NJ DEP Relied on C1 Stream Buffers To Comply With EPA Approved TMDLs

Christie DEP’s Proposed Repeal of C1 Buffers Would Violate Clean Water Act

Source: NJDEP TMDL for Ramapo River & Pompton Lake phosphorus impairments

The US EPA has already weighed in – twice – to oppose the Christie DEP’s proposed repeal of “Category One” (C1) stream buffers as violations of the Clean Water Act (see this EPA July 30 letter and this followup EPA October 22 letter).

EPA’s initial rationale focused on DEP’s failure to comply with two key federal Clean Water Act requirements: 1) water quality standards and anti degradation policy and 2) municipal storm water permit requirements.

Specifically, EPA concluded that the proposed repeal of C1 buffers would violate EPA’s approved NJ Surface Water Quality Standards (which include the “anti-degradation policies”):

measurable changes to Category 1 (Cl) waters as a result of proposed changes to these rules would not comply with New Jersey’s water quality standards.

The Clean Water Act requires water quality standards to be established and implemented by states and that they must include anti-degradation policies to maintain and protect high quality state waters from increased loadings of pollutants resulting from regulated activities. New Jersey’s anti-degradation policies for Cl waters in N.J.A.C. 7:9B-1.5(d)2.iii require that they “shall be protected from any measurable changes (including calculable or predicted changes) to the existing water quality.

Additionally, EPA found that the DEP’s proposed rule would violate Clean Water Act NPDES permit requirements in the municipal storm water program:

New Jersey’s Municipal Separate Storm Sewer System (MS4) permits cross-reference the state’s SWM rules and require compliance with those rules. If changes to the Storm water Management rules result in a less stringent permit condition, this would constitute backsliding in violation of EP A’s permit regulations.

I brought both of those issues to the attention of EPA in a series of emails to the Regional Administrator.

But there is an additional significant violation of the Clean Water Act that EPA has not yet addressed.

The Christie DEP’s proposed repeal of the Category One water buffer regulations would violate the federal Clean Water Act’s Section 303 “Total Maximum Daily Load” (TMDL) program regulatory requirements.

A TMDL is basically a cleanup plan for waters that do not meet the Clean Water Act’s water quality standards.

A TMDL establishes a science based enforceable “pollution diet” and sets a cap on total pollution. A TMDL requires enforceable reductions in current pollutant loadings necessary to achieve water quality standards. Reductions are set for point source dischargers, like sewage treatment plants (called “waste load allocations”), and for non point sources, like runoff from development (“load allocations”).

Additionally, a TMDL must include an implementation plan with enforceable requirements to assure that the TMDL pollutant reduction loadings are actually met. These requirements are known as “reasonable assurance”. 

I brought the TMDL issues recently to the attention of EPA Regional Administrator Enck, so we can expect additional oversight from EPA on the TMDL regulatory implications.

Specifically, DEP’s EPA approved TMDL program has used the C1 regulatory buffers as an enforceable regulatory non-point source water quality “Best Management Practice” (BMP) and to demonstrate “reasonable assurance” that the non-point source pollutant load reductions will be met.

Scientifically, C1 buffers impacted the land use and pollutant loading analyses of the water quality model used to derive the TMDL. Additionally, from a regulatory perspective, C1 buffers were used as enforceable regulatory requirements to achieve water quality standards and TMDL non-point source pollutant load reductions.

DEP may not repeal these regulatory requirements without EPA approval and formal amendment of all the TMDL’s that rely on C1 buffers as water quality BMPs and reasonable assurance.

Here is just one example of that, from the Ramapo & Pompton Lake TMDL for phosphorus impairment: (see page 35 – 36)

10.0 Reasonable Assurance

 … NJDEP adopted the Stormwater Management Rules N.J.A.C 7:8, which minimizes the impact of stormwater run-off from new development. The Stormwater Management Rules, N.J.A.C. 7:8, establish statewide minimum standards for stormwater management in new development, and the ability to analyze and establish region-specific performance standards targeted to the impairments and other stormwater runoff related issues within a particular drainage basin through regional stormwater management plans. The Stormwater Management Rules are currently implemented through the Residential Site Improvement Standards (RSIS) and the Department’s Land Use Regulation Program (LURP) in the review of permits such as freshwater wetlands, stream encroachment, CAFRA, and Waterfront Development

The Stormwater Management Rules focus on the prevention and minimization of stormwater runoff and pollutants in the management of stormwater. The rules require every project to evaluate methods to prevent pollutants from becoming available to stormwater runoff and to design the project to minimize runoff impacts from new development through better site design, also known as low impact development. Some of the issues that are required to be assessed for the site are the maintenance of existing vegetation, minimizing and disconnecting impervious surfaces, and pollution prevention techniques. In addition, performance standards are established to address existing groundwater that contributes to baseflow and aquifers, to prevent increases to flooding and erosion, and to provide water quality treatment through stormwater management measures for TSS and nutrients

As part of the requirements under the municipal stormwater permitting program, municipalities are required to adopt and implement municipal stormwater management plans and stormwater control ordinances consistent with the requirements of the stormwater management rules. As such, in addition to changes in the design of projects regulated through the RSIS and LURP, municipalities are updating their regulatory requirements to provide the additional protections in the Stormwater Management Rules.

Furthermore, the New Jersey Stormwater Management Rules establish a 300-foot special water resource protection area (SWRPA) around Category One (C1) waterbodies and their intermittent and perennial tributaries, within the HUC 14 subwatershed. In the SWRPA, new development is typically limited to existing disturbed areas to maintain the integrity of the C1 waterbody. C1 waters receive the highest form of water quality protection in the state, which prohibits any measurable deterioration in the existing water quality. Definitions for surface water classifications, detailed segment description, and designated uses may be found in various amendments to the Surface Water Quality Standards at www.state.nj.us/dep/wmm/sgwqt/sgwqt.html.

C1 designations within the pertinent portion of the Passaic River watershed are depicted on Figure 5 (see above map)

Given that DEP specifically relied upon the C1 buffers to meet the federal mandated and EPA approved TMDL requirements of the CLean Water Act,  the buffers may not be repealed without EPA approval and formal amendment to the TMDLs.

Of course, DEP would be required to demonstrate, numerically, how additional pollutant reductions would be found to offset the additional pollutant loadings that would result from loss of the C1 buffers to development over time.

This would ratchet virtually every TMDL in the State, likely including more stringent effluent limits and permit requirements for sewage treatment plants, and additional non-point pollution controls, most likely on agriculture.