Calling Out The NJ Farm Bureau For Lies In Support of Christie DEP’s Repeal of Stream Buffer Protections
Tom Johnson at NJ Spotlight has a good story covering yesterday’s Assembly Environment Committee hearing, read the whole thing:
After having exposed the DEP lies, now I need to call out to the Farm Bureau’s over the top “nightmare” comment and the Builders Association’s claim about duplication:
But advocates said the current rules are so cumbersome that it prevents people like farmers from doing good things to protect water quality. “The existing rule structure is a nightmare for farmers,’’ said Ed Wengryn, of the New Jersey Farm Bureau.
George Vallone, president of the New Jersey Builders Association, called the existing rules duplicative, lauding the proposal as a common-sense approach to regulation.
First to the farmers – for context, keep in mind that the Farm Bureau sued DEP to block the septic density standards in the Highlands, which should be all you need to know about their agenda.
The storm water rules’ “Special Water Resource Protection Area” (SWRPA) 300 foot buffers along Category One streams are only triggered by “major development”. The definition of “major development” does NOT include farming.
The SWRPA buffers DO NOT APPLY to farming activities. There is no reason to repeal the SWRPA rules tp protect farmers from any “nightmare”.
The Farm Bureau KNOWS THIS and – along with Christie DEP political appointees – is knowingly misrepresenting facts.
However, if a farmer wants to SELL his land for development, the SWRPA would reduce the development potential of the land and thus its appraised value.
The Farm Bureau’s support for this clean water rollback PROVES that all they care about is money from selling their land for development.
Now to the Builders – again, for context, keep in mind that the Builders sued DEP 3 TIMES – and lost all three – to block the C1 buffers. (*see this Appellate Division opinion and this one and this one). Three strikes and you’re out.
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.
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 flat out false.
This has nothing to do with eliminating redundancies.
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:
IN THE MATTER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION CATEGORY I WATERSHED DETERMINATION
http://njlaw.rutgers.edu/collections/courts/appellate/a1499-06.opn.html
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:
http://assets.njspotlight.com/assets/15/0831/174
I am appalled at all the dishonesty by the supporters of this obvious rollback rule.