FRESHWATER WETLANDS PROTECTION ACT RULES

N.J.A.C. 7:7A

SUBCHAPTER 15 MITIGATION

Please Note: The Department has made every effort to ensure that the text of this regulation is identical to the official, legally effective version set forth in the New Jersey Register. However, should there be any discrepancies between the text on this web site and the official version of the rule, the official version will govern. For more information on obtaining official versions of the rules, see "How To Get a Paper Copy of Department Rules".


7:7A-15.1 Mitigation definitions
7:7A-15.2 General mitigation requirements
7:7A-15.3 Timing of mitigation
7:7A-15.4 Property suitable for mitigation and the criteria for addressing contaminated sites
7:7A-15.5 Mitigation for a smaller disturbance
7:7A-15.6 Mitigation for a larger disturbance
7:7A-15.7 Mitigation for a temporary disturbance
7:7A-15.8 Amount of mitigation required
7:7A-15.9 Requirements for upland preservation
7:7A-15.10 Conceptual review of a mitigation area
7:7A-15.11 Basic requirements for all mitigation proposals
7:7A-15.12 Contents of a mitigation proposal
7:7A-15.13 Financial assurance for a proposal to restore, create, or enhance wetlands
7:7A-15.14 Protecting a mitigation area from future development
7:7A-15.15 Department review of a mitigation proposal
7:7A-15.16 Requirements that apply after the Department approves restoration, creation or enhancement
7:7A-15.17 Requirements that apply after the Department approves credit purchase or uplands preservation
7:7A-15.18 Requirements that apply after the Department approves mitigation through a monetary contribution
7:7A-15.19 Requirements that apply after the Department approves mitigation through a land donation
7:7A-15.20 Wetlands Mitigation Council
7:7A-15.21 Council review of a proposed monetary contribution
7:7A-15.22 Council review of a proposed land donation
7:7A-15.23 Mitigation banks
7:7A-15.24 Application for Wetlands Mitigation Council approval of a monetary contribution or land donation
7:7A-15.25 Application for approval of a mitigation bank
7:7A-15.26 Mitigation for transition area impacts in accordance with N.J.A.C. 7:7A-6.3(g), special activity transition area waivers based upon individual permit criteria


N.J.A.C. 7:7A-15.1 Mitigation definitions

In addition to the terms defined at N.J.A.C. 7:7A-1.4, the following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.

"Charitable conservancy" means a corporation or trust that meets the definition of a charitable conservancy at N.J.S.A. 13:8B-2, and amendments thereto. As of September 4, 2001, N.J.S.A. 13:8B-2 defines a charitable conservancy as a corporation or trust whose purposes include the acquisition and preservation of land or water areas or of a particular land or water area, or either thereof, in a natural, scenic or open condition, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which has received tax exemption under section 501(c) of the 1954 Internal Revenue Code.

"Council" means the Wetlands Mitigation Council.

"Creation" means the establishment of freshwater wetland or State open water characteristics and functions in uplands.

"Credit purchase" means the purchase of credits in a mitigation bank, as defined below, as a substitute for performance of restoration, creation, enhancement, or upland preservation by the purchaser. Each credit counts for a certain acreage amount of restoration, creation, or enhancement. Once a credit is applied to satisfy a mitigation obligation under this subchapter, it is exhausted and may not be sold or used again.

"Degraded wetland" means a wetland in which there is impaired surface water flow or groundwater hydrology, or excessive drainage; a wetland which has been partially filled or excavated, contaminated with hazardous substances, or which has an ecological value substantially less than that of undisturbed wetlands in the region.

"Enhancement" means the improvement of the ability of an existing, degraded wetland or State open water to support natural aquatic life, through substantial alterations to the soils, vegetation and/or hydrology. Improvement of a wetland or water that is not degraded does not constitute enhancement. Conversion of a State open water to a wetland does not by itself constitute enhancement, although the Department may approve a mitigation proposal that includes this in some cases as part of a larger mitigation project. The addition of human-made habitat improvement devices such as duck boxes does not constitute enhancement nor does the removal of trash or debris.

"In-kind mitigation" means mitigation that provides similar values and functions as the area disturbed, including similar wildlife habitat, similar vegetative species coverage and density, equivalent flood water storage capacity, and equivalency of other relevant values or functions. In the case of a mitigation bank, this is accomplished through the purchase of credits in a bank at which similar values and functions have been established.

"Land donation" means performing mitigation through giving land that has been determined acceptable for donation by the Wetlands Mitigation Council.

"Mitigation" means activities carried out in accordance with this subchapter in order to compensate for the loss or disturbance of freshwater wetlands or State open waters.

"Mitigation area" means the portion of a site, right-of-way, or piece of property upon which mitigation is proposed or performed. If a mitigation area includes a wetland, a transition area is included as part of the mitigation area in accordance with N.J.A.C. 7:7A-15.8(b).

"Mitigation bank" means an operation in which wetlands, uplands and/or other aquatic resources are restored, created, enhanced, or preserved by a mitigation bank operator, for the purpose of providing compensatory mitigation for disturbances to freshwater wetlands and/or State open waters.

"Mitigation bank service area" means a geographic area within which a mitigation bank's credits may be used to compensate for a disturbance.

"Mitigation bank site" means the portion of a site, right-of-way, or piece of property upon which a mitigation bank is proposed or created.

“Mitigation banking instrument” means documentation of Department approval of the objectives and administration of the bank including, as appropriate:

"Monetary contribution" means giving money to the Wetlands Mitigation Fund.

"Out-of-kind mitigation" means mitigation that is not in-kind mitigation.

"Restoration" means:

"Upland preservation" means the permanent protection of transition areas or other uplands from disturbance or development, through transfer of the property to a charitable conservancy as defined in this section, and the execution of legal instruments to prevent development, such as a conservation restriction or easement.

"Watershed Management Area" means an aggregation of HUC 11s, as defined at N.J.A.C. 7:7A-1.4, designated by the Department as a watershed management area and shown on the map entitled "New Jersey's Watersheds, Watershed Management Areas, and Water Regions," dated April 2000, as amended and supplemented. The map of watershed management areas may be obtained from the Department's Division of Watershed Management at (609) 984-0058, or may be viewed on the internet at http://www.state.nj.us/dep/gis.

"Wetlands Mitigation Council" or "Council" means the body established under N.J.S.A. 13:9B-14 to perform the functions enumerated at N.J.S.A. 13:9B-15. The Wetlands Mitigation Council administers the Wetlands Mitigation Fund.

"Wetlands Mitigation Fund" means the repository for monetary contributions made for mitigation purposes, established at N.J.S.A. 13:9B-14a as the "Wetlands Mitigation Bank."

N.J.A.C. 7:7A-15.2 General mitigation requirements

(a) The Department shall not consider a mitigation proposal in determining whether to approve a permit for a project.

(b) The Department may require mitigation in accordance with this chapter in order to compensate for impacts to a freshwater wetland, State open water and/or transition areas resulting from the following:

(c) Mitigation shall, at a minimum, fully compensate for the loss of ecological value caused by a disturbance, by replacing any freshwater wetlands and/or State open waters values and functions lost or disturbed with equal values and functions. To do this, mitigation shall meet all of the following criteria:

(d) To be approved under this subchapter, mitigation must have a high probability of long term success. At a minimum, this requires the following:

(e) Mitigation under this subchapter requires prior Department approval. In addition, if the mitigation shall be through a monetary contribution or a land donation, the amount of money or the particular parcel of land must also be approved by the Wetlands Mitigation Council.

(f) All correspondence with the Department and/or the Mitigation Council, including requests for application forms and checklists, and applications for Council approval or funding, shall be addressed to:

(g) When the Department requires mitigation, the permit, approval or enforcement document under which the mitigation is required shall authorize any regulated or prohibited activities, as defined at N.J.A.C. 7:7A-1.4, necessary to accomplish the mitigation. When mitigation is required for a disturbance that is not subject to a Department-issued permit, for example, when mitigation is required by the ACOE, the mitigation itself must be authorized through a permit or enforcement document issued by the Department under this chapter. In some cases, mitigation also involves activities that require approval through one or more other Division of Land Use Regulation permits, such as a flood hazard area, CAFRA, or Waterfront Development permit; or through other State or Federal permits. In such a case, mitigation shall not begin without these approvals.

(h) If a mitigation requirement arises from a violation rather than a permit, the Department shall determine the mitigation alternative required on a case-by case basis, taking into consideration the size and severity of the violation and the functions and values provided by the proposed mitigation. A mitigation proposal submitted as part of a settlement of an enforcement action shall provide for mitigation that is at least as ecologically valuable as mitigation that would be required under this chapter as a result of a permit. This may include an increase in mitigation to compensate for the time.

(i) A mitigation area shall be permanently protected from future development in accordance with N.J.A.C. 7:7A-15.14 and in accordance with N.J.A.C. 7:7A-2.12.

(j) If mitigation is performed through uplands preservation or land donation, the mitigator shall transfer all rights in the mitigation area to a government agency or charitable conservancy in accordance with N.J.A.C. 7:7A-15.17(c) or 15.19(c), respectively. A mitigation banker shall also transfer a mitigation bank to a government agency or charitable conservancy after the bank is successfully completed, in accordance with N.J.A.C. 7:7A-15.23(i).

(k) Upon approval by the Department, a permittee may aggregate the mitigation for multiple disturbances, so as to perform mitigation for more than one disturbance with a single mitigation project. Such an aggregated mitigation project shall be used only as mitigation for disturbances performed by the permittee, unless the permittee obtains Council approval of the project as a mitigation bank under this subchapter.

(l) An activity that is required in order to satisfy Federal, State, or local government requirements, other than those imposed under this chapter, shall not qualify as mitigation under this subchapter. For example, if land is required by a county to be preserved as open space, the Department shall only approve the parcel for a land donation if the applicant also performs wetlands restoration or enhancement in accordance with this subchapter.

(m) A permittee may use one mitigation alternative or a combination of mitigation alternatives to compensate for a permitted disturbance.

(n) Upon approval of the Department, a permittee may aggregate onto one site the mitigation for multiple small (less than 0.5 acre in size), wetland disturbances resulting from the same project but that span several Watershed Management Areas.

N.J.A.C. 7:7A-15.3 Timing of mitigation

(a) Mitigation shall be performed within the applicable time period below:

(b) If a permittee fails to perform mitigation within the applicable time period in (a) above, the acreage of mitigation required shall be increased by 20 percent each year after the date mitigation was to begin. This shall compensate for the absence of the functions and values that were to be provided by the mitigation project during the delay. For example, a permit may authorize a disturbance, and require 10 acres of creation to compensate for that disturbance. If the disturbance is begun on January 1, 2001, but the mitigation is not performed prior to or concurrently with the disturbance and continued according to the approved schedule as required under (a)1 above, the acreage of creation required increases to 12 acres on January 1, 2002, in order to compensate for the absence of wetlands functions and values from the ecosystem during the time between the disturbance and the creation.

(c) In order to ensure compliance with (a) above, if mitigation is required for a publicly funded project, all work necessary to complete the mitigation shall be included in the contract awarded for the project, unless the applicant demonstrates that the mitigation will be performed by the applicant's staff and will not be awarded through a contract.

N.J.A.C. 7:7A-15.4 Property suitable for mitigation and the criteria for addressing contaminated sites

(a) Any offsite restoration, creation, enhancement, land donation, or upland preservation shall be carried out on private property, except that a government agency, as defined at N.J.A.C. 7:7A-1.4, may create, restore, or enhance on public land in accordance with this subchapter, as mitigation for a project funded solely with public monies, if the land was not acquired with Green Acres funding, as defined at N.J.A.C. 7:36-2.1, and any one of the following criteria is met:

(b) An improvement to a public facility which is intended for human use, such as a ball field, nature trail, or boardwalk, does not constitute mitigation.

(c) A person seeking property for a mitigation project under this subchapter shall review the applicable watershed management area plan, if any, approved by the Department under the Water Quality Management Planning Act, N.J.S.A. 58:11A-1 et seq., and implementing rules at N.J.A.C. 7:15 to determine if suitable properties are listed, and shall also review the applicable county mitigation inventory, if any, prepared in accordance with N.J.S.A. 13:9C-1 et seq.

(d) The Department shall not approve mitigation through creation, restoration, or enhancement in an area that is already highly ecologically valuable, for example if the area contains a mature, well developed, ecologically desirable natural community; a State open water that supports fish; a forested habitat; or significant cultural or historic resources, as identified in accordance with N.J.A.C. 7:7A-12.2.

(e) The Department shall approve mitigation through creation, restoration, or enhancement only on property that is owned in fee simple and under the full legal control of the person responsible for performing the mitigation, or the person responsible for performing the mitigation shall demonstrate that the person has legal rights to the property sufficient to enable compliance with all requirements of his chapter. If a property is affected by an easement or other encumbrance, the person responsible for performing the mitigation shall ensure that the encumbrance is extinguished.

(f) The Department shall require a habitat assessment if the Department deems such an assessment necessary to determine if an area is suitable for mitigation through enhancement. Any habitat assessment shall be performed in accordance with a scientific protocol approved by the Department.

(g) The Department shall not approve mitigation that would destroy, jeopardize, or adversely modify a present or documented habitat for threatened or endangered species; and shall not jeopardize the continued existence of any local population of a threatened or endangered species.

(h) The Department shall not approve mitigation in an area that contains contamination until all potential contaminated areas have been identified, and all remediation of the area(s) is completed so that there is no potential for the mitigation activities to result in the reintroduction of contamination to ecological communities or exposure of humans to contamination, and there is no potential for the mitigation site to be contaminated by the belated discovery of new areas of contamination requiring remediation. The Department will determine on a case by case basis whether it is feasible on a site containing contamination to conduct onsite mitigation;

(i) Stormwater management facilities designed to treat stormwater shall not constitute mitigation.

N.J.A.C. 7:7A-15.5 Mitigation for a smaller disturbance

(a) This section governs, for a smaller disturbance, the mitigation alternative required and the location of mitigation in relation to the disturbance. (See Figure 4 below for an illustration of the information in this section.) However, if a smaller disturbance is a temporary disturbance, as defined at N.J.A.C. 7:7A-1.4, it is governed by N.J.A.C. 7:7A-15.7. The acreage amount of mitigation required for both smaller and larger disturbances is determined under N.J.A.C. 7:7A-15.8.

(b) A smaller disturbance is:

(c) The Department presumes that onsite mitigation for a smaller disturbance is not feasible. Therefore, mitigation for a smaller disturbance shall be performed through credit purchase in accordance with (d) below, unless the applicant demonstrates under (e) below that one of the following will be more environmentally beneficial:

(d) Mitigation through credit purchase shall be performed as follows:

(e) In determining if onsite or offsite mitigation for a smaller disturbance would be environmentally beneficial for the purposes of (c) above, the Department shall consider the following factors and any other relevant factors specific to the site or project:

(f) If credit purchase under (d) above, and onsite or offsite mitigation under (c) above are not feasible, mitigation shall be performed through a monetary contribution in accordance with N.J.A.C. 7:7A-15.21 or, if the Department determines that no other mitigation alternative is practicable or feasible, mitigation shall be performed through upland preservation, in accordance with N.J.A.C. 7:7A-15.9, or a land donation approved by the Wetlands Mitigation Council, in accordance with N.J.A.C. 7:7A-15.22.


Figure 4: Flow chart Illustrating Mitigation Alternatives for a Smaller Disturbance

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See N.J.A.C. 7:7A-15.5 for complete requirements


N.J.A.C. 7:7A-15.6 Mitigation for a larger disturbance

(a) This section governs, for a larger disturbance, the mitigation alternative required and the location of mitigation in relation to the disturbance. (See Figure 5 below for an illustration of the information in this section.) However, if a larger disturbance is a temporary disturbance, as defined at N.J.A.C. 7:7A-1.4, it is governed by N.J.A.C. 7:7A-15.7. The acreage amount of mitigation, regardless of the size of the disturbance, is determined under N.J.A.C. 7:7A-15.8.

(b) A larger disturbance is a disturbance not listed at N.J.A.C. 7:7A-15.5(b).

(c) Mitigation for a larger disturbance shall be performed through restoration, creation, or enhancement, carried out on the site of the disturbance to the maximum extent feasible. Onsite mitigation shall not be performed through upland preservation.

(d) If onsite restoration, creation, or enhancement is not feasible, mitigation shall be performed through any of the following, at the applicant's option:

(e) If mitigation under (d) above is not feasible, mitigation shall be performed through either of the following, at the applicant's option:

(f) If mitigation is not feasible under (c), (d) or (e) above, mitigation shall be performed through:

(g) If mitigation is not feasible under (c), (d), (e) or (f) above, mitigation shall be performed through:

1. A monetary contribution in accordance with N.J.A.C. 7:7A-15.21;

2. Upland preservation, in accordance with N.J.A.C. 7:7A-15.9; or

3. A land donation approved by the Wetland Mitigation Council in accordance with N.J.A.C. 7:7A-15.22.


Figure 5: Flow chart Illustrating Mitigation Alternatives for a Larger Disturbance

See N.J.A.C. 7:7A-15.6 for complete requirements

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N.J.A.C. 7:7A-15.7 Mitigation for a temporary disturbance

(a) Mitigation for a temporary disturbance, as defined at 7:7A-1.4, shall be performed as follows:

(b) The transition area for a temporary disturbance shall be as follows:

N.J.A.C. 7:7A-15.8 Amount of mitigation required

(a) This section governs the amount of mitigation required, depending on the mitigation alternative selected under N.J.A.C. 7:7A-15.5 or 15.6, except that this section does not address the amount of a monetary contribution or the size of a land donation. The amount of a monetary contribution or the size of a land donation is not determined by the Department, but instead must be approved by the Wetlands Mitigation Council in accordance with N.J.A.C. 7:7A-15.21 or 15.22.

(b) A mitigation area involving restoration or creation shall include a transition area. The transition area shall not be counted in calculating the acreage of mitigation required. For example, if a person must create one acre of wetlands, the mitigation area shall include one acre of created wetlands and in addition a transition area around the created wetlands. The width of the transition area around a wetland resulting from mitigation shall be:

(c) If restoration is the mitigation alternative, the Department shall require the following amount of mitigation unless the applicant demonstrates under (j) below that a smaller area will provide equal functions and values:

(d) If creation is the mitigation alternative, the Department shall require creation of two acres of freshwater wetlands and/or State open waters for each acre disturbed, with the addition of any transition area required under (b) above, unless the applicant demonstrates under (j) below that a smaller area will provide equal functions and values.

(e) If enhancement is the mitigation alternative, the Department shall evaluate the wetlands values and functions lost as a result of the disturbance and determine on a case-by-case basis the amount of enhancement required to ensure that the mitigation area results in wetlands of equal functions and values to those lost.

(f) If credit purchase is the mitigation alternative, the Department shall evaluate the wetlands values and functions lost as a result of the disturbance and determine on a case-by-case basis the number of credits required to ensure that the mitigation results in wetlands of equal functions and values to those lost.

(g) If upland preservation is the mitigation alternative, the acreage of upland preserved shall be determined under N.J.A.C. 7:7A-15.9(c).

(h) If monetary contribution is the mitigation alternative, the contribution shall be equal to the lesser of the following costs:

(i) If land donation is the mitigation alternative, the Wetlands Mitigation Council shall determine on a case-by-case basis whether the acreage of land specified in the mitigation proposal will result in a mitigation area large enough to be a valuable component of the freshwater wetlands ecosystem. In making this determination, the Council shall consult the sources, and consider the conditions, referenced in (j) below and in N.J.A.C. 7:7A-15.22(b).

(j) A person shall carry out the full acreage amount of mitigation required under this section, unless the person demonstrates, through use of productivity models or other similar studies, that a smaller mitigation area will result in a mitigation area sufficient to comply with this section. However, under no circumstances shall a mitigation area be smaller than the disturbed area. To demonstrate that a smaller mitigation area will be sufficient to provide equal functions and values to those lost, the person shall provide current scientific literature concerning wetlands, aquatic resources, and mitigation; as well as information regarding the conditions on the site of the disturbance and on the proposed mitigation site, including soil, vegetation, any existing contamination or other degradation, water quality functions, flood storage capacity, soil erosion and sediment control, wildlife habitat, and any other relevant data.

(k) If a 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 with the mitigation requirements of this chapter.

(l) If a mitigation requirement arises from a violation, the Department shall determine the amount of mitigation required on a case-by case basis, taking into consideration the size and severity of the violation and the functions and values provided by the proposed mitigation. A mitigation proposal submitted as part of a settlement of an enforcement action shall require mitigation that provides functions and values at least equal to those that would be required under this chapter as a result of a permit. This may include an increase in mitigation to compensate for the time lapse between the disturbance and the completion of mitigation, such as that required at N.J.A.C. 7:7A-15.3(b).

N.J.A.C. 7:7A-15.9 Requirements for upland preservation

(a) The Department shall approve mitigation through preservation of uplands only if the uplands meet the requirements in this section.

(b) Preserved uplands shall be valuable for the protection of a freshwater wetlands ecosystem. Factors the Department shall consider in evaluating an area for upland preservation include, but are not limited to:

(c) The amount of uplands preserved shall be sufficient to ensure that the functions and values resulting from the preservation of the uplands will fully compensate for the loss of functions and values caused by the disturbance, in accordance with N.J.A.C. 7:7A-15.2(c). In determining if an upland preservation proposal will fully compensate for a disturbance, the Department shall consult the sources, and consider the conditions, referenced in N.J.A.C. 7:7A-15.8(j). At a minimum, the uplands preserved shall be:

(d) If mitigation is performed through upland preservation, the mitigator shall transfer the mitigation area in fee simple to a government agency or charitable conservancy, as defined at N.J.A.C. 7:7A-1.4, in accordance with N.J.A.C. 7:7A-15.17(c).


N.J.A.C. 7:7A-15.10 Conceptual review of a mitigation area

(a) The Department strongly recommends that an applicant obtain the Department's conceptual review of any land being considered as a potential mitigation area, prior to submittal of a mitigation proposal involving restoration, creation, enhancement, uplands preservation, or land donation.

(b) An applicant may request a conceptual review at any time prior to submittal of a mitigation proposal. However, the Department strongly recommends that an applicant obtain a Department conceptual review before buying the land for a mitigation area.

(c) To obtain the Department's conceptual review of a mitigation area, the applicant shall submit a written request, including:

(d) Upon receipt of a complete request for a conceptual review, the Department may schedule a site inspection. At a site inspection, Department staff shall candidly discuss the apparent strengths and weaknesses of the proposed mitigation area, but all guidance provided shall be non-binding on the Department. A Department decision on a proposed mitigation area or mitigation proposal is binding only if it is incorporated into an approval obtained in accordance with this subchapter. A conceptual review does not grant any property or other rights, and does not authorize mitigation activities.

N.J.A.C. 7:7A-15.11 Basic requirements for all mitigation proposals

(a) A mitigation proposal shall be submitted within the applicable time period below:

(b) The mitigation proposal shall provide all information necessary for the Department to determine if the requirements of this subchapter are met. The information required for each mitigation alternative is set forth in a mitigation proposal checklist, provided by the Department. To obtain the mitigation proposal checklist for a particular mitigation alternative, contact the Department at the address in N.J.A.C. 7:7A-15.2(f);

(c) In order to demonstrate that an offsite mitigation alternative is not feasible under this subchapter, an applicant shall provide to the Department a list of at least six potential areas upon which the mitigation alternative might be performed. Each of these potential areas shall:

(d) A mitigation proposal submitted as part of a settlement of an enforcement action shall provide for mitigation that is at least as ecologically valuable as mitigation that would be required under this chapter as a result of a permit. This may include an increase in the amount of mitigation to compensate for the time that has elapsed between the disturbance and the completion of mitigation, such as that required at N.J.A.C. 7:7A-15.3(b).

(e) A mitigation proposal shall include as many copies of each item as required by the checklist.

N.J.A.C. 7:7A-15.12 Contents of a mitigation proposal

(a) The application checklist for every mitigation proposal shall require the information listed at (b)1 through 8 below. In addition, each mitigation proposal shall also require information specific to the mitigation alternative proposed, listed at (c) through (g) below.

(b) The application checklist for every mitigation proposal shall require the following:

(c) In addition to the basic information required for all mitigation proposals under (b) above, an application checklist for a proposal to purchase credits shall require information demonstrating that credit purchase is acceptable under N.J.A.C. 7:7A-15.5 or 15.6, and any information necessary for the Department to determine the mitigation bank from which appropriate credits must be purchased under N.J.A.C. 7:7A-15.5 or 15.6.

(d) In addition to the basic information required for all mitigation proposals under (b) above, an application checklist for a proposal to restore, create, or enhance wetlands, to preserve uplands, or to donate land shall also require the following information:

(e) In addition to the basic information required for all mitigation proposals under (b) above, and the information required at (c) above, an application checklist for a proposal to restore, create, or enhance wetlands shall require the following information:

(f) In addition to the basic information required for all mitigation proposals under (b) above, an application checklist for a proposal to make a monetary contribution shall require the following:

(g) In addition to the basic information required for all mitigation proposals under (b) above, an application checklist for a proposal to make a land donation shall require the following:

N.J.A.C. 7:7A-15.13 Financial assurance for a proposal to restore, create, or enhance wetlands

(a) The Department shall approve a proposal for restoration, creation, or enhancement only if the mitigator or mitigation bank operator provides a letter of credit or other financial assurance that meets the requirements of this section, except that this section does not apply to a mitigation proposal submitted by a government agency, as defined at N.J.A.C. 7:7A-1.4, or an entity that is exempt from this requirement under Federal law.

(b) A letter of credit or other financial assurance under this section shall be obtained from a firm licensed to provide such services in New Jersey.

(c) The letter of credit or other financial assurance shall be in an amount sufficient for the Department to hire an independent contractor to complete and maintain the mitigation project or mitigation bank should the mitigator default. At a minimum, the financial assurance shall be based upon itemized estimates provided by third-party contractors and in the following amounts:

(d) The Department shall review the financial assurance annually and the mitigator shall adjust the financial assurance to reflect current economic factors, as direct by the Department.

(e) The Department shall require additional financial assurance if additional construction and/or monitoring is required.

(f) The portion of the financial assurance required under (c)1 above shall be released upon the Department's determination that the construction and planting phase of the mitigation project or mitigation bank has been successfully completed in accordance with the approved mitigation proposal.

(g) The portion of the financial assurance required under (c)2 above shall be released upon the Department's declaration that a mitigation project is successful under N.J.A.C. 7:7A-15.16(e), or upon the successful completion of a mitigation bank in accordance with N.J.A.C. 7:7A-15.23(h), as applicable.

N.J.A.C. 7:7A-15.14 Protecting a mitigation area from future development

(a) Every mitigation area, whether onsite or offsite, shall be permanently protected from any future development through one or more binding conservation restrictions or easements, as defined at N.J.A.C. 7:7A-1.4, and in accordance with N.J.A.C. 7:7A-2.12, except if the mitigation is restoration of a temporary disturbance on the site of the disturbance.

(b) The conservation restriction shall run with the land and shall be binding upon the mitigator, the landowner, and their successors in interest in the land or any part of the land on which the mitigation area is located. To ensure that notice of the restriction is provided to all present and future interested parties, the mitigator shall do all of the following:

(c) A conservation restriction for preserved uplands or for donated land shall be enforceable by the Department, by a government agency, or by a charitable conservancy whose trustees have no other interest in the land.

(d) If the mitigation area is donated land or a mitigation bank, the conservation restriction(s)/easement shall require approval by both the Department and the Wetlands Mitigation Council.

N.J.A.C. 7:7A-15.15 Department review of a mitigation proposal

(a) The Department shall, within 30 days after receiving a mitigation proposal, review the proposal for completeness and:

(b) If a mitigation proposal is intended to compensate for a major discharge, as defined at N.J.A.C. 7:7A-1.4, the Department shall consult with USEPA prior to determining whether to approve the proposal.

(c) The Department shall approve a mitigation proposal only if it meets all of the applicable requirements of this subchapter.

N.J.A.C. 7:7A-15.16 Requirements that apply after the Department approves restoration, creation or enhancement

(a) After the Department approves mitigation through restoration, creation, or enhancement, the mitigator shall execute and record a conservation restriction or easement covering the mitigation area. The conservation restriction or easement shall meet the requirements of N.J.A.C. 7:7A- 2.12, and shall be executed and filed for recording prior to the start of mitigation activities.

(b) Within 30 days after construction and planting of a restoration, creation, or enhancement project is completed, the mitigator shall submit a construction completion report to the Department. The Department may require a different schedule for submittal of the construction completion report if it determines that a different schedule would be more effective for assessing the progress and success of the mitigation. The construction completion report shall include:

(c) In addition to the construction completion report required under (b) above, the mitigator shall submit to the Department an annual post-planting monitoring report each year for five years after the completion of planting and construction, or for a different time period if specified in the approved mitigation proposal. The Department may at any time modify the frequency and/or duration of reporting required. The post-planting monitoring report shall be submitted by December 31 of each year, and shall include:

(d) At the end of the post-planting monitoring period for a restoration, creation, or enhancement project, the mitigator shall demonstrate to the Department that the mitigation project is successful. To do so, the mitigator shall demonstrate that the mitigation satisfies all requirements of this subchapter, all requirements of the approved mitigation proposal, and any applicable permit conditions. At a minimum, the mitigator shall demonstrate that:

(e) If the mitigator makes the demonstrations required for a restoration, creation, or enhancement project at (d) above, the Department shall issue a declaration that the mitigation is successful.

(f) If the mitigator does not make the demonstrations required at (d) above, the mitigator shall perform additional mitigation or other remedial action as directed by the Department, and shall monitor and report on the mitigation or action as directed by the Department.

N.J.A.C. 7:7A-15.17 Requirements that apply after the Department approves credit purchase or uplands preservation

(a) After the Department determines under N.J.A.C. 7:7A-15.5 or 15.6 that mitigation through credit purchase or uplands preservation is the appropriate mitigation alternative, the mitigator shall prepare and execute all documents necessary to ensure that the mitigation will be carried out as approved by the Department.

(b) The Department shall declare mitigation through credit purchase or uplands preservation successful upon:

(c) No later than 60 days after the Department declares mitigation through uplands preservation successful under (b) above, a mitigator shall:

N.J.A.C. 7:7A-15.18 Requirements that apply after the Department approves mitigation through a monetary contribution

(a) After the Department determines under N.J.A.C. 7:7A-15.5 or 15.6 that monetary contribution is the appropriate mitigation alternative, the mitigator shall either:

(b) The Department shall declare mitigation through a monetary contribution successful upon a demonstration that:

N.J.A.C. 7:7A-15.19 Requirements that apply after the Department approves mitigation through a land donation

(a) After the Department determines under N.J.A.C. 7:7A-15.5 or 15.6 that land donation is the appropriate mitigation alternative, the mitigator shall apply to the Wetlands Mitigation Council for approval of the particular parcel of land to be donated under the standards at N.J.A.C. 7:7A-15.22.

(b) The Department shall declare mitigation through a land donation successful upon a demonstration that:

(c) Within 60 days after the Department declares mitigation through land donation successful under (b) above, a mitigator shall:

N.J.A.C. 7:7A-15.20 Wetlands Mitigation Council

(a) The Wetlands Mitigation Council's duties and functions include:

(b) If the Council transfers funds or land, the Council shall first execute and record a conservation restriction or easement or other legally binding document that meets all applicable requirements at N.J.A.C. 7:7A-15.14, and that ensures that the funds or land will be used only for mitigation and freshwater wetlands conservation.

(c) Council meetings are open to the public. A schedule of Council meetings and other information relating to specific Council meetings can be obtained by contacting Council staff at the address in N.J.A.C. 7:7A-15.2(f).

(d) The Wetlands Mitigation Fund shall not be used to aid a permittee or violator in locating a mitigation area required as a condition of a permit, or required in order to resolve a violation.

(e) The Council may contract with a government agency, nonprofit organization, or other appropriate agency to carry out its responsibilities under this chapter. Any such contract shall be subject to review and approval by the USEPA.

N.J.A.C. 7:7A-15.21 Council review of a proposed monetary contribution

(a) For mitigation through a monetary contribution, the mitigator shall first obtain the Department's authorization under N.J.A.C. 7:7A-15.5 or 15.6 to use monetary contribution as the mitigation alternative. For an individual permit, the mitigator shall then obtain approval from the Wetlands Mitigation Council for the amount of the monetary contribution. For a general permit, the amount of the monetary contribution shall be determined in accordance with (d) below.

(b) The Wetlands Mitigation Council shall approve the amount of a monetary contribution only if the contribution is equal to the lesser of the following:

(c) In determining the costs at (b)1 and 2 above, the Council may consider cost estimates submitted by the applicant and the Department, information obtained from experts in the field of mitigation (including Council members), and any other information available to the Council.

(d) The following analysis shall be used to determine the amount of a monetary contribution when mitigating for general permit impacts at N.J.A.C. 7:7A-5:

(e) When the Department determines under (d)1 or 2 above to adjust the amount of a monetary contribution using the Consumer Price Index for Urban Consumers, the Department shall publish in the New Jersey Register a notice of administrative change announcing the adjustment and the amount of the adjusted monetary contribution.

N.J.A.C. 7:7A-15.22 Council review of a proposed land donation

(a) For mitigation through a land donation, the mitigator shall first obtain the Department's authorization under N.J.A.C. 7:7A-15.5 or 15.6 to use land donation as the mitigation alternative. The mitigator shall then obtain approval from the Wetlands Mitigation Council for the particular parcel of land to be donated.

(b) The Council shall approve the proposed parcel of land to be donated only if the amount of land to be donated is sufficient to ensure that the functions and values provided by the donated land will fully compensate for the loss of functions and values caused by the disturbance, in accordance with N.J.A.C. 7:7A-15.2(c).

(c) If a proposed parcel to be donated is also being donated or otherwise restricted in order to satisfy requirements of another government agency, the Council shall not approve the donation unless the applicant also enhances or restores wetlands on the parcel. For example, if land is required by a county to be preserved as open space, the Council shall only approve the parcel for a land donation if the applicant also performs wetlands restoration or enhancement in accordance with this subchapter. If restoration or enhancement cannot be performed on the parcel, the Council shall not accept the parcel as a land donation.

(d) The Council shall approve the proposed parcel of land to be donated only if the applicant demonstrates that the land has the potential to be a valuable component of a wetland or surface water ecosystem. The Council shall evaluate each parcel to determine its potential on a case by case basis, taking into consideration the following:

N.J.A.C. 7:7A-15.23 Mitigation banks

(a) A mitigation bank requires approval by the Department prior to the sale of any mitigation credits. “Approval” for the purposes of this section means final approval in accordance with N.J.A.C. 7:7A-15.25.

(b) If creation of a mitigation bank involves regulated activities as described at N.J.A.C. 7:7A-2.2 or N.J.A.C. 7:7A-2.6, the bank operator shall also obtain from the Department a freshwater wetlands permit, open water fill permit, and/or transition area waiver, authorizing the regulated activities.

(c) Once the Department has approved a mitigation bank, the bank operator shall carry out all requirements of the banking instrument approving the bank, regardless of whether or when credits are sold.

(d) The Department shall determine how many mitigation credits each mitigation bank operator may sell, based on the increase in wetland values and functions created as a result of the proposed mitigation bank, as well as how the increase in functions and values will interact with the regional wetland and aquatic resources. The Department shall evaluate each mitigation bank to determine its functions and values on a case by case basis, considering the following factors:

(e) The Department shall include in the banking instrument approving the bank a schedule under which a bank operator may sell credits. The schedule shall be as set forth at (e)1 through 6 below. The Department shall adjust the amount of credits within the ranges at (e)2 through 6 below to reflect the degree of progress the bank has shown toward meeting the goals and performance standards in the approved mitigation proposal:

(f) The mitigation bank operator shall execute and record a restriction on the mitigation bank site prior to the sale of any credits. The conservation restriction or easement shall meet the requirements for protecting mitigation sites from future disturbance, set forth at N.J.A.C. 7:7A-2.12 and 15.14.

(g) The mitigation bank operator shall monitor the bank during and after construction until such time that the last credit is sold, the final inspection is conducted, or the bank is transferred to a charitable conservancy, whichever occurs last, in order to ensure its success. The bank operator shall submit progress reports to the Department at least annually during and after construction, and more often if required by the banking instrument approving the bank.

(h) If the bank falls more than one year behind the schedule for completion specified in the banking instrument approving the bank, the Department may amend the banking instrument approving the bank, and may require remedial action to ensure the successful completion of the bank. The Department may reduce the number of credits that may be sold based on the approved remedial action, in order to reflect the change in wetlands values and functions that will result from the changes to the bank.

(i) Upon completion of the monitoring period and all other requirements in the banking instrument approving the bank, the mitigation bank operator shall:

(j) A mitigation bank approval shall be valid for five years, or until any Department permit required to conduct the bank activities expires. The Department shall approve a single five year extension if the permit is extended for five years and only if the mitigation bank operator demonstrates that:

(k) If a bank approval expires and is not extended under (j) above, the Department shall determine whether the amount of mitigation completed at the bank site is commensurate with the number of credits already sold. If the Department determines that the amount of mitigation completed is not commensurate with the number of credits already sold, the banker shall be considered in default and the Department shall assert its rights to the financial assurance provided under this subchapter.

N.J.A.C. 7:7A-15.24 Application for Wetlands Mitigation Council approval of a monetary contribution or land donation

(a) An application for a proposal to make a monetary contribution or a land donation shall include the information required by the checklist described at N.J.A.C. 7:7A-15.12(f) or (g), respectively. The application checklist may be obtained from the Council staff at the address in N.J.A.C. 7:7A-15.2(f).

(b) Except for a monetary contribution for a general permit, which shall be submitted to the Department in accordance with N.J.A.C. 7:7A-15.21(d), an application for approval of a monetary contribution or land donation shall first be submitted to Council staff at the address in N.J.A.C. 7:7A-15.2(f). Council staff shall notify the applicant of any additional information required to make the application complete and of the schedule for Council meetings. The applicant shall then submit 10 copies of the complete application to the Council staff. These copies shall be submitted at least 30 days before the Council meeting at which the application will be discussed.

(c) Each Council approval shall incorporate conditions as necessary to ensure that the requirements of this chapter are met.

N.J.A.C. 7:7A-15.25 Application for approval of a mitigation bank

(a) A prospective mitigation bank operator shall obtain conceptual review of a proposed mitigation bank before investing in buying land or preparing a detailed mitigation bank proposal. Through a conceptual review, Department staff shall candidly discuss the apparent strengths and weaknesses of the proposed mitigation bank, but all guidance provided shall be non-binding on the Department. A Department decision on a proposed mitigation bank is binding only if it is incorporated into an approval obtained in accordance with this subchapter. A conceptual review does not grant any property or other rights, and does not authorize mitigation activities or sale of credits. The findings provided by the Department as part of the conceptual review shall be valid for a period of three years or until the rules governing conceptual review are amended in a way that would render the conceptual review inconsistent with the new requirements, whichever occurs sooner. Once expired, a new conceptual review shall be required. To obtain conceptual review of a proposed mitigation bank, an applicant shall submit the following to the Department:

(b) To obtain final Department approval of a proposed mitigation bank, an applicant shall submit the information required by the application checklist, available from Department staff at the address in N.J.A.C. 7:7A-15.2(f). The checklist shall require the following types of information:

(c) An application for approval of a mitigation bank shall be submitted to Department staff at the address in N.J.A.C. 7:7A-15.2(f). Department staff shall notify the applicant of any additional information required to make the application complete. The applicant shall then submit 5 copies of the complete application to the Department staff.

(d) Each Department approval shall incorporate conditions as necessary to ensure that the requirements of this chapter are met.

N.J.A.C. 7:7A-15.26 Mitigation for transition area impacts in accordance with N.J.A.C. 7:7A-6.3(g), special activity transition area waivers based upon individual permit criteria

(a) This section governs the mitigation alternative required and the location of mitigation in relation to the disturbance for a transition area impact in accordance with N.J.A.C. 7:7A-6.3(g) (special activity transition area waivers based upon individual permit criteria). Mitigation for a transition area disturbance shall be performed through restoration or enhancement of transition areas carried out on the site of the disturbance to the maximum extent feasible.

(b) If onsite transition area restoration or enhancement is not feasible, mitigation shall be performed through any of the following, at the applicant's option:

(c) If transition area mitigation under (b) above is not feasible, transition area mitigation shall be performed through either of the following, at the applicant's option:

(d) If transition area mitigation is not feasible under (b), or (c) above, mitigation shall be performed through:

(e) If transition area mitigation is not feasible under (b), (c), or (d) above, mitigation shall be performed through: