NJDEP Amends Freshwater Wetlands Mitigation Requirements: New Rules Could Require the Replacement of Wetland Areas as Small as a New Drainage Outfall Pipe

November 18th, 2009 | Posted by: Christopher DeGrezia2| comments:

Wetlands BankBy John C. Ryder, P.E., P.P., P.W.S., C.M.E.    Effective November 2, 2009, the New Jersey Department of Environmental Protection (NJDEP) has amended the Freshwater Wetlands Protection Act Rules to expanded the list of Freshwater Wetlands Statewide General Permits (SGP) requiring mitigation as follows: SGP No. 2 (Underground utility lines); SGP No. 6 (Isolated wetlands); SGP Nos. 10A & 10B (Road crossings); SGP No. 11 (Outfalls & intake structures); SGP No. 21 (Above ground utility lines); and SGP 27 (Redevelopment of previously disturbed areas).  Wetlands permits previously requiring mitigation included: SGP No. 4 (Hazardous site investigation and cleanup); SGP No. 5 (Landfill closures); and all Individual Permits (IP). 

Under the amended wetlands rules (N.J.A.C. 7:7A-15), mitigation is required for the permanent loss of greater than 0.1 acres of freshwater wetlands and may be required for less than 0.1 acres if the application fails to demonstrate that “all activities have been designed to avoid and minimize impacts to wetlands.”  The method of mitigation and compensation ratio for wetlands permanently disturbed is outlined below:

  1. On-site mitigation (creation) – 2:1 ratio.
  2. Purchase of credits from a wetlands mitigation bank – typically 2:1 ratio.
  3. Monetary contribution to the Wetlands Mitigation Counsel – formula provided under N.J.A.C. 7:7A-15.21(d); the amount of monetary contribution for all property owners excluding single-family property owners shall be the acreage of wetlands/open water impacts multiplied by $300,000, adjusted annually using the Consumer Price Index.
  4. Land donation to the Wetlands Mitigation Counsel – case-by-case basis.

For projects proposing a permanent wetlands disturbance of 0.1 – 1.5 acres, it is presumed by the NJDEP that onsite mitigation is not feasible and mitigation shall be accomplished through the purchase of wetlands credits [ref. N.J.A.C. 7:7A-15.5(c)].  Wetlands credits can be purchased from an approved Wetlands Mitigation Bank within the same Watershed Management Area (WMA) as the project, if such a bank is available and if any credits are remaining.  The cost of wetlands credits is established by the individual mitigation bank.  A sampling of mitigation credit rates are: $250,000/credit (Wyckoff Mills – WMA 10) and $400,000/credit (Willow Grove – WMA 1, 11, 17, 18, 19 & 20). 

Mitigation Banks are not currently available for every WMA in New Jersey and several established banks either cannot presently sell credits or do not have any credits available.  If mitigation credits are not available and, for “small” projects should on-site mitigation be unfeasible, the mitigation requirements can be satisfied via either a monetary contribution or lands donation to the Wetlands Mitigation Counsel.

The location and operating status of mitigation banks can be found under the NJDEP website.  Click here for link.   

The location and description of New Jersey’s 20 WMA’s can also be found under the NJDEP website.  Click here for link.   

Note that at this time, and based on an initial review, the wetland mitigation bank for those portions of Mercer County within WMA No. 10 (Millstone/Raritan River drainage) has very few, if any, credits remaining.  Therefore, based on this information, mitigation at present would be through the Wetlands Mitigation Counsel contribution formula.  VNHA is presently following up with the NJDEP to confirm the requirements of this method.  Those portions of Mercer County within WMA No. 11 (Delaware River drainage) may purchase credits from the Willow Grove Lake Mitigation Bank.  As of November 2009, approximately 27 credits are available at a cost of $400,000/credit.  Note that according to the bank, credits purchased from Willow Grove are only required at a 1:1 ratio.  VNHA is presently following up with the NJDEP to confirm this information.

Additionally, the NJDEP has indicated that “consultants, developers, and large property owners” may establish their own mitigation banks to account for future projects.  

Should you have any questions or need additional information, please do not hesitate to contact John Ryder.

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