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

SUBCHAPTER 6 TRANSITION AREA WAIVERS

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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

(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:

(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:

(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:

(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.

(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):

(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):

(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:

3. The transition area averaging plan proposes to:

(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:

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:

(c) When considering alternative locations under this section:

(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:

(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:

(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:

(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:

(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:

(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:


Table B
Matrix for determining the width of a transition area
(in feet) on an exceptional resource value wetlands
Development intensity
Dominant Vegetational community
Slope %

Low

(0-10%)


Moderate

(> 10-40%)


High

(> 40%)

Herbaceous 0-2 100 120 140
> 2 150 150 150
Scrub/shrub 0-2 75 75 80
> 2-5 95 115 130
> 5 150 150 150
Forest 0-2 75 75 75
> 2-5 75 75 75
> 5-10 75 85 95
> 10-15 95 105 115
> 15-20 115 125 135
> 20 135 145 150


Table C
Matrix for determining the width of a transition area
on an intermediate resource value wetlands
Conditions Transition area width
Forest 25 feet
</= 1% slope
< 20% development intensity
Scrub/shrub or herbaceous 35 feet
</= 1% slope
< 20% development intensity
Forest 35 feet
</= 3% slope
< 40% development intensity

(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:

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

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:

(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:

(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.