N.J. Admin. Code § 7:13-13.5

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

Section 7:13-13.5 - Property suitable for mitigation

(a) Mitigation under this subchapter may be carried out on private or public property.

(b) Except as provided in (c) below, the Department shall approve mitigation only on property that is owned in fee simple and under legal control of the person responsible for performing the mitigation, unless the person responsible for performing the mitigation demonstrates that they have legal rights to the property sufficient to enable compliance with all requirements of this chapter.

(c) The Department shall approve mitigation on public property only if:

1. The public entity agrees to record a conservation restriction on the area of the mitigation project, in accordance with N.J.A.C. 7:13-14, or can demonstrate that an existing conservation restriction will protect the mitigation project area in perpetuity; and

2. Where the land was acquired using Green Acres funding or is encumbered with Green Acres restrictions, as defined at 7:36-2.1, the use of the area for mitigation purposes is approved by the Green Acres Program.

(d) If the proposed mitigation area is affected by an easement or other encumbrance, the portion of the property affected by the encumbrance will not be considered in calculating the total amount of mitigation provided, unless the applicant demonstrates that the encumbrance will not prohibit compliance or otherwise interfere with the mitigation requirements of this chapter.

(e) The following shall not constitute mitigation under this subchapter:

1. The installation of, or improvement to, an existing public facility intended for human use, such as a ball field, nature trail, or boardwalk; or

2. A stormwater management facility, such as a basin.

(f) The Department shall not approve creation, restoration, or enhancement in an area that the Department has determined is currently of high ecological value, for example if the area contains a mature, dense, natural forested community and approving a mitigation project in that area will not result in increased riparian zone functionality.

(g) The Department shall not approve mitigation that would:

1. Destroy, jeopardize, or adversely modify a present or documented habitat for threatened or endangered species; or

2. In any way jeopardize the continued existence of any local population of a threatened or endangered species.

(h) The Department shall not approve creation or restoration mitigation in an area where the proposed mitigation poses an ecological risk. For purposes of this section, ecological risk means that the mitigation may result in the reintroduction of contamination to ecological communities, the exposure of humans to contamination, or the contamination of the mitigation site by subsequent exposure to new areas of contamination requiring remediation. The mitigator shall properly characterize and assess the mitigation area in accordance with the Technical Requirements for Site Remediation at 7:26E-1.16and 4.9 to determine ecological risk.

1. If the Department determines based on the characterization and assessment that the mitigation activities at the proposed site do not pose an ecological risk and that the proposed mitigation satisfies the requirements of this subchapter, the Department shall approve the mitigation and the mitigator shall proceed with the mitigation project.

2. If the Department determines based on the characterization and assessment that the proposed mitigation activities at the proposed site do pose an ecological risk, the mitigator shall not be permitted to use the site for mitigation unless the mitigator remediates the site pursuant to the Technical Requirements for Site Remediation at 7:26E-4.8, 5.1, and 5.2. The mitigator shall proceed with the mitigation project only after it demonstrates that the remediation and/or mitigation activities will fully address the ecological risk and that the proposed mitigation satisfies the requirements of this subchapter.

N.J. Admin. Code § 7:13-13.5

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

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