N.J. Admin. Code § 7:7-17.11

Current through Register Vol. 56, No. 24, December 18, 2024

Section 7:7-17.11 - Requirements for intertidal and subtidal shallows and tidal water mitigation

(a) This section sets forth the requirements for mitigation required pursuant to N.J.AC. 7:7-9.15 or 12.11(f) for the filling of intertidal and subtidal shallows or tidal waters, respectively.

(b) Mitigation for the filling of intertidal and subtidal shallows or tidal waters shall be performed through the creation, at a creation to loss ratio of 1:1, of intertidal and subtidal shallows or tidal waters on the site where the filling occurred.

(c) If the onsite mitigation for the filling of intertidal and subtidal shallows described at (b) above is not feasible, mitigation shall be performed as follows:

1. At a single-family home or duplex property that is not part of a larger development, mitigation for the filling of intertidal and subtidal shallows shall be in the form of a monetary contribution to the Wetlands Mitigation Fund. The monetary contribution shall be in the amount of the value of the land filled and the cost of creation of intertidal and subtidal shallows of equal ecological value to those which are being lost; or

2. At a property other than a single-family home or duplex, mitigation for the filling of intertidal and subtidal shallows shall be performed in accordance with the hierarchy at (d) through (g) below.

(d) If mitigation for the filling of intertidal and subtidal shallows as described at (b) above at a property other than a single-family home or duplex is not feasible onsite, or if mitigation for the filling of tidal waters as described at (b) above is not feasible onsite, then mitigation shall be performed offsite through the creation, at a creation to loss ratio of 1:1, of intertidal and subtidal shallows or tidal waters within the same estuary as the site of the filling or through the purchase of in-kind credits from a mitigation bank with a service area that includes the site of the filling.

(e) If mitigation for the filling of intertidal and subtidal shallows or tidal waters as described at (d) above is not feasible, then mitigation shall be in the form of restoration, creation, or enhancement of a wetland within the same estuary as the site of the filling in accordance with N.J.A.C. 7:7-17.13 or through the purchase of out-of-kind credits from a mitigation bank with a service area that includes the site of the filling.

(f) If mitigation for the filling of intertidal and subtidal shallows or tidal waters as described at (e) above is not feasible, then mitigation shall be in the form of one or both of the following, as determined in consultation with the Department:

1. Upland preservation in accordance with the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A-11.13; or

2. In-lieu fee payment in accordance with N.J.A.C. 7:7-17.16.

(g) If mitigation for the filling of intertidal and subtidal shallows or tidal waters as described at (f) above is not feasible, then mitigation shall be in the form of a land donation in accordance with the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A-11.15.

(h) Within 60 calendar days after the construction of an intertidal and subtidal shallows or tidal waters mitigation site is completed, the mitigator shall submit a construction completion report to the Department. The Department may establish a different time frame for the submittal of the construction completion report if it determines doing so would better facilitate assessing the progress and success of the mitigation. The construction completion report shall include:

1. An as-built plan of the completed mitigation area, showing grading and any structures included in the approved mitigation proposal;

2. Photographs of the completed mitigation; and

3. An explanation for any deviation from the approved mitigation proposal.

(i) In addition to the construction completion report required under (h) above, the mitigator shall submit a post construction monitoring report to the Department. Compliance with the standards listed at (k)1 through 4 below shall be demonstrated for each intertidal and subtidal shallows or tidal waters mitigation site for one lunar month after completion of construction of the mitigation site. A lunar month is the period between two successive full moons. If one or more of the standards listed at (k)1 through 4 below are not met, the post-construction monitoring shall be repeated the following lunar month(s) until all of the standards are met. Failure to meet the standards at (k)1 through 4 below for a given lunar month shall result in corrective action. Corrective action may include regrading or relocation of the mitigation site.

(j) The post-construction monitoring report, required under (i) above, shall be submitted by December 31 of each year and shall include:

1. An executive summary;

2. The requirements and goals of the approved mitigation proposal;

3. A detailed explanation of the ways in which the mitigation has or has not achieved progress towards those goals. If the mitigation has not achieved progress, the report shall also include a list of corrective actions to be implemented as determined pursuant to (k) below and a timeline for completion;

4. A USGS quad map and an aerial photograph on which the limits of the mitigation site and all proposed access points are clearly indicated;

5. Photographs of the mitigation site, with a location map indicating the location and direction of each photograph;

6. An assessment of the hydrology of the mitigation site, including relevant tidal data, photographs, and field observation notes collected throughout the monitoring period; and

7. A field delineation and plan showing the extent and location (using global positioning system data points) of the intertidal and subtidal shallows or tidal waters at the site.

(k) The standards by which a mitigation site where intertidal and subtidal shallows or tidal waters were created shall be determined successful are set forth at (k)1 through 4 below. In accordance with (i) above, the mitigator shall submit a post-construction monitoring report demonstrating that these standards have been met. The standards are:

1. The goals of the approved mitigation proposal have been achieved;

2. The mitigation site is an intertidal and subtidal shallows as defined at N.J.A.C. 7:7-9.15 or a tidal water. The documentation shall include, tidal data, topography for the spring high tide, photographs, and field observation notes collected throughout the monitoring period;

3. The mitigation meets all applicable requirements of this subchapter; and

4. The mitigator has executed and recorded a conservation restriction that meets the requirements of N.J.A.C. 7:7-18.

(l) If the mitigation performed under (e) above is the restoration, creation, or enhancement of a wetland, the mitigator shall demonstrate that the post-construction monitoring standards for a wetland mitigation site at N.J.A.C. 7:7-17.13(d) through (g) are met.

N.J. Admin. Code § 7:7-17.11

Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

Amended by 49 N.J.R. 3849(a), effective 12/18/2017