NJDEP Proposes to Reclassify 749 Miles of Waterways to Highly Protected Antidegradation Status in First Such Move Since 2008

For the first time since 2008, the New Jersey Department of Environmental Protection (NJDEP) has proposed to amend its surface water quality standards to prohibit degradation of water quality in additional rivers and streams that did not previously enjoy such protection. The current proposal, which was released on March 4, would lift hundreds of miles of waterways to a more protected status as Category One waters.

NJDEP’s water quality standards, found at N.J.A.C. 7:9B, have several components. The standards designate uses for all waters of the State, and prescribe water quality criteria (e.g., minimum levels of dissolved oxygen, and maximum levels of suspended solids and various toxics) necessary to allow for those uses.

In addition, the standards establish three tiers of “antidegradation” designations. The highest tier consists of “outstanding natural resource waters,” so designated because of their unique ecological significance or because they are within the Pinelands, must be maintained in their natural state. Category One waters, occupying the second tier, are protected from any measurable change in their existing water quality. Water quality in Category Two waters, the third tier, may be lowered, but only with social and/or economic justification for the change.

NJDEP’s proposal, which was first presented at a stakeholders meeting on January 17, would move 749 miles of waterways from Category Two to Category One, thus making it impossible for regulators to approve new discharges or other activities that would degrade those waters below their existing quality. Category One designation also has implications for development near such waterways, as it triggers buffer zone requirements under NJDEP’s Stormwater Management Rules and Flood Hazard Area Control Act Rules. Even projects that have already received permits might be subject to new buffer requirements if they require new or renewed permits.

Interested members of the public have until May 3 to submit comments on the proposal, which they may do electronically at www.nj.gov/dep/rules/comments or in hard copy to Gary J. Brower, Esq. Attn: DEP Docket No. 01-19-01, NJDEP Office of Legal Affairs, Mail Code 401-04L, P.O. Box 402, 401 East State Street, 7th Floor, Trenton, NJ 08625-0402. NJDEP will also hold a public hearing on its proposal on April 8 at 1:00 p.m. at the New Jersey Forensic Science Technology Center Auditorium at 1200 Negron Drive in Hamilton.

 

Paul M. Hauge, Counsel in the Gibbons Environmental Department, authored this post.
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