FRESHWATER WETLANDS PROTECTION ACT RULES
N.J.A.C. 7:7A

SUBCHAPTER 6 TRANSITION AREA WAIVERS

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-6.1 General transition area waiver provisions
7:7A-6.2 Transition area averaging plan waiver
7:7A-6.3 Special activity transition area waiver
7:7A-6.4 Matrix type width reduction transition area waiver
7:7A-6.5 Hardship transition area waiver
7:7A-6.6 Application for a transition area waiver

N.J.A.C. 7:7A-6.1 General transition area waiver provisions

(a) This section sets forth the requirements for transition area waivers. The Department issues the following types of transition area waivers

1. An averaging plan transition area waiver, addressed at N.J.A.C. 7:7A-6.2;

2. A special activity transition area waiver for stormwater management, linear development, redevelopment, or activities eligible for an individual permit, addressed at N.J.A.C. 7:7A-6.3;

3. A matrix type width reduction transition area waiver, addressed at N.J.A.C. 7:7A- 6.4;

4. A hardship transition area waiver, addressed at N.J.A.C. 7:7A-6.5;

5. A general permit transition area waiver. If a general permit authorizes disturbance of a transition area, an authorization issued under the general permit constitutes a transition area waiver for the activities covered by the general permit. This waiver is not addressed in this section, but in each general permit in N.J.A.C. 7:7A-5 that covers transition area disturbances. All general permits except for general permits 1, 6, 7, 22 and 24 authorize activities in transition areas; and

6. An access transition area waiver. Each general permit authorization, individual freshwater wetlands permit and mitigation proposal shall include a limited transition area waiver to allow access to the authorized activity. No fee or application is required for this waiver. However, an access transition area waiver will allow regulated activities only:

i. In that portion of the transition area bordering on that portion of the freshwater wetland in which the authorized activity is to take place; and

ii. For an activity that the Department determines is necessary to accomplish the permitted activity. An activity not directly required in order to obtain access to the permitted activity shall require a separate transition area waiver. If the activity authorized under the permit eliminates the wetland in its entirety, the transition area associated with that wetland may also be eliminated in its entirety without a separate transition area waiver. If the activity authorized under the permit partially eliminates the wetland, the access shall be limited to the transition area adjacent to the location of the approved wetland filling. Any additional impacts to the transition area shall require a separate transition area waiver.

(b) The Department shall include in a transition area waiver additional conditions as necessary to ensure that an activity does not result in a substantial impact on the adjacent wetlands, and does not impair the purposes and functions of transition areas as set forth in N.J.A.C. 7:7A-2.5. Such conditions shall include but are not limited to the following:

1. Construction activities shall be conducted in such a way that there will be no regulated activities in the transition area or the wetland except any that are authorized by a permit, as defined at N.J.A.C. 7:7A-1.4;

2. The structure is designed and shall be used in such a way that there will be no regulated activities in the transition area or the wetland except any that are authorized by a permit, as defined at N.J.A.C. 7:7A-1.4;

3. The transition area and/or wetland is fenced, using a type of fencing that protects and maintains all functions and values of the resources, prior to construction of the structure (including site preparation), and the fence is permanently maintained, so as to clearly delineate its boundary and to prevent people from entering and/or disturbing the transition area and/or wetland;

4. The permittee shall execute and record a conservation restriction or easement, in accordance with the procedures at N.J.A.C. 7:7A-2.12, which prohibits any regulated activities in the transition area and wetlands as appropriate; and

5. During construction activities, all excavation must be monitored for the presence of acid-producing deposits. If any such deposits are encountered, the permittee shall implement the mitigation and disposal standards in the Flood Hazard Area Control Act Rules at N.J.A.C. 7:13 and shall establish an annual post-planting monitoring program to ensure the reestablishment of vegetation in temporarily disturbed areas. The plantings shall have a minimum 85 percent plant survival and coverage rate after two complete growing seasons. If the plantings fail to achieve this survival rate, the Department will require the permittee to implement additional corrective measures.

(c) If a site has more than one freshwater wetland, the Department shall treat each wetland and its associated transition area separately for purposes of transition area waivers. To determine whether a freshwater wetland area is all one wetland or is made up of multiple separate wetlands, the Department shall consider the following factors:

1. The proximity of the wetland areas to each other; and

2. Whether the wetland areas are hydrologically connected.

(d) An applicant whose application does not meet the requirements for any of the transition area waivers listed in (a) above may obtain a transition area waiver through scientifically documenting that a proposed activity will have no substantial impact on the adjacent wetlands. This documentation may include, but is not limited to, nutrient or sediment transport models, buffer models, or wildlife habitat suitability studies. An application submitted under this subsection shall address the following, as they relate to the adjacent wetlands:

1. Sediment, nutrient, and pollutant transport and removal;

2. Impacts on sensitive species; and

3. Surface water quality impacts.

(e) With the exception of a waiver for redevelopment for which it is not practicable, in accordance with N.J.A.C. 7:7A-6.3(f)4 or access, all transition area waivers shall be conditioned on the recording of a Department-approved conservation restriction or easement, as defined at N.J.A.C. 7:7A-1.4, and in accordance with the requirements at N.J.A.C. 7:7A-2.12, restricting future activities in the entire transition area and adjacent wetlands on the site.

1. If the permittee does not conduct regulated activities before the transition area waiver expires, the following apply with regard to the transition area:

i. If no activities have been conducted, regardless of whether or not the conservation restriction or easement was recorded, the permittee shall obtain a new transition area waiver to conduct regulated activities in the transition area; or

ii. If no activities have been conducted and the conservation restriction or easement was properly recorded, but the permittee wants to reconfigure the project to use portions of the property contained within the restriction or easement, the permittee shall apply for a new transition area waiver, together with a request for a modification of the conservation restriction or easement in accordance with the procedures at N.J.A.C. 7:7A-2.12(i);

2. In the case of a subdivision for which a transition area waiver was approved, if one or more lots remain undeveloped when the transition area waiver expires, the following shall apply with regard to the transition area:

i. If no activities have been conducted on a lot which was part of a larger subdivision, regardless of whether or not the conservation restriction or easement was recorded, the permittee shall apply for a new transition area waiver for the lot, using the same plan that was used to obtain the transition area waiver for the subdivision as a whole. That is, if a transition area waiver averaging plan was obtained for the subdivision as a whole and that transition area waiver averaging plan expires, the individual lot owner shall apply for a transition area averaging plan for the individual lot using the original averaging plan for the subdivision as a whole. The Department shall consider proposed changes to the originally approved plan only if the conservation easement or restriction was recorded and the changes meet the standards for a de minimis modification at N.J.A.C. 7:7A-2.12(i);

3. If the permittee does not properly record the required conservation restriction or easement, he or she shall be in violation of the Freshwater Wetlands Protection Act and this chapter.

(f) The process at N.J.A.C. 7:7A-17 is also available to applicants for a transition area waiver.

(g) A transition area waiver allowing the reduction of the transition area adjacent to an exceptional resource value wetland shall be conditioned on a transition area averaging plan which provides an average transition area width of at least 100 feet.

(h) With the exception of a transition area waiver for access in accordance with N.J.A.C. 7:7A-6.1(a)6 and a special activity waiver for redevelopment in accordance with N.J.A.C. 7:7A-6.3(f), the Department shall not issue a transition area waiver under this section and a general permit authorization for the same site and for the same activity, if the combined effect of the transition area waiver and general permit authorization would be to expand the general permit activity beyond the limits set forth in the general permit. For example, if an applicant proposes one road crossing on a site, the Department will not permit the combination of a general permit 10 authorization with an averaging plan for the same road crossing because to do so would cause the crossing to exceed the 0.25 acre limit of general permit 10.

(i) With the exception of an transition area waiver for access approved in accordance with (a)6 above or a transition area waiver meeting the requirements for an individual permit at N.J.A.C. 7:7A-6.3(g), transition area waiver shall not be approved to allow encroachment within 75 feet of an exceptional resource value wetland.

N.J.A.C. 7:7A-6.2 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. A diagram of an example transition area averaging plan is shown in N.J.A.C. 7:7A-6, Appendix A.

(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-2.5. 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-2.5, and shall not issue a transition area averaging plan waiver, unless the applicant demonstrates otherwise under N.J.A.C. 7:7A-6.1(d):

1. The portion of the existing, pre-activity transition area that will be reduced has a slope greater than 25 percent, as calculated under N.J.A.C. 7:7A-6.4(g);

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-6.1(d):

1. A structure, impervious surface, or stormwater management facility, as defined at N.J.A.C. 7:7A-1.4, 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, as defined at N.J.A.C. 7:7A-1.4;

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; or

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;

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 as defined a N.J.A.C. 7:7A-1.4;

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-6.1(f). 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 defined at N.J.A.C. 7:7A-1.4, 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 as regards the transition area's ability to serve the functions listed at N.J.A.C. 7:7A-2.5. For example, if a forested portion of the transition area is reduced, the expanded portion of the transition area must also be forested.

N.J.A.C. 7:7A-6.3 Special activity transition area waiver

(a) The Department shall issue a transition area waiver for certain special activities meeting the criteria in this section. However, the Department will issue a special activity waiver under this section only if the activities will not result in a substantial impact on the adjacent freshwater wetlands, and the proposed project will minimize impacts to the freshwater wetland and transition area.

(b) The Department shall issue the following types of special activity transition area waivers:

1. A stormwater management transition area waiver under (d) below;

2. A linear development transition area waiver under (e) below;

3. A redevelopment transition area waiver under (f) below; and

4. An individual permit transition area waiver under (g) below.

(c) When considering alternative locations under this section:

1. The Department shall consider an alternative location feasible if it is available and capable of being used after taking into consideration cost, existing technology, and logistics in light of the overall project purpose; and

2. The Department shall consider an alternative location infeasible if its use for the project would cause other, more significant adverse environmental consequences.

(d) The Department shall issue a special activity transition area waiver for stormwater management if there is no feasible alternative onsite location for the stormwater management facility. An alternative onsite location shall not be considered infeasible merely because it would require one or more of the following:

1. Relocating part or all of the facility outside of the transition area and into the upland;

2. Modifying the type of facility;

3. Redesigning the layout, size, scope or configuration of the buildings, roads or other aspects of the project in order to accommodate the facility; or

4. Reducing the scope, size, or density of the project.

(e) The Department shall issue a special activity transition area waiver for linear development, as defined at N.J.A.C. 7:7A-1.4, if there is no feasible alternative location for the linear development. In considering alternative locations, the Department shall consider the factors at (c) above and the following:

1. An alternative location shall be considered feasible when the proposed linear development can be located outside of the transition area by:

i. Modifying the route of the linear development to avoid or reduce impacts to freshwater wetlands and transition areas; or

ii. Reducing the width of the linear development; and

2. An alternative shall not be excluded from consideration merely because it includes or requires an area not owned by the applicant which could reasonably have been or be obtained or used to fulfill the basic purpose of the proposed activity.

(f) The Department shall issue a special activity transition area waiver for redevelopment of a significantly disturbed area if all of the following conditions are met:

1. The area of proposed activity is significantly disturbed so that it is not functioning as a transition area at the time of application, for example, the area is covered by an impervious surface such as pavement, by gravel or paver blocks, or by a deck that is less than 5 feet off the ground. For example, a lawn is not considered to be so significantly disturbed that it is not functioning as a transition area;

2. The significant disturbance in the area of proposed activity was legally existing in the transition area prior to July 1, 1989, or has been permitted under this chapter;

3. No additional disturbance is proposed that would expand the disturbed area; and

4. Where practicable, any remaining disturbed portion of the transition area shall be planted with indigenous plants that are beneficial to the wetland, and protected from future development by a conservation restriction or easement that meets the requirements at N.J.A.C. 7:7A-2.12.

(g) The Department shall issue a special activity transition area waiver for an activity if the applicant demonstrates that, if the activity were instead proposed in a freshwater wetland, it would meet the standards for a freshwater wetlands individual permit at N.J.A.C. 7:7A-7.2 and 7.4, and mitigation in accordance with N.J.A.C. 7:7A-15.26.

N.J.A.C. 7:7A-6.4 Matrix type width reduction transition area waiver

(a) This section sets forth the requirements for a matrix type width reduction transition area waiver, or "transition area matrix waiver," for a project proposed in a transition area adjacent to an exceptional or intermediate resource value wetland.

(b) The Department shall issue a transition area matrix waiver only if all of the following criteria are met:

1. If the freshwater wetland is located adjacent to a waterway that meets either of the criteria at (b)1i or ii below, the activities must be approved by the National Park Service:

i. The waterway is a component of the Federal or State Wild and Scenic River System designated pursuant to 16 U.S.C.§§1271 et seq. or N.J.S.A. 13:8-45 et seq.; or

ii. The waterway is in an official study status for designation by Congress or the State Legislature as a "study river" for possible inclusion in either system described in (b)1i above;

2. The proposed activities would not cause the disturbance or exposure of acid producing deposits, as defined at N.J.A.C. 7:7A-1.4;

3. The site is not located adjacent to a local, county, State, or Federal park, wildlife refuge, sanctuary, management area or area listed on the New Jersey Register of Natural Areas; and

4. The application does not include construction or expansion of any of the following:

i. A mineral extraction and/or processing operation, including mining or processing of construction sand, industrial sand, gravel, ilmenite, glauconite, limestone, or other minerals;

ii. A wastewater treatment or individual subsurface disposal system located within 150 feet of an exceptional resource value wetland or within 50 feet of an intermediate resource value wetland;

iii. A solid waste facility; or

iv. A facility for the storage, processing, or disposal of hazardous substances as defined in the Department's rules governing the prevention and reporting of discharges of hazardous substances at N.J.A.C. 7:1E-1.7.

(c) The only type of exceptional resource value wetland for which a transition area matrix waiver may be issued is a wetland that meets both of the following criteria:

1. The wetland is located on a tributary to an FW1 water or on a tributary to an FW2 trout production water; and

2. The wetland does not:

i. Contain a present or documented habitat for threatened or endangered species, as defined at N.J.A.C. 7:7A-1.4; or

ii. Discharge into FW1 waters or trout production waters.

(d) The Department shall not issue a transition area matrix waiver for a transition area on an intermediate resource value wetland that is a critical habitat for fauna or flora, as defined at N.J.A.C. 7:7A-1.4.

(e) The Department shall determine the width of a transition area using the matrix in Table B or Table C below, as applicable, based on the factors listed at (e)1 through 3 below:

1. The slope of the portion of the transition area contained within the site, as determined under (g) below;

2. The dominant vegetational community in the portion of the transition area contained within the site, as determined under (h) below; and

3. The development intensity of the proposed project, as determined under (i) below.

(f) For a transition area on an intermediate resource value wetland, if a site and/or proposed project does not meet one of the three sets of conditions in the matrix in Table C, a transition area matrix waiver is not available.

(g) The percent slope of the transition area for use in the applicable matrix at (e) above 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.

(h) The dominant vegetational community in a transition area is the plant community which covers the most surface area of the transition area on the site. Transition area vegetational communities are classified as follows:

1. An herbaceous vegetational community is characterized by annual and perennial plant species or bare ground;

2. A scrub-shrub vegetational community is characterized by shrub and herbaceous plant species with an average height equal to or less than 20 feet. For the purposes of this section, a forested area with little or no herbaceous or shrub layer (understory) shall be considered a scrub-shrub vegetational community; and

3. A forested vegetational community is characterized by tree species with an average height greater than 20 feet accompanied by an herbaceous or shrub layer.

(i) To determine the development intensity of a site for use in the applicable matrix at (e) above, an applicant shall:

1. Determine the total area of the site in square feet;

2. Identify all freshwater wetlands, transition areas, or State open waters on the site, and determine the area, in square feet, covered by each;

3. Total the areas identified in (i)2 above;

4. Subtract (i)3 from (i)1. This is the net land area;

5. Determine the total area, in square feet, on the site which will be covered with impervious surfaces, as defined at N.J.A.C. 7:7A-1.4, when the proposed project is completed;

6. Divide the total proposed impervious surface from (i)5 by the net land area from (i)4; and

7. Multiply (i)6 by 100 percent. This is the development intensity of the project, for use in the applicable matrix at (e) above.

N.J.A.C. 7:7A-6.5 Hardship transition area waiver

(a) The Department shall issue a hardship transition area waiver under this section if a site is not susceptible to a reasonable use if developed as authorized by this chapter, and this limitation results from unique circumstances peculiar to the site which:

1. Do not apply to or affect other property in the local region;

2. Relate to or arise out of the site itself, rather than the personal situation of the applicant; and

3. Are not the result of any action or inaction by the applicant, the site owner or the owner's predecessors in title.

(b) The Department shall presume that a hardship under (a) above exists and shall issue a hardship transition area waiver that reduces the transition area in an amount determined under (c) below, provided that the applicant demonstrates that all of the following criteria are met:

1. The presence of transition areas on the site makes it impossible to build a single family dwelling on the site under the other provisions of this chapter;

2. The lot or lots that make up the site were created by a subdivision occurring prior to July 1, 1988;

3. The site has been owned continuously by the applicant since prior to July 1, 1988;

4. The site is not contiguous with an improved property that was owned by the applicant on July 1, 1988;

5. The applicant has not received a hardship transition area waiver based on these hardship criteria at any time during the five years prior to the present application for a hardship transition area waiver;

6. The applicant has unsuccessfully attempted to purchase adjacent properties for fair market value in order to create a developable upland;

7. The applicant has offered the site for sale at fair market value as determined by a fair market value appraisal, performed by a State-licensed appraiser and using a form letter provided by the Department, to adjacent property owners and the offer was refused or is not reasonable, assuming a minimum beneficial economically viable use, in accordance with N.J.A.C. 7:7A-17, to alleviate the hardship;

8. The applicant has offered the site for sale at fair market value as determined by a fair market value appraisal, performed by a State-licensed appraiser, and using a form letter provided by the Department, to interested public and/or private conservation organizations on a list provided by the Department, and the offer was refused or is not reasonable, assuming a minimum beneficial economically viable use, in accordance with N.J.A.C. 7:7A-17, to alleviate the hardship;

9. The form letter of sale under (b)7 and 8 above shall be sent by certified mail and shall:

i. Indicate that the offer is open for a period of at least 90 days;

ii. Include a copy of a fair market value appraisal, performed by a State-licensed appraiser; and

iii. Include a full disclosure that the property is contained within a wetland transition areas that restricts its use.

(c) The amount of transition area reduction authorized under a hardship transition area waiver shall be the minimum amount necessary to construct one single family home and any necessary appurtenances, such as a driveway or septic system. However, the transition area shall not be reduced under this section to less than 75 feet for a transition area adjacent to exceptional resource value wetlands, or 25 feet for a transition area adjacent to intermediate resource value wetlands.

N.J.A.C. 7:7A-6.6 Application for a transition area waiver

An application for a transition area waiver shall include the information required at 7:7A-10, Application contents and procedures. The applicant shall follow the application procedures at 7:7A-10, and the Department will review the application using the procedures at 7:7A-10.