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Bergen Record Story Gives DEP Platform To Lie

DEP proposal opposed by EPA, FEMA & League of Municipalities, hardly a tree hugging trio!

[Updates below]

It’s a cool Sunday morning, perfect for a bike ride, so I’m headed out right now and have no time to write an extended rebuttal of today’s DEP statement about the Flood Hazard rule proposal.

I’ve already written about this several times, so I’ll keep it very short and sweet today and do a more detailed  post early next week or in advance of the Legislative oversight hearings on SCR180 (introduced, but text not posted yet)

Here’s what DEP said about “some” criticisms of their rule proposal in the Bergen Record story:

“After hearing some of the criticism we’ve heard of the proposed rule, we’re wondering if they’re actually reading it,” Considine said. “They say the 300-foot riparian zone has been eliminated from the proposed rule. It hasn’t. It’s retained and it’s far above and beyond any requirement of the Clean Water Act. Headwaters will not be deregulated, as they’ve said.”

Haven’t read it?

I WROTE the DEP’s original category one buffer rule and was the primary architect of the program under DEP Commissioner Campbell.

Before I get to DEP, let me just say that this is awful reporting, just awful.

First of all, the headline makes the issue appear to be partisan. There is little substance of what the rule does to enable a reader to understand the controversy. The reporter allowed DEP to use vague qualifier like”some” criticisms without being precise, which is just sloppy and lazy. WHOSE criticism? WHAT criticism? BE SPECIFIC!

Below is the text of the current DEP proposal – it doesn’t “eliminate” the C1 buffers, it REPEALS them and it weakens their protections. The headwaters arguments are more complex for now.

Bottom line: There are good policy and scientific reasons why the C1 buffers in the storm water rules (designed to protect water quality from runoff) are different from the riparian zone buffers in the stream encroachment rules (designed to protect people and property from flood risk).

The two rules have different objectives, so of course they have different technical requirements!

That’s not duplication – and DEP’s proposal is not streamlining its a rollback. 

If DEP wanted to “harmonize” or “consolidate”  or “unify” the two sets of different rules, they could have simply picked the most stringent protections in the two rules. Instead they did the opposite: they eliminated the strongest protections and weakened the weakest ones.

DEP explains this in a circuitous way in the proposal – Note the use of the word “repeal” (see DEP proposal at page 10)

Repeal of SWRPA in the Stormwater Management rules

The SWM rules at N.J.A.C. 7:8-5.5(h) establish a 300-foot special water resource protection area (SWRPA) along Category One waters and certain tributaries. The FHACA Rules establish a 300-foot riparian zone along Category One waters and a slightly different set of tributaries. Where these buffers both apply to the same activity or project, implementation issues have arisen because of the differences in the regulatory requirements.

 Also keep in mind that while the rollbacks to the buffer protections are the worst part of the rule proposal, there are many other terrible provisions weakening flood and coastal protections, ignoring climate change risks, et al – these have been opposed by EPA, FEMA and even the League of Municipalities, hardly a tree hugging trio!

[Update #1: for those that don’t hit all the links, let me make it easier for you by  providing the on-point text of the DEP’s historic position, from the 2008 adoption of the current Flood Hazard rules: (@ page 54-55)

RESPONSE: While the commenters do not identify specifically those sections of the rules they believe are inconsistent, the Department assumes the commenters are referring to the established riparian zone, and does not agree that the rules duplicate, or are inconsistent with, other existing Department rules. As the Department stated in its summary of the proposal of the new Flood Hazard Area Control Act rules at 38 N.J.R. 3951, the Stormwater Management rules establish a 300-foot Special Water Resource Protection Area along Category One waters “only when a major development, as defined at N.J.A.C. 7:8-1.2, is proposed.” In contrast, the Flood Hazard Area Control Act rules apply to “any activity that requires approval under this chapter, which includes a larger set of activities than that which is regulated under the Stormwater Management rules.” Further, the Flood Hazard Area Control Act rules establish a 150-foot buffer and a 50- foot buffer along waters that do not receive such protection under the Stormwater Management rules. The Stormwater Management rules also include specific standards related to the quality of stormwater runoff from developed sites at N.J.A.C. 7:8-5.5, which is not included in N.J.A.C. 7:13. While both N.J.A.C. 7:8 and N.J.A.C. 7:13 derive authority from the Water Pollution Control Act, N.J.A.C. 7:13 also derives statutory authority from the Flood Hazard Area Control Act. It is appropriate, therefore, for the Department to establish additional standards under N.J.A.C. 7:13 which are designed to preserve channel integrity and prevent flooding. The Stormwater Management rules and the Flood Hazard Area Control Act rules are intended to work in unison to ensure that development will not cause or exacerbate flooding, erosion or ecological degradation of New Jersey’s surface waters.Consequently, the Flood Hazard Area Control Act rules neither duplicate nor are inconsistent with the Stormwater Management rules.

Update #2: When Gov. Christie bragged about dismantling over-reach by former DEP Commissioner Lisa Jackson, here is what he was referring to with respect to the Flood Hazard rules (from the Lisa Jackson DEP Public Notice on proposal of this rules)

Unless properly controlled, development within flood hazard areas can increase the intensity and frequency of flooding by reducing flood storage, increasing stormwater runoff and obstructing the movement of floodwaters. In addition, structures that are improperly built in flood hazard areas are subject to flood damage and threaten the health, safety and welfare of those who use them. Furthermore, healthy vegetation adjacent to surface waters is essential for maintaining bank stability and water quality. The indiscriminate disturbance of such vegetation can destabilize channels, leading to increased erosion and sedimentation that exacerbates the intensity and frequency of flooding. The loss of vegetation adjacent to surface waters also reduces filtration of stormwater runoff and thus degrades the quality of these waters.

In light of the concerns described above, the proposed new Flood Hazard Area Control rules incorporate more stringent standards for development in flood hazard areas and adjacent to surface waters in order to mitigate the adverse impacts to flooding and the environment that can be caused by development. Consequently, a large number of significant changes are being proposed to the construction and environmental standards of the rules. For example, under the proposed rules, any flood storage that is lost due to most new construction activities must be compensated by the creation of an equal volume of flood storage either onsite or in close proximity to the development. This will preserve existing flood storage and help mitigate increases in flooding over time. Furthermore, the 25-ft and 50-ft stream buffers under the existing rules are proposed for expansion to 50-ft, 150-ft and 300-ft, depending on the environmental resources of each stream. Many other changes are also being proposed to protect the public from the hazards of flooding, prevent unnecessary impacts to stream corridors, and facilitate projects that would benefit the environment and not contribute to flooding.

The Department is also proposing related amendments to the Coastal Permit Program rules, N.J.A.C. 7:7, and to the Coastal Zone Management rules, N.J.A.C. 7:7E, in order to ensure better consistency with N.J.A.C. 7:13 as regards development in flood hazard areas and preservation of vegetation and habitat along surface waters. For example, the new construction and environmental standards of the Flood Hazard Area Control rules are proposed for incorporation into the coastal rules, and the proposed stream buffers described above would be extended to include most tidal waterways. In addition, flood hazard area application fees and review procedures are proposed to be relocated into the Flood Hazard Area Control rules from the Ninety-Day Construction Permits rules, N.J.A.C. 7:1C, so that all fees and application review standards are located in one rule.

The proposal is scheduled to be published in the New Jersey Register dated October 2, 2006. The proposal can be viewed or downloaded at www.njflood.org.

PS – the DEP link is stale, DEP has taken down the proposal – you need to go to a law library and get the 10/2/06 NJ Register