Storm(y) Waters on the Horizon: Changes Coming to Regulation of Stormwater in New Jersey

Title:
Storm(y) Waters on the Horizon: Changes Coming to Regulation of Stormwater in New Jersey
Publication:
Riker Danzig Environmental UPDATE May 2019
Attorney:
Practice:

Regulation of stormwater in New Jersey is undergoing a shakeup that may have significant consequences for redevelopers and property owners. In fact, New Jersey recently enacted legislation that allows municipalities to create stormwater utilities. This legislation, which has been called a “rain tax,” authorizes these utilities to impose fees and take other actions to control stormwater. The NJDEP also recently proposed changes to the regulations governing stormwater management in connection with certain construction projects. The newly proposed requirements include minimizing the use of impervious materials and promoting green stormwater infrastructure. While conservationists argue that these proposed rules do not go far enough to address environmental issues relating to stormwater, if adopted the proposed changes would impose more burdensome requirements on construction projects. In any event, redevelopers and property owners should carefully consider these new developments, as they will have an impact on existing and planned projects.

As noted, a major change in the regulation of stormwater in New Jersey results from the passage of legislation that allows municipalities to create stormwater utilities. A key component in the legislation is the ability for these utilities to impose fees on a property owner based on “a fair and equitable approximation” of how much runoff is generated from its property, but property owners can obtain fee reductions through certain stormwater management activities. The “fair and equitable” standard is vague and may be subject to challenge, if and when local governments begin to form stormwater utilities. The new legislation is permissive, not mandatory, and it is not yet clear how many local governments will decide to set up stormwater utilities. The new legislation also contains other provisions relating to stormwater management, including procedures and standards for the dedication of a stormwater management system to a municipality. Redevelopers and property owners should monitor the creation of stormwater utilities within their municipalities.

The proposed changes to the stormwater regulations are more technical in nature and include:

While there has been some praise for certain of these proposed changes from environmentalists—such as the focus on requiring green infrastructure to better manage stormwater— if these additional changes are adopted, which seems likely, they could raise costs for new developments and construction projects.

For more information, please contact the author Jason Boyle at jboyle@riker.com eor any attorney in our Environmental Practice Group.