N.J. Admin. Code § 7:7A-8.1 - General provisions for transition area waivers

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

1. An averaging plan transition area waiver, addressed at N.J.A.C. 7:7A-8.2 ;

2. A special activity transition area waiver for stormwater management, linear development, redevelopment, or activities eligible for an individual permit, addressed at N.J.A.C. 7:7A-8.3 ;

3. A hardship transition area waiver, addressed at N.J.A.C. 7:7A-8.4 ;

4. A general permit transition area waiver. If a general permit authorizes disturbance of a transition area, an authorization issued under the general permit constitutes a transition area waiver for the activities covered by the general permit. This waiver is not addressed in this section, but in each general permit in N.J.A.C. 7:7A-7 that covers transition area disturbances. All general permits except for general permits 1, 6, 7, and 23 authorize activities in transition areas; and

5. An access transition area waiver. Each general permit authorization, individual freshwater wetlands permit, and mitigation proposal shall include a limited transition area waiver to allow access to the authorized activity. No fee or application is required for this waiver and the disturbance authorized under this waiver is not counted in calculating the amount of disturbance under the permit or mitigation proposal. However, an access transition area waiver will allow regulated activities only:

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

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

(b) If necessary, the Department shall include in a transition area waiver additional conditions to ensure that an activity does not result in a substantial impact on the adjacent wetlands, and does not impair the purposes and functions of transition areas as set forth in N.J.A.C. 7:7A-3.3. Such conditions may include, but are not limited to, the following:

1. Construction activities shall be conducted in such a way that there will be no regulated activities in the transition area or the wetland except any that are authorized by a permit;

2. The structure is designed and shall be used in such a way that there will be no regulated activities in the transition area or the wetland except any that are authorized by a permit;

3. The modified transition area shall be permanently marked, in a manner determined appropriate by the Department, so as to clearly delineate its boundary and to prevent people from disturbing the transition area and/or wetland. Examples of appropriate markers include permanent fencing, concrete monuments, and boulders.

i. In determining the appropriate type of marker, the Department will consider such factors as the type of project proposed, wildlife that may be present, and the likelihood for people to disturb the transition area and/or wetland. For example, it may be necessary to mark the boundary of a modified transition area associated with a single-family home or duplex with permanent fencing because in many of these situations the modified transition area is directly adjacent to back yards and, therefore, the likelihood of homeowners disturbing the transition area is great. However, it may be appropriate to identify a modified transition area associated with a commercial or industrial development with concrete monuments because the likelihood of people disturbing the modified transition area is usually less around these types of developments;

ii. If the Department determines that it is appropriate to delineate the boundary of the modified transition area with monuments, boulders, or similar markers, the number of markers and spacing between markers shall be determined by the Department and shall be that necessary to clearly identify the modified transition area, taking into consideration the size of the modified transition area to be delineated;

4. The permittee shall execute and record a conservation restriction, in accordance with the procedures at N.J.A.C. 7:7A-12, which prohibits any regulated activities in the remaining transition area as appropriate.

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

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

2. Whether the wetland areas are hydrologically connected.

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

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

2. Impacts on sensitive species; and

3. Surface water quality impacts.

(e) Transition area waivers may be conditioned on the recording of a Department-approved conservation restriction in accordance with the requirements at N.J.A.C. 7:7A-12, restricting future activities in the remaining transition area.

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

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

ii. If no activities have been conducted and a conservation restriction was properly recorded, but the permittee wants to reconfigure the project to use portions of the property contained within the restriction or easement, the permittee shall apply for a new transition area waiver, together with a request for a modification of the conservation restriction or easement in accordance with the procedures at N.J.A.C. 7:7A-12;

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

i. If no activities have been conducted on a lot which was part of a larger subdivision, regardless of whether or not a conservation restriction was recorded, the permittee shall apply for a new transition area waiver for the lot, using the same plan that was used to obtain the transition area waiver for the subdivision as a whole. That is, if a transition area waiver averaging plan was obtained for the subdivision as a whole and that transition area waiver averaging plan expires, the individual lot owner shall apply for a transition area averaging plan for the individual lot using the original averaging plan for the subdivision as a whole. The Department shall consider proposed changes to the originally approved plan only if the conservation easement or restriction was recorded and the changes meet the standards for a de minimis modification at N.J.A.C. 7:7A-12;

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

(f) The process at N.J.A.C. 7:7A-13 is also available to applicants for a transition area waiver.

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

(h) With the exception of a transition area waiver for access in accordance with N.J.A.C. 7:7A-8.1(a)5, a transition area averaging plan waiver in accordance with N.J.A.C. 7:7A-8.2 , a special activity waiver for linear development in accordance with N.J.A.C. 7:7A-8.3(e) , and a special activity waiver for redevelopment in accordance with N.J.A.C. 7:7A-8.3(f) , the Department shall not issue a transition area waiver under this section and a general permit authorization for the same site and for the same activity, if the combined effect of the transition area waiver and general permit authorization would be to expand the general permit activity beyond the limits set forth in the general permit.

(i) With the exception of a transition area waiver for access approved in accordance with (a)5 above or a transition area waiver meeting the requirements for an individual permit at N.J.A.C. 7:7A-8.3(g) , a transition area waiver shall not be approved to allow encroachment within 75 feet of an exceptional resource value wetland.

Notes

N.J. Admin. Code § 7:7A-8.1

Amended and recodified from 7:7A-6.1 by 49 N.J.R. 3849(a), effective 12/18/2017 Administrative Change, 50 N.J.R. 1147(a).