Death By 1000 Cuts for Category One Water Quality

The New Jersey Department of Environmental Protection is proposing to condense and review three sets of major rules that will take away protections we already have for natural flood control and protection of drinking water.

As it is are currently written, the preferred method of improving N.J.A.C. 7:13, the “Flood Hazard Area Control Act Rules; Coastal Zone Management Rules; and Stormwater Management Rules”, would be to repeal it. Sensing this is unlikely, here are some recommendations.

* Do not cut stream buffers in half. Keep buffers 300 feet wide “along both sides” of Category One waters in 7:13-4.1(c)1, and keep them 150 feet wide “along both sides” of the other designated waters referenced by 4.1(c)2.

* Do not remove the NJDEP's responsibilities for regulating buffers in acid-producing soils by deleting 4.1(c)2. Should enforcement be transferred to the Soil Conservation Service, do not reduce buffer widths to the 50 foot-width required by the SCS (page 13 of the Summary).

Maintain the current 150-foot buffer width. Many acid soils, such as the clays and silts of the Coastal Plain (map on slide 8), are also especially vulnerable to erosion. When they erode, they downcut rather than erode laterally, and lose the ability to overflow into their original riparian wetlands during bankfull storms. In spite of the two arguments offered on page 13 of the Summary, streams in these soils need additional protections from stormwater runoff – not smaller buffers. The “Advanced Measures” in N.J.A.C. 7:14A-26.6(e) of the Stormwater Rules could reduce erosion from stormwater volume by requiring more green infrastructure in these watersheds, for example.

* When riparian areas are disturbed, erosion increases the amount of clay and silt fines in the sediment downstream, impairing or degrading macroinvertebrate habitat. Do not allow disturbed areas to be mitigated at ratios equal or even less than the area that was disrupted. Mitigation must require that all increased runoff is infiltrated, unless soils and water table make that impractical, and that the disturbed area is mitigated with habitat of the highest value at a creation to loss ratio of at least 5:1, as Michigan does. That is because buffers are more effective when they are undisturbed and contiguous, than when they are a patchwork of mitigation projects. Mitigation Banks and river restoration projects “are typically profitable for the companies doing the restoration work but often disappointing for the environment.”

Mitigate at 5:1 - except for preservation. Use the NJDEP's commonly accepted minimum ratio for wetland preservation/land donation: - 27:1 (see tabs: Mitigation Options, Preservation and Land Donation). Not “significantly larger”, as written in 13.12(c)3.

Clay and silt fines do not just blanket and impair macroinvertebrate habitat – they also provide substrate for the survival and growth of Fecal Indicator Bacteria such as E. coli in streams, stormwater structures, and freshwater and coastal lakes. Reducing buffer widths will degrade surface water used for drinking and swimming - and add more of them to the federal 303(d) list of impaired waters in N.J.

* Do not allow mitigation to occur in somewhere in broad “Service Areas” that can include the entire HUC-14 watershed, and even adjacent Watershed Management Areas. An area disturbed in tiny first-order tributary headwaters can not be restored by mitigating higher-order streams, even if they are in the same watershed - let alone in another Watershed Management Area. Mitigation must be performed in equal or lower order channels, not higher order. What the rules propose is a paper exercise that is transparently ineffective.

* Establish an Oversight Committee comprised of academic experts and water advocacy groups, as well as NJDEP staff and appointees, with open public meetings. This committee will provide binding recommendations to the NJDEP for review and approval of all the following: Permits-By-Rule, General-Permits-By-Certification, General Permits, Individual Permits, and Hardship Exceptions. Instead of relying on self-certification, this will provide science-based guidance for interpreting open-ended concepts and loosely-defined language in the rules such as “service area” (13.8(b)1 and 13.8(c)), “maximum extent practicable” (13.9(c)2), “significantly larger” (13.12(c)3), and “hybrid buffer”.

Michigan and N.J. are still the only states that the EPA has delegated the enforcement of Freshwater Wetlands Protection. An oversight committee providing science-based recommendations to the NJDEP could avoid an incompetent or conflated implementation of policy that would jeopardize the federal funding that N.J. has depended on since 1994.

In Monmouth County, the Swimming River Reservoir - and all of its feeder streams, tributaries, and headwaters - are presently designated as Category One waterbodies.

C1 streams, also known as Special Water Resource Protection Areas, are so vital to the fragile stability of the few remaining watersheds in NJ worth the effort that in 2002, rules were passed prohibiting construction in a buffer 300 feet wide along these designated streams. In 2012, the NJDEP proposed adding even more C1 streams.

Proposed but never designated. Now the NJDEP proposes combining rules written to prevent floods with the C1 rules. The “hybrid buffer” created for the flood rules will replace the 300 foot buffer in the C1 rules.

Who thinks that rules written to protect life and property in the flood zone of a stream were intended to also preserve life and habitat in its fragile headwaters? The smaller the headwater stream, the greater the area where the water interacts with the land, and the greater vulnerability to erosion. Removing riparian vegetation from heavily-shaded headwaters impacts stream temperature and aquatic habitat throughout the watershed more than removing vegetation from larger waterbodies where less of the water is shaded.

A basic understanding of stream order processes is that headwaters are crucial to a biodiversity of healthy macro-invertebrates, like species of shredders that are primarily restricted to spring seeps - and consequently to life and habitat downstream. Headwaters establish the “chemical signature” of the water downstream.

Buffers slow down runoff. There are areas in the Swimming River watershed with severe slopes in glauconitic soils where embankments are already destabilized and seriously eroding from runoff. The reservoir has become badly silted and suffers from warm water and eutrophication. Just look at the islands forming along Longbridge Road in Colts Neck. Buffers prevent undercutting of streambanks and provide shade. The last thing the Swimming River needs is smaller buffers and more runoff.

One of the earliest goals of the NJDEP Transformation was stated in a 2010 report: eliminate “cumbersome, confusing and often conflicting regulations” by “reexamining” buffer requirements “as applied to wetlands, C-1 waters and potential Threatened and Endangered species habitat under Flood Hazard, Stormwater, and Wetlands rules” (page 13).

Cutting red tape shouldn't mean death by a thousand cuts for stream buffers and C1 water quality. But that's what self-certification, wiggle-words, and loosely-defined mitigation rules will do.

The NJDEP is still making decisions based on data in the statewide Water Supply Master Plan from 1994. The latest draft was developed three years ago, we are told. It really needs to be released. Soon.

The Public Notice for the “Flood Hazard Area Control Act Rules ...” refers to the next goal: “anticipated rulemaking to amend the Freshwater Wetlands Protection Act rules”.