flood hazard areas & the njpdes rule s © 2009 fox rothschild land use and environmental...

Flood Hazard Areas & the NJPDES Rules

© 2009 Fox Rothschild

Land Use and Environmental Regulation in New Jersey

October 14, 2009

Flood Hazard Areas

& the NJPDES Rules

Presented by

David Restaino, Esq.



Flood Hazard Areas Source: http://www.nj.gov/dep/floodcontrol/



Flood Hazard Areas

What is a Flood Hazard Area?- Floodway- Flood Fringe- “Regulated Water” - Water that drains

greater than or equal to 50 acres, excluding certain canals and coastal wetlands



Flood Hazard Areas

- Inundated by a “Design” Flood– Tidal (100-year)– Fluvial (100-year + Safety Factor)

- 100-Year Flood – 1% Chance of Being Equaled or Exceeded Within A

One-Year Period



Riparian Zones

Different, and also regulated in N.J.A.C. 7:13

Like a buffer 50, 150 or 300 feet from a regulated

water Follows the channel, not the floodway



Riparian Zones

300 Feet: Category One waters and certain upstream tributaries

150 Feet: Trout waters, T&E habitat, acid producing soils

50 Feet: All else ….



Regulated Activities

Fill, alter topography Clear, or cut vegetation Impervious surfaces Unsecured storage Larger structures Buildings



Permits

Permit-by-rule General permit Individual permit

– Area specific standards– Project specific standards

Emergency permit Coastal permit



Permits

No construction in floodway Permit first, activity second Applicability determinations NJDEP verification

– 90-day review– Usually required before an individual permit can issue



Other Issues

0% net fill / compensate for fill Buildings: 1 foot higher than the FHA

design flood (which itself is 100-year plus one foot)



Goals

Flood storage, unobstructed flow Keep new construction out of the flood

hazard area Protect plants and critters No adverse impact from one property

owner upon another



Other Concerns

Hardship exceptions Notice

– Permit Acceptance– Construction Begins– Construction Ends

Enforcement concerns Get an engineering consultant !



Other Concerns Source: http://www.nj.gov/dep/floodcontrol/about.htm



The NJPDES Program

New Jersey Pollutant Discharge Elimination System

Federal model Pollutant – broad definition Discharge of a pollutant without a permit is

prohibited Permits

– Five years, generally– Individual permits & general permits



Example

Discharge to surface water (DSW) permit- Specifies pollutants that can be discharged- Specifies quantity of allowable discharge

(effluent limitations)- Must measure specified pollutants- Report / self-certify on monitoring report

forms (MRFs)- Responsible corporate officials



Permits

- Discharge to surface water (DSW)– Stormwater included

- Discharge to ground water (DGW)- Underground injection control- Treatment works approvals- Indirect users / delegated local agencies

(DLAs) – industrial pretreatment program– Mini-NJDEPs



Some General Permits

Construction activity / stormwater Construction dewatering Municipal stormwater Basic industrial stormwater Dental facilities with onsite wastewater

treatment Others



Individual Permits

Consistency with water quality management plan

Detailed application required



Treatment Works Approvals

Wastewater NJDEP evaluates design and ability to meet effluent

standards – and the evaluation and approval actually occurs after the NJPDES permit issues

Projected flow criteria– Example: bowling alley = 200 gpd / alley

More than two buildings or greater than / equal to 8000 gpd

No single family residences, except single property with aggregate wastewater design flow > 2000 gpd

Other



TWAs – The Three Stages

Conceptual approval Construction approval

– Two years– Can be renewed

Approval to operate



Construction Stormwater

Erosion and sediment control best management practices (BMPs)

Control of litter and debris, and like waste New e-permitting system from NJDEP,

not soil conservation districts



Sewer Bans

Inadequate capacity, or three months of consecutive effluent exceedences

No new connections & no new applications

NJDEP exemption rules Local exemption criteria to be adopted



General Conditionsand Other Requirements

Discharge of specified pollutants only Non-transferable without written notice Best management practices Non-compliance reporting is required Affirmative defenses (e.g., upset,

unanticipated bypass) Permittee must fund, manage, staff / train,

inspect and maintain



Other Issues

Stormwater pollution prevention plan (SPPP)

Reclaimed water for beneficial reuse Pre-application conferences Draft permits, and rights of appeal Permit transfer can be automatic



Contact Information

David Restaino, Esq.

609.896.3600

[email protected]

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