-------Original Message-------
From: mjking <mjking@proriverview.org
Subject: Re: Category 1 Buffers and Mapping
Sent: 19 Nov '07 18:26
Mr Baier:
I have to bring forward your letter to the Buffer Buffs, on behalf of
Commissioner Jackson, to respond to our
"When to Use the Functional Value
Analysis Letter". Your letter is pasted immediately below, whereas our FVA
guidance is
further down.
On November 11, 2007, in correspondence to Asst. Commissioner Mauriello, the Buffer Buffs have called for
enforcement of the law. (see it below) The
Commissioner clearly intended that the Administrative Oder No.
2007-01 be enforced and your letter is
proof. Therefore, I repose my question to Asst.Commissioner
Mauriello: Why hasn't
the Department taken the requisite steps
to correct mistakes in implementing the FVA?
Mike King
Dear Mr. King:
Commissioner Lisa Jackson has asked me to respond to your February 11,
2007, e-mail to her outlining your
concerns
in regard to protecting Category One Waters through the Stormwater
Management Rules and in particular the
application of the Functional Value Analysis (FVA) of the Special Water
Resource Protection Area (SWRPA) recently
released and referenced in Administrative Order No. 200701.
From your correspondence it is clear that you are well aware of the
purpose of the SWRPA and that Administrative
Order No. 2007-1 was issued to help us better achieve that purpose. The
FVA will be applied to all proposed
encroachments into the SWRPA being reviewed by the Department of
Environmental Protection (Department),
including those submitted prior to the Administrative Order. Since all
encroachments into the SWRPA can only be
approved by the Department this would include all projects subject to
the requirements of the Stormwater
Management Rule that are under local review and have not already
received approval from the Department.
Regarding your suggestion that the Department require an
anti-degradation analysis, a more inclusive anti-
degradation
and water quality study is an option that, because of the nature of
would not normally require unless to address a known problem pollutant.
In fact, the Special Water Resource
Protection Area (SWRPA) is considered a Best Management Practice (BMP)
that is to be applied in lieu of anti-
degradation analysis. Thus, the Department does not require both.
With regard to coordinating with other regulatory programs, the
Department is working to insure that
municipalities comply with all the
appropriate requirements, including those along Category One Waters, in their
Municipal
Stormwater Plans and Ordinances required under the New Jersey Pollutant
Discharge Elimination System (NJPDES)
program. It is also worth noting the issue of statewide buffers,
including those along Category One Waters will also
be addressed in the soon to be proposed
Water Quality Management Planning Rules, N.J.A.C. 7:15-1 et seq. However,
it is not the Department's intent that
either of these rules would supercede the SWRPA requirements
of the
Stormwater Rules. These rules supplement
rather than supplant the SWRPA requirements and the more stringent requirements
will prevail.
The Department is working to educate the State about the new FVA and
stormwater requirements in general,
including providing training through
Rutgers Office of Continuing Education on March 28 and 29, 2007 entitled
"Stormwater
Management Rules and BMP Manual". The Department agrees that
additional outreach to municipalities may be
necessary in order to emphasize that all encroachments into the SWRPA
require Department approval. The
Department is considering how best to
communicate with them at this time.
Finally, your e-mail indicated concern regarding enforcement of the
SWRPA provision. Please note that
enforcement of this provision and of the
Stormwater rule in general, is provided for thorough the implementing rules
(i.e.
Freshwater Wetlands, Flood Hazard, NJPDES) and therefore need not be specifically addressed in
the Functional Value
Assessment or the Administrative Order
regarding the same.
Thank you for taking the time to share your thoughts and concerns
regarding the Functional Value Analysis. If you
have any additional concerns, please contact me at (609) 984-0058.
Sincerely,
Lawrence J. Baier, Director
Division of Watershed Management
-------Original Message-------
From: mjking
<mjking@proriverview.org
Subject: Re: Category 1 Buffers
and Mapping
Sent: 19 Nov '07 15:02
Ms. Guru:
The letter to the Commissioner
about the Harmony matter is pasted below as per your request. Certainly the
letter deserves a response, and so I
take you up on your offer. However, the Department cannot seriously address
this
issue on a case-by-case basis, we cannot provide the examples of
violations, nor should we be expected to. Common
sense would suggest that DEP knows where the C-1 streams are, knows
where the buffers are, knows where the
permits are, and knows where the FVAs must be conducted.
We would ask DEP to use its
sophisticated GIS systems and produce a statewide overlay map that shows:
* the existing stream coverage
data layers;
* the existing stream SWQS
classification data layer
* the existing HUC 14 drainage
data layer
* SCS and USGS maps referenced in
the rules
* pending permit applications
Surely, this information must
have been considered as part of the impact assessment on 1) the recently
proposed C-1 upgrades; 2)the recently
proposed WQMP rules; 3) the recently proposed stream encroachment rules; 4) the
development of the FVA and DEP
management oversight of the FVA; 5) coordination with the Highlands RMP;
and 6) in establishing DEP field
enforcement inspections.
Commissioner Mauriello
should annex the above items to the delineated ideas, in our letter of November
11th,
for purposes of devising a complete
protection plan for the C-1s as required by law. I look forward to his
response.
Mike King, Coordinator of
REALsmart, on behalf of the 28 groups, known as the buffer buffs, that
signed the letter to the Asst.
Commissioner
cc: Bill Wolfe, Director, NJ PEER
Re: Administrative Order #
2007-01.
Harmony Twsp
Warren County
JCA # 15556
Commissioner:
The NJDEP has disqualified all
mapped C-1 tributaries except for one and that one will have a buffer reduction
to 150 feet. For that one, testing will
be required after construction which is very different from the Commissioner's
order 2007-01 which required the FVA be
done before construction. After construction what will the NJDEP do about
failure? Kick the residents out of their
houses?
The best thing and most logical
action considering that the Commissioner's order 2007-01 did not establish
law, it merely requires compliance with
existing law, would be for the department to order the FVA now.
Please realize that these 21
houses would be constructed on a NJDEP designated Natural Heritage Priority
site
known as the Harmony Grasslands
and so designated because of T&E bird species still extant on the site.
Failure
of recharge on karst
topography is another limitation of the site which the NJDEP is getting around
by creatively
bending the storm water rules. Such manipulations of
existing law to develop a NHP site does not reflect favorably on
the department. As you have in the past,
I ask you again to please use the tools at your disposal to intervene in
defense of this last vestige of these species in
Mike King, Chairman
Phillipsburg Riverview
Organization
68 S. Main St.
Phillipsburg, NJ 08865
-------Original Message-------
From: Madhu Guru
<Madhu.Guru@dep.state.nj.us
Subject: Re: Category 1 Buffers and Mapping
Sent: 13 Nov '07 13:47
I will be very glad to research this case and
call you back with some answers. I am trying to figure out
which project you are referring to. You
made a reference to a project in Harmony. Do you have an applicant and
project name? How about a lot and block
no?
Madhu Guru
"mjking" <mjking@proriverview.org
11/11/2007 9:17 PM
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
outstanding 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
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
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