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In re Stormwater Management Rules

April 12, 2006

IN THE MATTER OF STORMWATER MANAGEMENT RULES


On appeal from the New Jersey Department of Environmental Protection.

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 27, 2006

Before Judges Lintner, Parrillo and Holston, Jr.

At issue is the validity of a regulation, N.J.A.C. 7:8-5. 5(h), adopted by the New Jersey Department of Environmental Protection (DEP) on February 2, 2004, as part of a comprehensive scheme governing stormwater management, N.J.A.C. 7:8-1.1 to -6.3, inclusive, and repealing then existing stormwater management rules. The challenged regulation creates a 300-foot buffer on each side of water bodies designated as "Category 1" waters and their associated perennial or intermittent streams. N.J.A.C. 7:8-5.5(h). Appellant, New Jersey Builders Association, contends that this provision falls outside the scope of the DEP's statutorily delegated authority and is ultra vires on its face.

To better understand the argument, we provide the larger statutory and regulatory context against which the challenged provision must be considered. In 1981, the Legislature amended the Municipal Land Use Law (MLUL) by adding Article 13, N.J.S.A. 40:55D-93 to -99, the Stormwater Management Act (SMA or the Act). L. 1981, c. 32. The Act delegates to the DEP "the authority to regulate storm water management." N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 310 N.J. Super. 224, 240 (App. Div. 1998), aff'd, 158 N.J. 211 (1999).

Stormwater is "water resulting from precipitation (including rain and snow) that runs off the land's surface . . . ."

N.J.A.C. 7:8-1.2. "Stormwater runoff" is "water flow on the surface of the ground or in storm sewers, resulting from precipitation." Ibid. It is well documented that stormwater runoff picks up pollutants from the land surface and creates problems for the quality and quantity of water in New Jersey. Thus, one of the primary objectives of the SMA is "to prevent, to the greatest extent feasible, an increase in nonpoint pollution." N.J.S.A. 49:55D-95. This goal is accomplished through "stormwater management measure[s]", defined as "any structural or nonstructural" methods intended, among other things, "to control or reduce stormwater runoff and associated pollutants . . . ." N.J.A.C. 7:8-1.2.

Under the Act, every municipality in the State must prepare a stormwater management plan and an implementing stormwater control ordinance, N.J.S.A. 40:55D-93, in accordance with "comprehensive storm water management regulations by the Commissioner of the [DEP] . . . ." Ibid. The required components of the plan and ordinance are set forth in N.J.S.A. 40:55D-95 and: shall conform to all relevant Federal and State statutes, rules and regulations concerning storm water management or flood control and shall be designed: a. to reduce flood damage, including damage to life and property; b. to minimize storm water runoff from any new land development where such runoff will increase flood damage; c. to reduce soil erosion from any development or construction project; d. to assure the adequacy of existing and proposed culverts and bridges; e. to induce water recharge into the ground where practical; f. to prevent, to the greatest extent feasible, an increase in nonpoint pollution; g. to maintain the integrity of stream channels for their biological functions, as well as for drainage; and h. to minimize public safety hazards at any storm water detention facilities constructed as part of a subdivision or pursuant to a site plan. A storm water management plan shall also include such structural changes and such additional nonstructural measures and practices as may be necessary to manage storm water. For purposes of this act "nonpoint pollution" means pollution from any source other than from any discernible, confined and discrete conveyance, and shall include, but not be limited to, pollutants from agricultural, silvicultural, mining, construction, subsurface disposal and urban runoff sources. [N.J.S.A. 40:55D-95.]

The DEP adopted its first set of regulations implementing the Act, N.J.A.C. 7:8, in 1983. 15 N.J.R. 142-45 (Feb. 7, 1983). These regulations "establish[ed] minimum requirements and controls to compensate for the differences in the hydrologic response of the watershed from the undeveloped to the developed condition." N.J.A.C. 7:8-1.1 (1983). They were readopted over the years without change until 2004, when, in its first major update in twenty years, reflecting a decade of study, the DEP promulgated new stormwater management regulations after holding three public hearings and receiving comments from more than 1200 respondents. 36 N.J.R. 670, 670-76 (Feb. 2, 2004); 36 N.J.R. 781, 781-82 (Feb. 2, 2004).

The newly adopted regulations establish requirements for stormwater planning at the municipal, county and regional levels. The stated goals mirror practically word-for-word those expressed in N.J.S.A. 40:55D-98 and range from flood, erosion and pollution control to maintaining the integrity of waterways for their biological functions. N.J.A.C. 7:8-2.2(a). One such objective is to:

Minimize pollutants in stormwater runoff from new and existing development in order to restore, enhance and maintain the chemical, physical, and biological integrity of the waters of the State, to protect to protect public health, to safeguard fish and aquatic life and scenic and ecological values, and to enhance the domestic, municipal, recreational, industrial and other uses of water . . . [N.J.A.C. 7:8-2.2(a).]

Save for a few exceptions listed in N.J.A.C. 7:8-1.6(b), the stormwater regulations apply to "all major development," N.J.A.C. 7:8-1.6(a).

"Development" means the division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or structure, any mining excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission is required under the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. [N.J.A.C. 7:8-1.2.]

And "[m]ajor development" means any new or expanded development that proposes "disturbing one or more acres of land or increasing impervious surface by one-quarter acre or more." Ibid. "Disturbance" is defined as "the placement of impervious surface or exposure and/or movement of soil or bedrock or clearing, cutting, or removing of vegetation." Ibid.

The regulations establish[] general requirements for stormwater management plans and stormwater control ordinances, as well as content requirements and procedures for the adoption and implementation of regional [and municipal] stormwater management plans . . . under the [MLUL]; the Water Quality Planning Act [WQPA], N.J.S.A. 58:11A-1 [to -16]; the Water Pollution Control Act [WPCA], ...


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