13:9B-18. Transition area waivers

a. The department shall grant a transition area waiver reducing the size of a transition area to not less than the minimum distance established in subsection b. of section 16 of this act; provided that (1) the proposed activity would have no substantial impact on the adjacent freshwater wetland or (2) the waiver is necessary to avoid a substantial hardship to the applicant caused by circumstances peculiar to the property. If the proposed activity is the construction of a stormwater management facility having no feasible alternative on-site location or is linear development having no feasible alternative location, the department shall approve a further transition area waiver or elimination of a portion of a transition area as necessary to permit the activity. A transition area waiver approved pursuant to this subsection shall not require transition area averaging to compensate for the reduction of transition area distance or for partial elimination of the transition area.

b. The department shall also approve transition area waivers reducing the transition area distances established in subsection b. of section 16 of this act and shall also approve waiver applications eliminating portions of transition areas, provided that the applicant submits a transition area averaging plan. The transition area requirements of this act shall be satisfied if the transition area averaging plan expands a portion of the transition area to compensate, on a square footage basis, for reduction of a transition area distance or for partial elimination of a transition area. The applicant shall have the right to determine the area of transition area reduction or partial elimination; provided that the transition area averaging plan will result in a transition area consistent with the provisions of subsection a. of section 16 of this act. If a transition area waiver is approved pursuant to subsection a. of this section, the average transition area required by this subsection shall be based upon the transition area distance established pursuant to subsection a. of this section. If no waiver is approved pursuant to subsection a. of this section, the average transition area shall be based upon the maximum applicable transition area distance provided in subsection b. of section 16 of this act.

c. Any other provision of this act to the contrary notwithstanding, the transition area distance from a freshwater wetland of exceptional resource value may be reduced to no less than 75 feet except pursuant to section 12 of this act. A transition area waiver shall be approved pursuant to this subsection only if a transition area distance reduction would have no substantial adverse impact on the adjacent freshwater wetlands or if denial of a transition area waiver would result in extraordinary hardship to the applicant because of circumstances peculiar to the subject property. A transition area waiver approved pursuant to this subsection shall be conditioned on a transition area averaging plan which provides an average transition area of not less than 100 feet.

d. The department shall issue or deny an application for a transition area waiver within 90 days of submission of a complete application; provided, however, that if the project or activity for which the transition area waiver is requested also involves a regulated activity in a freshwater wetland, or if an application for a permit to conduct a regulated activity in a freshwater wetland adjacent to the transition area for which the transition area waiver is requested is pending before the department, the department shall approve or deny the transition area waiver within the time period set forth for the approval or denial of a permit in subsection c. of section 5 of this act.

L. 1987, c. 156, s. 18.