-------Original Message-------
From: mjking <mjking@proriverview.org
Subject: Fw: Category 1 Buffers and Mapping
Sent: 12 Nov '07 02:27
To: Mark N. Mauriello, Assisstant 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 New Jersey, at the
hands 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, Assisstant
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