The Stormwater Management Rules establish a 300‐foot Special Water Resource Protection Area (SWRPA) adjacent to all Category One waters and their mapped tributaries within the same HUC 14 watershed. Pursuant to N.J.A.C. 7:8‐5.5(h)1ii, encroachment into the SWRPA is only allowed under limited circumstances where the applicant has demonstrated that the functional value and overall condition of the SWRPA are maintained to the maximum extent practicable.
A two‐step process was developed for determining if the functional value and overall condition of the SWRPA are maintained to the maximum extent practicable. Under the first step, there is an assessment of each of the four central functions of a SWRPA based on existing and proposed conditions: Habitat, Nonpoint Source Pollutant Reduction, Temperature Modification and Channel Integrity. If under this analysis, an encroachment does not result in any loss of the four functional values assessed, that encroachment may be permitted under N.J.A.C. 7:8‐5.5(h) without further analysis.
If under this analysis a loss of any of these functions is indicated, then there is a need to determine whether the functional value and overall condition of the SWRPA are “maintained to the maximum extent practicable.” This step shall include a demonstration that the encroachment is necessary to accomplish the project’s purpose and cannot be avoided by project redesign, reduction in scope or alternative means of access, and may require a finding that the unavoidable disturbance has been minimized and mitigated. This demonstration may be satisfied through the issuance of a stream encroachment permit under the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13, where such permit review included an alternatives analysis that demonstrates that the encroachment is unavoidable and that the loss of functional value has been minimized.
However, where the Stormwater Management Rules include more stringent limitations concerning encroachments into the SWRPA than the Flood Hazard Area Control Act Rules, for example the prohibition of stormwater outfall structures within 150‐feet of a protected waterway, or the prohibition of encroachment into undisturbed portions of the SWRPA, the more stringent requirements of the Stormwater Management Rules shall apply. Encroachments into these areas may only be approved under the criteria for a Hardship Exception for an Individual Permit found at N.J.A.C. 7:13‐9.8. For major development projects that do not require a permit from the Division of Land Use Regulation, and that require a Department approval of an encroachment into the 300‐foot SWRPA, the Division of Watershed Management shall conduct that review and apply the Hardship Exception for an Individual Permit at N.J.A.C. 7:13‐9.8 where a loss of functional value is predicted in determining whether the overall condition of the SWRPA are maintained to the maximum extent practicable.
The Surface Water Quality Standards (SWQS) at N.J.A.C. 7:9B designate “Category One waters” and define them as those waters designated in the tables in N.J.A.C. 7:9B‐1.15(c) through (h), for purposes of implementing the antidegradation policies set forth at N.J.A.C. 7:9B‐1.5(d), for protection from measurable changes in water quality characteristics because of their clarity, color, scenic setting, other characteristics of aesthetic value, exceptional ecological significance, exceptional recreational significance, exceptional water supply significance, or exceptional fisheries resource(s).Treatment of nonpoint source (NPS) pollution has traditionally been handled by the Department through Best Management Practices (BMPs).
Therefore, the Stormwater Management rules at N.J.A.C. 7:8‐5.5(h) define a Special Water Resource Protection Area (SWRPA) as an additional BMP to maintain/restore water quality and support designated uses associated with Category One waters. In accordance with N.J.A.C. 7:7‐5.5(h)1i the SWRPA shall consist of the area within 300 feet of a Category One water and its upstream tributaries within the HUC 14 drainage area, including both perennial and intermittent streams depicted on either USGS Quadrangle Maps or the County Soil Surveys. The 300 feet shall be measured perpendicular to the waterway and outward from the top of bank, or from the centerline of the waterway where the bank is not defined.
A project or activity that is subject to review under N.J.A.C. 7:8 is subject to the SWRPA requirements. N.J.A.C. 7:8 applies to “major development”, which is development that would disturb one or more acres, or, if a LUR or Dam Safety permit is involved, would add one quarter of an acre or more of impervious surface. The rules define “development” as construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or structure; mining, excavation or landfill; or use/change in use of any building, other structure, land or extension of use of land that requires permission under the Municipal Land Use Law (N.J.S.A. 40:55D‐1 et seq.).
“Disturbance” means the addition of impervious surface (e.g. pavement); exposure or movement of soil or bedrock (e.g. grading, excavation); or clearing, cutting, or removing vegetation.
“Impervious surface” means an area that has been covered by a layer of material that is highly resistant to infiltration by water. Impervious surfaces include concrete, asphalt, swimming pools and buildings.
N.J.A.C. 7:8‐5.5(h)1ii stipulates that “Encroachment within the designated special water resource protection area under (h)1i above shall only be allowed where previous development or disturbance has occurred (for example active agricultural us, parking area or maintained lawn area). The encroachment shall only be allowed where the applicant demonstrates that the functional value and overall condition of the special water resource protection area will be maintained to the maximum extent practicable. In no case shall the remaining special water resource protection area be reduced to less than 150 feet as measured perpendicular to the top of bank or the waterway or centerline of the waterway where the bank is undefined.
All encroachments proposed under this subparagraph shall be subject to review and approval of the Department.” (emphasis supplied). A developed or disturbed SWRPA exists only if there are structures or other impervious cover (development) or a lack of woody vegetation (disturbance), unless herbaceous‐only vegetation is the natural condition as in an emergent wetland. A disturbed condition could be an active agricultural field, lawn or other maintained grassy area. An active agricultural area is intended to include any area whereall woody vegetation (trees and shrubs) has been removed for the purposes of raising food, fiber or livestock. Where an agricultural area has been fallow for such period of time as to allow the growth of woody vegetation, which takes several years, the area, is not considered to be actively farmed.
The Stormwater Management Rules only allow disturbance of an undisturbed SWRPA under very limited circumstances. The Stormwater Management rules state at N.J.A.C. 7:8‐5.5(h)2 that “All stormwater shall be discharged outside of but may flow through the special water resource protection area and shall comply with the Standard For Off‐Site Stability in the “Standards for Soil Erosion and Sediment Control in New Jersey,” established under the Soil Erosion and Sediment Control Act, N.J.S.A. 4:29‐39 et seq. (see N.J.A.C. 2:90‐1.3).”
N.J.A.C. 7:8‐5.5(h)3 addresses the conditions which must be met if a stormwater discharge cannot comply with the Standard For Off‐Site Stability, prior to allowing the placement of stabilization measures in the special water resource protection area. Those requirements are: stabilization measures may not be placed within 150 feet of the waterway; stormwater must be treated to achieve a 95 percent reduction of total suspended solids, temperature must be addressed to ensure no impact on the receiving waterway, the applicant must demonstrate that the functional value and overall condition of the special water resource protection area will be maintained to the maximum extent practicable; a conceptual design meeting must be held between the applicant, the Department and the Soil Conservation District; and all encroachments under this section are subject to review and approval of the Department. Where the Department and the Soil Conservation District agree as to the location of an outfall that must be located in the SWRPA that location shall be presumed to meet the “maximum extent practicable test.
Other major development that proposes encroachment into undisturbed portions of a SWRPA are generally prohibited by the Stormwater Management Rules. However, where an encroachment has no feasible and prudent alternative to the proposed project, including not pursuing the project, which would avoid or substantially reduce the anticipated adverse effects of the project, the Department may permit the encroachment if it meets the criteria for Hardship Exception for an Individual Permit in the Flood Hazard Area Control Act Rules (See N.J.A.C. 7:13‐9.8).
The SWRPA requirements in the Stormwater Management Rules make no allowance for encroachment within 150‐feet of a Category One Water or their tributaries in the same HUC 14 watershed. However, the Department recognizes that in extreme circumstances an allowance must be made for a linear development that has no feasible alternative route and for which the Department makes the findings required to grant a hardship waiver under the Flood Hazard Area Control Act Rules (N.J.A.C. 7:13‐9.8). (see Response to comments 787‐790 at 36 N.J.R. 751).
Where an encroachment into an undisturbed SWRPA or within 150 feet of a protected stream is permitted under the criteria for Hardship Exception for an Individual Permit (N.J.A.C. 7:13‐9.8) that includes a loss of any of the four assessed functional values is approved, the Department will require minimization and may require mitigation of the impact to functional value. Functional value loss shall be assessed as described above. Minimization of the loss of functional value shall be determined as described below. Once minimized the loss of functional value shall be mitigated by planting other disturbed areas of SWRPA with native trees on a 2:1 area basis. The exception to forest‐type revegetation would be where a grassland species is the basis for a designation as high value habitat; in this case, revegetation shall be with meadow species together with a maintenance program.
Pending and previously approved projects: If the project has a valid DLUR permit or an application deemed complete by the Department prior to the effective date of a C1 designation, it is not subject to the requirements made applicable by the new designation.
Projects needing more than one DLUR permit: If the project has a valid DLUR permit (i.e. Flood Hazard) prior to the effective date of a C1 designation and requires another DLUR permit (i.e. Freshwater Wetlands), the review of the other permit will be exempt from requirements made applicable by the C1 designation provided that the previously approved valid permit included a stormwater management review consistent with the Stormwater Management rules effective February 2, 2004 and any subsequent amendments.
Projects that did not need a FHACA permit prior to a new C1 designation, but are now located within the C1 buffer: Projects with municipal approval, issued prior to the effective date of the C1 designation, that enables commencement of construction will not require a FHACA permit.
Projects that did not need a municipal approval and began construction before the effective date of the C1 designation as evidenced by: the foundation for at least one building or structure; all of the subsurface improvements for a roadway; or the installation of all of the bedding materials for a utility line, will not require a FHACA permit.
In all cases, if the project changes such that a new permit application is required, the designation in effect at the time of the new application will apply.