Environmental UPDATE January 2003

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Title:
Environmental UPDATE January 2003
Date:
January 1, 2003
Publication:
The January 2003 Riker Danzig Environmental UPDATE
Area(s) of Practice:
Environmental Law

 

Site Remediation
Eminent Domain
Wetlands
In the Courts
Insurance
Air
EPA
Legislative Action
NJDEP
Environmental Justice

New Stormwater Runoff Controls Proposed The New Jersey Department of Environmental Protection ("NJDEP") has proposed new rules designed to protect the state's vital water resources by reducing the pollution caused by stormwater runoff and encouraging groundwater recharge throughout the state. The proposal represents the first major update since the Stormwater Management Rules were first adopted in 1983.

The proposed rules represent a significant departure from NJDEP's traditional "end-of-the pipe" approach to managing stormwater runoff, where controls are designed to capture runoff immediately from the location of the precipitation in order to pipe it into storm drains, basins and then into a waterbody. The Department has now determined that the dramatic increase in developed lands makes these past practices insufficient to address the impacts of stormwater runoff on erosion, flooding, water quality and groundwater recharge.

The new proposed rules stress source reduction and pollution prevention through better site design. Builders of new major developments will now have primary responsibility to incorporate nonstructural stormwater management strategies during the design phase to prevent environmental disturbances. Nonstructural stormwater management strategies are features designed to reduce the volume of stormwater runoff, reduce erosion, encourage infiltration and groundwater recharge, and minimize discharge of pollutants that might affect stormwater quality. Some of the nonstructural management strategies proposed include:

 

  • Protection of areas that have natural filtering properties or areas particularly nn susceptible to erosion and sediment loss, such as those near watercourse vegetationnn
  • Minimization of impervious surfaces nn
  • Protection of natural drainage features and vegetationnn
  • Minimization of land disturbance activities, including clearing and gradingnn
  • Minimization of soil compactionnn
  • Incorporation of low maintenance landscaping and minimal use of lawns, fertilizers and pesticides

Another category of nonstructural stormwater management strategy is preventative site design features. Preventive controls are any features designed to prevent or minimize the use or exposure of pollutants at the site so as to prevent or minimize contact between those pollutants and stormwater runoff. Some examples of preventive source controls include features that prevent the accumulation of trash or debris in drainage systems, help prevent discharge of trash and debris from the drainage systems into the waterbody, and help prevent and/or contain industrial and commercial spills and pollutants. NJDEP anticipates that some of these preventive source controls also will be implemented as part of the post-construction management of the development or project.

The rules also propose new groundwater recharge performance control standards for major developments. There are two options for satisfying the new recharge performance standards. Under the first option, developers would have to maintain the same rate of recharge from post-construction development as occurred pre-construction. The second option requires a demonstration, through hydrologic and hydraulic analysis, that the difference between the stormwater runoff volume pre-construction and post-construction for a 2-year storm has been infiltrated.

The groundwater recharge performance standards are not applicable to projects qualifying as urban developments, which is consistent with the Governor's Smart Growth initiative to promote redevelopment in these areas. Additional waivers and limitations are applicable to the types of stormwater runoff that can be recharged. Specifically, the rules prohibit recharge from high pollutant loading areas - areas in industrial and commercial development - and industrial stormwater runoff exposed to "source material."

In addition to the recharge standards, the proposed regulations also address water quality controls. These regulations would require, as part of the site design, the reduction of post-construction total suspended solids ("TSS") by 80%, expressed as an annual average. With perhaps the exceptions of wet ponds and infiltration basins, the use of current strategies, such as extended detention basins, will not accomplish the 80% reduction alone. Therefore, the rules anticipate implementation of Best Management Practices ("BMP") to accomplish the necessary reduction. The TSS reduction standard will not apply to land that is expected to be deliberately, continuously and frequently disturbed after construction has ceased (e.g., mining). Instead, such areas will be controlled by applying the minimum standards for erosion control.

For Category One waters, which include some of the State's most vital streams, wetlands and reservoirs, the rules also provide for an increased buffer zone to prevent new point source discharges of stormwater into the waterway in order to preserve their pristine values. To protect Category One waters, the rules propose increasing the buffer zone around these areas from the current 50 feet to 300 feet. However, where developments or disturbances already have occurred, encroachment will be permitted provided that the "functional value and overall condition" of these waters can be "maintained to the maximum extent practicable." In any event, there can be no reduction of the special buffer zone to less than 150 feet.

In sum, the new rules propose non-structural stormwater controls intended to reduce the volume of stormwater that would need to be treated to achieve the NJDEP's water quality objectives and to provide final opportunities to naturally filter pollutants in runoff or flood waters. The impact of the rules will require innovative and sometimes costly technologies to accomplish their goals. In addition to implementation of BMPs, developers will be required to come up with their own creative solutions for balancing impervious areas with landscaping designs to promote groundwater recharge at a particular site. In addition, the regulations prohibit construction around pristine waterways, thus limiting new construction in these areas.

The official version of the proposed rules was published in the January 6, 2003 New Jersey Register with a two month comment period.

 

Site Remediation

 

NJDEP Rolls Out New Brownfields Policy

NJDEP recently proposed new brownfields policies and other changes to the site remediation program that are designed to reduce regulatory uncertainty and obstacles to redevelopment of brownfields and to expand potential reuses of brownfields in New Jersey. See Policy Directive 2002-003, Acceleration of Brownfields Cleanup and Reuse (November 25, 2002). The changes are significant and merit close attention. The new brownfields policy contains the following elements:

New Programs to Encourage Brownfields Redevelopment
Office of brownfields Reuse. NJDEP will establish a new program office to serve as the focal point for brownfields programs at NJDEP. The Office of Brownfields Reuse will provide support to developers seeking agency oversight, to affected communities where brownfields are located, and to NJDEP staff reviewing redevelopment proposals.