CSG Law Alert: NJDEP Proposes Category One Designation for 749 Miles of rivers and Streams
The New Jersey Department of Environmental Protection (NJDEP) has proposed to change Surface Water Quality Standards antidegradation designations for 749 miles of rivers and streams in New Jersey. The changes will heighten standards for regulated discharges to those waterbodies and extend the applicable Flood Hazard Area Control Act riparian development buffer from the current 150 feet to 300 feet. The buffer restricts development and excludes sewer service for development.
Antidegradation designations provide three levels of regulation for surface waters – including Outstanding Natural Resource waters (primarily in the Pinelands), Category One waters and Category Two waters. The waterbodies subject to the proposed redesignations are currently Category Two, which means that water quality is permitted to decrease based on social or economic justifications. The proposed redesignation to Category One will prohibit any measurable change to water quality, and, therefore, new or expanded wastewater discharges must maintain the existing water quality of the receiving waterbody.
Of the total 749 additional miles proposed to be added to Category One, 734 miles are proposed for redesignation based on NJDEP’s findings of exceptional ecological significance and 53 miles are based on exceptional fisheries resources (with 38 miles of overlap). Waterbodies are deemed exceptional fisheries resources when fish surveys reveal naturally reproduced trout in their first year of life. A waterbody is considered to have exceptional ecological significance if it has either habitat suitable for at least one of seven endangered species documented to live there or if the waterbody includes an exceptional aquatic community. An exceptional aquatic community has a healthy community of small aquatic animals (like snails, larvae and worms), and at least two of the following: optimal habitat, excellent fish community, compliance with water quality criteria, and limited impervious surface runoff. Approximately 137 miles are proposed based on endangered species habitat while 600 miles are based on exceptional aquatic community.
Of note, the proposed Category One designations include tributaries of the river segments that NJDEP claims qualify for redesignation. Previously, NJDEP prohibited discharges to upstream tributaries that would result in a measurable change to water quality at the Category One boundary. As a result of this changed approach, the tributaries identified in the rule, which have not been shown to have either exceptional ecological significance or exceptional fisheries resources, will now have 300 foot development buffers.
Waterbodies impacted by the proposed rule are listed below. Details regarding the specific segments of the waterbodies slated for redesignation are set forth in the proposed rule, available here. Property owners within 300 feet of the redesignated waters may be impacted by these rule changes. The public hearing is scheduled for April 8, 2019 at 1:00 PM at the New Jersey Forensic Science Technology Center Auditorium in Hamilton. Written comments are due May 3, 2019.
The proposed redesignations apply to portions of the following waterbodies:
Atlantic Coastal Basin: Tuckerton Creek and Westecunk Creek.
Upper Delaware River Basin: Brookaloo Swamp, Paulins Kill West Branch, Beaver Brook, Blair Creek, Furnace Brook, Jacksonburg Creek, Jacobs Creek, Lubbers Run, Cowboy Creek, Mountain Lake Brook, Paulins Kill, Pequest River, Pond Brook, Swartswood Creek, Weldon Brook, Merrill Creek Reservoir, Mine Brook Tributary, Musconetong River tributaries, Pohatcong Creek, Pophandusing Brook, Scout Run.
Lower Delaware River Basin: Cohansey River, Cooper River, Crystal Creek, North Run Tributary, Raccoon Creek, Salem River, Woodbury Creek, Blackwater Brook, Maurice River, Burnt Mill Brook, Fishing Creek, Breen Brook, Indian Run, Little Robin Brook, Manatico Creek, Maurice River, Muddy Run, Oldmans Creek, Old Robins Branch of Dennis Creek, Still Run.
Passaic, Hackensack and New York Harbor Complex Basin: Whippany River, Bear Brook, Cresskill Brook, Fox Brook, Ramapo River tributary west of Woodstock, Spring Brook, Stone House Brook.
Upper Raritan River Basin: Lamington River, Neshanic River, Pleasant Run, Prescott Brook, North Branch of Raritan River, South Branch of Raritan River, Rock Brook, Turtleback Brook, Beaver Brook, McVickers Brook.
Wallkill River Basin: Beaver Run, Clove Brook, West Branch Papakating Creek, Rutgers Creek, Wallkill River, Morris Lake.