N.J. Admin. Code § 7:7A-11.4 - Property suitable for mitigation

(a) The Department shall approve mitigation only on property that is owned in fee simple and under legal control of the person responsible for performing the mitigation, unless the person responsible for performing the mitigation demonstrates that they have legal rights to the property sufficient to enable compliance with all requirements of this chapter.

(b) Any offsite mitigation shall be carried out on private property, except that a government agency 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:

1. The land is obtained or held by the government agency for mitigation;

2. The land is obtained by the government agency by default or operation of law, through a tax lien or other similar circumstance; or

3. The land obtained or held by the government agency is, or was formerly a wetland and the government agency is proposing to restore and/or enhance the wetland for mitigation.

(c) The following shall not constitute mitigation under this subchapter:

1. The installation of a new public facility, or improvement to an existing public facility, that is intended for human use, such as a ball field, nature trail, or boardwalk; or

2. A stormwater management facility, such as a basin.

(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 7:7A-12.2.

(e) The Department shall not approve creation, restoration, or enhancement in an area that the Department has determined is currently of high ecological value, for example if the area contains a mature, well developed, ecologically desirable natural community; or a forested habitat.

(f) The Department shall not approve creation, restoration, or enhancement in an area that the Department has determined is a significant cultural or historic resource, as identified in accordance with N.J.A.C. 7:7A-19.5.

(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 that would:

1. Destroy, jeopardize, or adversely modify a present or documented habitat for threatened or endangered species; or

2. In any way jeopardize the continued existence of any local population of a threatened or endangered species.

(i) The Department shall not approve mitigation in an area where the proposed mitigation poses an ecological risk. For purposes of this section, ecological risk means that the mitigation may result in the reintroduction of contamination to ecological communities, the exposure of humans to contamination, or the contamination of the mitigation site by subsequent exposure to new areas of contamination requiring remediation. The mitigator shall properly characterize and assess the mitigation area in accordance with the Technical Requirements for Site Remediation at N.J.A.C. 7:26E-1.16 and 4.9 to determine ecological risk.

1. If the Department determines based on the characterization and assessment that the mitigation activities at the proposed site do not pose an ecological risk, the Department shall complete its review of the proposed mitigation site to determine whether the proposed mitigation satisfies the requirements of this subchapter.

2. If the Department determines based on the characterization and assessment that the proposed mitigation activities at the proposed site do pose an ecological risk, the mitigator shall not be permitted to use the site for mitigation unless the mitigator remediates the site pursuant to the Technical Requirements for Site Remediation at N.J.A.C. 7:26E-4.8 , 5.1, and 5.2. The Department shall allow the mitigator to proceed with the mitigation project only after it demonstrates that the remediation and/or mitigation activities will fully address the ecological risk and that the proposed mitigation satisfies the requirements of this subchapter.

(j) Properties where a substantial amount of soil must be removed in order to achieve suitable wetland hydrology are not acceptable mitigation sites.

Notes

N.J. Admin. Code § 7:7A-11.4

Amended and recodified from 7:7A-15.4 by 49 N.J.R. 3849(a), effective 12/18/2017