REALsmart
the league for real smart growth
68 So.
Dear
Mr. Baier:
Thank
you for your July 10 letter of response regarding the 300' buffer on C-1
creeks.
We
have to challenge the entire attitude of NJDEP on this issue. Aiming, as you evidently are, only for the
minimum achievable protections, instead of the highest water quality
achievable, under the rules is how the NJDEP has so badly faltered in its
interpretation and implementation of C-1 protections.
The
highest court in
Using
agricultural Area Loading Coefficients to justify the conversion of buffers for
residential development or to determine that disturbances justify a permanent
loss of buffers are egregious examples of the NJDEP's
misapplication of C-1 and storm-water rules.
The ability to reduce the buffers from 300 to 150 feet is NOT
automatic, but requires a site specific demonstration that EWQ AND all the
other non water quality functional values of the buffers will be equivalent and
maintained.
Contrary
to the assertion in your letter, the storm-water permit rules do establish a
regulatory program. The Stormwater Permit Program is promulgated pursuant to the NJ
Water Pollution Control Act and is mandated by the federal Clean Water
Act. The Municipal NJPDES storm-water
permits are essentially federal permits.
The use of the NJ Right to Farm law to explain away the NJDEP's prerogatives, under the rules, is feeble and
untenable, in that under this scenario, even federal
rules are superseded by the RTF law, by the extension of privileges accorded
legitimate agricultural pursuits, to residential developers. This interpretation is indefensible in that
it sets a precedent at NJDEP that eviscerates environmental enforcement on land
use.
The
preposterous idea that conversion of farmland to residential development will
improve the quality of the C-1 environment will make the NJDEP a laughing
stock, when it is exposed by the 27 groups that are petitioning you on behalf
of the C-1 environments. Rather,
returning the buffer to its 300' width and restoration with native vegetation
has the real potential of actually improving water quality in the stream. We imagine that the DEP would think this a
good idea.
Further
evidence of missed chances is the ‘suspended animation’ of the NJDEP on C-1
designations. It has a backlog of over
1600 already identified "candidate C1 waters" (that were proposed for
pubic comment in March 2003) and instead of moving forward the agency has
recently denied qualified petitions. We
need more C-1 designations in the Surface Water Quality Standards (NJAC 7:9B-1
et seq.), and we need them now.
In
light of the empowering supreme court ruling, the
NJDEP must not cower for fear of legal challenges from builder's etc., instead
it must recognize the window of opportunity that has been opened to fulfill the
agency's mission to protect the environment.
A compelling further example and, indeed, a proof of this point, is that
the
C-1 environment, in not only the preservation area but also the planning
area.
The very reasons we needed the
In
light of the points made here, we ask for a reevaluation of your arguments,
starting with what is achievable by enforcement of storm-water permit rules.
When the possibilities are re-explored we sincerely hope that implementation of
the C-1 rules will result in the highest C-1 water quality possible.
One
implementation measure we fully expect immediately from the NJDEP, in
recognition of the validity of the points made here, is that in change of use
situations in a C-1 environment, the equivalent water quality (EWQ) is not
used, where the former use involves a legitimate relaxation of buffer standard
under the RTF Act; rather the goal is to maintain a continuous 300’ buffer
along the length of C-1 waterways and tributaries as NJDEP ‘s best tool to
return water quality as it is supposed to be in the C-1 environment.
Sincerely,
(Signed by the same 27 Environmental Groups that
signed the
Cc.
Mark Mauriello, Assistant Commissioner
Debbie Mans, Governor’s Office
Lisa Jackson, NJDEP Commissioner