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The New Jersey Department of Environmental Protection (NJDEP) proposed in July 2000 a highly controversial rule to manage water quality and watersheds. This proposal was described by the author at the Watershed 2000 conference in the paper “Protecting Developing Watersheds Through State Planning Regulations: New Jersey's Example (Update to June 2000).” The proposed regulations incorporated a variety of approaches to watershed management that relied on environmental indicators, environmental impact analyses and concepts of sustainable development in watersheds. Some of the key approaches were:

A hierarchy of plans, with wastewater and stormwater plans fitting into an umbrella watershed management plan for each of 20 watershed-based geographic areas.

Community wastewater management planning that requires extensive impact analysis prior to approval of increases in sewer service areas and treatment plant capacity.

Domestic wastewater management planning that requires analysis of septic system capacity using nitrate dilution models.

Requirements that new development areas achieve no net increase in nonpoint source pollutant loadings and no harm to stream base flows.

Melding of the Total Maximum Daily Load (i.e., surface water pollution control plan) approach with broader watershed management planning.

Thousands of public comments were received, most of them in opposition to the proposed rule. Many statewide environmental organizations opposed the rule because it did not retroactively address past approvals for sewer service areas, among other reasons. Development interests opposed the rule because it would involve extensive environmental analyses for development in many of the fastest-growing parts of New Jersey. The New Jersey Legislature released two different letters (each with 75 signatories); one declared that the rules were not sufficiently stringent, while the other declared that the rules exceeded statutory authorizations.

Subsequent to the close of public comments, NJDEP adopted one section of the rule (NJAC 7:15–8), which removes the ability of any developer to create six or more septic systems in a new development unless analyses show that the density of septic systems and the impacts of the related development are acceptable. A second part of the rule, addressing a new watershed grants program, was adopted in August 2001. The remainder of the rule proposal, including watershed planning and environmental analysis requirements, were dropped and the existing rules extended into 2002, after a new Governor will take office.

This paper analyzes the nature of the debate against rule adoption, discusses both the policy and technical concepts behind New Jersey's decisions to adopt or not adopt specific components of the proposed rule, and suggests implications for state-mandated watershed management planning in New Jersey and elsewhere. Briefly put, New Jersey's attempt at a comprehensive, regulatory approach to watershed protection has foundered; its future depends on a new administration and Legislature. Work continues on watershed management plans through contracts and voluntary involvement, but New Jersey currently lacks a commitment to implementation of anything beyond the TMDL results, and even there has little funding or authority for nonpoint source controls. Whether the program has “legs” or will wither away is very much in question.
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Document Type: Research Article

Publication date: 2002-01-01

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