As the new home of NJPIRG's environmental work, Environment New Jersey can be contacted regarding this news release.
Wednesday,
April 12, 2006, the Superior Court of New Jersey Appellate Division,
issued a ruling upholding New Jersey’s requirement for 300 buffers on
either side of C-1 and associated perennial and intermittent streams.
The
Delaware Riverkeeper Network was a major supporter of NJ’s stormwater
regulations and provided strong support and information documenting the
need for the 300 foot buffer requirement. According to Delaware
Riverkeeper Maya van Rossum “eyes across the country have been watching
this case and whether or not some of the strongest buffer requirements
in the country will withstand legal challenge. This case sets a crucial
precedent that must be followed throughout the Delaware River watershed
and across the nation.”
The
Delaware Riverkeeper Network and a collection of environmental
organizations from across the state were represented by the Rutgers
Environmental Law Clinic and Delaware Riverkeeper Network’s Senior
Attorney Carole Hendrick in supporting the regulations against the New
Jersey Builders’ Association challenge.
Opponents
of the regulatory requirement, the New Jersey Builders Association,
challenged DEP’s authority to issue the regulatory requirement claiming
the buffer requirement functioned as a “no build” provision “directly
regulating the use of land without regard to stormwater control or
management and promulgated by the DEP without state-wide land use
regulatory jurisdiction.”
Rejecting
this argument, the Court recognized and reaffirmed DEP’s broad
authority for protecting water quality and ecosystem health – according
to the Court “The Legislature, in a variety of measures, has given the
DEP a wide array of power to address water quality and pollution
concerns beyond traditional floodwater control, and to promulgate rules
to protect the waters of this State.” Notably, in its ruling, the Court
noted the direct link between land use and water quality protection and
the role DEP plays in connecting and regulating the two -- “appellant’s
argument overlooks the close correlation between riparian land use and
water quality, over which DEP does exercise plenary power…”; “no one
disputes that development in close proximity to C1 waters can have a
deleterious effect on these waters whether or not stormwater is
discharged directly to the stream.”. And the Court recognized the
important role non-structural strategies, such as buffer protection,
minimizing earth disturbance and minimizing impervious surfaces plays
in protecting water quality.
According
to the Court: “During the approval process, substantial data and
scientific evidence was adduced in support of the DEP’s determination
that the creation of 300-foot buffers was the appropriate level of
protection for C1 water bodies. The detrimental effects of stormwater
runoff from land development were well documented in the record as was
the need to use buffers to protect sensitive waterways.”
Tracy
Carluccio, Director of Special Projects for the Delaware Riverkeeper
Network states: “Buffers are critical to the water quality and health
of stream ecosystems. A recognition that a 300 foot buffer requirement
provides the high level of protection necessary to protect the health
of our high quality streams is enlightened and informed and provides
necessary legal backing to what science has known all along – streams
need buffers to be clean and healthy.”
"This
decision should send a crystal clear message to developers – you can't
build everywhere," said Doug O'Malley, NJPIRG's Field Director. "We
need to protect the land bordering our state's pristine waterways to
fully implement stormwater protections."
Delaware
Riverkeeper van Rossum noted the Court’s expansive definition of the
term water quality and the important role buffers play in stream
protection “applauding these as important recognitions for the
well-rounded role healthy streams and healthy buffers play in our
communities and lives” – the Court specifically ruled “the DEP may
impose a buffer to avoid development-related impacts on water quality
unrelated to stormwater, … or for reasons altogether unrelated to
protecting water quality, such as for instance, recreation and
aesthetics. In any event, aesthetics is a component of water quality.”
Additional Contacts
Maya K. van Rossum, the Delaware Riverkeeper 215 801 3043
Tracy Carluccio, Director of Special Projects, Delaware Riverkeeper Network 215 369 1188
Carole Hendrick, Senior Attorney, Delaware Riverkeeper Network and of counsel on the case, 610 489 0295
Carter Strickland, Rutgers Environmental Law Clinic, lead attorney on the case, 973 353 5695
Tim Dillingham, American Littoral Society, 732 291 0055
