NJ Flooded Again – Christie DEP Proposes to Weaken Flood Protection Rules

The FHACA Rules are intended to help prevent and ameliorate the destructive impacts of flooding by establishing standards for disturbance to the land and vegetation in flood hazard areas. New Jersey periodically experiences severe flood events due to its climate, topography, and location along the Atlantic seaboard. Given the State’s dense population and extensive level of existing development within flood hazard areas, this periodic flooding causes severe, repetitive, and deleterious social, economic, and environmental impacts. Flooding has and continues to be the most frequent, destructive, and costly natural hazard in New Jersey and is responsible for the large majority of disaster-related damage reported in the State. The most recent case in point is Superstorm Sandy, an historic storm that caused unprecedented flooding damage in New Jersey.

Of course, the Christie DEP – still in denial on climate change – failed to note that scientists warn that “extreme weather events” like major storms and flooding will increase in frequency and intensity, and so too will  repetitive flood damage.

So, a reasonable person would conclude that existing flood protections should be strengthened (see Obama Executive Order).

But the Christie administration is not reasonable – they seek “regulatory relief” under Gov. Christie’s Executive Order #2. 

DEP press release even admits this (and it misleading, because Senator Buono refused to sign the report and was removed, and Van Drew and Burzichelli are hardly “democrats”, so it was not “bi-partisan”)

In 2011, Governor Christie launched the bi-partisan Red Tape Review Commission which worked in conjunction with the Legislature to streamline regulatory processes across state government by eliminating burdensome red tape, thus promoting a more vibrant New Jersey.

I am reviewing the rule in detail, so for now, will merely list the extensive rollbacks in current protections. This is complex, involving 3 sets of different rules (a 936 page proposal!).

The over-riding policy objective of prior rules was to keep all kinds of development as far away from a stream as possible and preserve as much natural vegetation as possible in order to reduce flood risk and protect water quality.

The entire thrust of the Christie DEP proposal is exactly the opposite.

Shamefully, the DEP is using inconsistencies between those 3 rules as an excuse to WEAKEN protections across the entire state.

The most significant of these are the elimination of current Category One waters 300 foot vegetated buffer protections in the stormwater rules.  DEP will now rely exclusively on the stream encroachment program, which lacks protections for headwater streams flowing in less than 50 acre drainages.

The DEP has also eliminated virtually all current buffer protections and replaced those prohibitions on disturbance of the buffers with a mitigation scheme.

DEP proposed to eliminate the current strict “hardship waiver” requirements for disturbance inside 150 feet on C1 streams that get 300 foot buffers under stream encroachment rules. This essentially guts all buffer protections and allows more development in stream buffers.

DEP proposes to eliminate all buffer protections for small headwater streams in less than 50 acre drainage area. These are MOST ecologically sensitive and critical areas from water quality protection and flood prevention perspectives.

Other weakenings incude:

•  weaken “hardship exception” waivers. DEP says its too hard to get a hardship waiver – need to make waiver easier
•  DELETE current requirements for the placement, storage or processing of solid waste in a riparian zone
• ELIMINATE current requirements for the placement, storage or processing of hazardous substances in riparian zones
• ELIMINATE current requirements for storage of unsecured materials in riparian zones – increases flood risks
• new “flexibility” to weaken current requirements for restoring impaired streams to a natural condition
• As sea level rise & flood risks increase, DEP will reduce the number of walls and bulkheads that need engineering certification
• proposes 19 new permits-by-rule (PBR) There is no DEP or public review of a PBR. New “certification” permits too
• reductions to list of waters that receive a riparian zone & list of waters regulated
• effectively deregulates (via Permit by rule) stream “cleaning” & forestry activities
• increase allowable stream buffer disturbance for  roadways, private driveways, and railroad projects
• there is  NO limit on disturbance of riparian zone vegetation provided the disturbance is justified by stream “stabilization” or “restoration”
• increase the amount of disturbance for storm water outfalls from 1,000 square feet to 2,000 square feet used within the riparian zone
• provides a 50% increase is stream buffer disturbance for utility line stream crossings
• significant increase in allowable stream buffer disturbance for  single-family home or duplex in a riparian zone
• provide new disturbance for reconstruction or expansion of existing homes (previously not allowed)
• increases in allowable buffer disturbance for addition to a private residence or construction of a garage, barn, or shed
• new allowable disturbance for alteration, expansion, or repair of individual subsurface sewage disposal systems
• elimination of any disturbance limits for “hazardous substance remediation,” “solid waste facility closure,” “trail or boardwalk,” “footbridge,” “removing sediment and/or debris from a regulated water,” and “removing existing fill and/or an existing structure
• delegates review of certain storm water outfall construction projects to the local Soil Conservation District for review under weaker Soil Erosion & Sediment Control Act standards
• eliminates current buffer width and disturbance restrictions and allows NEW SEPTIC SYSTEMS to be built just 50 feet from a stream.