A. The exemptions, exceptions, applicability standards, and waivers of strict compliance contained in the NJDEP Stormwater Management Regulations at N.J.A.C. 7:8-1.1 et seq. shall not apply within the Pinelands Area except in accordance with this Section.
B. The municipal review agency may grant a variance from the design and performance standards for stormwater management measures set forth in its municipal stormwater management plan and this article, provided that:
(1) No variances shall be granted from § 175-172Q.(4), which prohibits the direct discharge of stormwater runoff to any wetlands, wetlands transition area, or surface waterbody and the direction of stormwater runoff in such a way as to increase in volume and rate of discharge into any wetlands, wetlands transition area, or surface water body from that which existed prior to development of the parcel;
(2) The municipal stormwater plan includes a mitigation plan in accordance with N.J.A.C. 7:8-4.2(c)11 and N.J.A.C. 7:50-3.39(a)2viii;
(3) The applicant demonstrates that it is technically impracticable to meet any one or more of the design and performance standards on-site. For the purposes of this analysis, technical impracticability exists only when the design and performance standard cannot be met for engineering, environmental, or safety reasons. A municipality's approval of a variance shall apply to an individual drainage area and design and performance standard and shall not apply to an entire site or project, unless an applicant provides the required analysis for each drainage area within the site and each design and performance standard;
(4) The applicant demonstrates that the proposed design achieves the maximum possible compliance with the design and performance standards of this article on-site; and
(5) A mitigation project is implemented, in accordance with the following:
(a) All mitigation projects shall be located in the Pinelands Area and in the same HUC-14 as the parcel proposed for development. If the applicant demonstrates that no such mitigation project is available, the municipality may approve a variance that provides for mitigation within the same HUC-11 as the parcel proposed for development, provided the mitigation project is located in the Pinelands Area.
(b) The proposed mitigation project shall be consistent with the municipal stormwater management plan certified by the Pinelands Commission. If said stormwater management plan does not identify appropriate parcels or projects where mitigation may occur, the applicant may propose a mitigation project that meets the criteria in (a) above.
(c) The mitigation project shall be approved no later than preliminary or final site plan approval of the major development.
(d) The mitigation project shall be constructed prior to, or concurrently with, the development receiving the variance.
(e) The mitigation project shall comply with the green infrastructure standards at § 175-172N.
(f) If the variance that resulted in the mitigation project being required is from the green infrastructure standards at § 175-172N., then the mitigation project must use green infrastructure BMPs in Table 1 contained at § 175-172E., and/or an alternative stormwater management measure approved in accordance with § 175-172F. that meets the definition of green infrastructure to manage an equivalent or greater area of impervious surface and an equivalent or greater area of motor vehicle surface as the area of the major development subject to the variance. Grass swales and vegetative filter strips may only be used in the mitigation project if the proposed project additionally includes a green infrastructure BMP other than a grass swale or vegetative filter strip. The green infrastructure used in the mitigation project must be sized to manage the water quality design storm established at § 175-172P.(4), at a minimum, and is subject to the applicable contributory drainage area limitation specified at § 175-172N.(2), as applicable.
(h) A variance from the stormwater runoff quality standards at § 175-172P. may be granted if the following are met:
[1] The total drainage area of motor vehicle surface managed by the mitigation project(s) must equal or exceed the drainage area of the area of the major development subject to the variance and must provide sufficient TSS removal to equal or exceed the deficit resulting from granting the variance for the major development; and
[2] The mitigation project must remove nutrients to the maximum extent feasible in accordance with § 175-172P.(7).
(i) A variance from the stormwater runoff quantity standards at § 175-172Q. may be granted if the following are met:
[1] The applicant demonstrates, through hydrologic and hydraulic analysis, including the effects of the mitigation project, that the variance will not result in increased flooding damage below each point of discharge of the major development;
[2] The mitigation project indirectly discharges to the same watercourse and is located upstream of the major development subject to the variance; and
[3] The mitigation project provides peak flow rate attenuation in accordance with § 175-172Q.(2)(c) for an equivalent or greater area than the area of the major development subject to the variance. For the purposes of this demonstration, equivalent includes both size of the area and percentage of impervious surface and/or motor vehicle surface.
(j) The applicant or the entity assuming maintenance responsibility for the associated major development shall be responsible for preventive and corrective maintenance (including replacement) of the mitigation project and shall be identified as such in the maintenance plan established in accordance with § 175-178. This responsibility is not transferable to any entity other than a public agency, in which case a written agreement with that public agency must be submitted to the review agency.
C. Any approved variance shall be submitted by the municipal review agency to the county review agency and the NJDEP, by way of a written report describing the variance, as well as the required mitigation, within 30 days of the approval.
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