Senate to Hear Bill That Would Weaken Protections for Exceptional Quality Waters

Category 1 stream – downed trees provide habitat. Do you want a municipal civil engineer let loose in there “cleaning” it out with no DEP review?

[Update 2 5/19/11 – The Senate Environment Committee heard the bill today, but for discussion only. Chairman Smith opened by saying that he had been contacted by many municipalities (300?) and received many resolutions in support of the bill. But Smith also noted environmental group opposition, especially to the C1 waters. Sponsor Senator Cardinale was the first to testify. He made a series of outright false and/or misleading statements that were later very effectively rebutted. Folks should contact members of the Commitee, this is a bill we can kill. You can listen to the testimony here. ~~~ End update]

Update 5/19/11 – Bergen Record does a good story: Environmental groups oppose Bill drafted to alleviate flooding – end update]

Tomorrow morning, the Senate Environment Committee will consider S54 (Cardinale – R, Bergen), a bill that would weaken current protections for high quality waters under the guise of reducing flood risks.

According to the statement on the bill:

This bill would delete the provision under the current stream cleaning law that restricts county or municipal stream cleaning projects which include sediment removal activities to stream corridors of less than 500 feet in length. Under the bill, there would no longer be any such limit on the reach of the stream that could be part of any such project.  The bill would also modify the restriction on the average width of a stream bed that would be allowed to be part of any such project from 15 feet to 50 feet.

In addition, this bill would delete the provision under the current stream cleaning law that prohibits county or municipal stream cleaning projects which include sediment removal activities from occurring in category one waters. This bill would allow these activities to occur in category one waters.

This bill is necessary to allow municipalities and counties to properly, quickly, and economically clean and de-silt streams to help prevent serious flooding that may cause personal injury and property damage.

I just learned of it and banged out the below testimony –  I limited my remarks to the regulatory aspects of C1 waters, but there are other problems as well. In addition, the bill fails to deal with the underlying causes of flooding and reinforces misimpressions that DEP oversight is part of the problem.

Overall message: Legitimate steps to reduce flood risks and streamline DEP permitting must not come at the expense of water quality and protection of ecological function.

Here are DEP’s Stream Cleaning program guidelines the bill would repeal.

Testimony on S54 (Cardinale)

Senate Environment Committee

May 19, 2011

Bill Wolfe, Director NJ PEER

Mr. Chairman, good morning and thank you for the opportunity to comment.

I am Bill Wolfe, Director of NJ Public Employees for Environmental Responsibility (PEER), a national non-profit alliance of local, state and federal scientists, law enforcement officers, and land managers dedicated to upholding environmental laws and values.

I was involved in developing the Category One stream designation and 300 foot buffer protection programs while at DEP from 2002-2004.

Because the bill would eliminate important currrent statutory and regulatory protections for C1 waters, I’d like to take a moment to brief the Committee on the C1 program.

Category One (C1) waters are designated by DEP pursuant to the NJ Surface Water Quality Standards regulations because of their “exceptional ecological, recreational, and/or water supply significance, or exceptional fisheries resources” (NJAC 7:9B-1 et seq).

The policy objective is to preserve the ecological integrity of and protect C1 waters from any reduction in existing water quality.

The designation of C1 waters by DEP is reviewed and approved by US EPA under the federal Clean Water Act, as an element of NJ’s federally mandated Surface Water Quality Standards’ “antidegradation policy”.

The Clean Water Act and EPA regulations mandate that States designate waters and adopt “antidegradation policies” and “implementation procedures” to protect those waters. But the Act and EPA rules do not prescribe how to do so, but leave it up to the States to make those decisions.

Once designated, C1 waters receive enhanced protections under various NJ DEP regulations, including:

1) the NJPDES discharge permit regulations (NJAC 7:14A – 1 et seq);

2) the 300 foot riparian zone requirements under the Flood Hazard Protection Act rules (AKA stream encroachment – NJAC 7:13 – 1 et seq); and

3) the “Special Water Resource Protection Area” (SWRPA – 300 foot buffers) in the Stormwater Management rules (NJAC 7:8-1 et seq).

Under the stormwater management rules, in order to prevent degradation of water quality, disturbance of soils or vegetation in C1 buffers by “major development” is prohibited in most instances. Encroachment and disturbance is allowed in the buffer zone between 300 and 150 feet if a satisfactory demonstration is made that equivalent water quality protection and ecological function can be provided.

I mention the Stormwater Management rules (NJAC 7:8 – 1 et seq) because the SWRPA C1 buffers iitially were promulgated and codified in those rules. The technical and regulatory basis for the C1 buffers in those rules was as a “Best Management Practice” (BMP) designed to protect water quality.

The Stormwater Management Rules – including the SWRPA 300 foot buffer BMPs – are cross referenced in NJ DEP’s municipal stormwater permit rules (NJAC 7:14A – 25.1 et seq).. As such, the C1 buffers also are an element of NJ’s EPA delegated and approved municipal stormwater permit program under the federal Clean Water Act.

The designation methodology and of individual C1 waters is implemented by regulatory amendment of NJ Surface Water Quality Standards, which are reviewed and approved by EPA under the federal Clean Water Act and EPA “antidegradation policy” regulations.

The 300 foot buffer protections are a part of NJ’s EPA approved “antidegradation implementation procedures” required under the Clean Water Act.

Given the exceptional resource values of C1 waters, it is poor public policy to remove regulatory protections and the current statutory prohibition on stream cleaning projects and sediment removal activities from occurring in category one waters.

Legitimate steps to reduce flood risks and streamline DEP permitting must not come at the expense of water quality and protection of ecological function.

Given the US EPA oversight of C1 waters under the federal Clean Water Act’s water quality standards and municipal stormwater permit programs, the bill also raises complex issues of compliance with federal requirements.

I urge the Committee to delete the provisions of the bill related to removing the current prohibition on conducting these activites in highly sensitive and environmentally exceptional C1 waters.

Thank you. I would be glad to respond to any questions you may have.