Stormwater Management Regulations

On February 2, 2004, the new Stormwater Management Regulations (the “Regulations”) will take effect. These Regulations not only provide a more restrictive framework within which to design stormwater management systems for proposed development, but also contain the much talked-about 300′ buffer requirement from “Category One” streams. The impact of this buffer requirement has been downplayed in news releases and articles as only affecting the State’s most “pristine” waterways. However, it has also been reported that, at inception, the new buffer requirement will involve 6,000 miles of State waterways and preserve 300,000 acres of land. Moreover, the process of designating Category One streams is ongoing and fluid – no pun intended – and we understand that Category One stream designations may almost triple, from 6,000 miles to 16,000 miles. The resultant impact on property development is of a magnitude not seen since, and comparable to, the imposition of wetland and wetland transition area regulations by the New Jersey Department of Environmental Protection (“NJDEP”) in the early 1990’s.

The Regulations are voluminous, for the most part highly technical and will undoubtedly be the subject of much analysis and discussion. Initially, however, it is critically important to determine whether the Regulations in fact apply to a particular development or project. In general, exemptions apply to projects which have received approval from the applicable municipal land use entity (Planning Board or Board of Adjustment) or the NJDEP (if applicable), or both.

Major developments, as defined in the Regulations, that do not require NJDEP approvals are exempt if, prior to February 2, 2004, they have obtained: (1) preliminary or final site plan approval, (2) final municipal building or construction permits, or (3) minor, preliminary major or final major subdivision approval where no subsequent site plan approval is required.

For those major developments that do require NJDEP approvals, an exemption will be granted if at least one of the above municipal approvals and one of the required NJDEP approvals have been obtained prior to February 2nd, and the NJDEP approval involved a stormwater review component. The NJDEP permits which apply here need to have been obtained pursuant to the Flood Hazard Area Control Act, N.J.S.A. 58-16A-50 et seq., the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 et seq., the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq., or the Waterfront and Harbor Facilities Act, N.J.S.A. 12:5-3. A transition area waiver under the Freshwater Wetlands Protection Act would also apply.

Subsequent revisions may be made to an approved plan, but only upon approval from the NJDEP that each revision will have a de minimis impact on water resources. If a proposed project does not require municipal land use approval or any NJDEP permits, it still must comply with the new Regulations if the project proposes one or more acres of disturbance or one-quarter acre or more of impervious area. N.J.A.C. 7:8-1.6. “Disturbance” is the placement of impervious surface or exposure and/or movement of soil or bedrock or clearing, cutting, or removing of vegetation…” N.J.S.A. 7:8-1.2.

Aside from the “grandfathered” projects, the Regulations do provide other avenues to avoid the full impact of the new standards. The Regulations set forth that municipalities may grant variances or exceptions from a stormwater control ordinance upon proper review by the County and the NJDEP. N.J.A.C. 7:8-4.6. Otherwise, “[s]tormwater management measures for major development shall be developed to meet the erosion control, groundwater recharge, stormwater runoff quantity, and stomwater runoff quality standards [set forth within the Regulations].” N.J.A.C. 7:8-5.2(a). In addition, “linear development projects,” such as utility lines and pedestrian accessways, are exempt from these performance standards. N.J.A.C. 7:8-5.2(d).

N.J.A.C. 7:8-5.5., which sets forth the stormwater runoff quality standards, including the requirement of a 300′ special water resource protection area from waters designated as “Category One” waters within N.J.A.C. 7:9B-1 et seq., provides two mechanisms to avoid the full impact of the new Regulations. First, at N.J.A.C. 7:8-5.5(h)1.ii., upon review by NJDEP, certain encroachments may be permitted within the 300′ area; specifically, where previous development or disturbance has occurred, or where the applicant can demonstrate that the functional value and overall condition of the area will be maintained to the maximum extent possible. It should be noted, though, that there is no similar exemption from the requirements for erosion control, groundwater recharge or stormwater runoff quantity standards. Second, subsection 5.5 exempts the future construction of an “individual single family dwelling that is not part of a larger development” from its requirements where preliminary or final subdivision approval has been granted on or before February 2, 2004, and provided the home is built within five years of that date. N.J.A.C. 7:8-5.5.(h)5. As in the case of the permitted encroachments, this relief does not appear in the other design standard sections of the Regulations.

What the long term impacts of the new Stormwater Management Regulations will be and whether they will survive in their current form is open to speculation and debate. However, it is possible and of critical importance in the short term to identify those projects that will need to be concerned with the applicability of the Regulations.