March 20, 2009

On May 21, 2007, the New Jersey Department of Environmental Protection (“DEP”) published its proposal to reclassify more than 900 miles of waterways in the State to Category One (“C-1”) status. The proposed rules affect portions or all of more than 15 major rivers, reservoirs and their streams and tributaries throughout 11 counties. A public hearing concerning the proposed rules will be held at the Rutgers EcoComplex in Bordentown on June 28, 2007. Public comments on the proposal will be accepted by DEP through July 20, 2007, after which DEP will likely adopt such rules.

DEP claims that its proposal to reclassify the waterways C-1 - the largest such proposal in the history of the agency - is necessary to protect the “exceptional ecological significance” of those waterways. In particular, the proposed rules emphasize the need to preserve the habitats of various turtles and mussels that are considered “threatened or endangered” species or to preserve water quality needed to support an “exceptional aquatic community.”

Under DEP’s proposal, the discharge of sewer effluent or anything else that would degrade the quality of the affected waterways would be prohibited. Additionally, the C-1 status would trigger the requirements of DEP’s existing stormwater management rules and proposed flood hazard control rules, both of which impose a 300-foot buffer from the affected waterways, as well as the tributaries of those waterways. No development activity would be permitted within the 300-foot buffer areas.

Since any C-1 designation will trigger the restrictive 300-foot buffers required by DEP’s existing stormwater management rules and proposed flood hazard rules, developers and property owners should be cognizant of any “grandfathering” provisions contained in those rules. The stormwater management rules, which mandate 300-foot “special water resource protection area” buffers from the banks of C-1 waterways, contain no grandfathering provisions.

As presently proposed, the flood hazard rules, which mandate redundant 300-foot “riparian zone” buffers from the banks of C-1 waterways, provide grandfathering exemptions only in very limited circumstances as follows: (1) the development project already possesses valid stream encroachment permits, CAFRA permits, or waterfront development permits as of the effective date of the new rules; OR (2) the development project was not subject to the pre-existing DEP rules and one of the following applies: (a) the project is issued a building/construction permit prior to the effective date of the new rules; or (b) a building/construction permit is not required, and certain construction activities (such as the foundation, subsurface road improvements, or installation of bedding materials for a utility line) are completed prior to the effective date of the new rules.

The “special water resource protection area” buffer of the stormwater management rules and the “riparian zone” buffer of the flood hazard rules are technically separate 300-foot buffers that overlay each other. Thus, DEP will likely take the position that grandfathering relief from the “riparian zone” buffer does not automatically result in grandfathering relief from the “special water resource area” buffer. Since there are no grandfathering exemptions under the stormwater management rules, it is entirely possible that DEP will allow no deviation from the 300-foot “special water resource protection area” buffers for C-1 waterways.

Owners and developers of property near waterways should study DEP’s C-1 rule proposal carefully to ascertain whether their land is designated for reclassification. If one’s property is affected, he or she should review the status of all DEP permit applications in order to ascertain whether the “grandfathering” provisions of DEP’s proposed flood hazard control might apply to the project.

Because DEP’s C-1 rule proposal itself contains no “grandfathering” provision, affected property owners and developers should consider submitting comments to DEP requesting that fair and equitable “grandfathering” and waiver provisions be included in the rules. Affected persons should also consider hiring an attorney and/or an environmental consultant who can prepare and submit comments prior to July 20 disputing the findings of DEP concerning the quality of specific waterways. Given the immediacy of these far-reaching rules, affected persons would be well-advised to move quickly to preserve the development rights they may have.

This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to Henry T. Chou, Esq. (609) 734-4447 or by email: info@hillwallack.com