WolfeNotes.com

A Moratorium On Fossil Infrastructure Is Necessary

Local Resolutions, NEPA, & FERC Won’t Block Pipelines

“I’m not afraid to listen to Bill Wolfe when he has a good idea,”[Senate Environment  Committee Chairman] Smith said. Wolfe says he would like the Legislature to take a stronger stance with a bill to require action by the DEP. ~~~  Kirk Moore of the Asbury Park Press story on 9/27/10

[Intro Note: I understand that a State level moratorium is radical, complex, not a panacea that would solve all fossil infrastructure problems, and would NOT stop the Clean Water Act Section 401 water quality certification review clock for FERC pipelines. It is still a great idea. – 11/3//15 update, end]

NJ doesn’t have coal mines, oil wells, tar sands, or fracking wells to shut down – our challenge is infrastructure.

Aim high friends, this is what is necessary: along with a pledge of resistance and direct action to “throw your body on the gears of the machine” (Savio).

Dear Senator Smith:

I am writing to suggest the need for legislation and present a modest proposal for your consideration.

I assume you are familiar with the various pipeline controversies underway throughout the state, as well as the most recent climate science that warns that we must keep at least 80% of known fossil fuel reserves in the ground if we are to avoid catastrophic warming.

The PennEast gas pipeline capacity alone (1 billion cubic feet per day) would create 21.5 million tons per year of CO2 emissions – that’s more than NJ’s entire instate power sector (using US Energy Information Administration emission factors) – and that does not include far more potent methane emissions from upstream fracking wells and transmission.

Obviously, NJ can’t honor or attain the Global Warming Response Act emission reduction goals if we continue to build fossil infrastructure. 

While the Governor’s power to veto off shore LNG is well known, relatively few people are aware that the DEP has power to kill a FERC regulated pipeline under Section 401 of the Clean Water Act by denying a “water quality certification”. There is a sound legal and scientific basis to do so, given the fact that the PennEast pipeline would cross many (some estimate 31) Category One streams protected by NJ’s EPA approved Clean Water Act anti degradation policy of “no measurable or calculable change in existing water quality”.

(DEP could use State law and regulation to deny permits for non-FERC regulated and intrastate pipelines that impact C1 waters – and all reservoirs are C1 waters. A regulatory roadmap outlined in this post).

Similarly, the Pinelands Commission blocked the proposed South Jersey Gas pipeline, but BPU revived it and is poised to approve it via unilateral and highly dubious regulatory determinations by the Pinelands Commission’s Executive Director.

So, here’s my idea for legislation – it is modeled on the Newark Watershed Moratorium and the Gibson bill Pinelands/Cape May moratorium on water withdrawals:

Introduce a bill to impose a moratorium on State agency approvals of pipelines pursuant to Clean Water Act and NJ Water Pollution Control Act until DEP conducts a study of water quality and climate impacts and develops adequate regulatory safeguards.

There have been many moratoria in NJ –

http://www.wolfenotes.com/2015/07/pinelands-commission-asked-to-impose-a-moratorium-on-pipeline-reviews/

Some have been declared by the Gov. via Executive Order and some by the Legislature via legislation and one by an administrative agency (DRBC fracking moratorium).

The Pinelands Act and the Freshwater Wertlands Act came about as the result of moratoria declared by Governors.

The common theme in all of them is the existence of an immediate and dire threat that requires some kind of time out until safeguards can be put in place.

The Pinelands Kirkwood-Cohansey aquifer study to determine ecologically safe amounts of withdrawals came about with a kind of a moratorium: as a response to salt water intrusion threats, a law was passed that funded the Pinelands Commission/USGS research and it prohibited additional water withdrawals in Cape May until science found a “safe” level”.

New York Times:

“Mr. Gibson’s bill, which was approved in 2001, called for a $2 million study of the projected population and water demands in Cape May County over the next 50 years. The bill also called for a moratorium on new permits to withdraw groundwater in Cape May County — unless the applicant could prove the withdrawal would not exacerbate the saltwater intrusion.

http://query.nytimes.com/gst/fullpage.html?res=950CE6D81531F937A35751C1A9639C8B63

Statement on Gibson bill:

As amended by the committee, this bill would require the Pinelands Commission, in cooperation with the Department of Environmental Protection (DEP), Rutgers, the State University, and the United States Geological Survey (USGS), to assess and prepare a report on the key hydrologic and ecological information necessary to determine how the current and future water supply needs within the pinelands area may be met while protecting the Kirkwood-Cohansey aquifer system and while avoiding any adverse ecological impact on the pinelands area. This bill as amended would appropriate $5.5 million to the Pinelands Commission for that purpose.

Also, as amended by the committee, the bill would require the DEP, in cooperation with the USGS, to assess and prepare a report on sustainable water supply alternatives within Cape May county, but outside of the pinelands area, necessary to meet the current and future water supply needs of Cape May county while avoiding any adverse ground water or ecological impact on Cape May county.

During the assessment and preparation of the report, the bill allows DEP to issue approvals or allocations for increased ground water withdrawals in Cape May County only upon a finding that they will not accelerate salt water intrusion, lower existing stream base flow or harm ecological functions or wildlife. 

http://www.njleg.state.nj.us/2000/Bills/A1000/658_S2.PDF

Here’s another example from North Jersey – the Newark Watershed development moratorium – which was linked to passage of legislation authorizing DEP to regulate buffers – that bill never passed and the moratorium remains almost 30 years later. The Appellate Division explained:

“The vehicle chosen was a moratorium on the transfer of watershed lands, to permit time for the DEP to study and report on the need for and means to secure watershed protection. Included in the proposed study was an evaluation of the effectiveness of establishing buffer zones around public water supply reservoirs for the purpose of protecting drinking water quality.

DEP was further directed to transmit its study, upon completion, to the Governor, the BPU and the Legislature. The Act provided for exemptions from the moratorium, but only upon a showing “that there is a compelling public need for the conveyance of the property, that the denial of the exemption would result in extraordinary hardship, or that the sale or development of the watershed property is otherwise consistent with the purposes of this act.” Applications for exemptions under the Moratorium Act were made subject to consideration by the Review Board, which was created by the Act, consisting of the Commissioner of DEP, the Commissioner of the Department of Community Affairs and the President of the BPU.”

http://law.justia.com/cases/new-jersey/appellate-division-published/1995/a672-94-opn.html

We now are faced with a far more significant – in fact existential –  imminent and substantial threat of climate catastrophe that warrants a moratorium.

No more carbon fuel infrastructure until we know what the impacts of more greenhouses gases are going to be.

No need to be timid or reluctant in making this bold demand – similar moratoria have been enacted – This is politically feasible – and we are on firm scientific and historical grounds.

Wolfe

 

Tom Johnson at NJ Spotlight has a good story covering yesterday’s Assembly Environment Committee hearing, read the whole thing:

• ASSEMBLY PANEL SEEKS TO PULL PLUG ON STATE DEP’S WATER REGULATIONS

After having exposed the DEP lies, now I need to call out to the Farm Bureau’s over the top “nightmare” comment and the Builders Association’s claim about duplication:

But advocates said the current rules are so cumbersome that it prevents people like farmers from doing good things to protect water quality. “The existing rule structure is a nightmare for farmers,’’ said Ed Wengryn, of the New Jersey Farm Bureau.

George Vallone, president of the New Jersey Builders Association, called the existing rules duplicative, lauding the proposal as a common-sense approach to regulation.

First to the farmers – for context, keep in mind that the Farm Bureau sued DEP to block the septic density standards in the Highlands, which should be all you need to know about their agenda.

The storm water rules’ “Special Water Resource Protection Area” (SWRPA) 300 foot buffers along Category One streams are only triggered by “major development”. The definition of “major development” does NOT include farming.

The SWRPA buffers DO NOT APPLY to farming activities. There is no reason to repeal the SWRPA rules tp protect farmers from any “nightmare”.

The Farm Bureau KNOWS THIS and – along with Christie DEP political appointees – is knowingly misrepresenting facts.

However, if a farmer wants to SELL his land for development, the SWRPA would reduce the development potential of the land and thus its appraised value.

The Farm Bureau’s support for this clean water rollback PROVES that all they care about is money from selling their land for development. 

Now to the Builders – again, for context, keep in mind that the Builders sued DEP 3 TIMES – and lost all three – to block the C1 buffers. (*see this Appellate Division opinion and this one and this one). Three strikes and you’re out.

There are two different regulatory “buffers” involved in the DEP proposed rule addressed by the subject Resolution:

1) the “Special Water Resource Protection Area” (SWRPA) in the storm water rules (NJAC 7:8-5.5(h)) that apply to “category one waters” designated in the Surface Water Quality Standards (NJAC 7:9B-1.5) and

2) the “riparian zone” in the stream encroachment rules (NJAC 7:13-1 et seq).

Each buffer has different policy objectives, different technical definitions, and different regulatory standards and protections.

DEP is proposing to repeal the SWRPA and replace it with the riparian zone.

In 2002, DEP launched a water quality initiative to target “exceptional” value high quality waters called “Category One” (C1) for additional protections, above and beyond then current protections provided in various DEP programs, including the stream encroachment permit program.

In 2003 DEP proposed and adopted in 2004 the SWRPA buffers under the storm water rules as a non-point source pollution water quality “best management practice” to protect the exceptional C1 streams from “any change in existing water quality“. (see 35 N.J.R. 136 – 138 – January 6, 2003 for the scientific and technical basis of SWRPA).

The SWRPA was designed to provide protections above and beyond the stream encroachment program protections.

Testimony by the NJ Builders Association stated that the aforementioned two distinct regulatory buffers were redundant and that the subject DEP rule proposal merely streamlined permit programs to avoid duplication.

That is flat out false.

This has nothing to do with eliminating redundancies.

The DEP admits that the proposal will allow additional disturbance that would not be allowed under current rules (page 8 of proposal):

“First, the total amount of riparian zone vegetation allowed to be disturbed for roadways, utility lines, buildings, and other construction activities is proposed to be increased to better reflect the Department’s experience in permitting these activities.

http://www.nj.gov/dep/rules/proposals/20150601a.pdf

The stream encroachment regulations allow many types of disturbance in the buffers that is not allowed under the SWRPA regulations and very different demonstrations and standards to justify disturbance.

Let me offer just one example of how DEP is not streaming or eliminating redundancies, but seriously reducing protections from an Appellate Court decision upholding the DEP’s findings regarding a SWRPA on a C1 stream. That Appellate Court decision clearly distinguished a SWRPA from a riparian zone:

IN THE MATTER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION CATEGORY I WATERSHED DETERMINATION 

http://njlaw.rutgers.edu/collections/courts/appellate/a1499-06.opn.html

The stream encroachment regulations apply only to streams with defined stream bed and bank features. Intermittent streams and swales and sensitive headwaters streams that have no defined bed and bank are not provided a “riparian zone” buffer.

In contrast, the SWRPA buffers apply to intermittent streams and swales, as the Court found:

“The intermittent stream exists without definable bed and banks but is identifiable as a linear depression, commonly referred to as a “swale.” The Stormwater Management Rules do not require that a perennial or intermittent stream be defined by bed and banks in order to have a SWRPA established. N.J.A.C. 7:8-5.5(h)1.1 states: “A . . . special water resource protection area shall be provided on each side of the waterway, measured perpendicular to the waterway from top of bank outwards or from the centerline of the waterway where the bank is not defined . . . .” (emphases mine)

There are many, many other examples I could provide of ho DEP is allowing additional disturbance on the SWRPA buffers that will reduce water quality and increase flood risks.

That is why EPA objected to the DEP proposal as a violation of the Clean Water Act, see EPA letter:

http://assets.njspotlight.com/assets/15/0831/174

I am appalled at all the dishonesty by the supporters of this obvious rollback rule.

Call Assembly Speaker Prieto Today and Ask Him to Post ACR 249

Via abuse of his executive regulatory power, the Christie DEP is proposing to rollback laws that the Gov. can not weaken via the Legislative or Judicial branches.

The Resolution to block the Christie DEP’s rollbacks of clean water protections has passed the Senate and is now before the Assembly.

The Resolution (ACR 249 (Spencer/McKeon) was approved by the Assembly Environment Committee yesterday, so the ball now is in Assembly Speaker Prieto’s Court.

People need to call  – (201) 770-1303 and email Speaker Prieto – asmprieto@njleg.org – and ask him to post ACR 249 for a vote before the end of this legislative session.

Below is a letter I just fired off to urge him to do so:

Dear Speaker Prieto:

For over 40 years, the NJ legislature has passed a series of laws to protect clean water – from the 1960’s Hackensack Meadowlands, to the 1970’s Coastal Zone and Pinelands, the NJ Legislature led the country in establishing regional planning and regulatory frameworks that sought to integrate land use and water resource protections.

The NJ Water Pollution Control Act, the Water Quality Planning Act, and the Water Supply Management Act established a comprehensive planning, standards, monitoring, permitting and enforcement scheme to assure clean and plentiful water for all NJ residents and the ecosystems that rely on clean water.

In 1990, when DEP failed to properly enforce these water pollution laws, the Legislature responded by passage of the Clean Water Enforcement Act, which eliminated DEP enforcement discretion and set mandatory penalties for certain permit violations.

In 1997, recognizing that water resources transcend political boundaries, the Legislature established a new vision, with passage of the Watershed Management Act.

In 2004, when the water resources of the NJ Highlands were threatened by over-development and the uncoordinated planning of many local governments, the legislature again rose to the challenge and passed the Highlands Act, designed to protect existing water quality.

NJ’s clean water laws have continued to evolve and strengthen protections for water resources.

Today, Governor Christie threatens that tremendous progress.

Via abuse of his executive regulatory power, the Christie DEP is proposing to rollback laws that the Gov. can not weaken via the Legislative or Judicial branches.

You must not let that happen.

I strongly urge you to post ACR 249 (Spencer/McKeon) to block DEP’s proposed rollbacks of current flood hazard, storm water management and coastal management regulations. Below is a short note to Chairwoman Spencer who released the Resolution from her Environment Committee yesterday.

The Senate version SCR 180 has passed the Senate – Please post a vote before this legislative session expires.

Respectfully,

Today, the Assembly Environment Committee heard the Assembly version (ACR 249 (Spencer/McKeon) – identical to the Senate SCR 180 – to begin the process of legislatively vetoing the DEP’s proposed 900+ page major overhaul of the Flood Hazard Act’s “stream encroachment” permit program, as well as related sections of the storm water management and coastal management rules.

It’s hard to pin it down to specifics, but given the tenor and conduct of the hearing, I got the feeling that the Chairwoman and the Committee members were not fully convinced that the DEP’s proposed rules were really that bad and violated legislative intent.

The good news was that Assemblyman Wolfe (R) – Ocean County’s flood coordinator – voted in favor, but with no commitment to do so on floor vote and Assemblyman Rumana  (R) abstained largely because he said that DEP did such a poor job defending the proposal and failed to show up to testify.

Good news also from Assemblyman Benson (D), who in supporting the Resolution laid out a thoughtful 2 prong test that influenced his colleagues. But even Benson did not commit absolutely and seemed somewhat lacking in confidence.

Overall, support seemed thin.

Surprisingly, NJBIA and the Chamber of Commerce were muted in their defense of the DEP’s rule, likely as a result of the thrashing that DEP and the proposal took in the Senate on October 18 (which is probably why DEP failed to show up and defend themselves).

But the Builders and the agriculture community didn’t blink and came out hard in opposition to the Resolution, at times making it appear that the economy of the State and the housing market were dependent on this DEP rollback.

[*The tone and aggressive content of the Builders testimony was a sharp contrast to their prior timidity before the Senate Environment Committee. This leads to my concerns that they have lobbied Assembly Democratic leadership.]

Legislators seemed reluctant to frontally challenge the arguments of powerful lobbyists like the NJBIA, Chamber of Commerce, and NJ Builders Assc. and fully support the Resolution.

In their concluding remarks – Chairwoman Spencer did not exactly welcome the testimony of environmental supporters and distanced herself from the supporters of her own Resolution – legislators seemed equivocal.

It was rather a weird scene.

Given that, it is vitally important that the public reach out to Assembly leadership and representatives and urge their support before the end of the lame duck legislature.

So, to buck up reluctant supporters, I sent the following letter to the Committee:

Dear Chairwoman Spencer:

I’d like to supplement my testimony today on ACR 249, and clarify significant misrepresentations.

There are two different regulatory “buffers” involved in the DEP proposed rule addressed by the subject Resolution:

1) the “Special Water Resource Protection Area” (SWRPA) in the storm water rules (NJAC 7:8-5.5(h)) that apply to “category one waters” designated in the Surface Water Quality Standards (NJAC 7:9B-1.5) and

2) the “riparian zone” in the stream encroachment rules (NJAC 7:13-1 et seq).

Each buffer has different policy objectives, different technical definitions, and different regulatory standards and protections.

DEP is proposing to repeal the SWRPA and replace it with the riparian zone.

In 2002, DEP launched a water quality initiative to target “exceptional” value high quality waters called “Category One” (C1) for additional protections, above and beyond then current protections provided in various DEP programs, including the stream encroachment permit program.

In 2003 DEP proposed and adopted in 2004 the SWRPA buffers under the storm water rules as a non-point source pollution water quality “best management practice” to protect the exceptional C1 streams from “any change in existing water quality“. (see 35 N.J.R. 136 – 138 – January 6, 2003 for the scientific and technical basis of SWRPA)

The SWRPA was designed to provide protections above and beyond the stream encroachment program protections.

Today, testimony by the NJ Builders Association stated that the aforementioned two distinct regulatory buffers were redundant and that the subject DEP rule proposal merely streamlined permit programs to avoid duplication.

That is false.

The DEP admits that the proposal will allow additional disturbance that would not be allowed under current rules (page 8 of proposal):

“First, the total amount of riparian zone vegetation allowed to be disturbed for roadways, utility lines, buildings, and other construction activities is proposed to be increased to better reflect the Department’s experience in permitting these activities.

http://www.nj.gov/dep/rules/proposals/20150601a.pd

The stream encroachment regulations allow many types of disturbance in the buffers that is not allowed under the SWRPA regulations and very different demonstrations and standards to justify disturbance.

Let me offer just one example of how DEP is not streaming or eliminating redundancies, but seriously reducing protections from an Appellate Court decision upholding the DEP’s findings regarding a SWRPA on a C1 stream. That Appellate Court decision clearly distinguished a SWRPA from a riparian zone:

IN THE MATTER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION CATEGORY I WATERSHED DETERMINATION 

http://njlaw.rutgers.edu/collections/courts/appellate/a1499-06.opn.html

The stream encroachment regulations apply only to streams with defined stream bed and bank features. Intermittent streams and swales and sensitive headwaters streams that have no defined bed and bank are not provided a “riparian zone” buffer.

In contrast, the SWRPA buffers apply to intermittent streams and swales, as the Court found:

“The intermittent stream exists without definable bed and banks but is identifiable as a linear depression, commonly referred to as a “swale.” The Stormwater Management Rules do not require that a perennial or intermittent stream be defined by bed and banks in order to have a SWRPA established. N.J.A.C. 7:8-5.5(h)1.1 states: “A . . . special water resource protection area shall be provided on each side of the waterway, measured perpendicular to the waterway from top of bank outwards or from the centerline of the waterway where the bank is not defined . . . .” (emphases mine)

There are many, many other examples I could provide of ho DEP is allowing additional disturbance on the SWRPA buffers that will reduce water quality and increase flood risks.

That is why EPA objected to the DEP proposal as a violation of the Clean Water Act, see EPA letter:

http://assets.njspotlight.com/assets/15/0831/1743

Finally, to clarify another serious misrepresentation in testimony today: the SWRPA buffers that DEP is proposing to repeal apply to “major development”. They do not apply to ANY agricultural activities. Repeal of the SWRPA would have no impact on the agricultural activities of farmers.

I trust you received my several prior written comments I submitted – I have not received a confirmation, but would be glad to resend several detailed technical analyses I have written on the DEP rule proposal that go into great detail on how the proposal would harm water quality in conflict with legislative intent.

I also provided a detailed analysis of why the DEP’s proposed riparian mitigation scheme is not authorized by legislation under the Flood Hazard Act.

Please let me know if I can be of further assistance in clarifying these complex regulatory issues to you or OLS staff.

Once again, thank you for sponsoring the Resolution and I urge you to work for full Assembly passage this Legislative session.

Respectfully,

*ps- ironically, I though the strongest testimony in support came from Jenn Coffey of ANJEC, who recently gave me a very hard time over meaningless BS.

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

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.