DEP Adopted Stormwater Rule- Will Cause More Pollution & Flooding

The Department of Environmental Protection  intends to file the Stormwater Management rules, N.J.A.C. 7:8. with OAL to meet the statutory deadline. Based on the statement by DEP (see bottom) it appears the stormwater rule is signed today and sent to OAL, however there could be minor changes. In February, FEMA stated that they are “troubled” by DEP’s proposed Stormwater Rule. The Agency stated in their regulatory comment filed with the state that DEP’s proposal does not account for the likelihood of more intense rainstorms due to climate change. The New Jersey Sierra Club was one of the only environmental groups that opposed the rule and wanted the department to pull it.

“DEP signed a rule today that will cause more flooding and pollution in our waterways. Instead of using these rules to clean up our water, we are going backwards when it comes to handling stormwater. The biggest source of water pollution in New Jersey comes from stormwater. This rule however will make things worse, cause more dirt and contaminants in our waterways. Instead of reversing Christie’s rollbacks on this rule, the Murphy Administration furthers those rollbacks, causing more development and pollution,” said Jeff Tittel, Director of the New Jersey Sierra Club. “Even Trump’s FEMA said they were troubled by the rule because it does not account for sea level rise, nutrient pollution, proper green infrastructure, and will just increase flooding. This is the first rule proposal by the DEP, however it is seriously flawed, and we oppose it.”

The DEP is proposing to replace the current requirement that major developments incorporate nonstructural stormwater management strategies to the “maximum extent practicable” to meet groundwater recharge standards, stormwater runoff quantity standards, and stormwater runoff quality standards, with a requirement that green infrastructure be utilized to meet these same standards.

“This rule will lead to more flooding because of how it treats impervious cover. The rule treats impervious cover with automobiles different with other types of impervious cover, which means more flooding and more pollution. It does not deal with compacted soils which in parts of New Jersey are like of impervious cover. The rule also does not include any bonding required for infrastructure in case the system fails, it also does not require maintenance or monitoring. Roofs, patios, decks and sidewalks are also not included under the rules, even though they contribute to extra pollution,” said Tittel. “The model of the rule is based on dealing 100-year storm events that we are having every year. It doesn’t really change the flood system. The rule does not look at climate change or the frequency and intensity of storms. This means if you leave along the Passaic or the Raritan River, you’re going to need snorkels.  Instead of moving us forward it keeps the status quo. It exempts existing development which is already the largest source of non-pollution in our state. Which means a box store being built on a former shopping center or a high rise in New Brunswick will be exempted.”

The NJDEP looks to incorporate green infrastructure to be utilized to meet the same standards groundwater recharge standards, stormwater runoff quantity standards, and stormwater runoff quality standards.

“This is just a dirty water rule using green infrastructure as cover. The green infrastructure aspect of the rule is good, but it allows for too many loopholes and keeps the current standards that do not work. It also keeps in place Christie’s rollbacks of the 300 foot buffers, SWARPA, revegetating stream buffers or riparian corridors as a way of dealing with non-point pollution. The amended stormwater rule does nothing to retrofit our stormwater retention and detention basin systems that don’t work that break up impervious cover to absorb more water,” said Tittel.  “The green infrastructure standards doesn’t deal with total suspended solids and other pollutants that come off of stormwater runoff like nitrogen or phosphorus.”

The biggest source of pollution we face is nonpoint pollution and we need to retrofit our stormwater basins to protect our waterways, while revitalizing our waterfront neighborhoods and communities. New Jersey need at least $14 billion just to fix our combined sewer overflow systems, but overall we need more than $45 billion to fix our water and sewage infrastructure.

“Stormwater is the biggest threat to NJ’s water however DEP’s new rule does not really address combined sewer overflows. It also does not require any restrictions on holding back on water on ground or near properties.  The rule also has no language that would clean up nitrogen and phosphorus in our water. Only 5% of streams in New Jersey meet standards for being fishable, swimmable, and drinkable, mostly because of non-point solution. 65% of our streams are impacted by phosphorus,” said Tittel. “We have to retrofit urban areas for stormwater management. Things like green roofs, wet gardens can help and prevent combined sewer overflow however these methods are exempted because the rule exempts redevelopment.”

An important way to improve our stormwater management is to reverse Christie’s rollbacks and put in place stronger protections. The DEP have to address stormwater management and nonpoint source pollution issues.

“New Jersey had been making progress with getting our water cleaner and stopping sprawl and development through the Highlands Act, stream buffer rules, and limiting extensions of sewers in environmentally sensitive areas. However under Christie, many of those things were reversed while he gave out more permits for disastrous projects that severely impacted our water. Now, the Murphy Administration need to reverse Christie’s rollbacks, but also tighten regulations that protect our water.  Unfortunately, DEP’s stormwater rule is taking broken current system and adding some green veneer. This rule should have been set aside and started over. They need to do it now or else we will all need snorkels,” said Jeff Tittel, Director of the New Jersey Sierra Club. “DEP need to pull this rule down. Their proposed stormwater management rule will only cause more flooding for New Jersey.”

 Pursuant to the Administrative Procedure Act, DEP has until December 3, 2019 (one year from the date of proposal) to adopt the proposed amendments to the Stormwater Rules. DEP intends to file the rule with the Office of Administrative Law to meet the statutory deadline. The publication date of the rule in the New Jersey Register will depend on review by the New Jersey Office of Administrative Law. The contents of the adoption will be made available upon publication in the New Jersey Register. For the rule proposal and public notice of the rule proposal visit https://www.nj.gov/dep/rules/notices/20181203a.html