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New Jersey Amends Soil Erosion & Sediment Control Act Rules for Stormwater Runoff from Construction Sites

January 2011

This Environmental Alert is provided as part of Wolff & Samson PC’s continuing effort to apprise the regulated community of quickly developing issues within the construction and development field, and follows our prior Alerts regarding the U.S. Environmental Protection Agency’s (“EPA”) current emphasis on enforcement of construction stormwater discharge standards. As discussed below, New Jersey appears to be focusing on construction stormwater discharges as well.

The New Jersey Soil Erosion and Sediment Control Act (the “Act”) is designed to control and limit soil erosion and authorizes the New Jersey Soil Conservation Committee to establish applicable standards in this area. On January 5, 2011, Governor Christie signed amendments to the Act into law to update these standards so that soils can properly absorb and control stormwater runoff from construction sites. Specific changes to the Act and potential issues arising from them include the following:

1.   Under the old rules, a developer’s soil erosion and sediment control plan was only required to include measures to control soil erosion during the project. The new law requires the developer’s plan to include “soil restoration measures” designed to restore the soil conditions at the site once the project is completed. These measures are defined to include “those measures taken to ensure, to the maximum extent possible, cost-effective restoration of the optimal physical, chemical, and biological functions for specific soil types and the intended land use.” Specific standards applicable to these measures are to be established by the Soil Conservation Committee. How the concepts of “cost-effective” and “optimal functions” are defined will likely be the source of some debate as the new requirements are drafted and implemented.

2.   The definition of “disturbance” in the Act is amended to include the “compaction of soil which degrades soil so as to make it less conducive to vegetative stabilization.” The term “vegetative stabilization” is undefined in the new law, which may give rise to uncertainty as developers seek to comply with the new requirements.

The amendments to the Act are to take effect in January 2012. Construction site owners and operators should act early to ensure compliance with the new requirements and should remain attuned to ongoing regulatory efforts by the State within the construction and development field.

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For more information, please contact:
Robert H. Crespi ¦ Member of the Firm ¦ (973) 530-2060 ¦ rcrespi@wolffsamson.com
Daniel T. McKillop ¦ Associate ¦ (973) 530-2066 ¦ dmckillop@wolffsamson.com