Court Rejected Builder’s Legal Challenge To DEP C1 Stream Identification
Case Illustrates How Christie DEP Is Gutting Exceptional C1 Stream Buffer Protections
I just came across this Appellate Division opinion upholding DEP’s determination of the presence of a Category One (C1) stream and application of 300 foot buffer requirements to a proposed development.
DEP portrayed the C1 regulation they proposed to repeal as seriously flawed with respect to identifying streams. They relied heavily on alleged mapping flaws and “confusion” regarding how C1 streams were identified, both in the rule proposal and especially in recent Senate testimony.
So, I thought I’d share this Court decision in a very brief post, because it sheds a completely different light on DEP’s claims.
This opinion is directly relevant to the DEP’s claims and it shows that the DEP claims are false.
It may also be helpful in Monday’s hearing on SCR 180 by the Assembly Environment Committee.
During the Senate Environment Committee testimony on October 19, there was strong disagreement between DEP and environmental groups, especially regarding the elimination of buffer protections on headwater and intermittent streams.
DEP insisted that they were not eliminating any protections and environmentalists strongly disagreed.
The Appellate Division decision is directly on point and illustrates that DEP was wrong and misleading the Senate:
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)
In direct contrast to C1 streams, the Flood Hazard Act stream encroachment rules and “riparian zones” do not apply to a stream without a defined bed and bank or to a”swale”. Those streams would NOT be protected by a 300 foot riparian zone buffer.
Therefore the repeal of C1 buffers in the stormwater rules and replacement by a “riparian zone” buffer in the Flood Hazard rules would eliminate protections, as we’ve argued all along.
The Court upheld DEP’s C1 stream identification, concluding:
In summary, we are satisfied that DEP properly applied N.J.A.C. 7:8-5.5(h), that it properly limited the use of the Web Soil Survey, and that its finding of an intermittent stream on the property and its C-1 determination is supported by credible evidence in the record.
The Court’s decision was based on the following:
We are also satisfied, given our deferential standard of review of the application of agency expertise, that there is substantial evidence in the record to support the C-1 determination and that the determination conforms with the governing rule.
Atkinson does not dispute that the County Soil Survey Map identifies the intermittent stream on the property. It does not dispute three other facts. First, the stream is within the HUC 14 drainage area of a C-1 waterway, which drainage areas are deserving, under the Stormwater Management Rules, of the protection of the buffer.N.J.A.C. 7:8-5.5(h). Second, such protection applies regardless of whether a stream is perennial or intermittent. Ibid. Third, the County Soil Survey Map is one of the types of maps referenced in N.J.A.C. 7:8-5.5(h) for stream identification.
The SWRPA or buffer under the Stormwater Management Rule, N.J.A.C. 7:8-5.5(h), is applicable to the property, since an intermittent stream is mapped on the property. An intermittent stream is shown on the “2002 Soil Survey of Cape May County, New Jersey, Sea Isle City Quadrangle Sheet Number 7 of 13″ (Cape May County Soil Survey Map) upstream of and within the same HUC 14 watershed as C-1 waters. DEP reviewed the Atkinson submittals in conjunction with the Cape May County Soil Survey Map. It conducted an on-site inspection on February 10, 2006, and confirmed its earlier determination. The site inspection was undertaken at the request of Atkinson’s consultants and they accompanied DEP personnel on the inspection. During the site inspection, DEP confirmed the existence of the waterway depression and slope in the wetland area, which was flowing to a culvert under the Garden State Parkway.
Ray Cantor and Assistant Commissioner Kopkash must know this.