FRESHWATER WETLANDS PROTECTION ACT RULES

N.J.A.C. 7:7A

SUBCHAPTER 15 MITIGATION

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-15.1 Mitigation definitions
7:7A-15.2 General mitigation requirements
7:7A-15.3 Timing of mitigation
7:7A-15.4 Property suitable for mitigation and the criteria for addressing contaminated sites
7:7A-15.5 Mitigation for a smaller disturbance
7:7A-15.6 Mitigation for a larger disturbance
7:7A-15.7 Mitigation for a temporary disturbance
7:7A-15.8 Amount of mitigation required
7:7A-15.9 Requirements for upland preservation
7:7A-15.10 Conceptual review of a mitigation area
7:7A-15.11 Basic requirements for all mitigation proposals
7:7A-15.12 Contents of a mitigation proposal
7:7A-15.13 Financial assurance for a proposal to restore, create, or enhance wetlands
7:7A-15.14 Protecting a mitigation area from future development
7:7A-15.15 Department review of a mitigation proposal
7:7A-15.16 Requirements that apply after the Department approves restoration, creation or enhancement
7:7A-15.17 Requirements that apply after the Department approves credit purchase or uplands preservation
7:7A-15.18 Requirements that apply after the Department approves mitigation through a monetary contribution
7:7A-15.19 Requirements that apply after the Department approves mitigation through a land donation
7:7A-15.20 Wetlands Mitigation Council
7:7A-15.21 Council review of a proposed monetary contribution
7:7A-15.22 Council review of a proposed land donation
7:7A-15.23 Mitigation banks
7:7A-15.24 Application for Wetlands Mitigation Council approval of a monetary contribution or land donation
7:7A-15.25 Application for approval of a mitigation bank
7:7A-15.26 Mitigation for transition area impacts in accordance with N.J.A.C. 7:7A-6.3(g), special activity transition area waivers based upon individual permit criteria

N.J.A.C. 7:7A-15.1 Mitigation definitions

In addition to the terms defined at N.J.A.C. 7:7A-1.4, the following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.

"Charitable conservancy" means a corporation or trust that meets the definition of a charitable conservancy at N.J.S.A. 13:8B-2, and amendments thereto. As of September 4, 2001, N.J.S.A. 13:8B-2 defines a charitable conservancy as a corporation or trust whose purposes include the acquisition and preservation of land or water areas or of a particular land or water area, or either thereof, in a natural, scenic or open condition, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which has received tax exemption under section 501(c) of the 1954 Internal Revenue Code.

"Council" means the Wetlands Mitigation Council.

"Creation" means the establishment of freshwater wetland or State open water characteristics and functions in uplands.

"Credit purchase" means the purchase of credits in a mitigation bank, as defined below, as a substitute for performance of restoration, creation, enhancement, or upland preservation by the purchaser. Each credit counts for a certain acreage amount of restoration, creation, or enhancement. Once a credit is applied to satisfy a mitigation obligation under this subchapter, it is exhausted and may not be sold or used again.

"Degraded wetland" means a wetland in which there is impaired surface water flow or groundwater hydrology, or excessive drainage; a wetland which has been partially filled or excavated, contaminated with hazardous substances, or which has an ecological value substantially less than that of undisturbed wetlands in the region.

"Enhancement" means 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 nor does the removal of trash or debris.

"In-kind mitigation" means mitigation that provides similar values and functions as the area disturbed, including similar wildlife habitat, similar vegetative species coverage and density, equivalent flood water storage capacity, and equivalency of other relevant values or functions. In the case of a mitigation bank, this is accomplished through the purchase of credits in a bank at which similar values and functions have been established.

"Land donation" means performing mitigation through giving land that has been determined acceptable for donation by the Wetlands Mitigation Council.

"Mitigation" means activities carried out in accordance with this subchapter in order to compensate for the loss or disturbance of freshwater wetlands or State open waters.

"Mitigation area" means the portion of a site, right-of-way, or piece of property upon which mitigation is proposed or performed. If a mitigation area includes a wetland, a transition area is included as part of the mitigation area in accordance with N.J.A.C. 7:7A-15.8(b).

"Mitigation bank" means 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 disturbances to freshwater wetlands and/or State open waters.

"Mitigation bank service area" means a geographic area within which a mitigation bank's credits may be used to compensate for a disturbance.

"Mitigation bank site" means the portion of a site, right-of-way, or piece of property upon which a mitigation bank is proposed or created.

“Mitigation banking instrument” means documentation of Department approval of the objectives and administration of the bank including, as appropriate:

1. Bank goals and objectives;

2. Ownership of bank lands;

3. Bank size and classes of wetlands and/or other aquatic resources proposed for inclusion in the bank, including a site plan and specifications;

4. Description of baseline conditions at the bank site;

5. Geographic service area;

6. Wetland classes or other aquatic resource impacts suitable for compensation;

7. Methods for determining credits and debits;

8. Accounting procedures;

9. Performance standards for determining credit availability and bank success;

10. Reporting protocols and monitoring plan;

11. Contingency and remedial actions and responsibilities;

12. Financial assurances;

13. Compensation ratios; and

14. Provisions for long-term management and maintenance.

"Monetary contribution" means giving money to the Wetlands Mitigation Fund.

"Out-of-kind mitigation" means mitigation that is not in-kind mitigation.

"Restoration" means:

1. 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. For example, an area that has been drained and farmed could be restored to its original condition by blocking or removing drainage devices and replanting with appropriate wetlands plants; or

2. 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.

"Upland preservation" means the permanent protection of transition areas or other uplands from disturbance or development, through transfer of the property to a charitable conservancy as defined in this section, and the execution of legal instruments to prevent development, such as a conservation restriction or easement.

"Watershed Management Area" means an aggregation of HUC 11s, as defined at N.J.A.C. 7:7A-1.4, designated by the Department as a watershed management area and shown on the map entitled "New Jersey's Watersheds, Watershed Management Areas, and Water Regions," dated April 2000, as amended and supplemented. The map of watershed management areas may be obtained from the Department's Division of Watershed Management at (609) 984-0058, or may be viewed on the internet at http://www.state.nj.us/dep/gis.

"Wetlands Mitigation Council" or "Council" means the 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 Wetlands Mitigation Fund.

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

N.J.A.C. 7:7A-15.2 General mitigation requirements

(a) The Department shall not consider a mitigation proposal in determining whether to approve a permit for a project.

(b) The Department may require mitigation in accordance with this chapter in order to compensate for impacts to a freshwater wetland, State open water and/or transition areas resulting from the following:

1. Regulated activities authorized under an individual or general freshwater wetlands or open water fill permit;

2. Certain violations of the Freshwater Wetlands Protection Act and/or this chapter; and

3. Regulated activities approved in accordance with a special activity transition area waiver at N.J.A.C. 7:7A-6.3(g).

(c) Mitigation shall, at a minimum, fully compensate for the loss of ecological value caused by a disturbance, by replacing any freshwater wetlands and/or State open waters values and functions lost or disturbed with equal values and functions. To do this, mitigation shall meet all of the following criteria:

1. The mitigation alternative and the location of the mitigation shall comply with N.J.A.C. 7:7A-15.5 or 15.6, whichever applies;

2. If the mitigation is restoration, creation, or enhancement:

i. The acreage amount of mitigation shall be that required under N.J.A.C. 7:7A-15.8; and

ii. The mitigation shall be in-kind mitigation, as defined at N.J.A.C. 7:7A-15.1, unless the Department determines that, because of special circumstances, out-of-kind mitigation would be more likely to provide equal functions and values;

3. If the mitigation is credit purchase, the credits purchased shall be appropriate to the type of disturbance and the purchase shall comply with this chapter and the Council's authorization of the mitigation bank. For example, if credits were awarded by the Council for use as mitigation for disturbances of wetlands within a certain service area, the credits shall not be considered appropriate as mitigation for a disturbance outside of the service area. The amount of credits shall be determined under N.J.A.C. 7:7A-15.8(f);

4. If the mitigation is uplands preservation, the mitigation shall meet the requirements of N.J.A.C. 7:7A-15.9;

5. If the mitigation is a monetary contribution, the amount of the monetary contribution shall be approved by the Council in accordance with N.J.A.C. 7:7A-15.21; and

6. If the mitigation is land donation, the land to be donated shall be approved by the Council in accordance with N.J.A.C. 7:7A-15.22.

(d) To be approved under this subchapter, mitigation must have a high probability of long term success. At a minimum, this requires the following:

1. Adequate financial and other resources must be dedicated to the project;

2. The project must be designed to take advantage of and work within the existing conditions in the proposed mitigation area to the extent possible;

3. The hydrology in and around the mitigation area must be adequate to support wetland conditions year round and indefinitely into the future. The hydrology for a proposed wetland mitigation site shall not include discharged stormwater;

4. The soils (and hydrology) in the mitigation area must be adequate to support wetland conditions; and

5. The responsibility for long term maintenance of the mitigation area must be clearly assigned to an entity that has the resources to ensure long term maintenance of the mitigation area. For upland preservation or land donation, a maintenance fund shall be created in accordance with N.J.A.C. 7:7A-15.17(c) or 15.19(c), respectively.

(e) Mitigation under this subchapter requires prior Department approval. In addition, if the mitigation shall be through a monetary contribution or a land donation, the amount of money or the particular parcel of land must also be approved by the Wetlands Mitigation Council.

(f) All correspondence with the Department and/or the Mitigation Council, including requests for application forms and checklists, and applications for Council approval or funding, shall be addressed to:

Mitigation Staff

NJDEP Division of Land Use Regulation

PO Box 439

Trenton, New Jersey, 08625

(609) 984-0194

lurweb@dep.state.nj.us

(g) When the Department requires mitigation, the permit, approval or enforcement document under which the mitigation is required shall authorize any regulated or prohibited activities, as defined at N.J.A.C. 7:7A-1.4, necessary to accomplish the mitigation. When mitigation is required for a disturbance that is not subject to a Department-issued permit, for example, when mitigation is required by the ACOE, the mitigation itself must be authorized through a permit or enforcement document issued by the Department under this chapter. In some cases, mitigation also involves activities that require approval through one or more other Division of Land Use Regulation permits, such as a flood hazard area, CAFRA, or Waterfront Development permit; or through other State or Federal permits. In such a case, mitigation shall not begin without these approvals.

(h) If a mitigation requirement arises from a violation rather than a permit, the Department shall determine the mitigation alternative required on a case-by case basis, taking into consideration the size and severity of the violation and the functions and values provided by the proposed mitigation. A mitigation proposal submitted as part of a settlement of an enforcement action shall provide for mitigation that is at least as ecologically valuable as mitigation that would be required under this chapter as a result of a permit. This may include an increase in mitigation to compensate for the time.

(i) A mitigation area shall be permanently protected from future development in accordance with N.J.A.C. 7:7A-15.14 and in accordance with N.J.A.C. 7:7A-2.12.

(j) If mitigation is performed through uplands preservation or land donation, the mitigator shall transfer all rights in the mitigation area to a government agency or charitable conservancy in accordance with N.J.A.C. 7:7A-15.17(c) or 15.19(c), respectively. A mitigation banker shall also transfer a mitigation bank to a government agency or charitable conservancy after the bank is successfully completed, in accordance with N.J.A.C. 7:7A-15.23(i).

(k) Upon approval by the Department, a permittee may aggregate the mitigation for multiple disturbances, so as to perform mitigation for more than one disturbance with a single mitigation project. Such an aggregated mitigation project shall be used only as mitigation for disturbances performed by the permittee, unless the permittee obtains Council approval of the project as a mitigation bank under this subchapter.

(l) An activity that is required in order to satisfy Federal, State, or local government requirements, other than those imposed under this chapter, shall not qualify as mitigation under this subchapter. For example, if land is required by a county to be preserved as open space, the Department shall only approve the parcel for a land donation if the applicant also performs wetlands restoration or enhancement in accordance with this subchapter.

(m) A permittee may use one mitigation alternative or a combination of mitigation alternatives to compensate for a permitted disturbance.

(n) Upon approval of the Department, a permittee may aggregate onto one site the mitigation for multiple small (less than 0.5 acre in size), wetland disturbances resulting from the same project but that span several Watershed Management Areas.

N.J.A.C. 7:7A-15.3 Timing of mitigation

(a) Mitigation shall be performed within the applicable time period below:

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 except that no regulated activities shall occur before the Department has approved a mitigation proposal, 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.

(b) If a permittee fails to perform mitigation within the applicable time period in (a) above, the acreage of mitigation required shall be increased by 20 percent each year after the date mitigation was to begin. This shall compensate for the absence of the functions and values that were to be provided by the mitigation project during the delay. For example, a permit may authorize a disturbance, and require 10 acres of creation to compensate for that disturbance. If the disturbance is begun on January 1, 2001, but the mitigation is not performed prior to or concurrently with the disturbance and continued according to the approved schedule as required under (a)1 above, the acreage of creation required increases to 12 acres on January 1, 2002, in order to compensate for the absence of wetlands functions and values from the ecosystem during the time between the disturbance and the creation.

(c) In order to ensure compliance with (a) above, if mitigation is required for a publicly funded project, all work necessary to complete the mitigation shall be included in the contract awarded for the project, unless the applicant demonstrates that the mitigation will be performed by the applicant's staff and will not be awarded through a contract.

N.J.A.C. 7:7A-15.4 Property suitable for mitigation and the criteria for addressing contaminated sites

(a) Any offsite restoration, creation, enhancement, land donation, or upland preservation shall be carried out on private property, except that a government agency, as defined at N.J.A.C. 7:7A-1.4, 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.

(b) An improvement to a public facility which is intended for human use, such as a ball field, nature trail, or boardwalk, does not constitute mitigation.

(c) A person seeking property for a mitigation project under this subchapter shall review the applicable watershed management area plan, if any, approved by the Department under the Water Quality Management Planning Act, N.J.S.A. 58:11A-1 et seq., and implementing rules at N.J.A.C. 7:15 to determine if suitable properties are listed, and shall also review the applicable county mitigation inventory, if any, prepared in accordance with N.J.S.A. 13:9C-1 et seq.

(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 N.J.A.C. 7:7A-12.2.

(e) The Department shall approve mitigation through creation, restoration, or enhancement only on property that is owned in fee simple and under the full legal control of the person responsible for performing the mitigation, or the person responsible for performing the mitigation shall demonstrate that the person has legal rights to the property sufficient to enable compliance with all requirements of his chapter. If a property is affected by an easement or other encumbrance, the person responsible for performing the mitigation shall ensure that the encumbrance is extinguished.

(f) The Department shall require a habitat assessment if the Department deems such an assessment necessary to determine if an area is suitable for mitigation through enhancement. Any habitat assessment shall be performed in accordance with a scientific protocol approved by the Department.

(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 in an area that contains contamination until all potential contaminated areas have been identified, and all remediation of the area(s) is completed so that there is no potential for the mitigation activities to result in the reintroduction of contamination to ecological communities or exposure of humans to contamination, and there is no potential for the mitigation site to be contaminated by the belated discovery of new areas of contamination requiring remediation. The Department will determine on a case by case basis whether it is feasible on a site containing contamination to conduct onsite mitigation;

1. If the Department determines that there is reason to suspect contamination on the proposed mitigation area, the site must be properly characterized and assessed to ensure there is no ecological risk associated with the proposal. To obtain this characterization, the mitigator shall remediate the site pursuant to the Administrative Requirements for the Remediation of Contaminated Sites rules at N.J.A.C. 7:26C-2.4.

2. The applicant shall not submit a proposed mitigation bank containing known or suspected contamination to the Department for conceptual approval in accordance with N.J.A.C. 7:7A-15.25(a) until the site has been fully characterized in accordance with 1. above.

(i) Stormwater management facilities designed to treat stormwater shall not constitute mitigation.

N.J.A.C. 7:7A-15.5 Mitigation for a smaller disturbance

(a) This section governs, for a smaller disturbance, the mitigation alternative required and the location of mitigation in relation to the disturbance. (See Figure 4 below for an illustration of the information in this section.) However, if a smaller disturbance is a temporary disturbance, as defined at N.J.A.C. 7:7A-1.4, it is governed by N.J.A.C. 7:7A-15.7. The acreage amount of mitigation required for both smaller and larger disturbances is determined under N.J.A.C. 7:7A-15.8.

(b) A smaller disturbance is:

1. A disturbance of 1.5 acres or less of freshwater wetlands or State open water; or

2. A disturbance affecting only ordinary resource value wetlands.

(c) The Department presumes that onsite mitigation for a smaller disturbance is not feasible. Therefore, mitigation for a smaller disturbance shall be performed through credit purchase in accordance with (d) below, unless the applicant demonstrates under (e) below that one of the following will be more environmentally beneficial:

1. Onsite restoration, creation or enhancement; or

2. Offsite restoration, creation, or enhancement, which is performed in the same HUC 11, as defined at N.J.A.C. 7:7A-1.4, as the disturbance, or performed in an adjacent HUC 11 within the same watershed management area as the disturbance.

(d) Mitigation through credit purchase shall be performed as follows:

1. Through the purchase of credits from either of the following:

i. A mitigation bank located in the same HUC 11 as the disturbance; or

ii. A mitigation bank approved by the Wetlands Mitigation Council prior to January 1, 1999, which includes the disturbance site in its bank service area. The service area for each mitigation bank is set forth in the Wetlands Mitigation Council approval for the bank;

2. If no credits are available from a bank listed in (d)1 above, through the purchase of credits from a mitigation bank located in a HUC 11 that is both adjacent to the HUC 11 in which the disturbance is located and within the same watershed management area, as defined at N.J.A.C. 7:7A-15.1, as the disturbance;

3. If no credits are available from a bank listed in (d)1 or 2 above, through the purchase of credits from a mitigation bank located anywhere in the same watershed management area as the disturbance; or

4. If no credits are available from a mitigation bank located in (d)1, 2, or 3 above, through the purchase of credits from a mitigation bank which includes the disturbance site in its bank service area.

(e) In determining if onsite or offsite mitigation for a smaller disturbance would be environmentally beneficial for the purposes of (c) above, the Department shall consider the following factors and any other relevant factors specific to the site or project:

1. Size. Generally, the larger a mitigation area, the greater its potential environmental benefit. A mitigation area that is associated with a large existing wetland complex is more likely to be environmentally beneficial for the purpose of (c) above;

2. Location in relation to other preserved open space. A mitigation area adjacent to public land or other preserved areas is more likely to be environmentally beneficial;

3. Habitat value. A mitigation area that will provide valuable habitat for critical wildlife species or threatened or endangered species is more likely to be environmentally beneficial; and

4. Interaction with nearby resources. A mitigation project is more likely to be environmentally beneficial if it complements existing nearby resources. For example, a mitigation project that adds riparian wetlands habitat adjacent to an existing stream enhances the environmental value of both the riparian area and the stream.

(f) If credit purchase under (d) above, and onsite or offsite mitigation under (c) above are not feasible, mitigation shall be performed through a monetary contribution in accordance with N.J.A.C. 7:7A-15.21 or, if the Department determines that no other mitigation alternative is practicable or feasible, mitigation shall be performed through upland preservation, in accordance with N.J.A.C. 7:7A-15.9, or a land donation approved by the Wetlands Mitigation Council, in accordance with N.J.A.C. 7:7A-15.22.

Figure 4: Flow chart Illustrating Mitigation Alternatives for a Smaller Disturbance

N.J.A.C. 7:7A-15.6 Mitigation for a larger disturbance

(a) This section governs, for a larger disturbance, the mitigation alternative required and the location of mitigation in relation to the disturbance. (See Figure 5 below for an illustration of the information in this section.) However, if a larger disturbance is a temporary disturbance, as defined at N.J.A.C. 7:7A-1.4, it is governed by N.J.A.C. 7:7A-15.7. The acreage amount of mitigation, regardless of the size of the disturbance, is determined under N.J.A.C. 7:7A-15.8.

(b) A larger disturbance is a disturbance not listed at N.J.A.C. 7:7A-15.5(b).

(c) Mitigation for a larger disturbance shall be performed through restoration, creation, or enhancement, carried out on the site of the disturbance to the maximum extent feasible. Onsite mitigation shall not be performed through upland preservation.

(d) If onsite restoration, creation, or enhancement is not feasible, mitigation shall be performed through any of the following, at the applicant's option:

1. The purchase of credits from a mitigation bank located in the same HUC 11 as the disturbance or in an adjacent HUC 11 within the same watershed management area;

2. The purchase of credits from a mitigation bank approved by the Wetlands Mitigation Council prior to January 1, 1999, which includes the disturbance site in its bank service area; or

3. Offsite restoration, creation, or enhancement, in the same HUC 11 as the disturbance or in an adjacent HUC 11 within the same watershed management area as the disturbance.

(e) If mitigation under (d) above is not feasible, mitigation shall be performed through either of the following, at the applicant's option:

1. The purchase of credits from a mitigation bank in the same watershed management area as the disturbance; or

2. Restoration, creation, or enhancement, in the same watershed management area as the disturbance.

(f) If mitigation is not feasible under (c), (d) or (e) above, mitigation shall be performed through:

1. The purchase of credits from a mitigation bank which includes the disturbance site in its bank service area; or

2. Restoration, creation or enhancement in the same drainage basin.

(g) If mitigation is not feasible under (c), (d), (e) or (f) above, mitigation shall be performed through:

1. A monetary contribution in accordance with N.J.A.C. 7:7A-15.21;

2. Upland preservation, in accordance with N.J.A.C. 7:7A-15.9; or

3. A land donation approved by the Wetland Mitigation Council in accordance with N.J.A.C. 7:7A-15.22.

Figure 5: Flow chart Illustrating Mitigation Alternatives for a Larger Disturbance

See N.J.A.C. 7:7A-15.6 for complete requirements

N.J.A.C. 7:7A-15.7 Mitigation for a temporary disturbance

(a) Mitigation for a temporary disturbance, as defined at 7:7A-1.4, shall be performed as follows:

1. For a disturbance of non-forested freshwater wetlands or of State open waters, restoration of the area temporarily disturbed; or

2. For a disturbance of forested freshwater wetlands, either

i. Restoration of the area temporarily disturbed to a forested wetland; or

ii. Restoration of the area temporarily disturbed to a non-forested wetland, and in addition, one acre of mitigation in accordance with this subchapter for each acre of disturbance.

(b) The transition area for a temporary disturbance shall be as follows:

1. If the mitigation is restoration performed on the site of the disturbance, the transition area shall be that which was required for the wetland prior to the temporary disturbance; and

2. If additional mitigation is performed under (a)2ii above, the width of the transition area on the mitigation area shall be the width required at 7:7A-15.8(b)1 or 3, as applicable.

N.J.A.C. 7:7A-15.8 Amount of mitigation required

(a) This section governs the amount of mitigation required, depending on the mitigation alternative selected under N.J.A.C. 7:7A-15.5 or 15.6, except that this section does not address the amount of a monetary contribution or the size of a land donation. The amount of a monetary contribution or the size of a land donation is not determined by the Department, but instead must be approved by the Wetlands Mitigation Council in accordance with N.J.A.C. 7:7A-15.21 or 15.22.

(b) A mitigation area involving restoration or creation shall include a transition area. The transition area shall not be counted in calculating the acreage of mitigation required. For example, if a person must create one acre of wetlands, the mitigation area shall include one acre of created wetlands and in addition a transition area around the created wetlands. The width of the transition area around a wetland resulting from mitigation shall be:

1. If the mitigation area includes or will include exceptional resource value wetlands, the transition area shall be 150 feet wide;

2. If mitigation is restoration under N.J.A.C. 7:7A-15.7(b)1 of an area temporarily disturbed, the transition area shall be that which was required for the wetland prior to the temporary disturbance; and

3. For all mitigation not listed at (b)1 or 2 above, the transition area shall be 50 feet wide.

(c) If restoration is the mitigation alternative, the Department shall require the following amount of mitigation unless the applicant demonstrates under (j) below that a smaller area will provide equal functions and values:

1. For a disturbance authorized by a permit, other than a temporary disturbance, as defined at N.J.A.C. 7:7A-1.4, restoration of two acres of freshwater wetlands and/or State open waters for each acre disturbed, with the addition of any transition area required under (b) above; and

2. For a temporary disturbance authorized by a permit, the amount of restoration required at N.J.A.C. 7:7A-15.7(a).

(d) If creation is the mitigation alternative, the Department shall require creation of two acres of freshwater wetlands and/or State open waters for each acre disturbed, with the addition of any transition area required under (b) above, unless the applicant demonstrates under (j) below that a smaller area will provide equal functions and values.

(e) If enhancement is the mitigation alternative, the Department shall evaluate the wetlands values and functions lost as a result of the disturbance and determine on a case-by-case basis the amount of enhancement required to ensure that the mitigation area results in wetlands of equal functions and values to those lost.

(f) If credit purchase is the mitigation alternative, the Department shall evaluate the wetlands values and functions lost as a result of the disturbance and determine on a case-by-case basis the number of credits required to ensure that the mitigation results in wetlands of equal functions and values to those lost.

(g) If upland preservation is the mitigation alternative, the acreage of upland preserved shall be determined under N.J.A.C. 7:7A-15.9(c).

(h) If monetary contribution is the mitigation alternative, the contribution shall be equal to the lesser of the following costs:

1. The cost of purchasing and enhancing existing degraded freshwater wetlands, resulting in the preservation of freshwater wetlands of equal functions and values to those which are being lost; or

2. The cost of purchasing property and creating freshwater wetlands of equal functions and values to those which are being lost.

(i) If land donation is the mitigation alternative, the Wetlands Mitigation Council shall determine on a case-by-case basis whether the acreage of land specified in the mitigation proposal will result in a mitigation area large enough to be a valuable component of the freshwater wetlands ecosystem. In making this determination, the Council shall consult the sources, and consider the conditions, referenced in (j) below and in N.J.A.C. 7:7A-15.22(b).

(j) A person shall carry out the full acreage amount of mitigation required under this section, unless the person demonstrates, through use of productivity models or other similar studies, that a smaller mitigation area will result in a mitigation area sufficient to comply with this section. However, under no circumstances shall a mitigation area be smaller than the disturbed area. To demonstrate that a smaller mitigation area will be sufficient to provide equal functions and values to those lost, the person shall provide current scientific literature concerning wetlands, aquatic resources, and mitigation; as well as information regarding the conditions on the site of the disturbance and on the proposed mitigation site, including soil, vegetation, any existing contamination or other degradation, water quality functions, flood storage capacity, soil erosion and sediment control, wildlife habitat, and any other relevant data.

(k) If a proposed mitigation area is affected by an easement or other encumbrance, the portion of the property affected by the encumbrance will not be considered in calculating the total amount of mitigation provided, unless the applicant demonstrates that the encumbrance will not prohibit compliance with the mitigation requirements of this chapter.

(l) If a mitigation requirement arises from a violation, the Department shall determine the amount of mitigation required on a case-by case basis, taking into consideration the size and severity of the violation and the functions and values provided by the proposed mitigation. A mitigation proposal submitted as part of a settlement of an enforcement action shall require mitigation that provides functions and values at least equal to those that would be required under this chapter as a result of a permit. This may include an increase in mitigation to compensate for the time lapse between the disturbance and the completion of mitigation, such as that required at N.J.A.C. 7:7A-15.3(b).

N.J.A.C. 7:7A-15.9 Requirements for upland preservation

(a) The Department shall approve mitigation through preservation of uplands only if the uplands meet the requirements in this section.

(b) Preserved uplands shall be valuable for the protection of a freshwater wetlands ecosystem. Factors the Department shall consider in evaluating an area for upland preservation include, but are not limited to:

1. The size and configuration of the uplands in relation to freshwater wetlands and/or State open waters, and the effect the preservation of these uplands would have on the wetlands or waters;

2. The diversity of the ecological communities on the entire site;

3. Whether the uplands to be preserved are located in the same HUC 11 as the disturbance;

4. Whether the uplands to be preserved are adjacent to a freshwater wetland that:

i. Contains exceptional resource value wetlands;

ii. Contains critical habitat for flora or fauna, as defined at N.J.A.C. 7:7A-1.4;

iii. Contains wetlands or waters draining to trout maintenance waters, as defined at N.J.A.C. 7:9B, or into public drinking water sources;

iv. Is adjacent to public lands containing wetland preserves, such as Federal wildlife refuges, State wildlife management areas, State parks or forests, State, County or local wetland preservation areas, or wetland preservation areas held by non-profit conservation organizations;

v. Has unique aspects or characteristics that contribute to its ecological value, such as an unusual or regionally rare type of wetland;

5. The relationship of the proposed uplands to existing and planned development;

6. Whether the uplands have been designated for preservation in a watershed management area plan approved by the Department under the Water Quality Management Planning Act, N.J.S.A. 58:11A-1 et seq., and implementing rules at N.J.A.C. 7:15; and

7. Whether the site contains solid or hazardous waste, or contains water or soil pollution. Uplands that contain waste or pollution shall not be considered valuable for the protection of a freshwater wetlands ecosystem.

(c) The amount of uplands preserved shall be sufficient to ensure that the functions and values resulting from the preservation of the uplands will fully compensate for the loss of functions and values caused by the disturbance, in accordance with N.J.A.C. 7:7A-15.2(c). In determining if an upland preservation proposal will fully compensate for a disturbance, the Department shall consult the sources, and consider the conditions, referenced in N.J.A.C. 7:7A-15.8(j). At a minimum, the uplands preserved shall be:

1. At least five acres in size, and significantly larger than the area that would be required for any other mitigation alternative, to compensate for the fact that uplands preservation, unlike other mitigation alternatives, does not directly replace the wetland values and functions destroyed by a disturbance; and

2. If adjacent to a wetland, the uplands preserved shall include the standard transition area required for the wetlands under N.J.A.C. 7:7A-2.5, plus an additional area at least 150 feet wide, measured from the outer edge of the transition area.

(d) If mitigation is performed through upland preservation, the mitigator shall transfer the mitigation area in fee simple to a government agency or charitable conservancy, as defined at N.J.A.C. 7:7A-1.4, in accordance with N.J.A.C. 7:7A-15.17(c).

N.J.A.C. 7:7A-15.10 Conceptual review of a mitigation area

(a) 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.

(b) An applicant may request a conceptual review at any time prior to submittal of a mitigation proposal. However, the Department strongly recommends that an applicant obtain a Department conceptual review before buying the land for a mitigation area.

(c) 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 identifying all potential, suspected and/or known contamination on the site; 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.

(d) Upon receipt of a complete request for a conceptual review, the Department may schedule a site inspection. At a site inspection, Department staff shall candidly discuss the apparent strengths and weaknesses of the proposed mitigation area, but all guidance provided shall be non-binding on the Department. A Department decision on a proposed mitigation area or mitigation proposal is binding only if it is incorporated into an approval obtained in accordance with this subchapter. A conceptual review does not grant any property or other rights, and does not authorize mitigation activities.

N.J.A.C. 7:7A-15.11 Basic requirements for all mitigation proposals

(a) A mitigation proposal shall be submitted within the applicable time period below:

1. For mitigation required by an individual permit, the mitigation proposal shall be submitted at least 90 days prior to the start of activities authorized by the permit. Activities authorized by the permit shall not begin until the mitigation proposal is approved and the mitigation has begun;

2. For mitigation required by a general permit authorization, the mitigation proposal shall be submitted no later than 120 days prior to the initiation of regulated activities authorized by the general permit; and

3. For mitigation requirements arising from a violation, the mitigation proposal shall be submitted by the deadline set forth in the Department's enforcement document.

(b) The mitigation proposal shall provide all information necessary for the Department to determine if the requirements of this subchapter are met. The information required for each mitigation alternative is set forth in a mitigation proposal checklist, provided by the Department. To obtain the mitigation proposal checklist for a particular mitigation alternative, contact the Department at the address in N.J.A.C. 7:7A-15.2(f);

1. The applicant shall also provide notification in accordance with N.J.A.C. 7:7A-10.8(j) for all mitigation proposals that include creation, enhancement or restoration (except restoration for a temporary disturbance).

(c) In order to demonstrate that an offsite mitigation alternative is not feasible under this subchapter, an applicant shall provide to the Department a list of at least six potential areas upon which the mitigation alternative might be performed. Each of these potential areas shall:

1. Be located at a practical elevation suitable for a wetland or State open water;

2. Have an adequate water supply;

3. Be large enough for the mitigation proposed;

4. Be available for purchase; and

5. Meet the requirements of N.J.A.C. 7:7A-15.4(h) regarding contamination.

(d) A mitigation proposal submitted as part of a settlement of an enforcement action shall provide for mitigation that is at least as ecologically valuable as mitigation that would be required under this chapter as a result of a permit. This may include an increase in the amount of mitigation to compensate for the time that has elapsed between the disturbance and the completion of mitigation, such as that required at N.J.A.C. 7:7A-15.3(b).

(e) A mitigation proposal shall include as many copies of each item as required by the checklist.

N.J.A.C. 7:7A-15.12 Contents of a mitigation proposal

(a) The application checklist for every mitigation proposal shall require the information listed at (b)1 through 8 below. In addition, each mitigation proposal shall also require information specific to the mitigation alternative proposed, listed at (c) through (g) below.

(b) The application checklist for every mitigation proposal shall require the following:

1. Basic information regarding the applicant, the disturbance for which the mitigation is required, and the permit or other item which is the source of the mitigation requirement;

2. Information to enable the Department to determine the loss of functions and values caused by the disturbance for which the mitigation is required, including scientific information such as scientific literature, models or other studies concerning wetlands, soils, vegetation, hydrology, wildlife habitat and any other factors relevant to the functions and values of the site of the disturbance for which mitigation is required; previous Department approvals or correspondence regarding the disturbance; maps, photographs; soil or vegetation samples; delineations and/or other visual materials relating to the site of the disturbance;

3. Information demonstrating that the proposed mitigation alternative complies with N.J.A.C. 7:7A-15.5 or 15.6, as applicable, including information on the feasibility or practicability of other mitigation alternatives;

4. The names and addresses of all consultants, engineers, and other persons providing technical assistance in preparing the mitigation proposal;

5. Any letters, contracts, agreements, conservation restrictions or easements, or other draft or executed documents necessary to ensure compliance with this subchapter;

6. Any information necessary to ensure compliance with the Federal rules governing the Department's assumption of the Federal 404 program at 40 CFR 233.30;

7. A certification of truth and accuracy; and

8. Unconditional written consent from the owner of the proposed mitigation area allowing the Department to enter the property and inspect the proposed mitigation area.

(c) In addition to the basic information required for all mitigation proposals under (b) above, an application checklist for a proposal to purchase credits shall require information demonstrating that credit purchase is acceptable under N.J.A.C. 7:7A-15.5 or 15.6, and any information necessary for the Department to determine the mitigation bank from which appropriate credits must be purchased under N.J.A.C. 7:7A-15.5 or 15.6.

(d) In addition to the basic information required for all mitigation proposals under (b) above, an application checklist for a proposal to restore, create, or enhance wetlands, to preserve uplands, or to donate land shall also require the following information:

1. Basic information regarding the proposed mitigation area, including, but not limited to, its location and size, ownership, and any legal or other restrictions on the property such as easements;

2. Unconditional written consent from the owner of the proposed mitigation area, as defined at N.J.A.C. 7:7A-15.1, for Department representatives to enter the proposed mitigation area to conduct inspections;

3. Visual materials, including, but not limited to, maps, plans, surveys, diagrams, or photographs showing the proposed mitigation area, existing conditions and features on the proposed mitigation area;

4. Written narrative information and/or reports describing the proposed mitigation area, existing conditions and features on the proposed mitigation area, and the mitigation alternative proposed;

5. Information and/or certifications regarding the presence or absence of endangered or threatened species habitat, or archaeological resources, as described at N.J.A.C. 7:7A-12.2, or other features on the proposed mitigation area that are relevant to determining compliance with this chapter. Failure to provide all such information of which the applicant, its consultants, or agents is aware may result in denial or termination of the permit under N.J.A.C. 7:7A-14.5, and may subject the applicant to penalties for submittal of false information under N.J.A.C. 7:7A-16.9;

6. Information regarding whether the proposed mitigation activities, including any restriction or transfer of the mitigation area, require approval by other Federal, interstate, State and local agencies, and information on any approvals or denials received;

7. Information regarding relevant features of other properties in the vicinity of the mitigation area, such as whether they are publicly owned, contain preserved open space, contain significant natural resources, etc.;

8. Scientific information, including scientific literature, models or other studies concerning wetlands, soils, vegetation, hydrology, wildlife habitat, and any other factors relevant to the functions and values of the proposed mitigation area and mitigation activities;

9. Information to enable the Department to determine the functions and values of the proposed mitigation area, and its potential to be a successful mitigation area, including narrative information, maps, photographs, soil or vegetation samples, delineations and/or other visual materials, describing and/or showing the mitigation area;

10. All past correspondence between the Department and the applicant or permittee, and/or the owner(s) of the proposed mitigation area, regarding the mitigation activities and the mitigation area;

11. Schedules describing in detail the sequence of mitigation activities and estimated dates for completion for each mitigation activity. For example, this might include approximate dates for completing each legal transaction involved in a land donation, or this might include site preparation and planting dates for a wetlands creation project;

12. Estimates of costs involved in performing the mitigation, and in maintaining the mitigation area after construction and/or transfer is completed;

13. Draft documents for protection and transfer of the mitigation area after successful completion of mitigation, in accordance with N.J.A.C. 7:7A-15.14, 15.17(c) and 15.19(c);

14. If the Department determines that there is reason to suspect contamination on the proposed mitigation area, a copy of the characterization and other information obtained from the Department’s Division of Remediation Management and Response, as required at N.J.A.C. 7:7A-15.4(h). In addition, in order for the Department to protect the health and safety of the employees who will inspect the potential mitigation site, the applicant shall provide the following:

i. The applicable human health and ecological effect thresholds for each contaminant identified in the characterization as provided by the Site Remediation Program or the EPA;

ii. The method of exposure for each contaminant listed in the characterization, for example inhalation, ingestion, dermal contact, or explosive potential;

iii. The method of transmission of the contaminant identified in the characterization, for example through soil particles, dust particles, vapor or liquid;

iv. The potential to transmit health risks and or known contaminants off site, for example by way of soil or liquids on footwear, clothing or skin; and

v. The current status of the cleanup of the site with the Site Remediation Program or the EPA, the name(s) and contact number(s) of the project manager, and all applicable case or file numbers.

(e) In addition to the basic information required for all mitigation proposals under (b) above, and the information required at (c) above, an application checklist for a proposal to restore, create, or enhance wetlands shall require the following information:

1. Visual materials, including, but not limited, to maps, plans, surveys, diagrams, or photographs showing all mitigation activities proposed;

2. Written narrative information and/or reports describing in detail all mitigation activities proposed;

3. A description of post-construction activities, including but not limited to schedules for monitoring, maintenance, and reporting;

4. Contingency measures that will be followed if the mitigation project fails or shows indications of failing;

5. A letter of credit or other financial assurance meeting the requirements of N.J.A.C. 7:7A-15.13; and

6. A certification that the proposed mitigation will not adversely affect properties which are listed or are eligible for listing on the National Register of Historic Places in accordance with N.J.A.C. 7:7A-12.2. If the mitigator, before or during approved mitigation, encounters an historic property on the mitigation site that may be eligible for listing in the National Register, the mitigator shall immediately notify the Department and proceed as directed by the Department.

(f) In addition to the basic information required for all mitigation proposals under (b) above, an application checklist for a proposal to make a monetary contribution shall require the following:

1. Information demonstrating to the Department that a monetary contribution is acceptable under N.J.A.C. 7:7A-15.5 or 15.6 and requirements at either (f)1i or ii:

i. For a monetary contribution to satisfy mitigation requirements for approved individual permits, cost estimates, appraisals, and other information necessary to demonstrate compliance with the requirements for monetary contribution at N.J.A.C. 7:7A-15.21; or

ii. For a monetary contribution to satisfy mitigation requirements for approved general permits, the calculation demonstrating compliance with N.J.A.C. 7:7A-15.21(d).

(g) In addition to the basic information required for all mitigation proposals under (b) above, an application checklist for a proposal to make a land donation shall require the following:

1. Information demonstrating to the Department that a land donation is acceptable under N.J.A.C. 7:7A-15.5 or 15.6; and

2. All information necessary to demonstrate to the Wetlands Mitigation Council that the parcel of land proposed for donation meets the requirements for land donation at N.J.A.C. 7:7A-15.22.

N.J.A.C. 7:7A-15.13 Financial assurance for a proposal to restore, create, or enhance wetlands

(a) 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.

(b) 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.

(c) 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 based upon itemized estimates provided by third-party contractors and in the following amounts:

1. A construction assurance, equal to 115 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 115 percent of the estimated cost of monitoring and maintaining the site, including the cost to replant the mitigation area.

(d) The Department shall review the financial assurance annually and the mitigator shall adjust the financial assurance to reflect current economic factors, as direct by the Department.

(e) The Department shall require additional financial assurance if additional construction and/or monitoring is required.

(f) The portion of the financial assurance required under (c)1 above shall be released upon the Department's determination that the construction and planting phase of the mitigation project or mitigation bank has been successfully completed in accordance with the approved mitigation proposal.

(g) The portion of the financial assurance required under (c)2 above shall be released upon the Department's declaration that a mitigation project is successful under N.J.A.C. 7:7A-15.16(e), or upon the successful completion of a mitigation bank in accordance with N.J.A.C. 7:7A-15.23(h), as applicable.

N.J.A.C. 7:7A-15.14 Protecting a mitigation area from future development

(a) Every mitigation area, whether onsite or offsite, shall be permanently protected from any future development through one or more binding conservation restrictions or easements, as defined at N.J.A.C. 7:7A-1.4, and in accordance with N.J.A.C. 7:7A-2.12, except if the mitigation is restoration of a temporary disturbance on the site of the disturbance.

(b) The conservation restriction shall run with the land and shall be binding upon the mitigator, the landowner, and their successors in interest in the land or any part of the land on which the mitigation area is located. To ensure that notice of the restriction is provided to all present and future interested parties, the mitigator shall do all of the following:

1. Record the conservation restriction(s) at the county clerk's office prior to completion of the mitigation;

2. Ensure that a copy of the conservation restriction is provided to the municipal clerk with a request that it be placed in the property file for the land containing the mitigation area;

3. Insert into the conservation restriction the following:

i. A requirement that each owner of the land notify the county and/or municipality of the conservation restriction whenever any application for a local approval involving the land is submitted;

ii. A requirement that each owner of the land notify the Department at least 30 days prior to any transfer of fee simple title or possessory interest in the land containing the mitigation area; and

iii. A requirement that each owner of the land insert notice of the conservation restriction into any subsequent deed or other legal instrument by which the owner divests either the fee simple title or possessory interest in the land.

(c) A conservation restriction for preserved uplands or for donated land shall be enforceable by the Department, by a government agency, or by a charitable conservancy whose trustees have no other interest in the land.

(d) If the mitigation area is donated land or a mitigation bank, the conservation restriction(s)/easement shall require approval by both the Department and the Wetlands Mitigation Council.

N.J.A.C. 7:7A-15.15 Department review of a mitigation proposal

(a) The Department shall, within 30 days after receiving a mitigation proposal, review the proposal for completeness and:

1. Request any necessary additional information; or

2. Declare the mitigation proposal complete.

(b) If a mitigation proposal is intended to compensate for a major discharge, as defined at N.J.A.C. 7:7A-1.4, the Department shall consult with USEPA prior to determining whether to approve the proposal.

(c) The Department shall approve a mitigation proposal only if it meets all of the applicable requirements of this subchapter.

N.J.A.C. 7:7A-15.16 Requirements that apply after the Department approves restoration, creation or enhancement

(a) After the Department approves mitigation through restoration, creation, or enhancement, the mitigator shall execute and record a conservation restriction or easement covering the mitigation area. The conservation restriction or easement shall meet the requirements of N.J.A.C. 7:7A- 2.12, and shall be executed and filed for recording prior to the start of mitigation activities.

(b) Within 30 days after construction and planting of a restoration, creation, or enhancement project is completed, the mitigator shall submit a construction completion report to the Department. The Department may require a different schedule for submittal of the construction completion report if it determines that a different schedule would be more effective for assessing the progress and success of the mitigation. The construction completion report shall include:

1. An as-built plan of the completed mitigation area, showing grading, plantings (species, densities, etc.), and any structures included in the approved mitigation proposal;

2. Photographs of the completed mitigation;

3. An explanation for any deviation from the approved mitigation proposal; and

4. Any other information necessary for the Department to determine if the mitigation is successful under (d) below.

(c) In addition to the construction completion report required under (b) above, the mitigator shall submit to the Department an annual post-planting monitoring report each year for five years after the completion of planting and construction, or for a different time period if specified in the approved mitigation proposal. The Department may at any time modify the frequency and/or duration of reporting required. The post-planting monitoring report shall be submitted by December 31 of each year, and shall include:

1. An executive summary;

2. A complete listing of the requirements and goals of the approved mitigation proposal; and

3. A detailed explanation of the ways in which the mitigation has or has not achieved progress towards those goals. If the mitigation has not achieved progress, the report shall also include a list of remedial actions necessary to do so.

(d) At the end of the post-planting monitoring period for a restoration, creation, or enhancement project, the mitigator shall demonstrate to the Department that the mitigation project is successful. To do so, the mitigator shall demonstrate that the mitigation satisfies all requirements of this subchapter, all requirements of the approved mitigation proposal, and any applicable permit conditions. At a minimum, the mitigator shall demonstrate that:

1. The post-planting monitoring period required by the approved mitigation proposal has been successfully completed and the monitoring data show that:

i. The vegetation in the mitigation area meets the requirements for the types of species, area of coverage, and survival rate, as set forth in the approved mitigation proposal;

ii. The soils in the mitigation area meet the requirements in the approved mitigation proposal; and

iii. The hydrologic regime in the mitigation area meets the requirements in the approved mitigation proposal, and will continue to do so; and

2. The areas designated for freshwater wetlands, transition areas, and/or State open waters in the approved mitigation proposal are in fact freshwater wetlands, transition areas, or State open waters as defined at N.J.A.C. 7:7A-1.4; and

3. The mitigation meets all applicable requirements of this subchapter, including:

i. Any requirements at N.J.A.C. 7:7A-15.2 that apply;

ii. The requirements for the amount of mitigation under N.J.A.C. 7:7A-15.8; and

iii. All restrictions, agreements, and other legal documents required by this subchapter have been executed.

(e) If the mitigator makes the demonstrations required for a restoration, creation, or enhancement project at (d) above, the Department shall issue a declaration that the mitigation is successful.

(f) If the mitigator does not make the demonstrations required at (d) above, the mitigator shall perform additional mitigation or other remedial action as directed by the Department, and shall monitor and report on the mitigation or action as directed by the Department.

N.J.A.C. 7:7A-15.17 Requirements that apply after the Department approves credit purchase or uplands preservation

(a) After the Department determines under N.J.A.C. 7:7A-15.5 or 15.6 that mitigation through credit purchase or uplands preservation is the appropriate mitigation alternative, the mitigator shall prepare and execute all documents necessary to ensure that the mitigation will be carried out as approved by the Department.

(b) The Department shall declare mitigation through credit purchase or uplands preservation successful upon:

1. A demonstration that the completed mitigation satisfies all applicable permit conditions, requirements of this subchapter, and requirements of the approved mitigation proposal; and

2. Submittal to the Department of documents demonstrating that the credit purchase or uplands preservation has occurred as required. Examples of such documents include, but are not limited to:

i. For credit purchase, written certifications from the mitigator and from the mitigation bank operator, stating that the credits were purchased; and

ii. For uplands preservation, a conservation restriction or easement, documentation that the property has been transferred and a maintenance fund established in accordance with (c) below, and that the transfer and restriction have been recorded with the county or other appropriate agency.

(c) No later than 60 days after the Department declares mitigation through uplands preservation successful under (b) above, a mitigator shall:

1. Transfer the mitigation area in fee simple to a government agency or a charitable conservancy, as defined at N.J.A.C. 7:7A-1.4. The agency or conservancy shall first be determined suitable for this responsibility by the Department, and shall agree to preserve the mitigation area as a natural area in perpetuity; and

2. Provide the government agency or charitable conservancy with a maintenance fund for maintenance and supervision of the mitigation area. The amount of the maintenance fund shall be determined by agreement between the mitigator and the agency or conservancy.

N.J.A.C. 7:7A-15.18 Requirements that apply after the Department approves mitigation through a monetary contribution

(a) After the Department determines under N.J.A.C. 7:7A-15.5 or 15.6 that monetary contribution is the appropriate mitigation alternative, the mitigator shall either:

1. If mitigating for an Individual permit, apply to the Wetlands Mitigation Council for approval of the amount of the monetary contribution under the standards at N.J.A.C. 7:7A-15.21(a) through (c); or

2. If mitigating for a general permit, calculate the amount of the monetary contribution under the standards at N.J.A.C. 7:7A-15.21(d).

(b) The Department shall declare mitigation through a monetary contribution successful upon a demonstration that:

1. For a monetary contribution for an individual permit:

i. The Wetlands Mitigation Council has approved the amount of the monetary contribution; and

ii. The monetary contribution has been completed in accordance with the Council resolution approving the contribution, all applicable permit conditions, requirements of this subchapter, and requirements of the approved mitigation proposal or

2. For a monetary contribution for a general permit:

i. The amount has been properly calculated in accordance with N.J.A.C. 7:7A-15.21(d); and

ii. The monetary contribution has been approved by the Department and completed in accordance with the general permit checklist for monetary contributions.

N.J.A.C. 7:7A-15.19 Requirements that apply after the Department approves mitigation through a land donation

(a) After the Department determines under N.J.A.C. 7:7A-15.5 or 15.6 that land donation is the appropriate mitigation alternative, the mitigator shall apply to the Wetlands Mitigation Council for approval of the particular parcel of land to be donated under the standards at N.J.A.C. 7:7A-15.22.

(b) The Department shall declare mitigation through a land donation successful upon a demonstration that:

1. The Wetlands Mitigation Council has approved the parcel to be donated; and

2. The land donation has been completed in accordance with the Council resolution approving the contribution, all applicable permit conditions, requirements of this subchapter, and requirements of the approved mitigation proposal.

(c) Within 60 days after the Department declares mitigation through land donation successful under (b) above, a mitigator shall:

1. Transfer the mitigation area in fee simple to a government agency or a charitable conservancy, as defined at N.J.A.C. 7:7A-1.4. The agency or conservancy shall first be determined suitable for the responsibility by the Department, and shall agree to preserve the mitigation area as a natural area in perpetuity;

2. Provide the government agency or charitable conservancy with an adequate maintenance fund for maintenance and supervision of the mitigation area. The amount of the maintenance fund shall be determined by agreement between the mitigator and the agency or conservancy; and

3. Ensure that the transfer and a conservation restriction or easement, in accordance with N.J.AC. 7:7A-2.12 and 15.14 are recorded with the county or other appropriate agency and that a copy is sent to the Department.

N.J.A.C. 7:7A-15.20 Wetlands Mitigation Council

(a) The Wetlands Mitigation Council's duties and functions include:

1. Reviewing the following:

i. Proposed monetary contributions;

ii. Proposed land donations; and

iii. 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 to monitor the success of mitigation as part of a Council-funded and approved creation, restoration or enhancement project;

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. To request funding for a mitigation project, contact the Council through the mitigation staff at the address in N.J.A.C. 7:7A-15.2(f).

(b) If the Council transfers funds or land, the Council shall first execute and record a conservation restriction or easement or other legally binding document that meets all applicable requirements at N.J.A.C. 7:7A-15.14, and that ensures that the funds or land will be used only for mitigation and freshwater wetlands conservation.

(c) Council meetings are open to the public. A schedule of Council meetings and other information relating to specific Council meetings can be obtained by contacting Council staff at the address in N.J.A.C. 7:7A-15.2(f).

(d) The Wetlands Mitigation Fund shall not be used to aid a permittee or violator in locating a mitigation area required as a condition of a permit, or required in order to resolve a violation.

(e) The Council may contract with a government agency, nonprofit organization, or other appropriate agency to carry out its responsibilities under this chapter. Any such contract shall be subject to review and approval by the USEPA.

N.J.A.C. 7:7A-15.21 Council review of a proposed monetary contribution

(a) For mitigation through a monetary contribution, the mitigator shall first obtain the Department's authorization under N.J.A.C. 7:7A-15.5 or 15.6 to use monetary contribution as the mitigation alternative. For an individual permit, the mitigator shall then obtain approval from the Wetlands Mitigation Council for the amount of the monetary contribution. For a general permit, the amount of the monetary contribution shall be determined in accordance with (d) below.

(b) The Wetlands Mitigation Council shall approve the amount of a monetary contribution only if the contribution is equal to the lesser of the following:

1. The cost of buying, enhancing and/or restoring existing degraded freshwater wetlands and/or State open waters, resulting in an area that will provide equal functions and values to that disturbed; or

2. The cost of buying uplands and creating freshwater wetlands, and/or State open waters, resulting in an area that will provide equal functions and values to that disturbed.

(c) In determining the costs at (b)1 and 2 above, the Council may consider cost estimates submitted by the applicant and the Department, information obtained from experts in the field of mitigation (including Council members), and any other information available to the Council.

(d) The following analysis shall be used to determine the amount of a monetary contribution when mitigating for general permit impacts at N.J.A.C. 7:7A-5:

1. For single family property owners, the acreage of wetlands/State open water impacts multiplied by $38,000, adjusted annually using the Consumer Price Index for Urban Consumers (CPI-U) as published by the United States Department of Labor; or

2. For all other property owners, the acreage of wetlands/State open water impacts multiplied by $300,000, adjusted annually using the Consumer Price Index for Urban Consumers (CPI-U) as published by the United States Department of Labor.

(e) When the Department determines under (d)1 or 2 above to adjust the amount of a monetary contribution using the Consumer Price Index for Urban Consumers, the Department shall publish in the New Jersey Register a notice of administrative change announcing the adjustment and the amount of the adjusted monetary contribution.

N.J.A.C. 7:7A-15.22 Council review of a proposed land donation

(a) For mitigation through a land donation, the mitigator shall first obtain the Department's authorization under N.J.A.C. 7:7A-15.5 or 15.6 to use land donation as the mitigation alternative. The mitigator shall then obtain approval from the Wetlands Mitigation Council for the particular parcel of land to be donated.

(b) The Council shall approve the proposed parcel of land to be donated only if the amount of land to be donated is sufficient to ensure that the functions and values provided by the donated land will fully compensate for the loss of functions and values caused by the disturbance, in accordance with N.J.A.C. 7:7A-15.2(c).

(c) If a proposed parcel to be donated is also being donated or otherwise restricted in order to satisfy requirements of another government agency, the Council shall not approve the donation unless the applicant also enhances or restores wetlands on the parcel. For example, if land is required by a county to be preserved as open space, the Council shall only approve the parcel for a land donation if the applicant also performs wetlands restoration or enhancement in accordance with this subchapter. If restoration or enhancement cannot be performed on the parcel, the Council shall not accept the parcel as a land donation.

(d) The Council shall approve the proposed parcel of land to be donated only if the applicant demonstrates that the land has the potential to be a valuable component of a wetland or surface water ecosystem. The Council shall evaluate each parcel to determine its potential on a case by case basis, taking into consideration the following:

1. The parcel shall be at least five acres in size, or shall be immediately adjacent to a protected natural area such as a State wildlife management area;

2. The parcel shall not be adversely affected by solid waste; hazardous waste; or air, water, or soil pollution;

3. A functional comparison between the impacted wetland system and the wetland system proposed for donation; and

4. The parcel shall meet at least one, and preferably several, of the following criteria:

i. Contains exceptional resource value wetlands;

ii. Contains critical habitat for flora or fauna, as defined at N.J.A.C. 7:7A-1.4;

iii. Contains wetlands or waters draining to FW1 or category one waters, as defined at N.J.A.C. 7:9B, or into public drinking water sources;

iv. Contains wetlands or waters that connect one public open space or significant natural resource to another public open space or significant natural resource. For example, a parcel containing a stream that runs through two wildlife preserves that are not adjacent;

v. Is adjacent to public lands containing wetland preserves, such as a Federal wildlife refuge, a State wildlife management area, a State park or forest, or a State, County or local wetland preservation area; or wetland preservation areas held by a charitable conservancy; or

vi. Has unique aspects or characteristics that contribute to its ecological value, such as an unusual or regionally rare type of wetland.

N.J.A.C. 7:7A-15.23 Mitigation banks

(a) A mitigation bank requires approval by the Department prior to the sale of any mitigation credits. “Approval” for the purposes of this section means final approval in accordance with N.J.A.C. 7:7A-15.25.

(b) If creation of a mitigation bank involves regulated activities as described at N.J.A.C. 7:7A-2.2 or N.J.A.C. 7:7A-2.6, the bank operator shall also obtain from the Department a freshwater wetlands permit, open water fill permit, and/or transition area waiver, authorizing the regulated activities.

(c) Once the Department has approved a mitigation bank, the bank operator shall carry out all requirements of the banking instrument approving the bank, regardless of whether or when credits are sold.

(d) The Department shall determine how many mitigation credits each mitigation bank operator may sell, based on the increase in wetland values and functions created as a result of the proposed mitigation bank, as well as how the increase in functions and values will interact with the regional wetland and aquatic resources. The Department shall evaluate each mitigation bank to determine its functions and values on a case by case basis, considering the following factors:

1. The functions and values provided by the bank site at the time the mitigation bank proposal is submitted, including, but not limited to, existing soil, vegetation, water quality functions, flood storage capacity, soil erosion and sediment control functions, and wildlife habitat functions;

2. Whether the proposed mitigation activities will result in an increase in functions and values over the existing value of the mitigation bank site;

3. The likelihood of long-term success of the proposed mitigation activities in creating functions and values similar to an undisturbed wetland and/or State open water;

4. The amount of wetlands, transition area, and State open waters on the proposed bank site;

5. The potential for the completed mitigation site to be a valuable component of the aquatic ecosystem;

6. The size and scope of the bank;

7. The types of resource losses that have occurred in the area;

8. The similarity or dissimilarity of the bank to other existing aquatic and wetland resources in the area;

9. Available scientific literature regarding credit ratios; and

10. The Department's and other government agencies' experience with mitigation and mitigation banks.

(e) The Department shall include in the banking instrument approving the bank a schedule under which a bank operator may sell credits. The schedule shall be as set forth at (e)1 through 6 below. The Department shall adjust the amount of credits within the ranges at (e)2 through 6 below to reflect the degree of progress the bank has shown toward meeting the goals and performance standards in the approved mitigation proposal:

1. Ten percent of the credits shall be released upon completion of both of the following:

i. Signing of the banking instrument approving the bank; and

ii. Compliance with all pre-release credit sale conditions in the banking instrument approving the bank, such as securing all construction permits, posting adequate and effective financial assurance in accordance with N.J.A.C. 7:7A-15.13, and completing the conservation restriction or easement and the agreement providing for transfer of the bank site at completion;

2. Up to 20 percent of the credits shall be released upon successful establishment of the approved hydrologic regime, so that this regime will remain over time under normal hydrologic conditions;

3. Up to 10 percent of the credits shall be released upon completion of planting as required in the banking instrument approving the bank;

4. Up to 20 percent of the credits shall be released when monitoring indicates that the performance standards in the banking instrument approving the bank have been met for an entire one-year period;

5. Up to 15 percent of the credits shall be released when monitoring indicates that the performance standards in the banking instrument approving the bank have been met for three consecutive years;

6. Up to 25 percent of the credits shall be released when monitoring in accordance with the banking instrument approving the bank indicates that the performance standards in the banking instrument have been met for five consecutive years.

(f) The mitigation bank operator shall execute and record a restriction on the mitigation bank site prior to the sale of any credits. The conservation restriction or easement shall meet the requirements for protecting mitigation sites from future disturbance, set forth at N.J.A.C. 7:7A-2.12 and 15.14.

(g) The mitigation bank operator shall monitor the bank during and after construction until such time that the last credit is sold, the final inspection is conducted, or the bank is transferred to a charitable conservancy, whichever occurs last, in order to ensure its success. The bank operator shall submit progress reports to the Department at least annually during and after construction, and more often if required by the banking instrument approving the bank.

(h) If the bank falls more than one year behind the schedule for completion specified in the banking instrument approving the bank, the Department may amend the banking instrument approving the bank, and may require remedial action to ensure the successful completion of the bank. The Department may reduce the number of credits that may be sold based on the approved remedial action, in order to reflect the change in wetlands values and functions that will result from the changes to the bank.

(i) Upon completion of the monitoring period and all other requirements in the banking instrument approving the bank, the mitigation bank operator shall:

1. Demonstrate that the bank is successful, using the criteria for successful restoration, creation, or enhancement at N.J.A.C. 7:7A-15.16, or for successful upland preservation at N.J.A.C. 7:7A-15.17, as applicable;

2. Transfer the mitigation bank site in fee simple to a government agency or charitable conservancy;

3. Provide the government agency or charitable conservancy to which the mitigation bank site is transferred with a maintenance fund. The maintenance fund shall support maintenance activities such as trash removal, maintenance of natural features, monitoring the site to ensure its upkeep, maintenance of water control structures, fences, or safety features, and any other activities necessary to ensure the site complies with this chapter and all applicable law. The amount of the maintenance fund shall be determined between the bank operator and the agency or conservancy to which the mitigation bank site is transferred; and

4. Ensure that the transfer, and the conservation restriction or easement required under (h) above, are recorded with the county or other appropriate agency.

(j) A mitigation bank approval shall be valid for five years, or until any Department permit required to conduct the bank activities expires. The Department shall approve a single five year extension if the permit is extended for five years and only if the mitigation bank operator demonstrates that:

1. If extended, the bank shall produce the increase in functions and values upon which the original mitigation bank approval was based;

2. Bank construction was begun prior to expiration of the mitigation bank approval;

3. Bank construction has continued uninterrupted in accordance with the banking instrument approving the bank;

4. All permits required for the construction of the bank are valid; and

5. No significant changes in the conditions on the mitigation bank site, as defined at N.J.A.C. 7:7A-15.1, have occurred.

(k) If a bank approval expires and is not extended under (j) above, the Department shall determine whether the amount of mitigation completed at the bank site is commensurate with the number of credits already sold. If the Department determines that the amount of mitigation completed is not commensurate with the number of credits already sold, the banker shall be considered in default and the Department shall assert its rights to the financial assurance provided under this subchapter.

N.J.A.C. 7:7A-15.24 Application for Wetlands Mitigation Council approval of a monetary contribution or land donation

(a) An application for a proposal to make a monetary contribution or a land donation shall include the information required by the checklist described at N.J.A.C. 7:7A-15.12(f) or (g), respectively. The application checklist may be obtained from the Council staff at the address in N.J.A.C. 7:7A-15.2(f).

(b) Except for a monetary contribution for a general permit, which shall be submitted to the Department in accordance with N.J.A.C. 7:7A-15.21(d), an application for approval of a monetary contribution or land donation shall first be submitted to Council staff at the address in N.J.A.C. 7:7A-15.2(f). Council staff shall notify the applicant of any additional information required to make the application complete and of the schedule for Council meetings. The applicant shall then submit 10 copies of the complete application to the Council staff. These copies shall be submitted at least 30 days before the Council meeting at which the application will be discussed.

(c) Each Council approval shall incorporate conditions as necessary to ensure that the requirements of this chapter are met.

N.J.A.C. 7:7A-15.25 Application for approval of a mitigation bank

(a) A prospective mitigation bank operator shall obtain conceptual review of a proposed mitigation bank before investing in buying land or preparing a detailed mitigation bank proposal. Through a conceptual review, Department staff shall candidly discuss the apparent strengths and weaknesses of the proposed mitigation bank, but all guidance provided shall be non-binding on the Department. A Department decision on a proposed mitigation bank is binding only if it is incorporated into an approval obtained in accordance with this subchapter. A conceptual review does not grant any property or other rights, and does not authorize mitigation activities or sale of credits. The findings provided by the Department as part of the conceptual review shall be valid for a period of three years or until the rules governing conceptual review are amended in a way that would render the conceptual review inconsistent with the new requirements, whichever occurs sooner. Once expired, a new conceptual review shall be required. To obtain conceptual review of a proposed mitigation bank, an applicant shall submit the following to the Department:

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, identified in accordance with N.J.A.C. 7:7A-12.2 ;

i. If contaminated, the applicant shall provide a copy of the characterization and other information obtained from the Department’s Division of Remediation Management and Response, as required at N.J.A.C. 7:7A-15.4(h)1;

ii. To address historic or archaeological resources, if applicable, the applicant shall comply with the provisions at N.J.A.C. 7:7A-12.2;

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 Department 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 Department representatives to enter the property and inspect the site.

(b) To obtain final Department approval of a proposed mitigation bank, an applicant shall submit the information required by the application checklist, available from Department staff at the address in N.J.A.C. 7:7A-15.2(f). The checklist shall require the following types of information:

1. A letter of interpretation covering the entire proposed mitigation bank site, issued by the Department under N.J.A.C. 7:7A-3;

2. All past correspondence between the mitigation bank operator and the Department regarding the proposed mitigation bank site, including any correspondence regarding conceptual review under (a) above;

3. A functional assessment of the bank site prior to construction, and proposed site conditions after construction. The assessment shall include a discussion of how the proposed bank will interact with regional wetland and aquatic resources;

4. Information on the following items, sufficient for the Department to determine if the mitigation bank is consistent with the Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, published jointly by EPA and other Federal agencies in the November 28, 1995 Federal Register at 60 Fed. Reg. 58605:

i. Mitigation bank goals and objectives;

ii. Ownership of mitigation bank lands including disclosure of all leases, easements, and other encumbrances;

iii. Mitigation bank size, and classes of wetlands, transition areas, uplands, and/or other aquatic resources included in the mitigation bank;

iv. Description of baseline conditions on the mitigation bank site, including natural features and parameters, as well as pollutants, contamination, historic or cultural resources, and other relevant features;

v. The service area within which the mitigation bank credits may be used to compensate for a disturbance. The service area shall be designated to give priority to mitigation for impacts occurring:

(1) In the same HUC 11 as the proposed bank;

(2) Adjacent to the same HUC 11 and within the same watershed management area as the proposed bank;

(3) In the same watershed management area as the proposed bank;

vi. Types of wetlands, transition areas, and/or State open waters for which credits from the bank could serve as suitable compensation;

vii. Method for determining credits and debits;

viii. Accounting procedures;

ix. Performance standards to enable the Department to determine when credits may be released under N.J.A.C. 7:7A-15.23(e);

x. Performance standards to enable the Council to determine if and when the mitigation bank is successful;

xi. Reporting protocols and a monitoring plan;

xii. Contingency and remedial actions that will be taken in case the bank fails, and who is responsible for each. For example, alternative sites, grading plans, or hydrologic manipulations;

xiii. Financial assurances meeting the requirements of N.J.A.C. 7:7A-15.13;

xiv. Proposed compensation ratios, that is, the number of credits the bank operator proposes to generate and sell, based on the type and amount of mitigation performed at the bank; and

xv. Provisions for long-term management and maintenance of the mitigation bank site;

5. Site plans, cost estimates and schedules for construction, completion, and transfer of the mitigation bank;

6. Draft legal instruments necessary to meet the requirements of this chapter, including a conservation restriction or easement, financial assurance, property transfer, or agreement with a charitable conservancy to maintain the site; and

7. Identification of the persons who will construct, operate (debit and credit) and maintain the mitigation bank and mitigation bank site.

(c) An application for approval of a mitigation bank shall be submitted to Department staff at the address in N.J.A.C. 7:7A-15.2(f). Department staff shall notify the applicant of any additional information required to make the application complete. The applicant shall then submit 5 copies of the complete application to the Department staff.

(d) Each Department approval shall incorporate conditions as necessary to ensure that the requirements of this chapter are met.

N.J.A.C. 7:7A-15.26 Mitigation for transition area impacts in accordance with N.J.A.C. 7:7A-6.3(g), special activity transition area waivers based upon individual permit criteria

(a) This section governs the mitigation alternative required and the location of mitigation in relation to the disturbance for a transition area impact in accordance with N.J.A.C. 7:7A-6.3(g) (special activity transition area waivers based upon individual permit criteria). Mitigation for a transition area disturbance shall be performed through restoration or enhancement of transition areas carried out on the site of the disturbance to the maximum extent feasible.

(b) If onsite transition area restoration or enhancement is not feasible, mitigation shall be performed through any of the following, at the applicant's option:

1. The purchase of credits from a mitigation bank located in the same HUC 11 as the disturbance or in an adjacent HUC 11 within the same watershed management area;

2. The purchase of credits from a mitigation bank approved by the Wetlands Mitigation Council prior to January 1, 1999, which includes the disturbance site in its bank service area; or

3. Offsite restoration or enhancement in the same HUC 11 or in an adjacent HUC 11 within the same watershed management area as the disturbance.

(c) If transition area mitigation under (b) above is not feasible, transition area mitigation shall be performed through either of the following, at the applicant's option:

1. The purchase of credits from a mitigation bank in the same watershed management area as the disturbance; or

2. Restoration, enhancement, or upland preservation in the same watershed management area as the disturbance.

(d) If transition area mitigation is not feasible under (b), or (c) above, mitigation shall be performed through:

1. The purchase of credits from a mitigation bank which includes the disturbance site in its bank service area; or

2. Restoration or enhancement in the same drainage basin.

(e) If transition area mitigation is not feasible under (b), (c), or (d) above, mitigation shall be performed through:

1. A monetary contribution in accordance with N.J.A.C. 7:7A-15.21;

2. Upland preservation, in accordance with N.J.A.C. 7:7A-15.9; or

3. A land donation approved by the Wetland Mitigation Council in accordance with N.J.A.C. 7:7A-15.22.