A Shoe Drops on Lisa Jackson’s Buffer Rollback Policy
Christie DEP Provides “Hardship Waiver” for Road Through a Stream Buffer
[Update below]
In multiple posts here, we wrote at length to hold former DEP Commissioner Jackson accountable for weakening the Category One 300 foot buffer program.
The most significant weakenings involve relaxing a technical “equivalent ecological function” demonstration required to reduce buffer width from 300 feet to 150 feet, creation of a new “hardship waiver” to avoid strict enforcement of the prohibition on disturbance of the buffers; and rule changes to make it harder to list Category One waters. For examples, see:
- Corporate Office Parks Trump Clean Water
- DEP Abandoned Wood Turtle Habitat Protections
- DEP Exempts a Flood Of Projects from Flood Hazard Rules
- DEP Confirms Loopholes in flood prevention and stream buffer protections
- Grandfather Loophole guts DEP Stream Protection Plan
- DEP Weakens Protections of stream buffers
While we do not have comprehensive data on how these regulatory policy changes have been implemented and have not followed this issue closely, we thought we’d provide a specific illustration of the “hardship waiver” Jackson built into the Category One stream buffer program, from the January 11, 2012 DEP Bulletin:
The proposed project involves development of a new public road through the Special Water Resource Protection Area (“SWRPA”) of a Category 1 Water, specifically the Cedar Creek and an upstream tributary/ditch in the same HUC-14 watershed of Cedar Creek. A SWRPA exists because Cedar Creek and the tributary ditch appear on the USGS map as lined features and because the proposed project is classified as a major development pursuant to N.J.A.C. 7:8-1.2. N.J.A.C. 7:8- 5.1(a).
N.J.A.C. 7:8-5.5(h)(1)(i) establishes a 300 foot SWRPA buffer around the Cedar Creek and the tributary ditch. Encroachment in the outer 150 feet requires that the applicant demonstrate that the functional value and overall condition of the SWRPA will be maintained to the maximum extent practicable. Further, encroachment in the outer 150 feet is not permitted where it is previously undisturbed/undeveloped; encroachment in the inner 150 feet of the SWRPA is generally prohibited. N.J.A.C. 7:8-5.5(h)(1)(ii). The Technical Manual for Stormwater Resource Protection Area (revised January 24, 2008) issued with Commissioner Lisa Jackson’s Administrative Order No. 2008-02 provides that the Department may (1) make an allowance for encroachment into undisturbed portions of the outer 150 feet where there is no feasible and prudent alternative to the proposed project, including not pursuing the project, which would avoid or substantially reduce the anticipated adverse effects of the project, and if it meets the criteria for a hardship exception under the Flood Hazard Area Control Act Rules (See N.J.A.C. 7:13-9.8) and (2) make an allowance for encroachment in inner 150 feet for a linear development that has no feasible alternative route for which the Department makes the findings required to grant a hardship waiver under the Flood Hazard Area Control Act Rules (N.J.A.C. 7:13-9.8).
The Department proposes to grant a hardship waiver for encroachment in the undisturbed outer 150 feet of the SWRPA (Cedar Creek and tributary/ditch) and the inner 150 feet of the SWRPA (tributary/ditch only) under N.J.A.C. 7:13-9.8 for this project based on upon information and materials previously submitted to the Department pursuant to N.J.A.C. 7:13-9.8(c). The Department reviewed materials describing the project’s potential impacts upon the environment and materials describing the existing development in the area and any potential impacts of the proposed project on that development. This hardship waiver does not pertain to: access requirements, potential impacts from or to flooding, and is not based on economic grounds. N.J.A.C. 7:13-9.8(c)(2), (3), (4).
The project will disturb 14,777 square feet within the SWRPA (9766 square feet in the inner 150 feet surrounding the tributary/ditch, 3876 square feet in the outer 150 feet surrounding the tributary/ ditch, and 1135 square feet of overlapping area of the outer 150 feet of the Cedar Creek and the inner 150 feet of the tributary/ditch). Much of the SWRPA area surrounding the tributary/ditch and Cedar Creek in this area is previously disturbed. The area surrounding the tributary/ditch contains paved parking lots associated with commercial buildings and single-family homes. The project is proposed to increase public safety by diverting congested traffic in a densely developed area away from Route 9.
The fine print is always more important than the press releases.
Unfortunately, the news media never reported these changes at the time, because Jackson was backed by environmental groups.
We are now reaping the harvest – and ironically, DEP Commissioner Martin – the proponent of a massively broader “waiver” rule – can blame it on Jackson.
[Update 10/20/15 – A reader and friend just reminded me of a Appellate Court decision on a challenge by the Builders to a DEP SWRPA buffer Guidance document.
The decision explains clearly how and why a SWRPA buffer has more protections than a riparian zone. It can be used by folks, especially pipeline opponents, to understand the implications of regulatory methodologies and standards, see:
- IN THE MATTER OF NJDEP ADMINISTRATIVE ORDER NO. 2007-01 ~~~ end update]