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Mitigation

  • Overview
  • Related Permits
  • Mitigation Options
  • Wetlands Mitigation Council
  • FAQ

Mitigation Overview

Mitigation refers to an activity or activities carried out to compensate for impacts to freshwater wetlands, State open waters or coastal wetlands disturbance caused by regulated activities. Wetland mitigation is currently required under the Freshwater Wetland Protection Act for some general permits and when an applicant receives an individual permit. Under the Coastal Zone Management rules, mitigation is required for all coastal wetland impacts.

Mitigation for wetlands may take the following forms: creation, restoration, enhancement, mitigation bank credit purchase, monetary contribution, preservation, or a land donation. Please see the "Mitigation Options" tab for more information.

Mitigation (also known as compensation) is also required for some impacts to riparian zones under the Flood Hazard Area Control Act rules.

 

 

Mitigation may be required for the following permits:

Some of the following Freshwater Wetland permits always require mitigation and some only require mitigation for impacts over a certain threshold:

Any permit impacting Coastal Wetlands, intertidal/subtidal shallows or submerged aquatic vegetation requires mitigation. Mitigation may also be required for impacts to shellfish habitat.

Certain Flood Hazard Area permits exceeding maximum allowable disturbance limits to riparian zones require riparian zone mitigation/compensation.

Mitigation Options

  • Creation & Restoration
  • Enhancement
  • Mitigation Bank
  • Monetary Contribution
  • Preservation and Land Donation
  • Riparian Zone Mitigation (Compensation)

“Creation” and “Restoration” are two types of mitigation.

Creation means the establishment of wetlands or waters characteristics and functions in a non-wetland area where there is no evidence or documentation that the area has ever been wetlands.

Restoration means the reestablishment of wetland or waters characteristics and functions in an area that was once a wetland and/or State open water but is no longer; or the reversal of a temporary disturbance and the reestablishment of the functions and values of the wetlands and/or water that was temporarily disturbed.

In general, wetland creation and restoration are afforded a ratio of 2:1. That means for every one acre of impacts for which mitigation is needed, an applicant will have to create or restore two acres of wetlands.

“Enhancement” is a type of wetland and riparian zone mitigation.

Enhancement means the improvement of the ability of an existing, degraded wetland or 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 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 general, enhancement ratios for wetlands range from 3:1 to 10:1 or more, depending upon the ecological benefit (uplift) provided by the proposal resulting from the enhancement activities.  That means for every one acre of impacts for which mitigation is needed, an applicant will have to enhance as little as 3 or as many as 10 or more acres of wetlands.

List of Approved Mitigation Banks (PDF) / Map of Mitigation Bank Service Areas

Mitigation Bank Credit purchase is a type of mitigation that may apply to impacts to freshwater wetlands and riparian zones. Mitigation Bank Credit purchase means buying a designated number of wetland credits from an appropriate bank that has already successfully established wetlands of the same type as those which were impacted. Bank credits are usually purchased from a primary bank at a 1:1 ratio. That is for each acre of impact, one credit must be purchased.

What is a Mitigation Bank?
State and Federal regulations require mitigation to compensate for unavoidable wetland impacts.  A mitigation bank is a site in which wetlands, uplands, riparian zones and/or other aquatic resources are restored, created, enhanced, or preserved by a mitigation bank operator, in advance of any specific need for compensatory mitigation. The banker receives credits for the mitigation project which can then be sold to public or private entities to fulfill their mitigation requirements.

Who creates Mitigation Banks?
Mitigation Banks are established by private companies or public entities (like Counties or Townships).

Why create a Mitigation Bank?
Private entities create mitigation banks because the State of New Jersey and the Federal government often require that wetlands be replaced (mitigated) to compensate for unavoidable wetland impacts. Applicants seeking mitigation are required to purchase mitigation credits from an established mitigation bank in the appropriate service area.
Public entities create mitigation banks to provide themselves with mitigation credits that may be needed when they conduct regulated activities within their jurisdiction.  For example, a County may create a mitigation bank to offset impacts from future anticipated road improvement projects or other improvements to infrastructure.

How do the economics work for a private company proposing to establish a mitigation bank?
An entity that builds a mitigation bank receives a certain number of “credits” from the Department (and in some cases federal regulatory agencies) based upon the size of the bank, the existing site conditions, and the amount of ecological benefit resulting from the activities proposed to create the mitigation bank. A credit is a commodity to be sold to an entity that is required to mitigate for unavoidable wetland impacts.  The private company makes a financial determination as to whether the number of credits that the Department will assign to the bank is sufficient to cover the upfront costs of creating the bank, and whether the area in which they bank is located will generate enough customers to buy their credits.

To whom can the credits be sold?

In addition to determining how many credits a bank will be given, the Department also works with the banker to determine the service area for the bank. The service area is based upon the largest area that is ecologically similar to the area where the bank is located (usually a watershed management area). A banker can only sell credits to those in their service area. Establishing a service area ensures that a person seeking mitigation receives the right ecological type of mitigation when purchasing credits from a bank.  

Monetary Contribution is a type of mitigation that applies only to freshwater wetland impacts.

Monetary Contribution means donating money to the Wetland Mitigation Fund so that the Wetlands Mitigation Council can fund a mitigation project. The amount of the contribution depends upon the size of the impact and whether the impact resulted from an individual or general wetlands permit. All proposed monetary contributions from individual permits must be approved in advance by the Wetlands Mitigation Council.

Preservation and Land Donation are types of mitigation that may apply to all wetland and riparian zone impacts.

Preservation means preserving a wetland feature or an upland feature that has been deemed valuable for the protection of a freshwater wetland ecosystem.

Land Donation means donating a piece of property that is deemed to be a valuable component of the freshwater wetland ecosystem.

Preservation and Land Donation are only accepted as mitigation options when all other types of mitigation are not feasible, in accordance with Department rules. In general, the Department requires much larger ratios to accept preservation or donation as mitigation options. A commonly accepted preservation/land donation ratio is 27:1.  That means for every one acre of impacts for which mitigation is needed, an applicant will have to preserve or donate at least 27 acres of wetlands or uplands. Land to be preserved must be a valuable component of a freshwater wetland ecosystem.

Most preservation and land donation proposals to satisfy wetland mitigation requirements must be approved in advance by the Wetlands Mitigation Council.

Preservation also means obtaining and preserving a property containing extensive forested riparian zones. The amount of riparian zone preservation required for flood hazard impacts is determined in accordance with the Flood Hazard rules.

 

Riparian zone compensation/mitigation means replacing the lost values and functions of a riparian zone. Riparian zone mitigation can take the form of restoration or enhancement. At some point in the future (after 2012) riparian zone banking may become an option.

Restoration means removing pavement and structures from a riparian zone and replanting it with native vegetation. The amount of riparian zone restoration required for flood hazard impacts is determined in accordance with the Flood Hazard rules.
Enhancement means supplemental planting in the riparian zone.  The amount of riparian zone enhancement required for flood hazard impacts is determined in accordance with the Flood Hazard rules.
In the future (after 2012), Mitigation Bank Credits may be purchased from an appropriate bank containing restored or enhanced riparian zones.

 

 

The Wetlands Mitigation Council (Council) serves as an oversite committee for monetary contributions or donations of land to satisfy mitigation requirements. No monetary contribution or land donation can be accepted to satisfy a mitigation requirement unless it is first approved by the Council.

The Council is established by statute under the Freshwater Wetlands Protection Act and is comprised of seven members as follows: the Commissioner of Environmental Protection, who shall serve ex officio; and six members from the general public to be appointed by the Governor with the advice and consent of the Senate, two of whom shall be appointed persons recommended by recognized building and development organizations; two of whom shall be appointed from persons recommended by recognized environmental and conservation organizations; and two of whom shall be appointed from institutions of higher learning in the State. Each member appointed from the general public shall serve for a term of three years and until a successor is appointed and qualified.

For information regarding how to make a land donation, monetary contribution, or a request for a wetland mitigation grant please contact:

Jill Aspinwall, NJDEP staff to the Wetlands Mitigation Council
NJDEP Mail Code 401-07D, P.O. Box 420
401 East State Street, Trenton NJ 08625-0420
(609) 984-9736

Mitigation Council Meetings:

The Freshwater Wetlands Mitigation Council will meet on December 8th, 2014 at 9:30 a.m.
Location: 501 E. State Street, 2nd Floor Hudson Conference Room.

Attendees should call or e-mail in advance their intent to attend to:
Jill Aspinwall: jill.aspinwall@dep.state.nj.us Phone (609)984-9736

For more information, please check the meeting agenda.

Future Meetings:

The following meeting dates have been tentatively scheduled for The Freshwater Wetlands Mitigation Council for the year 2015:

February 10, 2015
April 14, 2015
June 9, 2015
August 11, 2015
October 13, 2015
December 8, 2015

Meetings begin at 9:30 a.m.
Location: 501 E. State Street, 2nd Floor Hudson Conference Room.

Attendees should call or e-mail in advance their intent to attend to:
Jill Aspinwall: jill.aspinwall@dep.state.nj.us Phone (609)984-9736

In order to be placed on the Council’s agenda, all supporting materials for consideration by the Council must be submitted to the Mitigation Council staff at least 60 days in advance of the applicant’s targeted meeting date. Application materials should be submitted to:

Staff to Mitigation Council c/o
NJDEP Division of Policy Implementation
P.O. Box 420
Mail Code: 401-07D
Trenton, New Jersey  08625-0420

Agendas from past meetings:

Meeting Minutes

Meeting Guidelines and Structure, PDF Document

Guidelines for Grant Proposals, PDF Document

FREQUENTLY ASKED QUESTIONS

  1. What is "Mitigation"?
  2. Are there different forms of mitigation?
  3. How do I know which type of mitigation is appropriate for my proposed project?
  4. What do the posted wetland mitigation signs mean?
  5. What is a mitigation bank?
  6. If I want to establish a mitigation bank what would generally be required?
  7. What is the Wetland Mitigation Council?
  8. What is the Mitigation Fund?
  9. How do I get on the Council Agenda?
  10. How do I get approval for my mitigation plan?
  11. When must the mitigation process commence?
  12. How long do I have to monitor? Why do I have to monitor?
  13. What are approved/accepted forms of financial assurance to restore, create, or enhance wetlands?

1. What is "Mitigation"?

Mitigation refers to an activity or activities carried out to compensate for impacts to freshwater wetlands, State open waters or coastal wetlands disturbance caused by regulated activities. Wetland mitigation is currently required under the Freshwater Wetland Protection Act for some general permits and when an applicant receives an individual permit. Under the Coastal Zone Management rules, mitigation is required for all coastal wetland impacts.
Mitigation for wetlands may take the following forms: creation, restoration, enhancement, mitigation bank credit purchase, monetary contribution, preservation, or a land donation.
Mitigation (also known as compensation) is also required for some impacts to riparian zones under the Flood Hazard Area Control Act rules.
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2. Are there different forms of mitigation?
Mitigation for wetlands can take the following forms: creation, restoration, enhancement, mitigation bank credit purchase, monetary contribution, preservation, or a land donation.

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3. How do I know which type of mitigation is appropriate for my proposed project?

 

Flow Chart Illustrating Mitigation Alternatives for a Larger Disturbance (Pdf Format)

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4. What do the posted wetland mitigation signs mean?

The sign is posted to inform anyone in the area that a particular area is an approved wetland mitigation area. No activities are permitted within the mitigation area including disturbance or removal of vegetation, dumping, all terrain vehicle use, or any other activity not explicitly permitted when the mitigation bank was established.
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5. What is a mitigation bank?

A mitigation bank is an area in which, wetlands, uplands, riparian zones and/or other aquatic resources are restored, created, enhanced, or preserved by a mitigation bank operator, in advance of any specific need for compensatory mitigation. For additional info, see mitigation bank.

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6. If I want to establish a mitigation bank what would generally be required?
An applicant, working with the Department, must determine whether a proposed mitigation bank is in an area of the State under DEP jurisdiction only or within an area where the Department continues to share jurisdiction with the Army Corps of Engineers. If a proposed bank is in an area of shared jurisdiction, an applicant must follow both the Federal mitigation banking rules at 33 CR parts 325 and 332 and 40 CFR Part 230 and the State rules at N.J.A.C. 7:7A-15.23.
For banks with no Federal jurisdiction, to obtain conceptual approval for a mitigation bank, the applicant should 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;
  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 Council 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 Council and Department representatives to enter the property and inspect the site.

To obtain final Department approval of a proposed mitigation bank, an applicant shall submit the information required by the application checklist.

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7. What is the Wetland Mitigation Council?

A body established under the Freshwater Wetlands Protection Act at 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 Mitigation Fund.

The Wetlands Mitigation Council's duties and functions include:

  1. Reviewing the following:
    • Proposed monetary contributions,
    • Proposed land donations,
    • Mitigation bank proposals; and
    • 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 on mitigation;
  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.

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8. What is the Mitigation Fund?
A repository for monetary contributions made for mitigation purposes, established at N.J.S.A 13:9B-14a and referred to as the "Wetlands Mitigation Bank".
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9. How do I get on the Council Agenda?
Submit a request to be on the agenda to the Mitigation Unit. All requests must be received no later than 60 days prior to the meeting date.
For additional information or to get on the Council Agenda, contact Susan Lockwood at susan.lockwood@dep.state.nj.us or call (609)984-0580.
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10. How do I get approval for my mitigation plan?
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.
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
  5. Unconditional written consent from the owner of the proposed mitigation area allowing Department representatives to enter the property and inspect the mitigation area.

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11. When must the mitigation process commence?

  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, 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.

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12. How long do I have to monitor? Why do I have to monitor?

Monitoring is usually required for five years. Monitoring ensures that: the mitigation site achieves the goals identified in the approved mitigation plan, the area meets the definition of a wetland, the target plant community has achieved its performance goals which are usually 85% coverage and 85% survival rate, and that it becomes a self-sustaining wetland in perpetuity, and that there is no more than 10% invasive species on the site.

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13. What are approved/accepted forms of financial assurance to restore, create, or enhance wetlands?

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.

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. 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 in the following amounts:

  1. A construction assurance, equal to one hundred and fifteen 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 thirty percent of the estimated cost of completing the creation, restoration, or enhancement.

 

 

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