Proposed Amendments to New Jersey’s Surface Water Quality Standards Will Impact Development

March 28, 2019
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The NJDEP is Seeking to Impose New Protections on 749 Miles of Rivers and Streams…

The New Jersey Department of Environmental Protection (NJDEP) is seeking to impose strict new protections on 749 miles of rivers and streams. If designated as Category 1, the waterways would be protected by 300-foot development buffers under the Flood Hazard Area Control Act, and any wastewater or other planned discharges would be subject to stringent water quality standards.

In support of the new rule, the NJDEP proposal cites the potential environmental and economic benefits.  “It is generally more cost-effective to prevent degradation through water-quality protections, such as upgrading waters to Category One designations, than to restore the waters after they have been degraded,” the proposal states.

New Jersey’s Surface Water Quality Standards

The Surface Water Quality Standards (SWQS) (N.J.A.C. 7:9B) set forth policies, stream classifications ,and surface water quality criteria that are designed to protect the quality of New Jersey’s surface waters. More specifically, the SWQS identify designated uses (e.g., drinking water supply, recreation, etc.) for each surface waterbody in New Jersey, classify surface waters based on those uses, and set water quality criteria that protect the designated uses for each water classification.

As detailed by the NJDEP, freshwaters are classified as FW1 waters (not subject to any man-made wastewater discharges) and FW2 waters (all other freshwaters except Pinelands waters). FW1 waters are nondegradation waters set aside for posterity because of their unique ecological significance. FW2 waters are further classified based on their ability to support trout and include trout production (FW2-TP), trout maintenance (FW2-TM), and nontrout (FW2-NT). 

Saline waters are classified as saline estuarine (SE) and saline coastal (SC). SE waters are further classified as SE1, SE2, and SE3 waters based on their ability to support recreation, shellfish harvesting. and warm water fish species. Waters within the Pinelands Protection and Preservation areas (which may be either freshwater or saline) are classified as Pinelands waters (PL) unless they are classified as FW1 waters.

The SWQS also set forth antidegradation policies for all surface waters of the State. Under the antidegradation policies, all existing and designated uses must be maintained and protected for all New Jersey surface waters; impaired waters must be restored to meet SWQS; and existing water quality must be maintained. There are three tiers of antidegradation designations: Outstanding national resource waters (ONRW), Category One (C1) waters, and Category Two (C2) waters.

Category One Waters

Category One waters are protected from any measurable change to existing water quality because of their exceptional ecological significance, exceptional recreational significance, exceptional water supply significance, or exceptional fisheries resources. The antidegradation requirements are more stringent for Category One than Category Two waters.

For instance, the Flood Hazard Area Control Act Rules (N.J.A.C. 7:13) and the Water Quality Management Planning rules (N.J.A.C. 7:15) respectively, establish and restrict development and/or sewer service for development within the 300-foot riparian zone along any regulated water designated as a Category One water, and all upstream tributaries situated within the same HUC-14 watershed as the Category One waters. The Flood Hazard rules also create a 150-foot riparian zone for trout waters and tributaries that are not designated as Category One waters.

Additionally, under the New Jersey Pollutant Discharge Elimination System (NJPDES) Rules (N.J.A.C. 7:14A), new or expanded wastewater discharges must maintain the existing water quality of the receiving stream. If the discharge is located above a Category One segment, the applicant must meet “no measurable change” at the Category One boundary.

NJDEP’s Proposed SWQS Amendments

The NJDEP’s proposed SWQS amendments mark the first time in more than a decade that the state has designated waterways to this high level of protection. New Jersey has a total of approximately 23,500 river miles, of which 6,800 river miles are currently designated as Category One.

The NJDEP is proposing to upgrade 734 waterway miles based on their exceptional ecological value. A waterbody is considered to be of exceptional ecological significance, and, thus, appropriately designated for Category One protection, if it satisfies one of two identified criteria. The first is based on the presence of suitable habitat for one or more of seven identified endangered or threatened species and a documented occurrence of at least one of the species. The second is based on the presence of an exceptional aquatic community.

An additional 53 miles would be upgraded for their exceptional fishery resources based on trout sampling data provided by the Bureau of Freshwater Fisheries. As highlighted by the NJDEP, waterbodies where trout can complete their life cycle, including reproducing, in a natural habitat are classified by the Department as FW2-TP. Of the 32 stream segments proposed for reclassification based upon trout sampling data, 25 stream segments are being reclassified to FW2-TP. Under the definition of Exceptional Fisheries Resource(s), trout production waters classified as FW2-TP and approved shellfish harvesting waters qualify for Category One designation.

Thirty-eight miles fall into both categories. Overall, the proposed Category One waterways flow through 67 New Jersey municipalities. You can find a full list of impacted waterways in the NJDEP proposal.

Impact on New Jersey Businesses

The NJDEP’s proposal will make it more difficult and costly to develop in zones impacted by the proposed Category One upgrades. For existing property owners, new or different activities in areas that fall in a 300-foot riparian zone as a result of the proposed new Category One designations or a 150-foot riparian zone as a result of trout reclassifications would face additional regulatory requirements under the Flood Hazard Area Control Act Rules. In addition, for a new or expanded facility that discharges to a waterbody that is reclassified, where the existing permit does not yet contain effluent limits based on the Category One designation, the NJDEP would only issue or reissue an NJPDES permit that meets the requirements made applicable by the newly effective Category One designation or trout reclassification.

Developers pursuing new projects in the newly-designated Category One zones would also face significant hurdles. Notably, for activities requiring an individual permit within the inner 150 feet of the 300-foot riparian zone, the requirements are stringent. Applicants must demonstrate that the activity has no practicable alternative that would result in fewer adverse impacts, will result in minimum alteration or impairment of the riparian or aquatic ecosystem, and is in the public interest.

Impacted entities will have an opportunity to raise any concerns with the NJDEP. The agency will hold a public hearing regarding the notice of proposal on Monday, April 8, 2019 at 1:00 PM at: New Jersey Forensic Science Technology Center Auditorium, 1200 Negron Drive, Hamilton, NJ 08691. In addition, written comments may be submitted electronically by May 3, 2019 at http://www.nj.gov/dep/rules/comments 

The attorneys of the Scarinci Hollenbeck Environmental Law Group will continue to monitor the NJDEP’s rulemaking process. Should the proposed SWQS amendments become final, we stand ready to assist impacted entities navigate their new regulatory requirements.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.