N.J. Admin. Code § 7:7A-8.2

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

Section 7:7A-8.2 - Transition area averaging plan waiver

(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.

N.J. Admin. Code § 7:7A-8.2

Amended and recodified from 7:7A-6.2 by 49 N.J.R. 3849(a), effective 12/18/2017