The NJ Department of Environmental Protection (NJDEP or Department) issued new regulations effective April 6, 2020 that expand the Garden State’s list of protected waterways. These amendments to the Surface Water Quality Standards (SWQS), N.J.A.C. 7:9B, upgrade the designation of approximately 600 river miles throughout the state and assigns them the highest level of protected water quality status of “Category One” (or “C1”).
The significant effects of the C1 designation is automatic imposition of a 300-foot development buffer from the waterway’s edge under the Flood Hazard Control Act and strict controls on water quality, including stricter permitted effluent limits for wastewater or other regulated discharges. These changes pose significant impacts for developers and property owners along each waterway as well as anyone who operates under a discharge permit to the regulated waterways.
The newly designated C1 waterways flow through 67 municipalities mainly within the Upper Delaware, Lower Delaware, Northwest, Raritan and Atlantic Coastal regions. The list includes segments of the Pequest River in Warren County, the Salem River in Salem County, the South Branch of the Raritan River in Somerset and Hunterdon counties, the Lamington River in Hunterdon and Somerset counties, the Ramapo River in Bergen County and the Wallkill River in Sussex County.
The classification of these waterways as Category 1 implements the NJDEP’s antidegradation policies set forth at N.J.A.C. 7:9B-1.5(d) and seeks to preserve water quality and protect critical habitat. It follows a multi-year review process that involved an in-depth analysis of each waterway to designate them “for protection from measurable changes in water quality based on exceptional ecological significance, exceptional recreational significance, exceptional water supply significance or exceptional fisheries resource(s) to protect their aesthetic value (color, clarity, scenic setting) and ecological integrity (habitat, water quality, and biological functions).”
Initially promulgated on March 4, 2019 by publication in the New Jersey Register, 51 N.J.R. 308(a), the new SWQS amendments were subjected to the formal public hearing (held on April 8, 2019) and comment period (closed June 3, 2019) under the Rulemaking process as required by state law. At the end of that process, the Department considered and responded to 1,753 comments it received, and proceeded with the Final Rule, but not before modifying the original draft Rule to eliminate almost 150 river miles previously proposed for C1 designation.
When proposing C1 designations based on their exceptional ecological significance, the NJDEP states that it relied on the assessment results from a 2014 Integrated Water Quality Assessment Report and draft preliminary assessment results from the 2016 update of that report, as well as the Department’s 2012 Land Use/Land Cover GIS layer. After considerable comments were received, NJDEP reevaluated the proposed C1 upgrades using the most recent publicly available data. It was during this reevaluation that the proposed draft Rule was modified to remove 150 miles of river miles (going from 749 river miles to 600 ), but the modification was not deemed so “significant” as to require the Department re-promulgate the Rule anew.
Waterbodies that were considered for C1 designation based on exceptional fisheries resources included waterbodies confirmed by the Department as supporting trout production or waterbodies approved by the Department for unrestricted shellfish harvest. In addition to receiving comments from a trout fishermen, the Department relied on trout sampling data provided by the Department’s Bureau of Freshwater Fisheries. Under the new Rule, the Department also updated stream reclassifications based on trout sampling data and modified the definition of “exceptional ecological significance,” a key component of the analysis applied to regulation of waterways in New Jersey. Accordingly, for a waterbody to be designated as C1 based on exceptional ecological significance, the waterbody must either support an endangered or threatened species or it must be found to support an exceptional aquatic community.
The Rule adoption is expected to be posted on the Department’s website at http://www.nj.gov/dep/rules/adoptions.html shortly where it be may be viewed or downloaded. It is also available in the New Jersey Register, 52 N.J.R. 711(a), and from Lexis-Nexis or Westlaw.