From: mjking <mjking@proriverview.org>
Subject: Fw: Category 1 Buffers and Mapping
Sent: 12 Nov '07 02:27
To: Mark N. Mauriello, Assistant Commissioner NJDEP, Land Use Management
Re: Category 1 Buffers and Mapping
"Is it the habit of
the Commissioner to issue an order and not have it enforced by her own staff?”
Assistant Commissioner:
Last year the 300 foot buffer buffs asked that the C-1 law be enforced by
ending the practice of reducing buffers for
agricultural disturbance and requiring that a Functional Value Analysis (FVA)
be conducted as required by law
(NJAC 7:8-5.5(h)).
As you indicate (below) in the announcement of the administrative order
#2007-01, that is exactly what the
Commissioner ordered. Since than we have waited for implementation of
that order. A FVA is required for buffer
reductions, yet many projects are proceeding without complying and buffers are
being disturbed without having
conducted the FVA. Recently, I wrote to the Commissioner about one such case in
issues for full implementation were expounded upon, but nine months later, the
Commissioner's administrative order
remains unimplemented. Is it the habit of the Commissioner to issue an order
and not have it enforced by her own
staff?
It is my sad duty to report, that in addition to not obeying the Commissioner's
order, the department is not obeying
the law, as regards the treatment of C-1 tributaries. Mapped tributaries are
being ignored as a result of a suspect on
site inspection, conducted by NJDEP staff, based on a dubious understanding or
reading of the law. Therefore,
we additionally urge NJDEP to apply the buffer rules to regulate
tributaries, including intermittent and headwater
streams identified on soil maps, as required in the rules (within the HUCH 14
of the C1).
If NJDEP is going to apply a field method to determine the applicability of the
buffer rules, it must do so either in
accordance with regulations, a technical manual, an AO, or a field guidance
document that has undergone peer and
public review and comment. Anything less, breaks the law, and is the
undoing of the C-1 in
of the environmental agency whose duty it is to enforce the law on their
behalf.
Mike King, Coordinator, REALsmart, the league for real smart growth, on behalf
of the undersigned buffer buffs
representing 28 groups throughout New Jersey
cc: Bill Wolfe, Director, NJ PEERS
Sincerely,
Association of New Jersey Environmental Commissions (ANJEC) Sandy Batty,
Executive Director
Citizens United to Protect the Maurice River and its Tributaries, Inc, Jane
Morton Galetto, President
Coalition for Affordable Housing and the Environment, Paul Chrystie, Executive
Director
Delaware Riverkeeper Network, Tracy Carluccio, Special Projects Director
Eco Action Initiatives of Warren County, Laura Oltman, Director
Friends of Holland Highlands, Michael Keady, President
Friends of Little York, (Hunterdon County). Robert Reid, spokesperson
Hackensack Riverkeeper, Capt. Bill Sheehan
Musconetcong Watershed Association, Beth Styler Barry, Executive Director
New Jersey Audubon Society, Susan Kraham, Director of Policy and Counsel to the
President
New Jersey Conservation Foundation, Alison Mitchell, Policy Director
New Jersey Environmental Federation, David Pringle, Campaign Director
New Jersey Highlands Coalition, Julia Somers, Director
New Jersey State Federation of Sportsmen's Clubs, George P. Howard,
Conservation Director
New Jersey State Federation of Women'sClubs, Marjorie Strohsahl
Newton Creek Watershed Association, Mark Dill, President
New York - New Jersey Trail Conference, Dennis W. Schvejda, Advocacy Director
North Byram Concerned Citizens, Scott Olson
Phillipsburg Riverview Organization, Reggie Regrut, Executive Director
Pinelands Preservation Alliance, Richard Bizub, Director of Water Programs
Rancocas Conservancy, Barbara Rich, President
Save Barnegat Bay, Willie deCamp, President
Sierra Club, N.J. Chapter, Jeff Tittle, Director
Skylands CLEAN, Eve Tomczak, Associate Director
South Branch Watershed Association, William S. Kibler, Executive Director
Stony Brook-Millstone Watershed Association, Jim Waltman, Executive Director
Upper Raritan Watershed Association, Cindy Ehrenclou
Upper Rockaway River Watershed Association, Connie Stroh
> -------Original Message-------
> From: Mark Mauriello <Mark.Mauriello@dep.state.nj.us>
> Subject: Category 1 Buffers
> Sent: 04 Jan '07 21:08
>
> Mr. King
>
> While I have never actually spoken to you directly about any of
these issues or discussed my interpretation of DEP
requirements with you, I have received your prior emails and have been aware of
your concern regarding the
Department's implementation of the stormwater management rule provisions
relative to farmland conversions adjacent
to Category 1 waters.
>
> I have attached for your information a copy of Administrative Order
# 2007-01, signed by Commissioner Jackson
yesterday, along with a copy of the Department's Functional Value Analysis
guidance document, dated January 2,
2007. The AO, which took effect yesterday, explains how the Functional Value
Analysis will be used in all permit
decisions.
>
> A copy of these documents can be accessed via a link from the
Division of Watershed Management's web page at:
www.state.nj.us/dep/watershedmgt
> Mark N. Mauriello, Assistant Commissioner
> NJDEP, Land Use Management
> P.O. Box 402
> Trenton, NJ 08625-0402
> Phone: 609-292-2178
> Fax: 609-633-0750
> Email: mark.mauriello@dep.state.nj.us
> Web: www.state.nj.us/dep/
>
>
Dear Commissioner Jackson:
Thank you for considering our concerns and adopting the FVA Guidance
(Administrative Order No. 2007-01).
When to Use the Functional Value Analysis
Based on our review of that Guidance, we are writing to clarify regulatory and
implementation issues. We remain
concerned that the FVA did not close all the loopholes in proposals to reduce
the width of 300-foot Category One
Water buffers to 150 feet, especially as part of conversion of former agricultural
lands to major development.
Additionally, the Guidance is silent about cases where C1 buffers have been
disturbed in the absence of a FVA
demonstration.
In such cases, we seek aggressive DEP enforcement against disturbance in the
regulated buffer zone. At a minimum,
enforcement action should seek restoration to pre-disturbance conditions.
Last, we request that the Department
provide guidance to local governments to correct errors in interpretation of
DEP's buffer rules, particularly given the
fact that the Department's staff may have provided incorrect interpretations
that municipal officials continue to rely
on.
As you know, the 300-foot buffers along C1 waters were adopted as a stormwater
BMP that is codified in the
stormwater management rules (NJAC 7:8-5.5(h)). According to the
Department's Basis and Background statement in
the stormwater rule proposal (35 NJR 199(a); January 3, 2003), the 300-foot
buffers are presumed, in the absence of
a demonstration, to maintain "exiting water quality" and protect
"existing uses" from the adverse impacts of major
development. Maintenance of EWQ and protection of existing uses are the
anti-degradation policy mandated for
Category One waters pursuant to the surface water quality standards (NJAC 7:9B-1.5).
The 300-foot buffers were designed by the Department as an anti-degradation
implementation policy for C1 waters.
From a regulatory and technical perspective, the 300-foot buffers serve in lieu
of an applicant's requirement to
conduct a site-specific anti-degradation demonstration and water quality
studies for all point and non-point source
pollutants. As you know, the NJPDES rules (NJAC 7:14A) include
anti-degradation review requirements for point
source discharges, but not non-point source pollutant loadings. The C1
buffers were designed as part of an effort to
close this loophole by applying the C1 anti-degradation policies to NPS loads
associated with "major development."
However, the Department recognized that in some cases, the presumptive BMP
would not be adequately protective.
Therefore, under the stormwater management rules, the Department reserved its
authority to require scientifically
valid, site-specific demonstrations as necessary to comply with the surface
water quality standards and anti-
degradation policies (NJAC 7:8-1.5(a)). Site specific requirements would
include an anti-degradation analysis and a
water quality study to demonstrate that the post-construction conditions and
NPS pollutant loadings associated with
major development would maintain existing water quality and comply with the
surface water quality standards.
We believe that the Department should require such site-specific studies as
part of the FVA demonstration for any
encroachment in the 300-foot buffer along C1 waters.
Aside from these site-specific anti-degradation and water quality study review
requirements, according to the
stormwater management rules (NJAC 7:8-5.5(h)), agriculture is only an allowable
buffer "disturbance" if maintained in
active use. Conversion of land to major development may not encroach upon
disturbed agricultural buffers. The
Department is required to enforce its own rules and mandate 300-foot buffers
with no exceptions allowed.
All other non-agricultural buffer encroachment allowed by the rules should
trigger the Functional Value analysis.
NJDEP Guidance to Municipalities
Local government officials have been advised by Department officials that
buffer reductions are acceptable on former
agricultural lands. It is NJDEP's responsibility to fix this error by
providing the correct guidance via a mailing to all
local governments. Instead of implementing the FV Guidance on a case by
case basis in response to various permit
applications for "major development," we urge the Department to
implement the FV Guidance on a statewide basis, in
consideration of municipal land use requirements. Such an approach would
allow towns to incorporate the C1
protections in municipal land use planning, zoning, and development review
ordinances. In addition to the
stormwater management rules, there are at least two other regulatory mechanisms
that the Department can rely on to
provide the FVA and compliance guidance to towns on a statewide and enforceable
basis.
The first is the Department's New Jersey Pollutant Discharge Elimination System
(NJPDES) revised stormwater rules
(NJAC 7:14 - 36 N.J.R. 813(a)). Under those rules, the Municipal
Stormwater Regulation Program regulates, in some
form, all 566 municipalities within the State via either Tier A or Tier B final
NJPDES general permits. These regulations
and the NJPDES municipal stormwater general permits require compliance with the
stormwater management rules
(NJAC 7:8-1 et seq.). NJPDES permit compliance requirements include adoption
of various municipal ordinances,
including C1 stream buffer protection ordinances that meet the requirements on
NJAC 7:8-5.5. We are very
concerned that Towns are not adopting C1 buffer ordinances and that the
Department is not enforcing the stormwater
permit requirements, particularly in towns with C1 waters. Stormwater
compliance oversight is a logical means to
promulgate this guidance to towns.
Second, we understand that the Department will soon be proposing rules to
revise and reauthorize the "water quality
management planning rules" (NJAC 7:15-1). We expect that those WQMP
rules will incorporate and require adoption
by ordinance of the FV Guidance and other local ordinances required by the
municipal stormwater permit program.
The Department should take enforcement action in all cases where buffer
disturbance or major development proposals
have gone forward despite site-specific requirements of the SWQS and stormwater
management rules, as well as the
FVA Guidance.
In closing, we ask that the Department clarify implementation requirements
under the FVA Guidance with respect to its
applicability and review procedures relative to:
1) where major development has been approved locally in the absence of the FVA;
2) where major development is pending local review in the absence of the FVA
3) where DEP has issued land use permits, WQMP amendment and other approvals in
the absence of the FVA; and
4) where DEP land use permits, WQMP amendments, and other approvals of major
development are pending review.
Sincerely,
Mike King, Coordinator REALsmart
cc: Bill Wolfe, Director NJ PEER