapter:
1. The
freshwater wetland adjacent to the transition area is a breeding or nesting
habitat for a threatened or endangered species;
2. The freshwater wetland adjacent to the
transition area discharges directly to a trout production water or a tributary
thereof, except that a transition area averaging plan waiver shall not be
disallowed under this subsection if:
i. The
freshwater wetlands and transition area remaining adjacent to the trout
production water after the averaging is at least 150 feet wide, measured from
the top of the bank of the trout production water; or
ii. The wetland drains to a tributary that is
separated from the trout production water by an intervening lake; or
3. The transition area averaging
plan proposes to:
i. Reduce any portion of the
transition area to less than 75 feet wide; or
ii. Compensate for a transition area
reduction by increasing the width of any portion of the transition area to more
than 225 feet.
(e) Each transition area averaging plan shall
be specific to a particular freshwater wetland and its associated transition
area. To determine whether a freshwater wetland area is all one wetland or made
up of multiple separate wetlands, the Department shall consider the factors
listed at N.J.A.C.
7:7A-8.1(c)
. If an
applicant proposes to expand a transition area to compensate for a reduction
elsewhere, the expanded portion of the transition area shall:
1. Be an extension of the same transition
area that is being reduced, located adjacent to the same freshwater wetlands as
the reduced transition area;
2. Be
located on the same site as the reduction;
3. Be owned in fee simple by the applicant,
unless the applicant demonstrates sufficient legal authority over the site to
carry out all requirements of this chapter. For example, the expanded portion
of the transition area shall not be subject to a utility easement or other
encumbrance; and
4. Have the same
ecological characteristics as the reduced portion of the transition area,
including the vegetation types, or have characteristics that are equivalent or
better than the characteristics of the reduced portion of the transition area
in regards to the transition area's ability to serve the functions listed at
N.J.A.C. 7:7A-3.3
. For
example, if a forested portion of the transition area is reduced, the expanded
portion of the transition area must also be forested.
(f) All transition area averaging plan
waivers shall be conditioned on the recording of a Department-approved
conservation restriction in accordance with the requirements at N.J.A.C.
7:7A-12 restricting future activities in the averaging compensation
area.
