NJ’s Stormwater Permits Have Been Released

April 5, 2016

The New Jersey Department of Environmental Protection (NJDEP) has released preliminary draft versions of stormwater permits for Tier A and Tier B municipal separate storm sewer systems (or “MS4s”). These permits cover the stormwater systems of 461 “Tier A” municipalities and 104 “Tier B” municipalities across New Jersey. (This blog post focuses on the proposed Tier A permit, which covers urban municipalities of populations under 100,000, but many of the points are similarly applicable to the Tier B permit.)

The existing Tier A permit was originally issued in 2004, reissued in 2009, and then administratively extended when it expired in 2014 – so needless to say, this proposal has been a long time coming! Fortunately, NJDEP has proposed several improvements to the Tier A permit, including the following new requirements:

• Municipal officials must review and analyze development applications for compliance with the stormwater rules.
• Municipal engineers and others reviewing development applications must complete NJDEP-approved training. Municipal board and council members who review and approve applications must also complete NJDEP-approved training.
• MS4s must conduct additional education activities (to achieve “12 points” under the permit), and there are more activities to choose from to fulfill MS4s’ permit obligations.
• MS4s must comply with minimum standards for stormwater facilities inventory and mapping.

While the above changes should lead to better management of stormwater pollution from Tier A MS4s, there are several areas where the proposed permit and existing regulations must be further improved to adequately address stormwater pollution and to ensure compliance with the federal Clean Water Act.

Port-Construction Standards

New Jersey’s Stormwater Management Rules, at N.J.A.C. 7:8, govern post-construction standards for stormwater management. The existing standards are severely inadequate to address stormwater runoff. NJDEP must update and strengthen its post-construction standards, so that New Jersey regulations meet the Clean Water Act’s “maximum extent practicable” standard. In particular, the NJDEP should move forward with a proposal that requires on-site retention of stormwater runoff sufficient to protect receiving water quality, stormwater volume control requirements for redevelopment sites, and other requirements that meet federal Clean Water Act standards.

Water Quality-Based Provisions and Total Maximum Daily Loads

As demonstrated by New Jersey’s recently released 303(d) List of Impaired Waters and its Integrated Water Quality Assessment Report, over 98% of the waters in New Jersey fail to fully meet water quality standards, with stormwater runoff being a significant contributor to the degradation of New Jersey’s waterbodies. Nine hundred forty-two (942) of the total 1,944 assessment unit/pollutant combinations identified on New Jersey’s 303(d) List of Impaired Waters are due to pollution from urban runoff and storm sewers. Stormwater pollution also contributes to at least 72 new listings on New Jersey’s most recent 303(d) List.

These statistics demonstrate that stormwater pollution is continuing to harm New Jersey’s waters, as more and more waterbodies are becoming impaired from stormwater runoff. In order to address New Jersey’s water quality problems, Total Maximum Daily Loads (TMDLs) must be developed and implemented through permit terms, particularly in the Tier A MS4 Permit. NJDEP should include water quality-based effluent limits in the MS4 permit for MS4s with TMDLs in their municipalities and should include requirements for MS4s that discharge into impaired waterbodies that do not yet have TMDLs. Monitoring of discharges and receiving waterbodies should also be required in the Permit so as to determine whether stormwater waste load allocations are being implemented.

Clear, Specific and Measurable Permit Requirements

Finally, to comply with the U.S. Environmental Protection Agency’s (EPA’s) proposed revisions to federal permitting regulations governing small MS4s, NJDEP should incorporate clear, specific, and measurable requirements into its proposed MS4 permits. Clarifications to the requirements for public involvement, stormwater facility maintenance (particularly required inspections), and the incorporation of Total Maximum Daily Loads into the permits would be needed in order to ensure that the permit outlines clear, specific, and measureable requirements.

Comments will be accepted on the preliminary draft Tier A and Tier B permits. Be sure to send your comments to [email protected] by April 15, 2016

Andrea Leshak

Staff Attorney

NY/NJ Baykeeper and Hackensack Riverkeeper