N.J. Admin. Code § 7:7-17.2

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

Section 7:7-17.2 - General mitigation requirements

(a) Mitigation shall be similar in type and location to the resource(s) lost or impacted and shall fully compensate for any ecological loss. The Department will consider proposals for out-of-kind mitigation provided the mitigation meets the goals and objective of this subchapter and would result in ecological functions and values equal to the ecological functions and values of the resource(s) prior to loss or impact.

(b) The Department shall not consider a mitigation proposal in determining whether to approve any application under this chapter.

(c) Mitigation is not required for certain types of development in intertidal or subtidal shallows, as provided at N.J.A.C. 7:7-9.15(i).

(d) Mitigation is not required for certain types of filling, as provided at N.J.A.C. 7:7-12.11(f).

(e) Mitigation under this subchapter is not required in cases where the Department determines that environmental impacts to the coastal resource(s) are de minimis and where the applicant demonstrates avoidance and minimization of impacts.

(f) Mitigation shall not be required as part of a permit for the construction of catwalks, piers, docks, landings, footbridges, and observation decks, provided that the applicant shows, to the satisfaction of the Department, that vehicles and equipment will not be placed on the wetlands in order to construct the structure(s) and that the structure(s) will comply with the requirements for recreational docks and piers at N.J.A.C. 7:7-12.5.

(g) When mitigation is required in order to compensate for impacts to wetlands, intertidal and subtidal shallows, shellfish habitat, submerged aquatic vegetation, general water areas, or riparian zones resulting from regulated activities, the Department shall authorize any regulated activities required to undertake and complete the mitigation through:

1. An authorization under a general permit;

2. An individual permit;

3. Approval of a mitigation proposal submitted to comply with a condition of an authorization under a general permit or an individual permit; or

4. An enforcement document.

(h) To be approved under this subchapter, mitigation must have a high probability of long-term success, which, at a minimum, requires the following:

1. Adequate financial and other resources dedicated to the project;

2. A project design that takes advantage of and works within the existing conditions in the proposed mitigation area to the extent possible;

3. Hydrology in and around the mitigation area adequate to support wetland conditions year round and indefinitely into the future (where applicable). The hydrology for a proposed wetland mitigation site shall not include discharged stormwater;

4. Soils (and hydrology) in the mitigation area adequate to support wetland conditions (where applicable); and

5. Assignment of responsibility for long term maintenance of the mitigation area to an entity that has adequate resources to ensure maintenance as required by this subchapter.

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

(j) Mitigation approved under this subchapter may also require additional State or Federal permits or approvals, such as a flood hazard area permit or a freshwater wetlands permit from the Department or an approval from the USACE. Mitigation shall not commence until all necessary permits or approvals are obtained.

(k) 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 if necessary to compensate for the duration that the coastal resource(s) was impaired due to the particular regulated activities undertaken in violation of this chapter.

(l) A mitigation area shall be permanently protected from future development by a conservation restriction in accordance with N.J.A.C. 7:7-18.

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

(n) 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.

(o) Mitigation provided to satisfy a mitigation requirement of a Federal or local law or another State law shall not substitute for or preempt any mitigation requirement under this chapter. A mitigation project proposed for the purpose of satisfying another law shall be approved as mitigation under this chapter only if the mitigation project 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.

(p) If the mitigator encounters a possible historic property that is or may be eligible for listing in the New Jersey or National Register, the mitigator shall preserve the resource, immediately notify the Department, and proceed as directed by the Department.

N.J. Admin. Code § 7:7-17.2

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