7:7A-6.1 General transition area waiver provisions
(a) This section sets forth the requirements for transition area waivers. The Department issues the following types of transition area waivers:
1. An averaging plan transition area waiver, addressed at N.J.A.C. 7:7A-6.2;
2. A special activity transition area waiver for storm-water management, linear development, redevelopment, or activities eligible for an individual permit, addressed at N.J.A.C. 7:7A-6.3;
3. A matrix type width reduction transition area waiver, addressed at N.J.A.C. 7:7A-6.4;
4. A hardship transition area waiver, addressed at N.J.A.C. 7.7A-6.5;
5. A general permit transition area waiver. If a general permit authorizes disturbance of a transition area, an authorization issued under the general permit constitutes a transition area waiver for the activities covered by the general permit. This waiver is not addressed in this section, but in each general permit in N.J.A.C. 7:7A-5 that covers transition area disturbances. All general permits except for general permits 1, 6, 7, 22 and 24 authorize activities in transition areas; and
6. An access transition area waiver. Each general permit authorization, individual freshwater wetlands permit and mitigation proposal shall include a limited transition area waiver to allow access to the authorized activity. No fee or application is required for this waiver. However, an access transition area waiver will allow regulated activities only:
i. In that portion of the transition area bordering on that portion of the freshwater wetland in which the authorized activity is to take place; and
ii. For an activity that the Department determines is necessary to accomplish the permitted activity. An activity not directly required in order to obtain access to the permitted activity shall require a separate transition area waiver. If the activity authorized under the permit eliminates the wetland in its entirety, the transition area associated with that wetland may also be eliminated in its entirety without a separate transition area waiver. If the activity authorized under the permit partially eliminates the wetland, the access shall be limited to the transition area adjacent to the location of the approved wetland filling. Any additional impacts to the transition area shall require a separate transition area waiver.
(b) The Department shall include in a transition area waiver additional conditions as necessary to ensure that an activity does not result in a substantial impact on the adjacent wetlands, and does not impair the purposes and functions of transition areas as set forth in N.J.A.C. 7:7A-2.5. Such conditions shall include, but are not limited to, the following:
1. Construction activities shall be conducted in such a way that there will be no regulated activities in the transition area or the wetland except any that are authorized by a permit, as defined at N.J.A.C. 7:7A-1.4;
2. The structure is designed and shall be used in such a way that there will be no regulated activities in the transition area or the wetland except any that are authorized by a permit, as defined at N.J.A.C. 7:7A-1.4;
3. The transition area and/or wetland is fenced, using a type of fencing that protects and maintains all functions and values of the resources, prior to construction of the structure (including site preparation), and the fence is permanently maintained, so as to clearly delineate its boundary and to prevent people from entering and/or disturbing the transition area and/or wetland;
4. The permittee shall execute and record a conservation restriction or easement, in accordance with the procedures at N.J.A.C. 7:7A-2.12, which prohibits any regulated activities in the transition area and wetlands as appropriate; and
5. During construction activities, all excavation must be monitored for the presence of acid-producing deposits. If any such deposits are encountered, the permittee shall implement the mitigation and disposal standards in the Flood Hazard Area Control Act Rules at N.J.A.C. 7:13 and shall establish an annual post-planting monitoring program to ensure the reestablishment of vegetation in temporarily disturbed areas. The plantings shall have a minimum 85 percent plant survival and coverage rate after two complete growing seasons. If the plantings fail to achieve this survival rate, the Department will require the permittee to implement additional corrective measures.
(c) If a site has more than one freshwater wetland, the Department shall treat each wetland and its associated transition area separately for purposes of transition area waivers. To determine whether a freshwater wetland area is all one wetland or is made up of multiple separate wetlands, the Department shall consider the following factors:
1. The proximity of the wetland areas to each other; and
2. Whether the wetland areas are hydrologically connected.
(d) An applicant whose application does not meet the requirements for any of the transition area waivers listed in (a) above may obtain a transition area waiver through scientifically documenting that a proposed activity will have no substantial impact on the adjacent wetlands. This documentation may include, but is not limited to, nutrient or sediment transport models, buffer models, or wildlife habitat suitability studies. An application submitted under this subsection shall address the following, as they relate to the adjacent wetlands:
1. Sediment, nutrient, and pollutant transport and removal;
2. Impacts on sensitive species; and
3. Surface water quality impacts.
(e) With the exception of a waiver for redevelopment for which it is not practicable, in accordance with N.J.A.C. 7:7A-6.3(f)4, or access, all transition area waivers shall be conditioned on the recording of a Department-approved conservation restriction or easement, as defined at N.J.A.C. 7:7A-1.4, and in accordance with the requirements at N.J.A.C. 7:7A-2.12, restricting future activities in the entire transition area and adjacent wetlands on the site.
1. If the permittee does not conduct regulated activities before the transition area waiver expires, the following apply with regard to the transition area:
i. If no activities have been conducted, regardless of whether or not the conservation restriction or easement was recorded, the permittee shall obtain a new transition area waiver to conduct regulated activities in the transition area; or
ii. If no activities have been conducted and the conservation restriction or easement was properly recorded, but the permittee wants to reconfigure the project to use portions of the property contained within the restriction or easement, the permittee shall apply for a new transition area waiver, together with a request for a modification of the conservation restriction or easement in accordance with the procedures at N.J.A.C. 7:7A-2.12(i).
2. In the case of a subdivision for which a transition area waiver was approved, if one or more lots remain undeveloped when the transition area waiver expires, the following shall apply with regard to the transition area:
i. If no activities have been conducted on a lot which was part of a larger subdivision, regardless of whether or not the conservation restriction or easement was recorded, the permittee shall apply for a new transition area waiver for the lot, using the same plan that was used to obtain the transition area waiver for the subdivision as a whole. That is, if a transition area waiver averaging plan was obtained for the subdivision as a whole and that transition area waiver averaging plan expires, the individual lot owner shall apply for a transition area averaging plan for the individual lot using the original averaging plan for the subdivision as a whole. The Department shall consider proposed changes to the originally approved plan only if the conservation easement or restriction was recorded and the changes meet the standards for a de minimis modification at N.J.A.C. 7:7A-2.12(i).
3. If the permittee does not properly record the required conservation restriction or easement, he or she shall be in violation of the Freshwater Wetlands Protection Act and this chapter.
(f) The process at N.J.A.C. 7:7A-17 is also available to applicants for a transition area waiver.
(g) A transition area waiver allowing the reduction of the transition area adjacent to an exceptional resource value wetland shall be conditioned on a transition area averaging plan which provides an average transition area width of at least 100 feet.
(h) With the exception of a transition area waiver for access in accordance with N.J.A.C. 7:7A-6.1(a)6 and a special activity waiver for redevelopment in accordance with N.J.A.C. 7:7A-6.3(f), the Department shall not issue a transition area waiver under this section and a general permit authorization for the same site and for the same activity, if the combined effect of the transition area waiver and general permit authorization would be to expand the general permit activity beyond the limits set forth in the general permit. For example, if an applicant proposes one road crossing on a site, the Department will not permit the combination of a general permit 10 authorization with an averaging plan for the same road crossing because to do so would cause the crossing to exceed the 0.25 acre limit of general permit 10.
(i) With the exception of an transition area waiver for access approved in accordance with (a)6 above or a transition area waiver meeting the requirements for an individual permit at N.J.A.C. 7:7A-6.3(g), transition area waiver shall not be approved to allow encroachment within 75 feet of an exceptional resource value wetland.
Amended by R. 2008 d. 291, effective October 6, 2008. See: 39 N.J.R. 3587(a), 40 N.J.R. 5581(a). In (a)5, inserted "6,"; in (a)6ii, inserted the third through fifth sentences; deleted former (b) through (d); recodified (e) through (k) as (b) through (h); in the introductory paragraph of (b), inserted "Such conditions shall include, but are not limited to, the following:"; added (b)1 through (b)5; in the introductory paragraph of (d), deleted "such as `The Wetlands Buffer Delineation Method,' prepared by Rogers, Golden and Halpern, Inc., the `Buffer Delineation Model for New Jersey Pinelands Wetlands,' prepared by Charles T. Roman and Ralph E. Good" following "buffer models"; rewrote the introductory paragraph of (e); rewrote (e)1 and (e)2; added (e)3; rewrote (f) and (h); and added (i).