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In re NJDEP Administrative Order No. 2007-01

August 6, 2009

IN THE MATTER OF NJDEP ADMINISTRATIVE ORDER NO. 2007-01 AND ADMINISTRATIVE ORDER NO. 2008-02.


On appeal from a Final Decision of the New Jersey Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 17, 2008

Before Judges Cuff, Fisher and Baxter.

In this appeal, we must determine whether written guidance regarding application of stormwater management rules, particularly the rules governing encroachment into a 300-foot buffer adjacent to Category One waters, is a rule or a technical manual. If the former, the New Jersey Department of Environmental Protection (NJDEP) failed to observe the rule-making requirements of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15. If the latter, it is exempt from APA rule-making requirements.

The Stormwater Management Rules, N.J.A.C. 7:8-1.1 to -6.3, establish design and performance standards regulating the quantity and quality of stormwater runoff. See In re Stormwater Mgmt. Rules, 384 N.J. Super. 451, 454-60 (App. Div.), certif. denied, 188 N.J. 489 (2006). Stormwater is water from precipitation that runs on the land's surface. As it flows, stormwater runoff picks up pollutants from the land surface and affects the quality and quantity of water in New Jersey. Id. at 454. N.J.A.C. 7:8-5.5(h) requires increased safeguards for sensitive water bodies classified by NJDEP as "Category One" (C1). C1 waters are waters to which the State gives greater protection due to their exceptional ecological significance, exceptional recreational significance, exceptional water supply significance, or exceptional fisheries resources. N.J.A.C. 7:9B-1.4. Under NJDEP's Surface Water Quality Standards, C1 waters are to be protected from any measurable changes to water quality. N.J.A.C. 7:9B-1.5(d)6iii.

The Stormwater Management Rules establish special water resource protection areas (SWRPA) along C1 waters pursuant to N.J.A.C. 7:8-5.5(h) to protect them from measurable changes. The SWRPA is a best management practice designed to maintain existing water quality by filtering stormwater runoff prior to its introduction to C1 waters. These Rules only apply to "major development," which is development that would disturb one or more acres, or would add one-quarter acre or more of impervious surface. N.J.A.C. 7:8-1.2.

Under the Rules, projects designed near C1 waters and their tributaries must have a 300-foot SWRPA on each side of the waterway "consisting of existing vegetation or vegetation allowed to follow natural succession . . . ." N.J.A.C. 7:8-5.5(h)1i. The Stormwater Management Rules allow the 300-foot buffer to be reduced to 150 feet on both sides of the waterway in limited circumstances. Specifically, the Rules provide:

Encroachment within the designated [SWRPA] under (h)1i above shall only be allowed where previous development or disturbance has occurred (for example, active agricultural use, parking area or maintained lawn area). The encroachment shall only be allowed where applicant demonstrates that the functional value and overall condition of the [SWRPA] will be maintained to the maximum extent practicable. In no case shall the remaining [SWRPA] be reduced to less than 150 feet as measured perpendicular to the top of bank of the waterway or centerline of the waterway where the bank is undefined. All encroachments proposed under this subparagraph shall be subject to review and approval by [NJDEP]. [N.J.A.C. 7:8-5.5(h)1ii (emphasis added).]

The Stormwater Management Rules do not define how an applicant can demonstrate that the "functional value and overall condition of the [SWRPA] will be maintained to the maximum extent practicable." However, in its Response to Comments 824 -827 on the proposed rule, NJDEP explained that:

The purpose and need for the [SWRPA] is to ensure that [C1] waters are protected from degradation and the characteristics that led to their designation as [C1] waters are protected. The [SWRPA] is selected as an additional best management practice, with an appropriate margin of safety for reduced pollutant removal efficiency over time, to assure that this objective is achieved. Alternative best management practices were reviewed. Based on available literature, none of these alternatives were determined to adequately control all nonpoint source pollution including, but not limited to, sedimentation, erosion, total suspended solids, total dissolved solids, temperature, nutrients, and pathogens.

In addition, [C1] waters are designated because of their clarity, color, scenic setting, other characteristics of aesthetic value, exceptional ecological significance, exceptional recreational significance, exceptional water supply significance or exceptional fisheries resources. The [SWRPA] is intended to protect these attributes and the designated uses of the [C1] water.

Riparian functional values are the ecological values or benefits provided by the buffer. These benefits can be physical, biological, chemical, or any combination thereof. Riparian areas are important because they: ". . . regulate riparian microclimate and provide shading for in-stream growth and reproduction of aquatic life; stabilize stream banks and prevent channel erosion; provide organic litter (for example, leaf litter) and woody debris important for fish and aquatic invertebrate communities; remove or regulate sediment, nutrients, or other contaminants (for example, pesticides, herbicides) from runoff; provide flood attenuation and storage to decrease damage to property; and provide wildlife habitat." (Environmental Law Institute, 2003).

No two riparian areas are exactly alike; each is affected differently given unique dynamics that act upon it within its immediate surroundings. Each riparian buffer is influenced by its geology, topography, geographic location, micro- and macroclimates, vegetation, hydrology, stream dynamics and land use. Many riparian functions are considered critical or important by society. For example, inundation of riparian buffers in one area can prevent flood damage elsewhere; denitrification can improve water quality, riparian habitat can help maintain waterfowl populations, and conditions in the buffer can influence the development of unique plant communities that contribute to the conservation of biodiversity. A determination of functional value will require a site-specific analysis of such factors.

All encroachments into the 300-foot [SWRPA] are subject to review and approval by [NJDEP]. This requirement is intended to lend predictability and consistency to the review of these encroachments. Therefore, individual interpretations by 566 ...


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