N.J. Admin. Code § 7:13-13.2

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:13-13.2 - General mitigation requirements

(a) Mitigation shall fully compensate for any ecological loss.

(b) Mitigation proposals may be submitted as part of an individual permit application for concurrent review in accordance with (c)1 below. However, the determination as to whether a permit application should be approved shall be independent of the analysis of proposed mitigation for compliance with this subchapter. Where a mitigation proposal is not submitted as part of an individual permit application for an otherwise approvable project and this chapter requires mitigation for riparian zone vegetation impacts proposed, the Department shall place a condition upon any permit issued requiring submission and Department approval of a mitigation proposal prior to the commencement of any regulated activities under the permit.

(c) When mitigation is required in order to compensate for riparian zone disturbance resulting from regulated activities, the Department shall authorize any regulated activities required to undertake and complete the mitigation through:

1. An individual permit;

2. Approval of a mitigation proposal submitted to comply with a condition of an individual permit;

3. An enforcement document specifying mitigation requirements; or

4. Approval of a mitigation proposal submitted to comply with the requirements of an enforcement document.

(d) Mitigation shall not commence until the Department has approved a mitigation proposal through one of the approvals listed at (c) above.

(e) Mitigation approved under this subchapter may also require additional State or Federal permits or approvals, such as a coastal permit or a permit issued pursuant to the Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A, and Freshwater Wetlands Protection Act, 13:9B-1et seq., from the Department. Mitigation shall not commence until all necessary permits or approvals are obtained.

(f) If the Department requires mitigation as part of a remedy for a violation under this chapter, the Department shall determine the amount of mitigation necessary and the particular alternative required, in consideration of the extent (area) and severity of the violation and the functions and values provided by the proposed mitigation. A mitigation proposal submitted as part of a remedy for a violation shall provide for mitigation that is at least as ecologically valuable as mitigation that would otherwise be required under this chapter under an individual permit. The Department may require a greater amount of mitigation than that required under an individual permit where necessary to provide at least equal ecological value due to the duration of time that the environment was impaired as a result of the particular regulated activities undertaken in violation of this chapter.

(g) A mitigation area shall be permanently protected from future development by a conservation restriction in accordance with N.J.A.C. 7:13-14.

(h) Mitigation may consist of one or more mitigation alternatives set forth under this subchapter.

(i) Mitigation for multiple disturbances by a single permittee may, upon Department approval, be aggregated into a single mitigation project. Such an aggregated mitigation project shall not be used as mitigation for disturbances by any person other than the permittee, unless the permittee obtains approval of the project as a mitigation bank under this subchapter.

(j) Mitigation provided to satisfy a mitigation requirement of a Federal or local law or another State law shall not substitute for or otherwise satisfy any mitigation requirement under this chapter unless the mitigation project also meets the requirements of this subchapter. For example, a mitigation project proposed to meet a mitigation requirement of the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A shall satisfy a mitigation requirement imposed under this chapter only if the proposed mitigation project meets the requirements of this subchapter.

(k) Specific requirements for each type of mitigation project are specified in the following sections of this subchapter:

1. Creation mitigation - N.J.A.C. 7:13-13.10;

2. Restoration mitigation - N.J.A.C. 7:13-13.11;

3. Enhancement mitigation - N.J.A.C. 7:13-13.12;

4. Preservation mitigation - N.J.A.C. 7:13-13.13; and/or

5. Purchase of credits from a mitigation bank - N.J.A.C. 7:13-13.14.

N.J. Admin. Code § 7:13-13.2

Adopted by 48 N.J.R. 1067(a), effective 6/20/2016

Amended by 49 N.J.R. 2246(a), effective 7/17/2017