WolfeNotes.com

Christie DEP Rollback Strategy Is Hidden In Plain Sight

DEP proposal is no minor “alignment”, it’s a big U-Turn

This is the final post in our series on the Christie DEP’s proposed  “overhaul” of the flood hazard rules, in anticipation of the Senate Environment Committee hearing on Monday 10/19/15 to consider SCR 180, a Resolution that would veto these regulations as “inconsistent with legislative intent”.

I had planned to include 2 additional posts: one on the reservoir designations and drinking water protections and the other on the Hunterdon County Delaware River tributaries that are ground zero in the PennEast pipeline debate. I will address each in future posts.

Today, we go deep into the weeds to explain why a Category  One (C1) stream buffer (known as  a “Special Water Resource Protection Area” (SWRPA) has far more regulatory protections than a “riparian zone”.

Yes, we know that many consider this worse than root canal. But the reason we must do this is because the DEP proposal would repeal the C1 SWRPA and replace it with a “riparian zone”.

Different Legal Bases and Water Resource Objectives 

Before we get into the weeds, we note the biggest difference between a SWRPA and a riparian zone:

A SWRPA is designed to protect water quality from non-point pollution runoff from development by preserving the natural vegetation along a waterbody, which filters pollutants before they enter the water.

A “riparian zone” is designed to reduce the risks of flooding by keeping development out of floodplains and reducing the volume of development in the floodplain that is at risk of flooding. These rules are related to water quantity.

Accordingly, the SWRPA protections are codified in the DEP’s storm water management rules (NJAC 7:8) and are linked and apply to the Surface Water Quality Standards’  “Category One“”exceptional” quality waters (see DEP FAQ on C1 buffers).

The “riparian zone” requirements are codified in the Flood Hazard rules NJAC 7:13 (aka as “stream encroachment”) and apply more broadly to almost all waters that present a flood risk (inland and coastal).

The Christie Rollback Agenda Revealed

To complicate matters, in 2008, DEP amended the Flood Hazard Rules by including the SWRPA rules in them – combining the water quality and flood risk objectives. New rules added hundreds of miles of new C1 streams, but they also significantly reduced the scope of the C1 program and ecological protections, making it far more difficult to designate additional C1’s. (see this rule adoption))

DEP is now using the overlap and inconsistencies between the two sets of different rules as a pretext to repeal the SWRPA protections, a longstanding desire of the development community.

As I’ve written, this rollback objective is revealed beyond a shadow of a doubt in the regulatory history (i.e. DEP rule proposals, public comments, and DEP response to public comments documents); in Governor Christie’s DEP Transition Report and in Executive Order #2. 

The rollback strategy is openly presented in the DEP Transition Report (see “Omnibus Rulemaking” on page 13)

• Reexamine buffer requirements in urban/disturbed areas and Planning Areas 1 and 2 designated for growth under the State Development and Redevelopment Plan (hereinafter referred to as the State Plan) as applied to wetlands, C-1 waters and potential Threatened and Endangered species habitat under Flood Hazard, Stormwater, and Wetlands rules.

Different Regulatory Standards and Protections

We will first present a list of key regulatory protections that SWRPA have, that riparian zones do not.

For those that would like to verify that, below I provide the full text of the SWRPA regulations @ NJAC 7:8-5.5(h), with boldface of the key provisions:

1. Disturbance is not allowed in a SWRPA area in the zone from 300 – 150 feet, unless an applicant can make a rigorous science based demonstration to DEP that the “functional value and overall condition of the special water resource protection area will be maintained”.

There is no similar regulatory protection in the riparian zone.

The riparian zone provides the opposite: there are allowable disturbances for various activities explicitly provided to accommodate development.

2. There is a flat out prohibition on disturbance of the SWRPA inside the zone of 150 feet to the stream, including a prohibition on location of storm water infrastructure.

The riparian zone does not include this restriction and provides the opposite: it allows stormwater infrastructure and development to occur inside this zone.

3. The SWRPA rules do NOT include a waiver provision. This effectively would force an applicant to prove an unconstitutional taking without compensation to a court of law.

The riparian zone explicitly provides a waiver and the proposal would weaken the waiver demonstration requirements.

4. The SWRPA rules do not allow mitigation to offset disturbance.

The riparian zone proposal allows mitigation to offset buffer disturbance.

5. Repeal of the SWRPA protects effects other important DEP rules and federal requirements.

The SWRPA requirements are linked to the DEP Municipal storm water permit requirements. This means that DEP permits can be used to require towns to adopt stream buffer ordinances that are consistent with the SWRPA 300 foot buffers.

The SWRPA are explicitly linked to the DEP Surface Water Quality Standards. This is a regulatory bridge between land use and water quality and it enables enfacement of SWQS on non-point sources of pollution.

The SWRPA are an EPA approved water quality “best management practice” (BMP) and are a key component of NJ’s “anti degradation policy” and “anti degradation implementation procedure” required under the federal Clean Water Act.

This provides a hook to federal review, federal funding, and EPA oversight in a host of federal Clean Water Act programs, including Section 303(d) TMDL, MS4 Municipal storm water permitting, Surface Water Quality Standards, NPDES,  Section 319 NPS programs, Section 404 and 401 Water Quality Certification, and Section 208 Water Quality Management Planning.

Repeal of the SWRPA provisions from the storm water rules has HUGE regulatory significance.

For the wonks, here is the regulatory text of SWRPA @ NJAC 7:8-5.5(h):

(h) Special water resource protection areas shall be established along all waters designated Category One at N.J.A.C. 7:9B and perennial or intermittent streams that drain into or upstream of the Category One waters as shown on the USGS Quadrangle Maps or in the County Soil Surveys, within the associated HUC 14 drainage. These areas shall be established for the protection of water quality, aesthetic value, exceptional ecological signifi-cance, exceptional recreational significance, exceptional water supply significance, and exceptional fisheries significance of those established Category One waters. These areas shall be designated and protected as follows: