Look Who Killed “Category One” 300 Foot Stream Buffer Protections

Documents Show That Christie DEP Caved to Builders and Business Lobbyists

IF Stone was right – many of the dirty deals are hidden in plain sight, buried in government documents that very few people read.

The Christie DEP just proposed to repeal – as in eliminate – the 300 foot wide vegetated buffers that protect “exceptional” high quality waters known as “Category One” (C1) waterbodies from the destruction and pollution caused by major development (wonks can read DEP’s rationale, which starts on page 10 – 11 and continues on p. 57).

[Technical clarification:

The C1 SWRPA buffers in the storm water rules, which are water quality BMP’s are repealed, but the 300 foot buffers created by those rules are redefined as “riparian zones” and retained in the stream encroachment rules. The C1 buffers have regulatory ties to the Clean Water Act and federally approved water quality standards and antidegradation policy. These are important legal factors, e.g. for Clean Water Act mandated water quality certifications, NJPDES permits, anti degradation reviews, municipal storm water ordinances and permits, TMDL’s, et al

Legally and technically, SWRPA C1 buffer protections are far stronger than “riparian zone” protections.

There is a complex two step rollback process:

1) SWRPA eliminated and redefined and replaced by weaker riparian zone standards;

2) a new mitigation scheme is created to allow relief from the riparian zone standards – this effectively eliminates the buffer program and replaces it with a mitigation scheme. There simply are no longer buffer standards. If a developer can’t meet the standard and wants to disturb the riparian zone, all he has to do is mitigate that disturbance.  ~~~ end clarification]

As I’ve written, that proposal would increase flood risks and water pollution and allow more destruction of thousands of acres as of critical headwaters, intermittent streams, and ecologically sensitive lands along streams, lakes, and rivers (riparian habitat).

Why would the DEP do that? Who is behind this move?

Documents show that the Christie DEP reversed a decade of regulatory policy and in doing so specifically embraced – almost word for word – the position of the NJ Builders Association, Chamber of Commerce, Business and Industry Association and National Association of Industrial and Office Parks.

[NOTE: This is one of the DEP rules that Gov. Christie called “overreach” and bragged about dismantling, something that should be relevant now that he has declared his candidacy.]

A Brief Regulatory History

In regulatory jargon, those C1 buffers are known as “Special Water Resource Protection Areas” (SWRPA’s). Those protections are provided to waterbodies that have “exceptional” ecological, water supply, fisheries, or recreational significance.

Disturbance or destruction of natural vegetation in SWRPA buffers is flat out prohibited, with very limited exceptions.

That means that builders can’t build or locate stormwater infrastructure or outfalls in the buffers and their development potential allowed under local zoning is limited, in some cases significantly such that projects must be scaled back and located away from sensitive streams.

The C1 SWRPA protections were adopted by the McGreevey DEP, in a series of rules in beginning in 2002. The C1 SWRPA buffers were a key component of Gov. McGreevey’s commitment to strengthen protections for NJ’s water resources. Approximately 2,000 miles of streams, rivers and reservoirs received C1 SWRPA protections, a hugely significant policy.

The C1 SWRPA buffers were strongly opposed by the development community because they significantly restrict development potential. Builders legally challenged the DEP rules in Court and lost.

In rules adopted in 2007, the Corzine DEP expanded the C1 SWRPA by incorporating them in the Flood Hazard Act permit program known as “stream encroachment”. That program is intended to reduce flood risks by, among other things, limiting disturbance of “riparian zones”.

The stream encroachment riparian zone protections are not a strong as the C1 SWRPA buffer protections, but they apply to a broader set of activities.

Back in 2007, the developers and business community opposed the Corzine DEP expansion, arguing that the C1 SWRPA were inconsistent with and duplicative of the stream encroachment “riparian zone” protections.

The Corzine DEP explicitly rejected those arguments. The Corzine DEP proposal expanded the reach of the C1 SWRPA buffers by consolidating two similar programs to improve protections for water quality and reduce flood risks.

Since then, the C1 SWRPA buffers were targeted for elimination in the Christie DEP Transition Report.

But, upon review of the C1 program to respond to the Transition Report’s criticism, even the Christie DEP issued a Report that found that the SWRPA buffers were justified by science. DEP scientists recommended expanding existing C1 SWRPA protections to an additional 121 stream miles.

Who Killed The C1 Buffers? – The Fingerprints are in the documents

In a huge reversal, the Christie DEP now proposes not to expand but to repeal the C1 buffer protections.

The Christie DEP justified the repeal of C1 SWRPAs on the following basis (from DEP proposal):

The fact that SWRPAs and riparian zones apply to different sets of surface waters has led to inconsistent protections for surface waters and some confusion for both Department staff and the regulated community. (@ p. 11) …

While the SWRPA is similar in some respects to the 300-foot riparian zone along C1 waters and tributaries that are considered regulated waters under the FHACA Rules, three major differences between the riparian zone protections and the SWRPA protections to C1 waters and their tributaries have resulted in unintended and problematic consequences. (@ p.58)

The problematic consequences are that the developers hated those rules and they killed or downsized major corporate office park and housing developments.

That was the intent of the program – not what DEP now calls “unintended consequences”.

But that Christie DEP rationale to kill the buffers sounded familiar to me, so I looked into the regulatory documents.

Low and behold, look at who opposed the C1 SWRPAs for exactly those same reasons back in 2007 (from DEP rule adoption document):

102.COMMENT: The provisions of the proposed new rules, which are justified as water quality measures, are duplicative of and inconsistent with the water quality provisions of the Department’s Stormwater Management rules at N.J.A.C. 7:8, and should therefore not be adopted. (7, 18, 33, 46, 53) 

According to the DEP document, commenter #7 is the NJ Business and Industry Association; #18 is the NJ Chamber of Commerce; #46 is the National Association of Industrial and Office Parks; and #53 is the NJ Builders Association.

Back in 2007, the Corzine DEP explicitly rejected those arguments (from the DEP adoption document):

But another disturbing point also must be made.

The environmental community urged DEP to create and strongly supported the C1 buffers back in 2002.

In fact, the program reality originated from the recommendations of Tom Borden during the Windy Acres development battle in Clinton.

So why now, as those critical protections are being dismantled, are they silent?

[Update: Here is another revealing gem by the a same crowd, showing that the real opposition to DEP rules is based on land use development restrictions:

314.COMMENT: The Department has failed to provide any substantive justification for the proposed requirement for over-detention by determining the “flood hazard area design flood elevation” using 125 percent of the 100-year flow rate. Potential flooding impacts from existing developments should be controlled by retro-fitting existing conditions, not by squelching future development. This point was made in comments on the report of the Flood Mitigation Task Force, which the Department ignored in the proposal. (7, 18, 33, 46, 53)