New Jersey’s “Green” Stormwater Management Rules Now in Effect

New Jersey’s new Stormwater Management Rules mandate the use of green infrastructure technologies to manage stormwater runoff generated by developments…

New Jersey’s new Stormwater Management Rules took effect on March 2, 2021. The new rules mandate the use of green infrastructure technologies to manage stormwater runoff generated by developments.

“With decades of experience managing stormwater with both manufactured devices like expensive underground concrete vaults and less costly nature-based solutions like rain gardens, New Jersey has learned that engineering with nature provides better and more cost-effective outcomes for our water quality while beautifying our communities,” DEP Acting Commissioner Shawn LaTourette said in a press statement. “These new Stormwater Management Rules will help make New Jersey’s watersheds cleaner by improving water quality, while also increasing our communities’ resilience to the increased storms and chronic flooding that are worsening across New Jersey due to climate change.”

New Stormwater Management Rules

The amendments to the Stormwater Management Rules replace the prior 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. The new requirement is that green infrastructure be utilized to meet these same standards. Under the amendments, “green infrastructure” is defined to mean stormwater management measures that manage stormwater close to its source either by infiltration into subsoil, treatment by vegetation or soil, or storage for reuse. Common examples include rain gardens, green roofs, and permeable pavement.

The amendments to the Stormwater Management Rules also clarify and modify the definition of “major development,” which defines the scope of projects to which the stormwater management rules apply. Under the new Stormwater Management Rules, the term means “an individual development, as well as multiple developments that individually or collectively result in:

1. The disturbance of one or more acres of land since February 2, 2004;
2. The creation of one-quarter acre or more of “regulated impervious surface” since February 2, 2004;
3. The creation of one-quarter acre or more of “regulated motor vehicle surface” since (the operative date of this rulemaking); or
4. A combination of 2 and 3 above that totals an area of one-quarter acre or more.

Additionally, major development includes all developments that are part of a common plan of development or sale (for example, phased residential development) that collectively or individually meet any one or more of paragraphs 1, 2, 3, or4 above. Projects undertaken by any government agency that otherwise meet the definition of “major development,” but which do not require approval under the Municipal Land Use Law, are also considered “major development.”

Impact on New and Existing Applications

To allow time for compliance, the effective date of the amendments to the Stormwater Management Rules was delayed for one year. With an effective date of March 2, 2021, the new requirements are now operational and will apply going forward.

Accordingly, any complete application for a residential development received by a municipality before March 2, 2021 will be reviewed under the existing Stormwater Management rules. Meanwhile, any application received after this date or determined to be incomplete as of that date will be reviewed under the new rules.

Non-residential applications will be reviewed for compliance with the local stormwater control ordinance. In accordance with a municipality’s Municipal Separate Storm Sewer System (MS4) permit, ordinances must be at least as stringent as the NJDEP’s Stormwater Management rules. The NJDEP required municipalities to revise their stormwater ordinances and make them effective no later than March 3, 2021.

Any complete application for a non-residential development received by a municipality before the effective date of their new ordinance will be reviewed under the existing ordinance. Any project applications received after this date or determined to be incomplete will be reviewed under the amended ordinance. Similarly, complete applications for any public or private development seeking authorization from NJDEP under its Flood Hazard Area, Freshwater Wetlands, and Coastal Zone Management programs, which are received prior to March 2, 2021, will be reviewed under the existing Stormwater Management rules. Application received after this date or determined to be incomplete as of that date will be reviewed under the new rules.

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 201-896-4100.