1. Flood Hazard Areas & the NJPDES Rule s © 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.

2. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Flood Hazard Areas  Source: http://www.nj.gov/dep/floodcontrol/http://www.nj.gov/dep/floodcontrol/

3. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

4. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

5. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

6. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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 ….

7. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Regulated Activities  Fill, alter topography  Clear, or cut vegetation  Impervious surfaces  Unsecured storage  Larger structures  Buildings

8. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Permits  Permit-by-rule  General permit  Individual permit –Area specific standards –Project specific standards  Emergency permit  Coastal permit

9. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Permits  No construction in floodway  Permit first, activity second  Applicability determinations  NJDEP verification –90-day review –Usually required before an individual permit can issue

10. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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)

11. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

12. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Other Concerns  Hardship exceptions  Notice –Permit Acceptance –Construction Begins –Construction Ends  Enforcement concerns  Get an engineering consultant !

13. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Other Concerns  Source: http://www.nj.gov/dep/floodcontrol/about.htmhttp://www.nj.gov/dep/floodcontrol/about.htm

14. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

15. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

16. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

17. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Some General Permits  Construction activity / stormwater  Construction dewatering  Municipal stormwater  Basic industrial stormwater  Dental facilities with onsite wastewater treatment  Others

18. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Individual Permits  Consistency with water quality management plan  Detailed application required

19. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

20. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild TWAs – The Three Stages  Conceptual approval  Construction approval –Two years –Can be renewed  Approval to operate

21. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

22. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

23. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild General Conditions and 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

24. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild 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

25. Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Contact Information David Restaino, Esq. 609.896.3600 drestaino@foxrothschild.com