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Mitigation
- Overview
- Related Permits
- Mitigation Options
- Wetlands Mitigation Council
- FAQ
Mitigation Overview
Mitigation is ecological compensation for a disturbance to an environmental resource that is protected under the FWPA, CZM, or FHACA Rules. The types of environmental resources for which mitigation may be required include wetlands, wetland transition areas, riparian zones, intertidal and subtidal shallows, shellfish habitat, and submerged aquatic vegetation.
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 is also required for some impacts to riparian zones under the Flood Hazard Area Control Act rules.
There are seven(7) methods for providing mitigation for permanent disturbances- restoration, creation, enhancement, preservation, credit purchase, in-lieu fee, and land donation. The DEP also provides a method for mitigating for temporary disturbances to certain resources. Please see the "Mitigation Options" tab for more information.
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
- Overview
- Creation &
Restoration
- Enhancement
- Credit Purchase
- In-lieu Fee
- Preservation and
Land Donation
- Temporary Disturbance
- Resources
Mitigation Options Overview
Creation
- Wetlands and ISS
For these resources, creation is the establishment of the resource in uplands where there is no evidence or documentation that the resource previously existed. For example, establishing a wetland in an upland area where prolonged inundation has never occurred would constitute creation mitigation.
- Riparian Zones
For riparian zone mitigation, creation means establishing a riparian zone where one does not currently exist by restoring a natural waterway enclosed by a structure, such as a pipe or culvert. When a stream that was once natural is enclosed within a structure, it no longer possesses a riparian zone. If the structure is removed and the stream restored to its historically natural state, a new riparian zone is created.
In general, creation is 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 two acres of the effected resource.
Restoration
- Wetlands, Transition Areas, ISS, and SAV
For these resources, restoration is the reestablishment of the resource in a location where that resource once existed. For example, if an area that is currently uplands due to historic fill was formerly a tidal wetland, removing the fill and reestablishing the historic tidal marsh would be considered a restoration mitigation project. All restoration projects must be designed and implemented so that their ecological functions and values will be greater than or equal to the ecological functions and values of the resource that was disturbed.
- Riparian Zones
For riparian zone mitigation, restoration involves reestablishing functions and values to a currently non-functional riparian zone. For example, a riparian zone that has been paved or a stream that has been channelized, straightened, lined, or armored does not provide the functions and values associated with a natural, vegetation-lined stream system. Removing impervious surfaces from the riparian zone, restoring natural curves to the waterway, or removing hard armoring, followed by planting the stream banks and riparian zone with native, non-invasive vegetation species, can restore the waterway and riparian zone to a more natural condition, reestablishing the functions and values of that riparian zone.
In general, restoration is afforded a ratio of 2:1. That means for every one acre of impacts for which mitigation is needed, an applicant will have to restore two acres of the effected resource.
- Wetlands
For wetlands, enhancement is the improvement of a degraded wetland. A degraded wetland is any of the following:
Improvements to a degraded wetland are made through substantial alterations to the soil, vegetation, and hydrology. For example, a degraded tidal wetland that is characterized by impaired hydrology and invasive species could be enhanced by regrading the site to allow for proper tidal flow and by replacing invasive common reed grass Phragmites species with native Spartina vegetation.
- Transition Areas
In transition areas, enhancement usually includes improvements to the type of vegetation present on the site. For example, planting trees in a transition area where the existing vegetation is primarily grass would constitute a transition area enhancement.
- Riparian Zones
For riparian zones, enhancement involves making improvements to a riparian zone that is not fully functional. The riparian zone can be enhanced by removing invasive plant species and/or planting native, noninvasive vegetation of higher ecological value than the existing vegetation. Existing riparian plants may also be supplemented with additional native, noninvasive species.
- ISS
For ISS, enhancement means improving the ability of degraded intertidal and subtidal shallows to support natural aquatic life through substantial alterations to the soils, vegetation, and/or hydrology.
In general, enhancement ratios 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 the effected resource.
To mitigate for disturbances to wetlands, transition areas, riparian zones, and/or intertidal and subtidal shallows, credits may be purchased from a mitigation bank. A mitigation bank is a site that has already been restored, enhanced, created, or preserved by a mitigation bank operator for the purpose of selling credits to applicants who are required to provide mitigation in order to obtain a permit. Under this mitigation method, the mitigation occurs before the disturbance and is performed by a third party.
Bank credits are usually purchased from a primary bank at a ratio of 1:1. That means for every one acre of impact, one credit must be purchased.
All other mitigation council and bank information has been moved to the Office of Policy Implementation.
Under this mitigation method, the applicant makes a monetary contribution “in lieu of” conducting their own mitigation project.
- Wetlands, Transition Areas, and ISS:
For wetlands, transition areas, and ISS a monetary contribution is a payment that is made to the Wetland Mitigation Fund through the Wetland Mitigation Council. This form of mitigation is acceptable only to satisfy mitigation requirements for DEP permits and authorizations, not USACE permits.
- Shellfish Habitat
For disturbances to shellfish habitat, a monetary contribution must be made to the DEP’s dedicated account for shellfish habitat mitigation.
Preservation
- Wetlands and ISS:
The preservation of a wetland is considered a land donation under the FWPA Rules. However, when mitigation is necessary for a disturbance to wetlands or ISS, the DEP may also consider the preservation of nearby uplands, which protect the adjacent resource. Upland preservation is the permanent protection of the uplands from disturbance or development through transfer of the property to a charitable conservancy and the execution of legal instruments to prevent development, such as a conservation restriction.
- Transition Areas and Riparian Zones
For these resources, preservation is the permanent conservation of a transition area or riparian zone that is considered ecologically valuable. Preservation of transition areas and riparian zones is usually accomplished through the placement of a conservation restriction on the property. However, in some cases, the land is transferred to a non-profit or a governmental entity for long-term conservation.
Land Donation
A land donation is the transfer of ownership of an ecologically valuable wetland or transition area to a government or non-profit entity.
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.
Most preservation and land donation proposals to satisfy wetland mitigation requirements must be approved in advance by the Wetlands Mitigation Council.
A temporary disturbance is any activity that occupies, persists, and/or occurs on a site for no more than six months. However, the DEP will consider certain disturbances that exceed six months to be temporary disturbances provided they are associated with certain activities, such as hazardous substance remediation or solid waste facility closures, that are intended to be temporary but typically take longer than six months to perform. Temporary disturbance mitigation is a form of restoration. It includes restoring the original topography as well as restoring the original vegetation to its previous condition or to an improved condition.
Temporary mitigation is performed at a ratio of 1:1.
All mitigation council and bank information has been moved to the Office of Policy Implementation.
FREQUENTLY ASKED QUESTIONS
- What is "Mitigation"?
- Are there different forms of mitigation?
- How do I know which type of mitigation is appropriate for my proposed project?
- What do the posted wetland mitigation signs mean?
- What is a mitigation bank?
- If I want to establish a mitigation bank what would generally be required?
- What is the Wetland Mitigation Council?
- What is the Mitigation Fund?
- How do I get on the Council Agenda?
- How do I get approval for my mitigation plan?
- When must the mitigation process commence?
- How long do I have to monitor? Why do I have to monitor?
- What are approved/accepted forms of financial assurance to restore, create, or enhance wetlands?
1. What is "Mitigation"?
Mitigation is ecological compensation for a disturbance to an environmental resource that is protected under the FWPA, CZM, or FHACA Rules. The types of environmental resources for which mitigation may be required include wetlands, wetland transition areas, riparian zones, intertidal and subtidal shallows, shellfish habitat, and submerged aquatic vegetation.
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 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?
There are seven methods for providing mitigation for permanent disturbances- restoration, creation, enhancement, preservation, credit purchase, in-lieu fee, and land donation. The DEP also provides a method for mitigating for temporary disturbances to certain resources.
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3. How do I know which type of mitigation is appropriate for my proposed project?
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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 a site on which a protected environmental resource has already been restored, enhanced, created, or preserved by a mitigation bank operator. The mitigation banker receives credits for the mitigation project that can then be sold to applicants who are required to provide mitigation in order to obtain a permit. Under this mitigation method, the mitigation occurs before the disturbance and is performed by a third party
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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:
- Information on the location, size, and environmental characteristics of the proposed mitigation bank site;
- Information on previous uses of the site, including possible contamination and/or historic or archaeological resources;
- The proposed mitigation alternative(s), for example, creation, restoration, and/or enhancement;
- Whether the credits generated by the bank will be used solely by the mitigation bank operator, or will be available for use by others;
- Maps, photographs, diagrams, delineations and/or other visual materials necessary for the Council to generally evaluate the proposed mitigation bank;
- 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
- 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:
- Reviewing the following:
- Proposed monetary contributions,
- Proposed land donations,
- Mitigation bank proposals; and
- Proposed county mitigation inventories;
- Advising the Department on mitigation issues;
- Buying land in order to conduct mitigation, or to preserve wetlands, transition areas, uplands, and/or State open waters;
- Contracting with a charitable conservancy or appropriate agency to carry out its responsibilities;
- Conducting research on mitigation;
- Enhancing or restoring wetlands on public lands; and
- 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.nj.gov 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:
- A brief description of the area and the mitigation project being considered;
- A map showing Department staff how to find the mitigation area;
- A USGS quad showing the mitigation area;
- A county soil survey showing the soils in the mitigation area; and
- 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?
- 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;
- 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
- 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:
- A construction assurance, equal to one hundred and fifteen percent of the estimated cost of completing the creation, restoration, or enhancement; and
- 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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