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On Jan. 5, 2004, a year of debate over the next phase of the state’s efforts to improve water quality ended with the Department of Environmental Protection’s adoption of two significant sets of administrative rules concerning stormwater — water resulting from rain and snow that runs off the land. The regulations, N.J.A.C. 7:14A-1.2, address these nonpoint sources of pollution which, for the most part, had been unregulated while environmental agencies focused their attention on point source discharges from industrial and sewage treatment facilities. The regulations, which take effect on Feb. 2, 2004 (the date they are to be published in the New Jersey Register), make substantial amendments to the existing stormwater management rules and revise the New Jersey Pollutant Discharge Elimination System rules to, among other things, establish a municipal stormwater regulation program. WATER QUALITY/SMART GROWTH The impact of the recent rulemaking must also be considered in conjunction with DEP’s previous and ongoing upgrading of the surface water quality standards (SWQS). The effect of these combined actions establishes a 300-foot buffer adjacent to more than 6,000 miles of the state’s designated high quality waterways. As Gov. James McGreevey observed in his State of the State address on Jan. 13, 2004: We made New Jersey the first state in the nation to require a 300-foot buffer between any development and a water supply. We put 300,000 acres of land, 7,865 acres of reservoirs, 96 rivers and lakes — the drinking water for 3.5 million people — off-limits to developers. It is thus readily apparent that the new regulations were designed to serve a dual purpose. Upon first reading, they appear to be primarily directed at protecting water supplies, preventing water pollution and ensuring the state’s continued compliance with federal requirements. See 64 FR 68722-01, Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges; 40 CFR 122.34, MS4 Storm Water Permit Requirements. While the regulations advance clean water objectives, a no lesser secondary goal is to promote smart growth by making development in the rural and suburban portions of the state more difficult. Smart growth — directing future growth to the urban and older suburbs and away from agricultural and environmentally sensitive areas — is one of the Gov. McGreevey Administration’s signature issues. It was reflected in the governor’s comments upon announcing the formal adoption of the stormwater provisions at an event staged near the type of development project that would not be permitted to be constructed in the future: As we stand here today, special interests are asking the courts to overturn our previous actions to protect drinking water and open space. Our actions today demonstrate that we will not back down — our efforts to protect drinking water will only get stronger, not weaker. These stormwater rules are the most comprehensive set of water protections in the nation — no other state has required 300-foot buffers around its high quality waters. They will prove to be a critical tool in our fight against sprawl. SURFACE WATER QUALITY STANDARDS The imposition of the 300-foot buffer requirement referred to by Gov. McGreevey was achieved, in part, by amending the SWQS. The origin of the standards can be traced to the federal Clean Water Act (CWA), which required their adoption throughout the nation. See 33 U.S.C. 1231 et seq. In 1977, New Jersey enacted the Water Pollution Control Act (WPCA) and the Water Quality Planning Act to ensure that the state would have adequate authority to implement CWA. N.J.S.A. 58:10A-1 et seq., and 58:11A-1 et seq. WPCA specifically empowered the DEP to adopt regulations for “[t]he classification of the surface and ground waters of the State and the determination of water quality standards for each such classification.” N.J.S.A. 58:10A-4.c. The surface water classifications for the state’s waterways are set forth in N.J.A.C. 7:9B-1.15. The classification system designates waters of the highest quality as Category One (C1) waters. In general, this classification is assigned to waters originating or flowing through parks, forests, fish and wildlife lands, and other special holdings; trout production and trout maintenance waters; and shellfish waters of exceptional resource value. N.J.A.C. 7:9B-1.4. On Oct. 10, 2003, the DEP amended the SWQS to reclassify a number of stream segments as C1 waters based on fish assemblage information and “exceptional ecological significance.” This supplements previous DEP determinations that upgraded the antidegradation designations for several waterbodies. A pending regulatory proposal would add approximately another 500 river miles to the C1 classification. 35 N.J.R. 4949(a). TARGETING MAJOR DEVELOPMENTS Rules to implement the stormwater management requirements set forth in the Municipal Land Use Law have been in place for some 20 years. N.J.A.C. 7:8-1.1 et seq.; N.J.S.A. 40:55D-93 et seq. As a result of the recent amendments, the rules now cross-reference and apply to major developments — disturbance of more than one acre or increasing impervious surface by .25 acres — under several DEP-administered regulatory programs. N.J.A.C. 7:8-1.1, -1.2. In addition, the rules serve as the department’s stormwater management provisions under the Residential Site Improvement Standards. N.J.A.C. 5:21-7. The new rules provide for general requirements for stormwater management planning (N.J.A.C. 7:8-2.1 et seq.); regional stormwater management planning (N.J.A.C. 7:8-3.1 et seq.); municipal stormwater planning (N.J.A.C. 7:8-4.1 et seq.); design and performance standards for stormwater management measures (N.J.A.C. 7:8-5.1 et seq.); and safety standards for stormwater management basins (N.J.A.C. 7:8-6.1 et seq.). Many of the technical requirements should be attainable by appropriate site engineering techniques. These should result in improving stormwater quality. A number of provisions will be more controversial. Of these, the most significant is the widely heralded 300-foot water resource protection area, or vegetated buffer, from C1 waters (N.J.A.C. 7:8-5.5(h)1.i.). BURDENING MUNICIPALITIES The second set of regulations amends and supplements the New Jersey Pollutant Discharge Elimination System rules. N.J.A.C. 7:14A-1.1 et seq. Most significantly it adds two new subchapters to the existing rules: (24.) Additional Requirements for Certain Stormwater Discharges (N.J.A.C. 7:14A-24.1 et seq.); and (25.) Municipal Stormwater Regulation Program (N.J.A.C. 7:14A-25.1 et seq.). In its notice of adoption, the DEP indicates that the rules were intended to conform with federal requirements: The adopted new rules, amendments, and recodification revise requirements concerning stormwater discharge permits, address “Phase II” regulations that the United States Environmental Protection Agency (USEPA) published in the December 8, 1999 Federal Register (64 Fed. Reg. 68721) concerning such permits, and integrate the New Jersey Pollutant Discharge Elimination System (NJPDES) program for “municipal” (that is, government agency) separate storm sewer systems with other aspects of stormwater management. The new rules provide for two new general permits: one for Tier A Municipal Stormwater and the other for Tier B Municipal Stormwater. See N.J.A.C. 7:14A-25.3. The permittees for small municipal separate storm sewer systems [places having a population of less than 100,000] will be required to develop, implement and enforce stormwater programs designed to reduce the discharge of pollutants from their stormwater systems to the maximum extent practicable. At a minimum, those programs must include the Statewide Basic Requirements (SBRs), which consist of the following: � public involvement/participation; � construction site stormwater runoff control; � post-construction stormwater management in new development and redevelopment; � public education on stormwater impacts; � prohibiting improper disposal of waste; � control of solid and floatable materials; � maintenance yards and highway service areas; and � employee training. In the near future, the DEP will be distributing information to municipalities to assist them with the regulatory program. The department has also announced that it has some funds available for grants to local governments. However, the sums will be inadequate in light of the substantial burdens that the regulations impose on the permittees. And without sufficient financial assistance, implementation of the rules is likely to fall short of expectations. REACTIONS There was a broad range of opinions expressed following the adoption of the rules. The administration and the environmental community were strongly in favor, while others, who had followed the subject, had more cautious or negative views. At his Jan. 5, 2004, news conference, Gov. McGreevey emphasized both the rules’ implications for water quality and smart growth: Part of it is, I don’t want a million new homes in New Jersey. I want to protect the quality of the water supply. To develop within 300 feeet of this stream would be to threaten its sanctity and its pristine quality. These stormwater rules are the most comprehensive set of water protections in the nation. They will prove to be a critical tool in our fight against sprawl. [The Star-Ledger, Jan. 6, 2004]. Similar views were expressed by DEP Commissioner Bradley Campbell, whose department will be responsible for implementing the regulations: Some studies estimate that more than half of existing surface water pollution in the state is attributable to non-point source pollution and stormwater runoff. By enacting these rules, Gov. McGreevey has kept his promise to take a firm stand against sprawl, calling for common sense strategies to ensure that pollution from development and from everyday litter does not poison our water supplies. [Governor's Office, Press Release, Jan. 5, 2004]. Never one for understatement, Jeff Tittel, Executive Director of the New Jersey Chapter of the Sierra Club, was ebullient in his praise of the new rules and those responsible for their adoption: This is the most important and significant action taken yet to protect New Jersey’s water since the passage of the Freshwater Wetlands Act in 1988. These stormwater rules prove that Gov. McGreevey is a national leader in protecting water quality and stopping sprawl. This is a huge victory for our environment. [Governor's Office, Press Release, Jan. 5, 2004]. The State League of Municipalities (League) — the representative of New Jersey’s local governments — was more cautious about the regulations’ impacts. While the League was able to obtain some concessions prior to the rules’ adoption that were favorable to its members, Bill Dressel, the organization’s executive director, expressed concern regarding the costs of the regulations, which will fall heavily on financially strapped municipalities: The bottom line is there are going to be costs here. The extent of those costs is difficult to determine because it will be applied on a town-by-town basis. Every town is going to be impacted differently by this. [The Star-Ledger, Jan. 6, 2004]. The League has requested that municipal representatives track their costs to provide the grounds to request additional financial assistance from the Legislature. As might be expected, the development community expressed its opposition in very clear terms. According to Doug Fenichel, spokesman for Hovnanian Cos. Northeast: The sum total of the effect of these rules really makes it difficult for anybody to build even with the smart growth principles the state has advocated. We need to address a question here, and that’s where will people live. These regulations make it difficult to answer that question. [The Star-Ledger, Jan. 6, 2004]. These opinions were echoed by Rick Van Osten, president of the Builders League of South Jersey, who raised some legal objections: There’s no scientific background for these regulations. They seem to be into junk science. They’re not addressing where people are going to live, or if there are other ways to deal with water protection other than throwing up an arbitrary 300-foot buffer. [The Press of Atlantic City, Jan. 6, 2004]. In light of the stakes involved, multiple challenges to the stormwater rules are a virtual certainty. If history is any guide, one could point out that the courts have on occasion found a procedural error and required that it be cured. But the judiciary has demonstrated an extreme reluctance to second-guess the DEP respecting technical matters, such as those addressed in the stormwater rules, which are considered to be within the agency’s presumed expertise. Goldshore is a partner at Szaferman, Lakind, Blumstein, Blader, Lehmann & Goldshore of Lawrenceville. Goldshore and Wolf are co-authors of New Jersey Environmental Law, (ICLE 2003), and Goldshore is a co-author of New Jersey Brownfields Law, published by New Jersey Law Journal Law Books. Their column appears regularly in the Law Journal.

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