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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.
Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Flood Hazard Areas Source:
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
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) Year Flood –1% Chance of Being Equaled or Exceeded Within A One-Year Period
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
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 ….
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
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
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
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)
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
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 !
Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Other Concerns Source:
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
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
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
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
Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Individual Permits Consistency with water quality management plan Detailed application required
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
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
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
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
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
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
Flood Hazard Areas & the NJPDES Rule s © 2009 Fox Rothschild Contact Information David Restaino, Esq
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