Amicus Brief Filed to Secure Proper NJDEP Implementation of the NJ Stormwater Regulations:
On February 7, 2011, the Delaware Riverkeeper and the Delaware Riverkeeper Network (“DRN”) filed an Amicus Brief with the Appellate Division of the Superior Court of New Jersey. The brief was submitted to the Court in support of the Appellants who filed an appeal against NJDEP for its authorization for Freshwater Wetlands Statewide Wetlands General Permit No. 6 to Care One. Care One is a for-profit company that proposed an expansion project of its facility into wetlands located in Hamilton Township, New Jersey.
This case involves serious questions regarding NJDEP’s implementation of its stormwater program because the Permit was issued to Care One without NJDEP first reviewing and approving Care One’s stormwater management plan in violation of the Freshwater Wetlands Protection Act, the Stormwater Act, and the Stormwater Management Rules. NJDEP’s conduct in this matter raises many concerns regarding its willingness to follow its procedural and operational requirements for stormwater review and compliance. DRN filed this Amicus Brief to ensure that the broader implications of NJDEP’s action in this case and its effect upon the Delaware River Watershed will be fully considered in the Court’s decision.
In September 2013 the New Jersey Appellate Division struck down the NJDEP’s issuance of freshwater wetlands and stormwater approvals for the Care One development in Hamilton Township, NJ on the grounds that NJDEP relied on an improper method to determine whether the project had sufficient stormwater protections. The lawsuit was initiated by Residents for Enforcement of Existing Land Use Code (REELUC) and joined by the Delaware Riverkeeper Network as amicus curiae. One of the many issues raised in the lawsuit was that NJDEP failed to ensure that the Care One development sufficiently controlled the stormwater flowing from its site. NJDEP typically uses a point system to determine whether a particular development meets the requirement to implement stormwater strategies that eliminate and minimize environmental impacts associated with stormwater mismanagement, such as flooding and water quality impacts. If the developer had sufficient points it was said that sufficient stormwater controls to promote infiltration had been in place. However, the point system had never been put through a proper rule making process whereby members of the public could comment as to the sufficiency of the rule to adequately manage stormwater. As a result of REELUC and DRN’s litigation, the New Jersey Appellate Division struck down the use of the point system. Moving forward, in the absence of the point system, developers will now have to more articulately state how measures they’ve incorporated into a particular development will reduce flooding, runoff and water quality impacts.
DRN is now participating in a stakeholder process with NJDEP as the Department has begun the initial process of considering whether to put the point system through formal rulemaking. DRN will continue to be engaged in this issue to ensure that proper stormwater regulation is implemented in NJ.