New Jersey Department of Environmental Protection

Transcription

1 New Jersey Department of Environmental Protection Assistant Commissioner Ginger KopKash Land Use Management March 12, 2015

2 Today s topics: Transformation of Land Use Management Brief overview of NJ s rulemaking process Emergency Rulemaking Pending CZM rule proposal Impending FHA rule proposal

3 Transformation of Land Use

4 Transformation of Rules Six Rules were targeted as part of the transformation of Land Use: Flood Hazard Coastal Permit Program Rules Coastal Zone Management Rules Freshwater Wetlands Wind Turbines on Piers Public Access

5 Transformation of Rules Comprehensive Reform of Public Access Rule (11/5/12): Maintenance, rehabilitation, renovation, redevelopment or expansion that remains entirely on the parcel: No additional public access is required Existing public access must be maintained. New marina Public access shall be provided during normal business hours Public access plan must be submitted with the application

6 NJ Rulemaking 1. NJDEP holds stakeholder meetings Seeking input from staff, regulated community, State & local governments, etc., on what works and doesn t work in existing rules (marine trades participates) 2. NJDEP staff writes rule proposal Includes summary of what is proposed to be added, deleted, or amended, why changes are needed, and the impact of those changes

7 Stakeholder Process for Land Use Held 11 Stakeholder meetings Flood Hazard Five Coastal Three Wetlands Two Wind Turbines One Held 13 Subcommittee meetings Flood Hazard Six Coastal Seven Wetlands One

8 NJ Rulemaking 3. Proposal is reviewed & approved by: NJDEP management & attorneys Attorney General s Office Governor s Office NJ Office of Administrative Law 4. Proposal is published in NJ Register 60-day public comment period provided

9 NJ Rulemaking 5. NJDEP staff reviews comments and prepares adoption document Comments/questions are answered Rule is clarified Minor issues/mistakes resolved Major issues require new rulemaking to fix

10 NJ Rulemaking 6. Adoption is reviewed & approved by: NJDEP management and attorneys Attorney General s Office Governor s Office NJ Office of Administrative Law 7. Adoption is published in NJ Register New rules are generally effective upon publication

11 Superstorm Sandy

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25 Flood Hazard Emergency Rules Emergency amendments on 1/24/13: Incorporated FEMA s Advisory Base Flood Elevations (ABFEs) and Work maps In tidal areas use BFE or ABFE, whichever is higher Work map supersedes ABFE Automatically incorporates any existing and future FEMA maps that show NJ design flood elevation

26 Flood Hazard Emergency Rules Revised permit-by-rule that allows building to be reconstructed, relocated and/or expanded by up to 300 ft 2 Revised building standards to match DCA and FEMA where possible (to eliminate conflicts) Allows dry flood-proofing of non-residential buildings when elevating or wet flood-proofing when it is not practical to dry flood proof

27 ABFEs Once FEMA completes their calculations, they will propose the maps through the Federal Register and have public meetings (a.k.a. preliminary maps) Once adopted, they will become effective The effective elevations will differ somewhat from the advisory elevations due to finalization of wave height analysis ADVISORY PRELIMINARY EFFECTIVE

28 FEMA flood mapping Effective Flood Insurance Rate Maps Preliminary Flood Insurance Rate Maps Source: FEMA

29 FEMA preliminary mapping is now available for all eastern/coastal counties in NJ, as well as portions of New York

30 Incorporating FEMA maps NJDEP is working with FEMA to remap the State s flood hazard areas People will easily see NJDEP & FEMA mapping online FEMA is putting NJDEP s design flood elevation on its maps

31 Incorporating FEMA maps If FEMA adopts a map showing NJDEP design flood elevation, it will automatically become a NJDEP map and replace any old flood maps FEMA recently adopted such mapping along the Delaware River in Hunterdon, Warren & Sussex Counties

32 Determining NJ design flood elevation In tidal areas DFE = FEMA 100-year flood Use FEMA effective map or preliminary map, whichever has the higher flood elevation

33 Coastal Emergency Rules Emergency amendments effective April 16, 2013 Facilitation of the expeditious rebuilding of residential and commercial developments Facilitation of renovation or reconstruction of existing marinas and construction of new marinas Restoration of New Jersey s shellfish industry Maintenance of engineered beaches and dunes and establishment of living shorelines Facilitation of removal of sand and other material from waterways

34 Rebuilding of residential and commercial developments Modified the permit-by-rule at N.J.A.C. 7:7-7.2(a)7 for reconstruction of residential or commercial development Allows for the reconstruction of damaged structures and must have been legally occupied in the most recent five year period In the same footprint In compliance with FHA rules

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36 Rebuilding of residential and commercial developments Added a new permit-by-rule for the expansion or relocation (with or without expansion) of the footprint of a residential or commercial development landward or parallel to the mean high water line at N.J.A.C. 7:7-7.2(a)8 (similar to FHA PBR) No increase in the number of dwelling units or parking spaces or equivalent parking area 400 square feet

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38 Rebuilding of structures over water Streamlined the permitting process through clarification of the Zane exemption In-place measured in three dimensions (length, width & height) Dock or pier over wetlands, low-profile bulkheads, or a building over wetlands or water In-place measured in two dimensions (length & width) Docks, piers, wharfs, not over wetlands and bulkheads except low profile (existing floating docks can be replaced with fixed docks; bulkheads can be rebuilt higher)

39 PBR for reconfiguration of docks at existing marinas Reconfiguration of any legally existing dock, wharf, or pier located at a legally existing marina, provided the marina is not located within shellfish habitat, submerged vegetation habitat, or a wetland Must stay within an existing Tidelands instrument No increase in the number of slips No increase in the total linear footage of docks or piers within the marina

40 PBR for the construction and/or installation of a pumpout facility The construction and/or installation of a pumpout facility or pumpout support facility shall have no adverse impacts to any special areas described at N.J.A.C. 7:7E-3. Rule allows for the construction of a sewer line connecting a pumpout facility and/or pumpout support facility into an existing sewer line located on-site or located immediately adjacent to the site

41 Construction of support facilities at legally existing and operating marinas Modified the coastal general permit at N.J.A.C. 7: for the construction of support facilities at legally existing and operating marinas Changed building(s) set backs from 100 to 15 feet from a shore protection structure or 25 feet from the mean high water line where no shore protection structures are present

42 Facilitation of renovation or reconstruction of existing marinas and construction of new marinas

43 Breakwater rule Modified the CZM rules at N.J.A.C. 7:7E (formerly breakwater general area rule) now called the vertical wake or wave attenuation structure rule, to focus on the protection of boat mooring areas and added flexibility in the type of structures

44 Establishment of living shorelines The amendments facilitate the establishment of living shorelines by modifying the coastal general permit at N.J.A.C. 7:7.29 for habitat creation and enhancement to include the establishment of living shorelines Modify the CZM rules for shellfish habitat, N.J.A.C. 7:7E-3.2; submerged vegetation habitat, N.J.A.C. 7:7E-3.6; intertidal subtidal shallows, N.J.A.C. 7:7E-3.15; wetlands, N.J.A.C. 7:7E-3.27; filling, N.J.A.C. 7:7E-4.11; coastal engineering, N.J.A.C. 7:7E-7.11; and marine fish and fisheries, N.J.A.C. 7:7E-8.2 to allow for the establishment of living shorelines Added a new general water area rule which sets forth standards for the establishment of living shorelines at N.J.A.C. 7:7E-4.23

45 Natural living shoreline Before After

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47 Hybrid living shoreline Rock used to slow water and allow for the build-up of sediment near the shore so vegetation can grow

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50 Removal of sand and other material Use an existing dredged material management areas Added a new permit-by-rule at N.J.A.C. 7:7-7.2(a)21 for the implementation of a sediment sampling plan in a water area as part of a dredging or dredged material management activity or as part of a remedial investigation of a contaminated site Encouraged the beneficial use of dredged material Added three new coastal general permits for: The dredging of sand from a man-made lagoon The dredging of material from a waterway at a residential or commercial development The dredging and management of material from a marina

51 Coastal Rule Proposal (transformation) Published: June 2, 2014 Download proposal at: Anticipate adoption: June 2, 2015

52 Transformation of land use rules Transform land use business process Set platform for electronic permit submission

53 Proposed Coastal Rules Goals Combine N.J.A.C. 7:7 & 7:7E into one chapter Align permit-processing standards with upcoming flood hazard area (FHA) & freshwater wetlands (FWW) rules Adopt 2 new permits-by-rule, 2 new general permits-bycertification, and 1 new general permit Amend 5 existing general permits Amend certain IP standards Amend dredging rules, allow for more beneficial reuse of dredge material Incorporate Dredging Technical Manual

54 Proposed Coastal Rules Amendments Aligns application review process with upcoming FHA and FWW rules: Emergency authorizations Pre-application conferences Application requirements Requirements for an applicant to provide public notice Application review Permit conditions and changes to issued permits Requests for adjudicatory hearings

55 Proposed Coastal Rules Amendments New mitigation subchapter Similar sections as anticipated changes to FHA and FWW rules All mitigation requirements are in one subchapter (SAV, ISS, Wetland, Shellfish, Riparian Zone) Incorporates banking Conservation restrictions Matches proposed FHA rules

56 Proposed Amendments New Subchapter for general provisions for PBR, Modification, GP s and IP s Content similar in both Coastal & FHA rules except for the duration of permit 5 year permit w/ a 5 year extension for GP s and IP s for activities occurring below MHWL in CR and GP & IP s in FHA rules Coastal IP s for activities above MHWL will keep commence and continue language based on stakeholder comments

57 Proposed Coastal Rules Two new permits-by-rule 1. Pesticide application in coastal wetlands to control invasive plant species For less than ¼ acre of disturbance Must be conducted in accordance with an NJDEP aquatic pesticide permit 2. Installation of a pool/spa on a bulkheaded lot

58 Proposed Coastal Rules Two general permits-by-certification Instant online application Applicant certifies each standard is met 1. Reconstruction of a legally existing functioning bulkhead in-place or upland of the existing bulkhead 2. Construction of piers, docks, pilings, and boatlifts in manmade lagoons

59 Proposed Coastal Rules New general permit Pesticide application in coastal wetlands to control invasive plant species For projects > ¼ acre Cannot affect T&E species or certain plants Must be conducted in accordance with an NJDEP aquatic pesticide permit

60 Proposed Coastal Rules Amended general permits GP for construction of a single-family or duplex dwelling is amended to apply to one or two single-family or duplex dwellings. GP for construction or reconstruction of bulkheads are amended to allow the beneficial use of the dredged material as fill and to modify the requirements for bulkheads constructed in V zones. GP for investigation, cleanup, removal, or remediation of hazardous substances and geotechnical soil borings are proposed to be amended to reflect changes to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and the Department s organizational structure.

61 Proposed Coastal Rules Amended general permits GP for construction of piers, docks (including jet ski ramps), pilings, and boatlifts in man-made lagoons is proposed to be modified to allow for alternative design rather than the currently prescribed plank spacing requirements. GP for dredging and management of material from a marina deposited as a result of a storm event for which the Governor declared a State of Emergency is proposed to be amended to provide that the Department will make an acceptable use determination for the beneficial use of the dredged material.

62 Proposed Coastal Rules Other amendments Marinas Repealed existing N.J.A.C. 7:7E-7.3A Marina Development rule Relying on design standards laid out in the resort recreational use rule

63 Proposed Coastal Rules Other amendments Shellfish Special Area rule: Propose to allow for the expansion of an existing marina or construction of a new marina in limited infill situations in shellfish habitat Legally existing, operating commercial marinas that are open to the public for the mooring of vessels, including marinas operated by public agencies, commissions and authorities. The expansion must be designed and constructed in a manner that limits the area of shellfish habitat condemned and reduces impacts to marine ecosystem. Sufficient water depths to accommodate the vessel to be moored- at a minimum 2 feet at mean low water

64 Proposed Coastal Rules Other amendments Resort/Recreational Use rule: Allows for the construction of a restaurant at a new or existing marina facility provided: Marina facility supports 25 or more dockage units consisting of either dry dock storage or wet slips Existing marinas: the existing upland marina support facilities shall be preserved to the maximum extent practical such that the marina use on the site is not compromised New marinas: the facility includes the development of an appropriate mix of dry storage and berthing area and marina support facilities providing services such as showrooms, maintenance and repair, marine supplies, bait and tackle sales, boat sales and the dock master s office

65 Proposed Coastal Rules Other amendments Restaurant is located landward of the mean high water line Set back a minimum of 15 feet from a shore protection structure and 25 feet from the MHWL where no shore protection is present The marina facility provides onsite pumpout facilities and restrooms for marina and restaurant patrons. Public access must be provided

66 Proposed Coastal Rules Other amendments Dredging The definition of maintenance dredging is amended to provide flexibility in demonstrating that a proposed dredging activity qualifies as maintenance dredging. Amendments recognize environmental dredging, which is dredging to remove contaminated sediments from a waterbody for remediation purposes.

67 Proposed Coastal Rules Other amendments Dredging (cont.) A new special area rule addressing existing dredged material management areas is being proposed Recognition that these areas serve a critical function as management areas for sediments removed from existing navigation channels and marinas to maintain recreational and commercial boating and marine commerce in the State s waters Portions of the Department's dredging technical manual are incorporated in the CZM rules as a regulatory appendix

68 Proposed Coastal Rules Other amendments Recreational docks and piers rule Modified the spacing requirements to allow alternative dock design that would allow for equal or greater sunlight penetration as docks constructed of planking and configured as prescribed. Includes grate decking which is constructed of metal, wood, aluminum or similar materials which allow sunlight penetration through the grates.

69 Getting Back to Transformation Flood Hazard rules File: March 2015 Publish: April/May 2015 Adoption: Fall 2015

70 FHA Anticipated Amendments 1. Delete special water resource protection area from stormwater management rule No more Functional Value Analysis No reliance on USGS maps or soil surveys to determine location of SWRPA No prohibition on development within inner 150 Rule will rely on riparian zone requirements for determining allowable disturbance

71 FHA Anticipated Amendments 2. Delete prohibition on stormwater discharges within 150 & 300 riparian zone Water quality design storm must be infiltrated outside the RZ where possible Where not possible, require 95% TSS removal for discharges within 300 riparian zone Allow discharges directly into surface waters This will address significant concerns raised by SCD regarding erosion at discharges

72 FHA Anticipated Amendments 3. Add flexibility to riparian zone standards Increase allowable area of RZ disturbance Remove hardship exception requirement if limits under an IP are exceeded Add flexibility for projects in actively disturbed areas (lawns, meadows, agricultural fields) Remove setback requirement along impounded fluvial waters and tidal waters, where the bank has a bulkhead or revetment

73 FHA Anticipated Amendments 4. Incorporate riparian zone clarifications Clarify what a top of bank is and how to determine its location Clarify that temporary disturbance to actively disturbed areas does not count against overall RZ disturbance limits Clarify that there are no limits to disturbance of areas occupied by structures

74 FHA Anticipated Amendments 4. Riparian zone clarifications (cont.) Clarify what can and cannot be built within 25 feet of top of bank Clarify that piped streams do not have a RZ Clarify that the RZ arcs at end of a stream, but not at a pipe entrance

75 FHA Anticipated Amendments 5. Total of 13 general permits

76 FHA Anticipated Amendments 5. General permits (cont.)

77 FHA Anticipated Amendments 6. Total of 15 general permits-by-certification

78 FHA Anticipated Amendments 6. General permits-by-certification (cont.)

79 FHA Anticipated Amendments 6. General permits-by-certification (cont.)

80 FHA Anticipated Amendments 7. Expand/clarify/combine 47 existing permits-byrule and increase to a total of 63 permits-by-rule Solar panels In-kind replacement of certain culverts ROW maintenance Docks & piers Handicap ramps/access Repairing septic systems Monitoring wells and soils borings Invasive vegetation removal & enhancement activities Forestry activities approved under a forestry management plan Variable message signs, light poles, etc.

81 FHA Anticipated Amendments 8. Provide additional riparian zone mitigation options Creation: day-lighting streams (removing structures that enclose a stream, such as a culvert) Restoration: removing structures and planting trees Enhancement: planting trees to upgrade ecologic benefits of area devoid of trees Preservation: placing a conservation easement on forested land Banking: credit system, like FWW rules, for riparian zones planted with trees

82 FHA Anticipated Amendments 9. Align administrative procedures with FWW & Coastal rules Definitions Contact information General provisions for PBRs and General permits Mitigation Conservation restrictions Emergency authorizations Pre-application conferences Application requirements Public notice Application review Permit conditions The modification, transfer, suspension and termination of approvals Requests for adjudicatory hearings Enforcement provisions

83 Questions?