Gary J. Brower, Esq.
Attn: DEP Docket Number 05-15-04
New Jersey Department of Environmental Protection
Office of Legal Affairs
Mail Code 401-04L
401 East State Street, 7th Floor
P.O. Box 402
Trenton, NJ 08625-0402
RE:
Flood Hazard Area Control Act Amendments
Proposal: PRN-2015-053
Dear Mr. Brower:
Please accept the following as our comments to the Flood Hazard Area Control
Act rule proposal.
The DEP correctly notes that New Jersey has a “dense population and extensive
level of existing development within flood hazard areas,” and that “periodic flooding
causes severe, repetitive, and deleterious social, economic, and environmental impact.
Flooding has and continues to be the most frequent, destructive, and costly natural
hazard in New Jersey and is responsible for the large majority of disaster-related
damage reported in the State.” 47 N.J.R. 1047. The Department also acknowledges the
importance of the flood fringe and riparian zone in protecting against flooding and
environmental impacts. 47 N.J.R. 1049-1050. Given the DEP’s recognition of these
issues, the proposal’s increase in the amount of allowable disturbance in the riparian
zone and reduction in the amount of mitigation required for these disturbances is
contrary to the requirements and intent of the Flood Hazard Area Control Act, which
requires the DEP to protect the “safety, healthy and general welfare of the people” of
New Jersey. N.J.S.A 58:16A-50(b). Loosening standards does not achieve this goal and
in fact, may promote the opposite by making it easier to place people and property in
harm’s way; therefore, the Department should not adopt these regulations. Below are
our specific comments to various sections of the proposal.
We object to the Departments deletion of the Special Waters Resource Protection
Areas (SWRPA) under the Stormwater Rules. While the SWRPA does not apply to all
of the same waters when compared to the FHA’s 300’ riparian zone; that does not mean
it is inconsistent or duplicative. The SWRPA provides additional protections against
disturbance compared to those found in the FHA’s riparian zone standards. The
SWRPA rules split the 300’ buffer into an inner 150’ section and an outer 150’ section.
The inner 150’ of the 300’ SWRPA buffer around C1 streams and their tributaries must
remain undisturbed by development. In the outer 150, the SWRPA rules allow for
development only if the area was previously disturbed or developed and an applicant
can demonstrate that the functional value and overall condition of the SWRPA will be
maintained. N.J.A.C. 7:8-5.5(h)1(i) and (ii).
The FHA rules permit disturbance to the
inner as well as the outer 150’ of the 300’ riparian zone. If the DEP is interested in
standardizing language, a solution to the first issue is the expansion of the scope of the
SWRPA so that it applies to the same waters as the riparian zone under the FHACA
rules and under the same circumstances as the FHACA rules (i.e. the SWRPA is
triggered by all projects, not just projects that meet the definition of “major
development” and the SWRPA should also apply to all regulated waters not just “blue
line” water.). Second, given the FHA rule’s objective of protecting and enhancing
water quality, the inner 150’ of the 300’ riparian zone should receive similar protections
to those afforded under the SWRPA.
We object to the Department’s proposal at N.J.A.C. 7:13-11.2, specifically, the
provision that allows for one quarter acre of additional disturbance to the riparian zone
without requiring mitigation. This provision will lead to water quality degradation or,
at the very least, is counter to the goal of maintaining existing water quality.
The Department is proposing to add additional general permits, permits by rules
and permits by certifications. These types of permits can only be promulgated if there
is a finding that the proposal has a de minimis impact on the environment individually
as well as cumulatively. The proposal document does not discuss the Department’s
analysis demonstrating the compliance with this requirement. Further, permit by
certification requires relying on a third party to ensure compliance with the
Department’s requirements. There is little assurance that the Department will have the
staff to inspect these proposals prior to their construction and little evidence that
enforcement actions will be taken in situations where the certifications were incorrect.
Despite DEP’s acknowledgement of the environmental and flooding impacts of
dense development, these proposed rules would increase the number of situations
where development within the riparian zone may be grandfathered in and thus avoid
compliance. This is contrary to DEP’s statutory mandate. It is also contrary to the
Department’s statutory obligations to increase the number of situations where an
applicant may obtain permission to build in the riparian zone on a subdivided property.
Under the existing rules, a property is required to have been subdivided prior to
November 2007 in order for both new lots to be eligible for a FHA permit. The new
proposal would allow an impact to the riparian zone when one did not exist prior to the
subdivision. As “[f]looding presents a significant risk to the public health, safety, and
welfare due to loss of life, injury, and property,” the rules should minimize situations
that result in impacts to the riparian zone, and this provision does not accomplish that
goal. In the same light, the proposal to allow an additional 2,000 square feet of
permanent disturbance for the enlargement of a home during reconstruction is contrary
to statutory requirements.
Similarly, the granting of 4,000 square feet of additional
disturbance for accessory structures will place people and property in harm’s way and
increase the amount of runoff that will enter our waterways. We therefore oppose
proposed N.J.A.C. 7:13-2.1, and N.J.A.C. 7:13-11.2(f)(1), (m) and (n).
Lastly, the DEP should continue to protect acid producing soils by maintaining
the 150 foot riparian zone along those waters. If, as the DEP indicates, erosion is a
problem, the optimal solution is to require additional infiltration of stormwater onsite
and further dispersion of the remaining runoff outside of the riparian zone. The
solution is not, as the DEP proposes, to allow the piping of excess stormwater through
the riparian zone and directly into streams. This piped water has the potential to
increase erosion in the stream from the increased velocity at which water will enter the
stream as opposed to moving as sheetflow overland through the riparian zone. Given
DEP’s obligation to protect water quality and to reduce or eliminate erosion, this
provision is contrary to DEP’s statutory obligations. We therefore oppose proposed
N.J.A.C. 7:13-4’s deletion of acid producing soils under the 150’ riparian zone as well as
the similar deletion under the coastal zone protection rules at N.J.A.C. 7:7E-3.26(e)2.
In general we find these rules to be contrary to the statutory requirements of the
Flood Hazard Area Control Act. This proposal does not protect the “safety, healthy and
general welfare” of the citizens of New Jersey. N.J.S.A. 58:16A-50(b). It also does not
meet the goals set out in New Jersey’s Water Pollution Control Act and Water Quality
Planning Act under which these rules receive their authority. These acts require the
DEP to improve the quality of NJ’s waterways where possible, or at the very least
protect them from further degradation. N.J.S.A. 58:11A-2(a). This is especially
important given that according to the DEP’s 2012 Integrated Report, an overwhelming
majority of New Jersey’s waters do not meet their designated uses.
As this rule proposal does not meet its goals of protecting people and property
from flooding and does not meet the goal of improving or maintaining water quality,
we ask that the DEP not adopt this proposal.
Sincerely,