NJDEP Water Initiatives May Restrict Development

January 16, 2007
Client Alert Newsletter Forecast 2007

Recent and forthcoming New Jersey Department of Environmental Protection ("NJDEP") initiatives may place more restrictions on development in the state. For example, the current Stormwater Management Rules create a 300-foot buffer around the state's highest quality streams. Until recently, NJDEP allowed encroachment into the outer 150-foot area of the buffer if an applicant demonstrated that the "functional value" and overall condition of the area would be maintained to the maximum extent practicable. However, NJDEP Commissioner Lisa Jackson issued an administrative order in January requiring an in-depth functional value analysis evaluating the encroachment's impacts upon the buffer's ecological function. If the analysis indicates that a loss of functional value will result, NJDEP will not permit any buffer encroachment unless the applicant proves that the loss is unavoidable through project redesign, including reduction in the development's scope. This will be a lengthy and difficult standard to meet.

NJDEP also proposed new flood control rules late last year that would create bigger "no development" buffers around waterways and prohibit the net addition of fill to flood plains. In addition, this spring NJDEP is expected to issue draft portions of its updated New Jersey Statewide Water Supply Plan (a/k/a the "Master Plan"). The Master Plan update is eagerly anticipated not only as the key policy document setting forth all of NJDEP's major initiatives for managing and conserving the state's water supply, but also because it was last updated in 1996. NJDEP's proposals on declining water levels in confined aquifers and interconnections between multiple water supply systems may significantly impact where, when, and how future New Jersey development will occur.