FREQUENTLY ASKED QUESTIONS

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1. What is Wetland Mitigation?

Mitigation is an activity or activities carried out to compensate for freshwater wetlands or State open waters loss, or disturbance caused by regulated activities. Wetland mitigation is currently required under some general permits and when an applicant receives an individual permit for unavoidable impact to wetlands/state open waters.

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2. Are there different forms of mitigation?

Wetland mitigation can be accomplished in several ways, with different environmental benefits. Various forms of mitigation include the following:

Creation - Means the establishment of freshwater wetlands or State open water characteristics and functions in uplands.

Restoration - The reestablishment of wetland and/or State open water characteristics and functions in an area that was once a freshwater wetlands and/or State open water but is no longer; or the reversal of a temporary disturbance and the reestablishment of the functions and values of the freshwater wetlands and/or State open water that was temporarily disturbed.

Enhancement - 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.

Preservation - Preserve an upland feature that has been deemed valuable for the protection of a freshwater wetland ecosystem.

Credits - Purchase wetland mitigation credits from an approved wetland banker who has performed one or more of the above forms of mitigation on his or her own bank property.

Contribution - Contribute money to a Wetland Mitigation Fund so that the Freshwater Wetland Mitigation Council can build the wetland mitigation project for the applicant.

Land Donation - Donate land that has potential as a valuable component of a freshwater wetland ecosystem.

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3. How do I know which type of mitigation is appropriate for my proposed project?

Flow Chart Illustrating Mitigation Alternatives for a Larger Disturbance (Pdf Format)

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4. What do the posted wetland mitigation signs mean?

The sign is posted to inform anyone in the area that a particular area is a wetland mitigation area. There should be no activities within the mitigation area.

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5. What is a mitigation bank?

A mitigation bank is 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 disturbance to freshwater wetlands and/or State open waters.

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6. If I want to establish a mitigation bank what would generally be required?

The Wetland Mitigation Council must give approval for a mitigation bank. The
Department recommends that a prospective mitigation bank operator obtain conceptual review of a proposed mitigation bank before investing in buying land or preparing a detailed mitigation bank proposal. To obtain a conceptual review, the applicant should submit to the Council:

1. Information on the location, size, and environmental characteristics of the proposed mitigation bank site;
   
   
2. Information on previous uses of the site, including possible contamination and/or historic or archaeological resources;
   
   
3. The proposed mitigation alternative(s), for example, creation, restoration, and/or enhancement;
   
   
4. Whether the credits generated by the bank will be used solely by the mitigation bank operator, or will be available for use by others;
   
   
5. Maps, photographs, diagrams, delineations and/or other visual materials necessary for the Council to generally evaluate the proposed mitigation bank;
   
   
6. The names and addresses of all owner(s) of the mitigation bank site, and any proposed owner(s), as of the date the request for conceptual review is submitted; and
   
   
7. Unconditional written consent from the owner of the proposed mitigation bank site, allowing Council and Department representatives to enter the property and inspect the site.

To obtain final Council approval of a proposed mitigation bank, an applicant shall submit the information required by the application checklist, available at: http://www.nj.gov/dep/landuse/fww/mitigate/bank_list.html.

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7. What is the Wetland Mitigation Council?

A 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 Mitigation Fund.

The Wetlands Mitigation Council's duties and functions include:

1. Reviewing the following:
   
   
   • Proposed monetary contributions,
     
     
   • Proposed land donations,
     
     
   • Mitigation bank proposals; and
     
     
   • Proposed county mitigation inventories;
     
     

2. Advising the Department on mitigation issues;
   
   

3. Buying land in order to conduct mitigation, or to preserve wetlands, transition areas, uplands, and/or State open waters;
   
   

4. Contracting with a charitable conservancy or appropriate agency to carry out its responsibilities;
   
   

5. Conducting research on mitigation;
   
   

6. Enhancing or restoring wetlands on public lands; and
   
   

7. Disbursing funds from the Wetlands Mitigation Fund to finance the activities listed at (a)3, 4, 5, and 6 above.

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8. What is the Mitigation Fund?

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

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9. How do I get on the Council Agenda?

Submit a request to be on the agenda to the Mitigation Unit. All requests must be received no later than 60 days prior to the meeting date.

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10. How do I get approval for my mitigation plan?

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.

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

1. A brief description of the area and the mitigation project being considered;
   
   
2. A map showing Department staff how to find the mitigation area;
   
   
3. A USGS quad showing the mitigation area;
   
   
4. A county soil survey showing the soils in the mitigation area; and
   
   
5. Unconditional written consent from the owner of the proposed mitigation area allowing Department representatives to enter the property and inspect the mitigation area.

More details on the conceptual review process can be found at http://www.nj.gov/dep/landuse/7-7a.pdf (Pdf Format).

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11. When must the mitigation process commence?

1. Mitigation for a disturbance authorized by a permit, other than a temporary disturbance, as defined at N.J.A.C. 7:7A-1.4, shall be performed prior to or concurrently with the permitted activity, and shall be continued to completion according to the schedule in the approved mitigation proposal;
   
   
2. Mitigation for a temporary disturbance authorized by a permit shall be started immediately following completion of the activity that caused the disturbance, and shall be continued to completion within six months after the end of the activity that caused the disturbance; and
   
   
3. Mitigation required as part of an enforcement action shall be performed in accordance with a schedule in the enforcement document.
   

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12. How long do I have to monitor? Why do I have to monitor?

Monitoring ensures that the mitigation site achieves the goals identified in the approved mitigation plan, the area meets the definition of a wetland, the target plant community has achieved its performance goals which are usually 85% coverage and 85% survival rate and that it becomes a self-sustaining wetland in perpetuity. Monitoring is usually required for five years.

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13. What are approved/accepted forms of financial assurance to restore, create, or enhance wetlands?

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.

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.

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 in the following amounts:

1. A construction assurance, equal to one hundred and fifteen percent of the estimated cost of completing the creation, restoration, or enhancement; and
   
   
2. A maintenance assurance to assure the success of the mitigation through the completion of the monitoring period, equal to thirty percent of the estimated cost of completing the creation, restoration, or enhancement.