What New Jersey Developers Need to Know About the NJDEP’s Proposed Stormwater Regulations

The NJDEP is Proposing Several Significant Amendments to the State’s Stormwater Management Regulations

The New Jersey Department of Environmental Protection (NJDEP) is working to overhaul its Stormwater Management rules (N.J.A.C. 7:8). The rules provide the standards for the management of stormwater runoff associated with major development and require maintenance groundwater recharge standards, stormwater runoff quantity standards, and stormwater runoff quality standards. They are implemented by the NJDEP, the Department of Transportation, municipalities, counties, and regional planning agencies.

NJDEP’s Proposed Stormwater Protection Rules

The NJDEP is proposing several significant amendments to the state’s stormwater management protection rules. Below is a brief summary of several key changes:

Green Infrastructure

Citing continuing issues in implementation of the existing rules, the NJDEP 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. Under the proposed 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. Examples include rain gardens, green roofs and permeable pavement.

According to the agency, “the use of green infrastructure BMPs [Best Management Practices], such as pervious paving, infiltration basins, and bioretention systems, will more effectively achieve the Department’s goals under the existing rules of reducing stormwater runoff volume, reducing erosion, encouraging infiltration and groundwater recharge, and of maintaining, or reproducing as closely as possible, the natural hydrologic cycle and minimizing the discharge of stormwater-related pollutants, such as TSS [total suspended solids] and nutrients.

Definition of Major Development

The NJDEP is proposing to clarify and modify the definition of “major development,” which defines the scope of projects to which the stormwater management rules apply. Under the proposal, 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.

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.”

NJDEP’s Additional Proposed Changes

The NJDEP is proposing changes to apply the total suspended solids (TSS) removal requirement to the runoff from motor vehicle surfaces. It also plans to remove the TSS removal requirement as it applies to runoff from other impervious surfaces not traveled by automobiles, such as rooftops and sidewalks. The NJDEP is proposing several changes which will support water quality and stormwater management improvements in communities with combined sewer systems.

Finally, proposal will also make changes to existing definitions, add new definitions and make other changes consistent with the proposed amendments to the Stormwater Management rules. The NJDEP is also proposing minor amendments to provisions in the Coastal Zone Management Rules, the Freshwater Wetlands Protection Act Rules, the Flood Hazard Area Control Act Rules, the New Jersey Pollutant Discharge Elimination System rules, and the Highlands Water Protection and Planning Act Rules, which will reflect the new rules.

Impact on New Jersey Businesses

For New Jersey developers, the NJDEP’s proposed rules clearly discourage the use of structural components, like stormwater detention systems, in favor of green infrastructure. In its proposal, the agency states that its proposed means of controlling and managing runoff will not make development costlier. The NJDEP also maintains that the “green” industry will benefit from increased demand. Of course, the proposal will also likely hurt the manufacturers of traditional systems.

What’s Next?

Environmental groups applauded several aspects of the rule, particularly the green infrastructure requirements. However, they also argued that it doesn’t go far enough to address issues with the existing stormwater management rules. “The proposal, in and of itself, does not go far enough,’’ said Rebecca Hammer of the Natural Resources Defense Council.

“The rule has major flaws in it,’’ Jeff Tittel, director of the New Jersey Sierra Club, stated. “It exempts existing development, which is already the largest source of non-point pollution in our state. If we don’t deal with stormwater in developed areas, we’ll never meet clean water standards.’’

Comments on the proposal closed on February 1, 2019. According to the NJDEP, it plans to hold additional stakeholder discussions to evaluate further potential future changes to N.J.A.C. 7:8, which are not part of the current rulemaking. The attorneys of Scarinci Hollenbeck’s Environmental Law Group will continue to monitor the proposed Stormwater Management rules and post updates as they become available.

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.