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Builders Blather Bullshit on Buffers

Assembly Environment Committee Chairwoman Grace Spencer

Assembly Environment Committee Chairwoman Grace Spencer

Today, the Assembly Environment Committee heard the Assembly version (ACR 249 (Spencer/McKeon) – identical to the Senate SCR 180 – to begin the process of legislatively vetoing the DEP’s proposed 900+ page major overhaul of the Flood Hazard Act’s “stream encroachment” permit program, as well as related sections of the storm water management and coastal management rules.

It’s hard to pin it down to specifics, but given the tenor and conduct of the hearing, I got the feeling that the Chairwoman and the Committee members were not fully convinced that the DEP’s proposed rules were really that bad and violated legislative intent.

The good news was that Assemblyman Wolfe (R) – Ocean County’s flood coordinator – voted in favor, but with no commitment to do so on floor vote and Assemblyman Rumana  (R) abstained largely because he said that DEP did such a poor job defending the proposal and failed to show up to testify.

Good news also from Assemblyman Benson (D), who in supporting the Resolution laid out a thoughtful 2 prong test that influenced his colleagues. But even Benson did not commit absolutely and seemed somewhat lacking in confidence.

Overall, support seemed thin.

Surprisingly, NJBIA and the Chamber of Commerce were muted in their defense of the DEP’s rule, likely as a result of the thrashing that DEP and the proposal took in the Senate on October 18 (which is probably why DEP failed to show up and defend themselves).

But the Builders and the agriculture community didn’t blink and came out hard in opposition to the Resolution, at times making it appear that the economy of the State and the housing market were dependent on this DEP rollback.

[*The tone and aggressive content of the Builders testimony was a sharp contrast to their prior timidity before the Senate Environment Committee. This leads to my concerns that they have lobbied Assembly Democratic leadership.]

Legislators seemed reluctant to frontally challenge the arguments of powerful lobbyists like the NJBIA, Chamber of Commerce, and NJ Builders Assc. and fully support the Resolution.

In their concluding remarks – Chairwoman Spencer did not exactly welcome the testimony of environmental supporters and distanced herself from the supporters of her own Resolution – legislators seemed equivocal.

It was rather a weird scene.

Given that, it is vitally important that the public reach out to Assembly leadership and representatives and urge their support before the end of the lame duck legislature.

So, to buck up reluctant supporters, I sent the following letter to the Committee:

Dear Chairwoman Spencer:

I’d like to supplement my testimony today on ACR 249, and clarify significant misrepresentations.

There are two different regulatory “buffers” involved in the DEP proposed rule addressed by the subject Resolution:

1) the “Special Water Resource Protection Area” (SWRPA) in the storm water rules (NJAC 7:8-5.5(h)) that apply to “category one waters” designated in the Surface Water Quality Standards (NJAC 7:9B-1.5) and

2) the “riparian zone” in the stream encroachment rules (NJAC 7:13-1 et seq).

Each buffer has different policy objectives, different technical definitions, and different regulatory standards and protections.

DEP is proposing to repeal the SWRPA and replace it with the riparian zone.

In 2002, DEP launched a water quality initiative to target “exceptional” value high quality waters called “Category One” (C1) for additional protections, above and beyond then current protections provided in various DEP programs, including the stream encroachment permit program.

In 2003 DEP proposed and adopted in 2004 the SWRPA buffers under the storm water rules as a non-point source pollution water quality “best management practice” to protect the exceptional C1 streams from “any change in existing water quality“. (see 35 N.J.R. 136 – 138 – January 6, 2003 for the scientific and technical basis of SWRPA)

The SWRPA was designed to provide protections above and beyond the stream encroachment program protections.

Today, testimony by the NJ Builders Association stated that the aforementioned two distinct regulatory buffers were redundant and that the subject DEP rule proposal merely streamlined permit programs to avoid duplication.

That is false.

The DEP admits that the proposal will allow additional disturbance that would not be allowed under current rules (page 8 of proposal):

“First, the total amount of riparian zone vegetation allowed to be disturbed for roadways, utility lines, buildings, and other construction activities is proposed to be increased to better reflect the Department’s experience in permitting these activities.


The stream encroachment regulations allow many types of disturbance in the buffers that is not allowed under the SWRPA regulations and very different demonstrations and standards to justify disturbance.

Let me offer just one example of how DEP is not streaming or eliminating redundancies, but seriously reducing protections from an Appellate Court decision upholding the DEP’s findings regarding a SWRPA on a C1 stream. That Appellate Court decision clearly distinguished a SWRPA from a riparian zone:



The stream encroachment regulations apply only to streams with defined stream bed and bank features. Intermittent streams and swales and sensitive headwaters streams that have no defined bed and bank are not provided a “riparian zone” buffer.

In contrast, the SWRPA buffers apply to intermittent streams and swales, as the Court found:

“The intermittent stream exists without definable bed and banks but is identifiable as a linear depression, commonly referred to as a “swale.” The Stormwater Management Rules do not require that a perennial or intermittent stream be defined by bed and banks in order to have a SWRPA established. N.J.A.C. 7:8-5.5(h)1.1 states: “A . . . special water resource protection area shall be provided on each side of the waterway, measured perpendicular to the waterway from top of bank outwards or from the centerline of the waterway where the bank is not defined . . . .” (emphases mine)

There are many, many other examples I could provide of ho DEP is allowing additional disturbance on the SWRPA buffers that will reduce water quality and increase flood risks.

That is why EPA objected to the DEP proposal as a violation of the Clean Water Act, see EPA letter:


Finally, to clarify another serious misrepresentation in testimony today: the SWRPA buffers that DEP is proposing to repeal apply to “major development”. They do not apply to ANY agricultural activities. Repeal of the SWRPA would have no impact on the agricultural activities of farmers.

I trust you received my several prior written comments I submitted – I have not received a confirmation, but would be glad to resend several detailed technical analyses I have written on the DEP rule proposal that go into great detail on how the proposal would harm water quality in conflict with legislative intent.

I also provided a detailed analysis of why the DEP’s proposed riparian mitigation scheme is not authorized by legislation under the Flood Hazard Act.

Please let me know if I can be of further assistance in clarifying these complex regulatory issues to you or OLS staff.

Once again, thank you for sponsoring the Resolution and I urge you to work for full Assembly passage this Legislative session.


*ps- ironically, I though the strongest testimony in support came from Jenn Coffey of ANJEC, who recently gave me a very hard time over meaningless BS.

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