NJDEP Proposes New Storm Water Protection Regulations

On December 3, 2018, NJDEP issued a rule proposal that would significantly modify New Jersey’s storm water management protection rules N.J.A.C. 7:81. When adopted, the rules will mandate that major developments incorporate nonstructural stormwater management strategies. Currently, the stormwater rules only require incorporation of stormwater management strategies to the “maximum extent practicable.” Nonstructural stormwater management strategies must meet the following key elements of storm water management standards:

  • Groundwater recharge standards;
  • Stormwater runoff quantity standards; and
  • Stormwater runoff quality standards.

The most significant changes in the proposed rules include:

  • a requirement that green infrastructure be utilized to meet standards;
  • a clarification and modification to the definition of “major development,” which defines the scope of projects to which these rules apply;
  • changes to the total suspended solids removal requirements; and
  • stormwater management improvements in communities with combined sewer systems.2

“Green Infrastructure” is now a defined term meaning: “a stormwater management measure that manages stormwater close to its source by:

  1. Treating stormwater runoff through infiltration into subsoil;
  2. Treating stormwater runoff through filtration by vegetation or soil; or
  3. Storing stormwater runoff for reuse.”

The definition of “Major development” has been revised3 and now 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.

Although the NJDEP has had a Storm Water Best Management Practices (“BMP”) Manual for many years, BMP is now a defined term in the regulations. By so doing, NJDEP guidance will effectively become law, possibly giving less flexibility to the Department and regulated community when implementing the program.

Under N.J.A.C. 7:8-2.4, Stormwater management plans shall include stormwater management measures, including green infrastructure, and nonstructural stormwater management strategies necessary to meet the stormwater management goals of this chapter. The term “structural infrastructure” has been deleted by this proposal. Structural infrastructure is also known as “gray infrastructure,” because these engineered structures are often made of concrete and steel and include ditches, detention ponds and associated piping.

In sum, the proposed rules disfavor storm water control management through structural components, such as storm water detention systems, favoring instead “green infrastructure” and other non-structure components for controlling and managing runoff. NJDEP claims that these requirements will not increase development costs and will improve the economic conditions of manufacturers of green infrastructure, such as pervious pavement and vegetated roof systems. Falling demand for conventional structural components, “gray infrastructure,” may result in some economic loss for manufacturers of those systems.

CSG will continue to monitor this rule making process. Comments to this rule proposal are due to NJDEP by February 1, 2019.

1 50 NJR 2375(a), December 3, 2018.

2 The rule proposal makes minor modification to other NJDEP rules related to land use regulation, primarily to make definitions consistent and update section numbers.

3 The old definition was more simple: “Major development” means any “development” that provides for ultimately disturbing one or more acres of land or increasing impervious surface by one-quarter acre or more.

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