Green Acres and Green Infrastructure

Transcription

1 Nvember 20, 2016 Green Acres and Green Infrastructure A White Paper Reviewed and Released by the Jersey Water Wrks Green Infrastructure Cmmittee Prepared by Daniel J. Van Abs, PhD. Summary Green infrastructure the practice f managing strmwater and enhancing verall envirnmental quality by using natural systems r mimicking natural prcesses is increasingly cnsidered a preferred practice fr addressing New Jersey s Cmbined Sewer Overflws (CSOs) and MS4 1 permitting requirements. In urban areas, strmwater inputs can be cntrlled thrugh a wide variety f green infrastructure techniques, such as green rfs, rain barrels and cisterns, prus pavement, Green Streets, biretentin areas (e.g., rain gardens, biswales), and tree trenches. While traditinal gray infrastructure will remain necessary, green infrastructure can greatly reduce stresses n and envirnmental impacts f traditinal strmwater and cmbined sewer systems. Wherever pssible, green infrastructure shuld be placed n lands and in places where it enhances cmmunities and the built envirnment. Hwever, highly urbanized areas face significant cnstraints regarding useable green infrastructure sites. Public parkland, especially in urban and densely develped suburban lcatins, can prvide the space and critical infiltratin capacity required by such facilities. The ptential use f public parkland fr such purpses raises imprtant questins abut the cmpatibility f strmwater management with intended park purpses, especially regarding the legal bligatins f municipalities, cunties and nn-prfit rganizatins that have received Green Acres funding. This white paper prvides a cnceptual framewrk fr discussing which green infrastructure facilities wuld best represent Park-Psitive Green Infrastructure that can be allwed under the existing New Jersey Department f Envirnmental Prtectin (NJDEP) Green Acres regulatins at N.J.A.C. 7:36, and which prjects are nt apprpriate in such settings. The Issue Strmwater management has been evlving in recent decades frm a hard infrastructure prcess f mving water frm impervius urbanized areas t pen waters as quickly as pssible, r with minimal cntrl n discharge rates. The envirnmental results f these traditinal practices have been stream ersin and sedimentatin, water pllutin, the lss f grund water recharge and increased flding. The mre recent practice invlves a mre hlistic apprach that prtects recharge and seeks t mimic natural hydrlgic cycles, where precipitatin fr the mst part mves slwly t pen waters. The result is a hydrgraph with a slw rise t a lwer, mre natural peak flw, rather than a rapid rise t an unnaturally high peak flw. Hwever, these techniques have been used in relatively recent develpment, cmprising nly a small percentage f ttal develpment in New Jersey. 1 MS4 is Municipal Separate Strm Sewer Systems 1

2 Nvember 20, 2016 Green infrastructure is a brad cncept that includes the prtectin f pen spaces critical t natural water systems, and the creatin f strmwater infrastructure that helps slw and stre runff, thrugh induced recharge, filtering prcesses, and strmwater use. The infrastructure may be green in tw ways: as natural habitat and the use f vegetatin, and as dispersed hard infrastructure that brings strmwater flw back t mre natural patterns. 2 Large-scale green spaces are imprtant n a watershed scale, while the use f strmwater infrastructure is critical in strmwater catchment areas and cntribute t watershed-scale benefits. The bundary between green and gray infrastructure is nt always clear, but green infrastructure is typified by dispersed, small-scale systems. Gray infrastructure is typified by the use f large-scale hard infrastructure such as pipes, detentin basins, stream discharge pipes fr cncentrated flws, tunnels, strage tanks, treatment plants and the like. Natinal practice shws that there are many lcatins and pprtunities fr implementatin f green infrastructure, including private prperty, public streets, schls, and parks. The last f these lcatins can raise regulatry issues in New Jersey under specific circumstances. New and existing parks may be designed such that they incrprate green infrastructure that addresses strmwater frm within the park. Dealing with nsite strmwater is an apprpriate expectatin fr all strmwater surces within the park, including park facilities such as rads, buildings, playgrunds and ball fields. New parks can be designed t address ffsite strmwater als, if the strmwater cmpnents fr the ffsite strmwater are paid fr by ther funds, and nt by Green Acres and lcal pen space funding. This apprach is being taken by Hbken, fr example, where its new park designs incrprate strmwater management as a cmpnent f the city fld mitigatin and CSO management plans. New Jersey statutes and regulatins allw fr this apprach, where the strmwater management techniques are explicitly recgnized as a part f the new park prject. In each case, Green Acres funding shuld nt be used fr the ff-site strmwater benefits. Natinal practice in highly urbanized areas, such as cities with cmbined sewers, includes the use f existing parks as lcatins fr green infrastructure prjects that manage strmwater frm adjacent develped lands, including public streets and schls. These existing parks ften cnstitute a significant fractin f available land fr green infrastructure, and culd serve as valuable lcatins fr strmwater cntrls that will help cities reduce cmbined sewer verflws (CSOs), if prperly placed and designed. Current interpretatin f New Jersey legal requirements in N.J.A.C. 7:36 fr existing parks has restricted in-park management f ffsite strmwater runff using gray infrastructure, but the advent f green infrastructure as a majr strmwater management technique has raised the ptential fr these techniques t be addressed differently. The majr regulatry questin is hw and where is it apprpriate t integrate green infrastructure int the design and management f existing parkland. Defining acceptable types, lcatins, design and peratin f green infrastructure within parks that are listed n the Recreatin and Open Space Inventry (ROSI) is an imprtant first step in answering this questin. 2 Green Infrastructure: A Landscape Apprach (Ruse and Bunster-Ossa, PAS 571, 2013) frm the American Planning Assciatin, prvides a gd verview f the histry and current practice f these tw appraches. Examples f green infrastructure in parks are prvided frm Chicag, Philadelphia, Dallas, Charltte, and Lancaster, PA. The United States Envirnmental Prtectin Agency (USEPA) als ntes the value f strmwater parks using green infrastructure, in its fact sheet Integrating Green Infrastructure Cncepts int Permitting, Enfrcement, and Water Quality Standards Actins (USEPA, 2013) and additinal infrmatin is available frm 2

3 Nvember 20, 2016 The Current Rules and Prcess The regulatry prvisins gverning the Green Acres Prgram are fund at N.J.A.C. 7:36. Every lcal gvernment unit that has received State funding fr parkland acquisitin r develpment purpses must prvide t Green Acres a Recreatin and Open Space Inventry (ROSI), a list f each parcel f land held by the lcal gvernment unit fr recreatin and cnservatin purpses, including cnservatin restrictins and easements. The ROSI is critical t determining what prperties fall under the jurisdictin f the Green Acres prgram. N.J.A.C. 7: states: (a) It is the Department's plicy t strngly discurage the dispsal r diversin f bth funded and unfunded parkland. The use f parkland fr ther than recreatin and cnservatin purpses shuld be a last resrt, and shuld nly be cnsidered by a lcal gvernment unit r nnprfit when the prpsed dispsal r diversin is necessary fr a prject that wuld satisfy a cmpelling public need r yield a significant public benefit as defined at (d)1 belw. (emphasis added) The phrase recreatin and cnservatin purpses is imprtant here, and is defined at N.J.A.C. 7: as: the use f lands fr beaches, bilgical r eclgical study, bating, camping, fishing, frests, greenways, hunting, natural areas, parks, playgrunds, prtecting histric prperties, water reserves, watershed prtectin, wildlife preserves, active sprts, r a similar use fr either public utdr recreatin r cnservatin f natural resurces, r bth, pursuant t the Green Acres laws. (emphasis added) N.J.A.C. 7: (c) cntains a list f activities that, ver the years, the NJDEP has generally cnsidered t be diversins f parkland: As examples, uses that may cnstitute the diversin f funded r unfunded parkland frm recreatin and cnservatin purpses include, but are nt limited t: bridges; thrugh rads r ther transprtatin imprvements; rights-f-way; public r private utility r ther nnrecreatin easements (surface r subsurface); cmmunicatins twers, antennas r ther cmmunicatins equipment, whether freestanding r attached t existing structures; billbards; municipal buildings, libraries, schls, and fire, plice, r emergency services facilities; husing; well huses r water twers; slid waste facilities (including cmpsting facilities); private recreatin and cnservatin facilities; wetlands creatin r buffer areas r threatened r endangered species habit creatin r mitigatin required by ther laws, regulatins, cdes, r rdinances in cnnectin with nn-parkland uses, including habitat creatin r wetlands mitigatin required by permits; depsit f dredge spils, except thse used as part f a develpment as defined in these rules; sewage sludge dispsal; pump statins; strmwater management facilities such as detentin, retentin, r sedimentatin basins and utfall structures t manage strmwater generated ff-site, including flw easements r implied flw easements; and fld cntrl facilities such as levees, berms, fld walls, channel cnstructin, and pnding areas unless the fld cntrl facilities will nt have any negative effect n the natural resurce r recreatinal value f the parkland. (emphasis added) The diversin r dispsal f parkland requires the apprval f bth the NJDEP Cmmissiner and the State Huse Cmmissin. In additin t the public need/public benefit threshld cited abve, applicants must shw that there is n feasible, reasnable and available alternative t the prpsed diversin/dispsal and that they have minimized the scpe f the parkland impacts. If a prject passes 3

4 Nvember 20, 2016 the public need/public benefit test and shws lack f alternatives, then the prvisin f ff-setting park acquisitins, imprvements r funds t accmplish these purpses is required, in accrdance with N.J.A.C. 7: (minr dispsals r diversins r parkland) r 7: (majr dispsals r diversins f parkland). The diversin prcess and assciated cmpensatin requirements are stringent, as they shuld be t prtect public parks. Even if a prpsed green infrastructure prject des nt cnstitute a diversin r dispsal f parkland, sme prjects may trigger change in use requirements (a different and much less nerus prcess.) Fr example, a green infrastructure prject fr n-site strmwater management might cnstitute a change f use, under existing interpretatins. Under N.J.A.C. 7: , a change in use des require a public hearing and the pprtunity fr public cmment, but des nt require the apprval f the Green Acres Prgram, the NJDEP Cmmissiner r the State Huse Cmmissin. The Ptential Opprtunity Park-Psitive Green Infrastructure Based n the existing rules, existing parks can be mdified fr watershed prtectin thrugh a change in use prcess under N.J.A.C. 7: , rather than as diversins under N.J.A.C. 7:36-26, as watershed prtectin is specifically nted as an authrized use. It is imprtant t nte that this term is nt defined in the rules. Watershed prtectin is a relevant cncept fr green infrastructure in parks, as such techniques reduce cmbined sewer verflws and als stre and treat strmwater, bth f which imprve the quality f nearby pen waters. Green infrastructure techniques can help reduce the need fr park irrigatin, reducing cnsumptin f ptable water. Green infrastructure recharge techniques (where feasible) can als imprve base flw t urban and suburban streams, thereby increasing the eclgical viability and pllutant attenuatin capacity f thse streams. Green infrastructure is well established as a cmpnent f watershed prtectin. The USEPA and a wide range f planning and prfessinal rganizatins all supprt this apprach fr bth separate strmwater systems and cmbined sewer systems. The remainder f this paper fcuses n describing a ptential apprach that the NJDEP culd use under its existing authrities t determine which types f green infrastructure prjects shuld be cnsidered changes in use rather than diversins f existing parks. On ne hand, the lack f a frmal definitin fr watershed prtectin prvides useful discretin t NJDEP in cnsidering such prjects. On the ther hand, bth NJDEP and prject prpnents (including thse develping Lng Term Cntrl Plans fr CSO cntrl) will need sme level f guidance and certainty, t avid cmplicatins in the public review prcess that culd harm the credibility f all sides and f green infrastructure. Critical Questins fr Revised Plicies We prpse here a brad framewrk fr deciding what kinds f green infrastructure prjects shuld, shuld nt, and might (n a case-by-case basis) be acceptable fr develpment within existing parks. In all cases, the fcus is n creating a net increase in watershed prtectin within the cntext f park prtectin. Parks, and especially urban parks, are in mst cases treasured resurces with many cmpeting uses. It is imprtant that the watershed prtectin functins f green infrastructure prjects be cmpatible with the existing functins f the parks, and nt prevent cntinued park use fr any significant purpses. We recmmend that green infrastructure prjects in existing parks must meet the fllwing criteria at the utset: 4

5 Nvember 20, Any cmpnent f the green infrastructure prject that addressed ff-site strmwater must be funded by a surce ther than Green Acres r lcal pen space dedicated funds. 2. The green infrastructure shuld be part f a fcused planned apprach by the municipality, cunty r a public utility t address CSOs r ther majr strmwater issues, and shuld be prpsed fr a park nly if there is n feasible, reasnable (including public csts) and available green infrastructure alternative t placing the prject in the park. The planning prcess need nt be exhaustive, but shuld prvide a clear case fr slving a prblem, and place the prpsed park-based green infrastructure in cntext with the rest f the slutin. 3. The green infrastructure design must minimize the scpe f the parkland impacts, ensuring that n significant existing r planned park amenities r functins are impaired r freclsed. Under all circumstances the scale f green infrastructure prjects shuld maintain r enhance the public functins f the park. This shuld be determined thrugh a public prcess that allws fr public review and cmment (such as that ffered by the Green Acres change in use prcess). 4. The green infrastructure shuld be fr public purpses, nt private purpses, and management f the green infrastructure shuld remain the respnsibility f a gvernment agency r public utility. 5. Lng-term peratin and maintenance (O&M) f green infrastructure fr ff-site strmwater shuld be ensured thrugh legal agreement such that park functins are prtected, and the green infrastructure des nt detract frm the park experience. O&M csts shuld nt burden the park agency, except t the extent that the green infrastructure is a legitimate park amenity. Recmmended Apprach fr Cnsideratin f Green Infrastructure In additin t the six criteria in the prir sectin, the fllwing framewrk is recmmended fr cnsideratin f green infrastructure in parks fr cntrl f ff-site strmwater. Obviusly Beneficial Prjects Beneficial park features that wuld therwise use ptable water fr nnptable uses might use ff-site r n-site strmwater instead. Ding s shuld be cnsidered a significant benefit fr bth the park and watershed prtectin, with prper cnsideratin f the necessary water quality fr that feature. Park User Amenities: Green infrastructure can be used t enhance the aesthetics and educatinal values f existing parks. Water features using prperly treated strmwater (e.g., pnds, water sculptures, recirculating streams, cnstructed wetlands, rain gardens) can be created that use n-site and ff-site strmwater as their primary surce f water, rather than using ptable water. The result is a clear park imprvement that shuld be cnsidered part f the planned park uses, r a legitimate change f use. The nly difference between these prjects and traditinal park imprvement prjects is that they use ff-site strmwater, rather than being reliant n ptable water r n-site strmwater fr their functin. If n-site strmwater wuld be acceptable, then the ffsite strmwater shuld be useable as well. The watershed prtectin imprvements are imprtant ancillary benefits. Park Maintenance: Parks use water. Off-site strmwater can prvide a supply f water during much f the year, reducing the need fr ptable water t maintain the park grunds. In this case, a strage facility wuld be required (ptentially with treatment t ensure apprpriate quality fr the use) and shuld be placed in an area that des nt detract frm park purpses, such as existing park maintenance areas, as lng as they have n negative secndary effects (see Assessing the Middle Grund Prjects belw). 5

6 Nvember 20, 2016 Again, watershed prtectin benefits cme frm the diversin f strmwater runff t a beneficial use. Ineligible Prjects Fr prjects that are nt within the Obviusly Beneficial Prjects categry, there are categries f actins that simply shuld nt be cnsidered changes f use. In all cases, such prpsals shuld require apprval as diversins, r nt be implemented. Direct Develper Mitigatin Actins: Under n cnditins shuld a develper f a new land use (e.g., ffice building, residence) be allwed t meet their lcal r state regulatry requirements fr strmwater management thrugh use f public park lands. Strmwater management requirements fr these prjects shuld be met using sites ther than parks. Develper-Funded Mitigatin Funds: Likewise, where a develper cntributes t a lcal mitigatin fund fr strmwater management, in-lieu f n-site strmwater management fr their prjects, the mitigatin fund shuld nt be allwed t use public parks n a ROSI as mitigatin sites. There is n functinal difference between this and direct develpment mitigatin actins. 3 Public Develpment Mitigatin Actins: Fr the same reasns, public parks n a ROSI shuld nt be used as mitigatin sites fr public develpment f new land uses, such as new public buildings. Prjects t mdify existing land uses, such as streetscapes, r that are imprvements t the existing strmwater systems, are addressed belw as middle grund prjects. Benefits t Individual Existing Develpment: Where an existing land use n a single prperty r very small area has strmwater prblems, public parks n a ROSI shuld nt be used as lcatins fr prjects t mitigate that individual cncern. Assessing the Middle Grund Prjects The key issue fr all ther cases is the balance struck between benefits and lsses assciated with the change in park use. This categry addresses all types f green infrastructure than wuld nt be cnsidered Obviusly Beneficial Prjects r Ineligible Prjects. Example green infrastructure prjects in this categry might include parking lt and street strmwater capture systems (e.g., tree trenches, large swales). Three general cnsideratins shuld be weighed and balanced. Avid Lss f Imprtant Recreatinal Assets: Emphasis shuld be placed n design and installatin f green infrastructure in park lcatins that d nt harm recreatinal assets, such as playing fields, festivals, cncert areas, etc., r limit public access t parkland. The mst apprpriate lcatins will be thse that wrk arund existing r planned recreatinal assets r even enhance them. Cnsideratin f planned uses is imprtant as park imprvement prjects can take many years. Avid Lss f Imprtant Habitats: In a similar manner, sme parks include imprtant habitats that shuld nt be harmed fr the sake f green infrastructure. Any green infrastructure shuld avid thse habitats. In many cases green infrastructure will nt be apprpriate fr the habitats regardless, such as natural wetlands and frequently 3 One ptin fr cnsideratin wuld be where a develper pays int a mitigatin fund an amunt equivalent t the cst f meeting all strmwater requirements n private prperty. In this case, the develper wuld nt achieve any ecnmic benefit thrugh the use f park lands, but fr the municipality managing the mitigatin fund, strmwater management using green infrastructure might be feasible where it wuld nt be n private lands r public nn-park areas. 6

7 Nvember 20, 2016 flded prtins f fldplains, where green infrastructure installatins may nt wrk well r prvide sufficient benefits. In sme cases, green infrastructure can be placed t directly benefit these habitats by imprving streamflw and cntrlling ersin. Achieve Clear and Cmpelling Watershed Benefits: Individual green infrastructure prjects have limited watershed prtectin benefits, due t their generally small size and dispersed lcatins. Therefre, where green infrastructure is prpsed fr a park setting, the cmbinatin f all prjects prpsed fr that park shuld have clear and cmpelling watershed prtectin benefits fr that strmwater catchment area. Neighbrhd Benefits t Existing Develpment, such as Street and Basement Fld Cntrl: Neighbrhd flding f private prperties (e.g., street flding, basement flding) is a majr cncern in sme areas, whether thrugh sewer back-ups r excessive flws t strm sewers. Where the mitigatin f such flding als prvides a significant watershed prtectin benefit, it culd be cnsidered under this categry f actin. Hwever, riverine and castal strm surge flding are large-scale cncerns that require fld mitigatin measures beynd the scpe f these recmmendatins. Cllabrative Prcess This white paper is the culminatin f a multi-step prcess fr Jersey Water Wrks t make a recmmendatin t the NJDEP. Jersey Water Wrks (JWW) Green Infrastructure Cmmittee The JWW Green Infrastructure Cmmittee has reviewed this white paper, released it fr external review, and endrsed it in cncept. Steering Cmmittee members have prvided cmments t the GI Cmmittee. Interactin with the Land Trust, Cnservatin and Cmmunity Sectr The Green Acres diversin prcess is ften highly cntrversial. As part f this prcess, the Jersey Water Wrks Green Infrastructure Cmmittee sught and received input frm a number f statewide and natinal rganizatins wh are keenly interested in any refinement f the change in use prcess t make sure that it remains clear, psitive, and unlikely t allw fr harmful activities. The fllwing rganizatins -- NJ Assciatin f Fldplain Managers, NJ Audubn, NJ Cnservatin Fundatin, Natural Resurces Defense Cuncil, NY-NJ Baykeeper, Pinelands Preservatin Alliance, The Nature Cnservancy, and the Trust fr Public Land- NJ -- have wrked t prvide these recmmendatins t NJDEP regarding the use f green infrastructure n Green Acres encumbered parkland. They cmmit t wrking with NJDEP n mving frward further guidance r plicy related t this issue. Develpment f Cnsensus Frmal Prpsal t NJDEP After cnsultatin within JWW and with additinal interests, this white paper is prvided t NJDEP fr cnsideratin as the basis fr frmal plicy and/r guidance. If requested by the DEP, Jersey Water Wrks culd cnsider develping a frmal prpsal, ptentially including a detailed assessment f green infrastructure categries and pssible park settings, identifying which scenaris are always, cnditinally and never apprpriate. 7