WolfeNotes.com

The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity …

5. Will not cause or contribute to a violation of any applicable State water quality standard ~~~ (NJAC 7:7A-7.2)

A wonky but significant note this morning on a topic I’ve nibbled around the edges of in multiple posts.

After last Thursday’s Senate Committee release of the Legislative veto Resolution of DEP’s Flood Hazard rules and State House rally on clean water, I  ran into Dale Florio and couldn’t help myself from taunting him on the pending victory on the veto. For those who don’t know him, meet Dale:

Of particular relevance and interest is the fact that:

Dale Florio, who served 18 years as the county GOP chair and remains influential in Republican politics there, is the founder and managing partner of Princeton Public Affairs, the lobbying firm that PennEast Pipeline hired in October to represent it.

Good old Dale wasted no time in a rapid and dismissive reply. He acknowledged the win, but quickly noted that the environmentalists “got one thing wrong in your framing: it has no effect on pipelines because they are exempt”.

Bingo! That’s what a good lobbyists does – gets right to the core issue and confidently spins it. Works every time with the press and legislators, who don’t know jack.

I shot back just as quickly: not so fast Dale, it’s not so simple. Pipelines are not exempt, at least from requirements to comply with the NJ surface water quality standards (NJAC 7:9:B) and the federal Clean Water Act. You’re highly vulnerable and you know it!

But Florio was half right – pipelines are exempt from the stormwater quality standards for post construction total suspended solids and nutrients and the disturbance restrictions in C1 buffers (NJAC 7:7A-5.2(d)).

And pipelines are given a pretty green light under the lax standards in the Flood Hazard permit rules(NJAC 7:13-8.10 & NJAC 7:13-11.9)

But Florio must know that pipelines are not exempt from and must meet the NJ State surface water quality standards (SWQS) (which are federally delegated and federally enforceable) and the federal Clean Water Act, including Section 401 which requires that DEP issue a “water quality certificate”.

Florio knows that DEP can not issue a permit or approval to a regulated activity that would “cause or contribute” to a violation of a surface water quality standard (SWQS). The SWQS include the antidegradation policies, the requirement to protect all existing and designated uses; the narrative policies; and the numeric criteria.

Florio must know that strict DEP enforcement of those SWQS led to the revocation of a NJPDES permit for a major Pulte Homes project in Clinton Township (Milligan Farms) along the Sidney Brook, a C1 stream due to (DEP @ page 22 – 23):

And the Windy Acres project along the South Branch of the Rockaway Creek is another example of this regulatory compliance risk: (DEP – @ page 23 – 24)

Florio knows that the PennEast pipeline would cross scores of Category One stream segments with similar exceptional characteristics and a multitude of existing uses, the same ones that involved Milligan Farms and Windy Acres permits.

Florio knows that PennEast opponents can very easily review the DEP’s scientific basis for designating these streams as Category One and use that information in the permit and 401 WQC process, including Bob Martin’s DEP November 2012 Report that validated the C1 designation program (how long before DEP takes down those links? Folks should print out or download and copy/save those documents).

Florio knows that these NJ surface water quality standards are the basis for DEP’s issuance of the federally mandated water quality certificate, and that DEP is not preempted by FERC on this issue.

Florio knows that these compliance requirements are implicit and/or lack a specific implementing permit requirement in some cases, e.g. the Water Quality Planning Act and DEP regulations prohibit DEP from issuing any permit that is inconsistent with the Water Quality Management Plan – those WQMP regulations and Plan incorporate the surface water quality standards. (see NJAC 7:15 – 3.1.)

The Commissioner shall not undertake, nor shall he or she authorize through the issuance of a permit, any project or activity that conflicts with applicable sections of an adopted WQM plan or with this chapter. For purposes of N.J.A.C. 7:15-3.1 and 3.2, “permit” includes permits, approvals, certifications, and similar actions.

But compliance with SWQS is also made explicit in the NJ DEP Freshwater Wetlands permit rules: (NJAC 7:7A-2.1(d))

(d) A permit issued under this chapter shall constitute the water quality certificate required under the Federal Act at 33 U.S.C. §1341 for any activity covered by this chapter. If a discharge of dredged or fill material into waters of the United States, as defined at N.J.A.C. 7:7A-1.4, does not require a permit under this chapter but does require a water quality certificate, the Department shall use the standards and procedures in this chapter to determine whether to issue the water quality certificate, except in the New Jersey Coastal zone, as described at N.J.A.C.7:7E-1.2(b).

Those regulations very clearly subject pipelines to the SWQS and prohibit DEP from issuing any permit that might violate them: (NJAC 7:7A-7.2):

(b) The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity:

[1. – 4.

5. Will not cause or contribute to a violation of any applicable State water quality standard;

Surely, Florio and pipeline lawyers are aware of the water quality impacts from construction of a pipeline (part 1, and part 2, and the erosion and the sinkholes – and are familiar with NJ SWQS temperature, TSS, & TDS criteria and all existing uses, like wood turtle, and the antidegradation standard for C1 streams of “no change in existing water quality” – importantly, “(including calculable or predicted changes)” and “without adverse impacts on organisms, communities, or ecosystems of concern.” (see: NJAC 7:9B-1.5(d)2.iii)

Surely they have closely read the NY State DEC decision denying a 401 WQC for the proposed Constitution pipeline and know exactly how a pipeline would fail to meet NJ’s strict SWQS.

What Florio and his PennEast pals are banking on is this false claim that FERC preempts DEP (a lie by Christie DEP Commissisioner Bob Martin);

They (FERC) are the overall controlling entity on it at the end of the day. They could over-ride anything we could even do from the State of New Jersey. […]

We can not fight that .. If we did reject a pipeline it would end up in court very quickly.

But the PennEast lawyers know that Martin was just blowing smoke and that his comments were false.

They are relying on this long standing DEP assumption that BMP’s protect water quality, which amounts to a total abdication and failure to enforce NJ’s SWQS, which was emphasized by DEP in the response to public comments on the Flood Hazard rule (at page 145-146)

The antidegradation policies at NJAC 7:9B-1.5(d) are implemented through the NJPDES permitting process. For point source discharges that are nonpoint source in origin, the Department, consistent with the federal rules at 40 C.F.R. 131.12(a)(2), utilizes a “best management practices” or “BMP” approach to protect water quality. …

As with all BMPs, neither the SWRPA nor the FHACA riparian zone require measurement of water quality before and after the imposition of the vegetated buffer or zone to determine its effectiveness. Both sets of rules presume that if a vegetated area is maintained in accordance with Department standards, which require avoiding disturbance, minimizing disturbance, and mitigating when disturbance is unavoidable, water quality will be protected.

Got that? Repeat: DEP simply assumes that all BMP’s protect water quality – with no evidence! No field verification or water quality study. Not even a modeling based demonstration.

The absurdity of that assumption was exposed during the recent debate on logging on Sparta Mountain, because the outdated DEP 1995 wetlands forestry BMP Manual only recommends as little as 40 foot buffers on Category One trout production streams in the Highlands Preservation Area that otherwise would get 300 foot wide buffer protections. And technically, even that lax BMP is NOT a regulatory requirement and is essentially unenforceable. You can’t get away with the stuff under the Clean Water Act.

The DEP’s arbitrary assumption about BMPs will be tested, particularly in Category One streams where no change in existing water quality is allowed. How can that antidegradation standard be enforced if there is no data on existing water quality and no water quality study demonstrating that it will be maintained? DEP can no longer fly blind.

DEP and pipeline projects will be required to characterize “existing water quality” and to demonstrate that they would have no impact on EWQ (physical, chemical, and biological characteristics and functional values).

The DEP’s arbitrary and historic failure to apply the antidegradation policies and surface water quality standards to non-point pollution and NPS pollution sources will be challenged.

The DEP’s historic failure to apply and enforce the surface water quality standards in land use permit programs  will be exposed and challenged.

The DEP’s historic failure to protect all existing uses will be challenged and EPA will be asked to intervene and enforce the Clean Water Act, given the failure by NJ DEP to do so.

The DEP’s historic failure to apply an enforce the surface water quality standards in issuing a Clean Water Act Section 401 Water Quality Certificate will be challenged.

Sharpen you pencils boys and girls – this is sure to get interesting.

Spectacular Flowering Mountain Laurel and Wild Rhododendron

Is timing of blooms impacted by climate change?

Bordentown Bluffs trail – Crosswicks creek peeks out – Trenton-Hamilton Marsh view. Abundant birds, including bald eagle and hawks  (6/13/16)

[Update – 6/21/16 – out there this morning and rhododendron were in bloom – gorgeous, better than below visit.]

This morning I came across a group of fine folks from Friends for the Abbott Marshlands during our (i.e. me and Buoy) regular walks on the Bordentown Bluffs trail.

Some told me that they were out as a group especially to see the seasonal flowering mountain laurel and rhododendron.

I felt bad telling them that they missed the magnificent mountain laurel by almost 2 weeks – but that there were still small pockets of rhododendron still in flower.

I visited on June 7 and the mountain laurel were spectacular but seemed to be just past peak – but rhododendron were not yet out – During that walk, Buoy treed a gray fox and we must have been near a nest, because a red tail hawk screeched and swooped aggressively. [* more like hopping from treetop to treetop a half dozen times, then low altitude circling – screeching the whole time – than “swooping”.] Pissed I didn’t have my camera and tweeted a heads up: [* The snapping turtles who climbed up the almost vertical 40 foot bluffs to lay eggs were awesome too.]

I returned on June 13 with a camera, but the mountain laurel were past peak:

Bordentown bluffs trail (6/13/16)

But the rhododendron were spectacular:

Bordentpwn bluffs trail (6/13/16)

As the Friends group passed me on the bluffs trail this morning, I overheard a botanist showing and talking about native plants.

I’m no botanist or ecologist and I’ve only lived here for 4 years so have no historical context or data, but it seemed odd to me that the Friends had missed the prime flower bloom by almost 2 weeks.

It would seem that they would have some historical knowledge of the place and schedule their annual walk to observe the peak flowering.

Which made me think – is flowering occurring earlier due to climate change?

Organisms respond to changing climate in a multitude of ways, including through their phenology (the timing of key life history events such as flowering in plants or migration of birds), productivity (the assimilation of carbon and nutrients in biomass), spatial distribution, mortality / extinction, or by invading new territory. Noticeable changes may occur at the level of individual organisms, ecosystems, landscapes, or by modification of entire biomes.

Organisms and ecosystems are adapted to a variable environment, and they are capable to adapt to gradual change to some degree. Assessing confidence in the detection of such change involves therefore assumptions about natural variability in these ecosystems, while assessment of confidence in the attribution of detected change to climate drivers (or CO2 ) implies the assessment of confounding drivers such as pollution or land use change.

18.3.2.1.Phenology

Since the AR4 there has been a further substantial increase in observations, showing that hundreds of (but not all) species of plants and animals have changed functioning to some degree over the last decades to centuries on all continents (high confidence  due to robust evidence  but only medium agreement  across all species; 4.3.2.1, Menzel et al. , 2006; Cook et al. , 2012b; Peñuelas et al. , 2013). New satellite-based analyses confirm earlier trends, showing, for example, that the onset of the growing season in the Northern Hemisphere has advanced by 5.4 days from 1982 to 2008 and its end has been delayed by 6.6 days (Jeong et al. , 2011). Significant changes have been detected, by direct observation, for many different species, for example, for amphibians (e.g., Phillimore et al. , 2010), birds (e.g., Pulido, 2007; Devictor et al. , 2008), mammals (e.g., Adamík and Král, 2008), vascular plants (e.g., Cook et al. , 2012a), freshwater plankton (Adrian et al. , 2009) and others (4.3.2.1); a number of new meta-analyses have been carried out summarizing this literature (e.g., Cook et al. , 2012a). Attribution of these changes to climate change is supported by more refined analyses that consider also the regional changes in several variables such as temperature, growing season length, precipitation, snow cover duration and others, as well as experimental evidence (Xu et al. , 2013). The high confidence  in attributing many observed changes in phenology to changing climate is a result of these analyses, as well as of improved knowledge of confounding factors such as land use and land management (see also 4.3.2.1). ~~~~ IPCC

I didn’t get a chance to ask the Friends’ botanist – experts out there care to weigh in?

Assembly Votes to Veto – Senate Committee Approves Veto

Legislators Join Environmentalists At Statehouse Rally

Paulins Kill (a C1 water)

We as a legislature have consistently supported the sanctity of buffers for our C1 streams. These are the purest waters we have in the State of NJ.  …

Kudos to Bill Wolfe. We heard all kinds of testimony over these three meetings. But the one that stuck in my mind is that there’s no guarantee that they’ll be no deterioration in the State’s water quality standards if there’s development in the first 150 feet of buffer of C1 streams. That’s the critical missing legislative intent item for me.   ~~~ Bob Smith, Senate Environmental Committee Chairman (6/16/16 – vote to pass SCR 66).

Democratic legislators found their voice – and their spines – yesterday by deploying a rarely used Constitutional power, and voted to take final steps toward a legislative veto of Governor Christie’s DEP rules that rolled back protections for water quality and rules to reduce flood risks.

The Senate is scheduled to put the final nail in the coffin next Thursday, June 23 (* Update: according to Senator Lesniak – but as of 6/21 4 pm, the Board list does NOT include SR66).

The Senate Environment Committee started the day off by releasing the Resolution for full Senate approval and the full Assembly voted to approve their version (ACR160) later in the afternoon by a party line vow of 47-24-5 (shame on all those partisan Republicans who STILL loyally defend Gov. Christie and fail to protect critical water resources).

Senate Environment Committee Chairman Smith’s reasoned voice carried the day, as he questioned DEP’s credibility, criticized the lack of public involvement in developing the rules, and explained why the DEP proposal violated legislative intent “to protect the sanctity of buffers of our C1 streams”.

Importantly, Smith noted the critical importance of water quality standards – in explaining this key regulatory issue, Smith then went out of his way to praise the testimony of yours truly (take that, Bob Martin and Dennis Toft!)

At a noontime rally, after excoriating the Christie DEP’s record (at one point, calling DEP the “Department of Exxon Protection”) Senator Lesniak pledged that the Senate would pass the Resolution next Thursday, June 23.

Still, in notes and/or phone calls of thanks to Smith & Lesniak who led the charge, folks should urge Senate President Sweeney to post the Resolution on June 23.

At the rally, Assemblyman McKeon and Spencer were similarly critical of Governor Christie’s environmental record.

Spencer kept it simple, highlighting the critical importance of water to everyday life and invoking the Flint water crisis, she concluded “the [Christie] rule is wrong” – but McKeon had the quote of the day.

Stressing the importance of strict regulations to protect our precious water resources, McKeon said  (PolitickerNJ):

“We can’t blow it. This administration will be gone in a year and half.” But New Jersey’s water must carry on into the lives of future generations.

Yes! It was heartening to hear legislators speaking their mind in such clear support of environmental and public health regulatory protections. It was almost as if they were rediscovering their legacy and regaining agency and voice.

And now it’s onward toward a similar veto of Christie DEP’s proposed rollback of the Highlands Septic Density standards and for affirming Senator Smith’s commitment to enforcing water quality standards and the Clean Water Act to block destructive pipelines.

Will the Christie DEP waive Section 401 Water Quality Certificate Powers?

What explains the silence in NJ on this issue?

However, sometimes states waive their rights under these federal statutes by failing to act within the required time frame for making a decision (for example, Section 401 of the Clean Water Act requires states to act on an application within one year of the date that it is filed or the need for the approval is deemed waived). ~~~ Knowing and Protecting Your Rights When An Interstate Gas Pipeline Comes To Your Community 

[Update #1, #2 below]

That’s some casual and parenthetic “However, sometimes” and “(for example)” in the box quote above, no?

And it’s buried on page 16 of a FERC dominated treatise by a former FERC lawyer, in a manual more oriented to protecting private property rights than enforcement of environmental laws like the Clean Water Act.

I get better warnings about deadlines to pay my cable bill before they shut off service. But I’m way ahead of myself here.

On May 13, 2016, the Pennsylvania Department of Environmental Protection (PADEP) issued a draft Clean Water Act Section 401 Water Quality Certificate (WQC) to the controversial PennEast pipeline.

The 401 WQC is a key State regulatory approval, as demonstrated by NY State DEC’s recent denial of a 401 WQC that killed the proposed Constitution pipeline.

• Cuomo administration rejects Constitution pipeline

• DEC rejects Constitution Pipeline

• New York Environmental Regulators Deny Permit for Constitution Pipeline

For over a year, I have been writing about and calling on NJ pipeline activists to pay close attention to the 401 WQC issue and mount a public campaign and protests to pressure NJ DEP to deny 401 WQC for pipelines, particularly PennEast.

That is what won the battle in NY and led to Gov. Cuomo’s DEP’s 401 denial.

I even warned activists that they needed to get out in front of the issue and that if they waited until draft approvals are published for public comment, then it was far too late:

The public portion of the permit process is a total sham.

By the time a draft permit is “public noticed” and distributed for public review and comment, the deal is done.

The public comment period on the PADEP draft WQC closed yesterday, June 13, 2016.

All I could find in terms of public advocacy was a single letter to the editor on Saturday June 11, just 2 days before the comment period closed.

I learned about this at 11 pm last night from Bordentown-Chesterfield activists (after briefing them on and asking about this issue for months).  They apparently just got the documents from Rethink Energy NJ.

Meanwhile, on June 9, 2016, the PennEast foes at Foundation funded Rethink Energy NJ issued another diversionary and self serving press release, remarkably with no mention of the PADEP 401 WQC or the opportunity to submit public comments.

That Rethink Energy NJ press release also was issued on the same day FERC announced it granted the Bordentown – Chesterfield rehearing request, which focused on the 401 WQ Certification issue. On a day that they should have been praising the victory by Bordentown – Chesterfield on FERC rehearing and highlighting the significance of the upcoming DEP 401 WQC, instead it sure looks like Rethink Energy NJ attempted to drive that story out of the news cycle.

That all is fucking pathetic.

Are they keeping the 401 WQC issue a secret? The NJ media sure is. But the activist could drive media and are not even trying. Worse, they are sandbagging those trying to work on 401 WQC and diverting from the issue.

An inside technical game is a loser, particularly in dealing with pro-gas oriented State agencies following orders of pro-gas Governors. A win will take huge public pressure, like in NY.

However, in another case of far too little, far too late, the Delaware Riverkeeper Network (DRN) created a webpage on the PA 401 WQC and submitted detailed technical comments, but it appears – just like the Rethink Energy NJ PennEast foes – that DRN did little or nothing to mount a public campaign (and if they did, it is invisible and ineffective).

We will get to all that in our next post.

Meanwhile, consider that NJ activist may be quietly losing the most effective challenge to kill pipelines, by quietly looking the other way as the Christie DEP just lets the clock run out (or they get blindsided, like what just happened in Pennsylvania).

Federal law provides:

However, sometimes states waive their rights under these federal statutes by failing to act within the required time frame for making a decision (for example, Section 401 of the Clean Water Act requires states to act on an application within one year of the date that it is filed or the need for the approval is deemed waived). ~~~ Knowing and Protecting YOur Righs When An Interstate Gas Pipeline Comes To Your Community

Which leads me to question whether they even really want to win and stop the pipeline, or just re-route it and shake the mitigation money tree.

[Update #1 – 6/15/16 – here’s another example of the dangers of a singular focus on FERC.

1. On April 2, 2015, Riverkeeper filed a request for rehearing to FERC on the Algonquin pipeline  because, among other things, FERC issued approval before the NY State DEC issued a Clean Water Act Section 401 Water Quality Certificate – that FERC rehearing request was very similar to that filed by Chesterfield and Bordentown, see:

http://www.riverkeeper.org/wp-content/uploads/2015/06/RVK-Request-for-Rehearing-AIM-Project.4.2.15.wEx-2.pdf

2. Just weeks later, on May 1, 2015, the NY DEC issued the 401 WQ certificate, thereby effectively mooting the FERC challenge:

• DEC Issues Water Permit for the Algonquin Incremental Market Project

This experience suggests the need to back up the FERC legal request with public pressure on the NJ DEP on the Clean Water 401 WQC.

The Bordentown/Chesterfield FERC challenge is based on the fact that DEP has not yet issued the 401 WQC – if DEP issues the WQC the FERC challenge goes away.

[Update #2: 6/15/15 – ANOTHER example of efforts by Rethink Energy NJ crowd to sandbag, divert attention from, and bury the 401 Water Quality Certificate issue. Unbelievable. ~~~ end]

Another Reason Legislature Must Veto DEP Rule As Inconsistent with Legislative Intent

What explains the lack of criticism of this vast expansion of DEP regulation?

Most of the debate on the pending Legislative veto of the Christie DEP’s proposed rollback of the Flood Hazard, storm water, and coastal management rules has properly focused on how the new DEP rule would allow more development in sensitive protected stream buffers and thereby reduce water quality and increase flooding risk, contrary to legislative intent to protect and restore water quality and reduce flood risks.

With respect to rolling back protections for stream buffers, the DEP rule would:

1) repeal the current prohibition on disturbance of soils and vegetation of the inner buffer, within 150 feet of exceptional “Category One” (C1) streams;

2) make it easier to get a hardship waiver from regulatory standards, including the current prohibition;

3) eliminate the current requirement to demonstrate “equivalent protection” for disturbance of soils and vegetation in the outer buffer, between 150 – 300 feet of C1 streams;

4) increase current allowable disturbance and development in buffers;

5) eliminate buffer protections for certain headwater streams that lack a defined stream bed and bank; and

6) allow mitigation, when it is “not feasible”  to meet the standards for allowable disturbance, thereby making a sham of the current prohibition on disturbance and bypassing the current standards to limit allowable disturbance.

No need to take my word for it – the DEP admits all this in the proposal itself in many places, but this text on page 59-60 sums it all up:

But, aside from the buffer rollbacks, a significant issue has been drown out and gotten virtually no attention.

The DEP rules create a complex new “riparian mitigation bank” and riparian credit trading scheme.

The DEP creates this major new regulatory policy and program out of whole cloth – based on the Freshwater Wetlands Act, where the Legislature has authorized a regulatory program for wetlands mitigation banking which is overseen by the Legislatively created Wetlands Mitigation Council:

But riparian zones are not wetlands.

Ordinarily, such a vast expansion of DEP regulatory authority – especially by creating costly new requirements that amount to a tax or surcharge on new development – would be hotly debated and strongly opposed by the NJ Builders Association and similar development interests, as well as other interested parties and policy experts (e.g. the Chamber of Commerce, NJ BIA, NAIOP, landowners, real estate speculators, banks & development finance institutions; right wing opponents of DEP regulatory power; left wing opponents of market trading schemes; scientists and ecologists who oppose mitigation because it does not work (something even DEP admitted); NJ Legislators and lawyers who honor Constitutional principles of separation of powers issues, etc).

But amazingly, there has been no opposition! None. What explains that silence?

We think that the builders and development community are getting such huge regulatory relief that they are willing to pay a small amount in mitigation fees, which will be a tiny drop in the bucket compared to the “regulatory certainty” (a green light from DEP) and increased profits from more lucrative development closer to the water where it is currently prohibited.

On top of the controversial policy debate that would ensue if DEP proposed such a stand alone regulation, the DEP lacks authorization by the Legislature to even adopt such a controversial regulatory scheme.

So, where is the NJ Environmental Law Bar to object to that flagrant legal abuse? (especially in light of the recent Appellate Division  opinion striking down DEP’s public access rules for lack of legislative authority. Those rules had been implemented for over 25 years, while the DEP’s  riparian trading scheme is brand new.)

In addition to my prior comments on the DEP rule proposal and testimony to the Legislature, I fired off this letter to Senate Environment Committee Chairman Smith, who seems to be waivering (pun intended) in following through on the Legislative veto threat:

Dear Chairman Smith:

During last week’s hearing on SCR 66 (veto of DEP Flood Hazard rules), one of the issues I raised again was a lack of legislative authorization for DEP to create a riparian mitigation bank.

In contrast to this lack of authority (express or implied), there is clear enabling authority for mitigation banking in the NJ Freshwater Wetlands Protection Act, upon which the DEP riparian banking scheme is modeled.

The Legislature fully understands the need for authorization of trading schemes.  In addition to the Freshwater Wetlands Act, the Legislature has authorized various forms of trading schemes in the Highlands Act, Pinelands Act, RGGI, and TDR legislation, but has not done so in the Flood Hazard Control Act or other authority DEP relies on for the rules in question.

Logically, if there is no Legislative authorization, the DEP rules must be “inconsistent with legislative intent“, as well as ultra vires.

I call to your attention how DEP responded to that criticism in the adoption document for the rule. Below I excerpted the complete text of my comment (#729) and the DEP response.

As you will note, DEP did not cite a specific legislative provision that would authorize the regulatory mitigation banking scheme they just adopted. The case law DEP cited is not on point. (DEP text in italics).

See page 617 – 619

http://www.nj.gov/dep/rules/adoptions/adopt_2016xxxxa.pdf

729.COMMENT: The proposal includes a new Subchapter 13, Riparian Zone Mitigation, which is broad in scope and significant in substance, both economically and environmentally. A change in regulatory policy of this magnitude requires express statutory authorization by the Legislature. The FHACA does not authorize the Department to create a mitigation scheme or a mitigation bank. The act does not specifically or implicitly provide for a mitigation program or a mitigation bank, nor does any other authority the Department relies on as the legal basis for the proposal. However, the act does establish clear legislative standards and authorizes the Department to enact regulations to enforce those standards via a traditional regulatory permit program. Because the proposed program is a radical departure from the Department’s traditional regulatory policy and practice, the proposal isultra vires, legislatively unauthorized, and contrary to the express framework and provisions of the act. The mitigation scheme and mitigation bank are also inconsistent with legislative intent. The proposal must be withdrawn. (193) 

DEP RESPONSE TO COMMENTS 728 and 729: While the Flood Hazard Area Control Act is the primary enabling legislation for the Flood Hazard Area Control Act Rules, the rules are also  adopted under the authority of the Water Pollution Control Act (N.J.S.A. 58:10A-1 et seq.), the Highlands Water Protection and Planning Act (N.J.S.A. 13:20-1 et seq.), the Water Quality Planning Act (N.J.S.A. 58:11A-1 et seq.), and the Ninety Day Construction Law (N.J.S.A. 13:1D-29 et seq.).

The Department’s ability to protect the environment, including flora and fauna, as it implements the Flood Hazard Area Control Act Rules, was affirmed by the Appellate Division Court in 1985 (see Society for E.E.D. v. New Jersey DEP, 208 N.J. Super. 1 (App. Div., 1985)). In addition, the Department’s authority to use stream buffers to protect water quality was affirmed in In the Matter of Stormwater Management Rules, 384 NJ Super. 451, cert. denied 188 NJ 489 (2006). Taken together, these authorities vest the Department with broad discretion to promulgate these rules to address flooding, protect water quality, provide protection of natural resources, and to protect public health and safety. It is well documented that vegetation adjacent to surface waters is essential for maintaining bank stability and water quality. The indiscriminate disturbance of such vegetation destabilizes the shorelines of surface waters, which leads 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 subjects surface waters to increased sun exposure, which causes water temperatures to rise and dissolved oxygen content to fall. Such impacts adversely affect the health and habitat of fish and wildlife that depend upon clean surface waters and therefore disrupt the ecological balance that is necessary for life. Under this adoption, the Department has not eliminated riparian zone protections nor has it attempted to substitute mitigation as a surrogate for regulatory protections.

As indicated in response to comment 727 above, the adopted rules continue to require avoidance and minimization of impacts. However, when this is not feasible, the Department will require mitigation. The requirement to allow for mitigation is not inconsistent with the intent of the statutes. The authority to protect water quality under these various statutes is clear, with determination of the specific means to achieve that protection left to the Department. As stated above, one method that has been demonstrated through numerous studies to protect water quality is the protection of riparian areas and the vegetation therein because of the benefits they provide. Where it is necessary to allow appropriate impacts to buffer areas, mitigation has been demonstrated to be an effective mechanism to achieve equivalent water quality benefits, including mitigation through methods such as creation of alternate buffer areas, restoration or enhancement of other buffer areas, or preservation of large areas that provide the water quality benefits sought. The benefits sought through mitigation are achieved regardless of whether the mitigation is performed by a permittee or by someone else with the mitigation funded by the permittee. Utilization of mitigation banks as one mechanism to reach the desired positive water quality impacts has proven to be a valuable tool in protection of freshwater wetlands. In fact, in some cases, larger projects performed by a mitigation bank can provide greater benefits than the sum of the many small projects that would have been performed if those purchasing mitigation credits from the bank had been required to satisfy their separate mitigation obligations through small individual projects. The Department has determined that the same positive benefits achieved by mitigation banks in that context can be achieved in protecting riparian zones and is, accordingly, utilizing this as one available option to protect the quality of waters regulated under the FHACA Rules in accordance with the statutory authorities specified above.