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Opinion: If It Looks And Smells Like Sewage, It Could Be Stormwater

DEP needs to take the battle against runoff to the municipalities, where most local land-use decisions are made

potter
Credit: Amanda Brown
R. William Potter

The next time it rains, check out the water flowing down your gutters and into the street. Where all that rainwater -- called stormwater or runoff -- goes and who is responsible for taking care of it are big-time statewide issues, although you wouldn’t know it from the lack of public attention. Rather quietly, there’s a major storm brewing over stormwater -- how to regulate it, who does the regulating and on what criteria.

Until the past decade or so, developers were generally allowed to funnel stormwater running off their “impervious surfaces” -- such as driveways and roofs and even lawns -- through pipes into streets where it would gush into storm drains, overload sewage-treatment plants, and spill raw sewage into rivers, bays, and the Atlantic Ocean. Or it would wind up in your basement or backyard

Not a pretty sight, and a key reason why New Jersey has some of the filthiest waterways in the nation, where fishing or swimming can be a quick ticket to the hospital. It also means virtual sea of flooded properties after nearly every thunderstorm.

But in 2004, the Department of Environmental Protection adopted regulations intended to put a stop to what is euphemistically called “nonpoint water pollution,” the contaminants carried by stormwater. The new rules, called “phase II,” were also supposed to prevent the flooding of homes, highway intersections, and even farmlands.

The core principle in these regulations was little short of revolutionary: A mandate for developers seeking land-use approvals from municipal zoning agencies to demonstrate that they are using “nonstructural strategies” for stormwater control “to the maximum practicable extent.”

In plain English, they would have to “design with nature,” not against her.

Civil engineers could no longer stand before planning boards and point at charts showing where the pipes would go to discharge the ever-troublesome stormwater away from the project site. To design with nature, builders must preserve open space, such as wooded areas and wetlands, so that tree roots and native plants can soak up the rainwater, rather than send it off site, making it someone else’s problem.

But builders soon found a way around the new rules with their game-changing “let nature do it” philosophy. In 2006 they persuaded the DEP to allow a computer-generated spreadsheet, called the “nonstructural strategies point system” (NSPS), to prove that a project was using natural strategies “to the maximum practicable extent,” even if it wasn't.

The NSPS work like this: The builder’s engineer would plug a bunch of numbers into the NSPS computer, which then spits out another number telling the applicant whether the design scored enough points to pass the test. If the spreadsheet showed a positive result, the developer could rely upon that as “conclusive evidence” of maximizing natural systems for controlling stormwater. But if the NSPS was negative, this thumbs down could not be used as evidence of noncompliance.

Sort of heads I win, tails you lose.

After several years of litigation, an appellate court finally rejected use of the NSPS, since it was never formally adopted in a public rule-making proceeding and also because the DEP regulations self-evidently required a “highly fact-sensitive” review by regulators and not a black box answer to an issue of such complexity.

But since that court decision in September 2013 (full disclosure, this law firm represented the winning side in that case), there has been little change at the municipal level where most land-use decisions are made. Part of the problem is the difficulty in deciding what is the “maximum practicable extent” of any strategy. Zoning boards are composed of laypersons who serve as volunteers. They feel comfortable examining traffic impacts because they know the local roads. But for stormwater controls they rely on “experts,” typically the engineers who testify for developers and the consultants retained by the boards to advise them.

So, when a community group objecting to a development puts forth its own stormwater expert to testify against the project, board members all too often are confused by the conflicting testimony. In some cases, they throw up their hands and say “we’ve got two experts, ours and the builder’s, who say ‘the application complies’ and one who says it doesn’t, so it’s 2 to 1 in favor of the developer.”

Or they say the test of “maximizing” natural strategies is inherently “subjective,” so almost anything proposed by a licensed engineer satisfies the regulation. Thus, instead of engaging in a detailed “fact-sensitive” inquiry into how best to “design with nature” -- by looking for innovative designs or better ways of using natural systems -- land-use agencies are failing to do much more than ask open-ended questions of project engineers who always testify that their client’s plans “fully comply.” No surprise there.

Worst of all, many municipal land-use agencies have opted for the ultimate copout: Granting zoning approval on condition that the developer later submits a stormwater management plan for approval by a private consultant firm hired by the land-use board. In this manner, the agency entrusted with protecting the public against stormwater damage has delegated its decision on stormwater to a private engineering firm to pass judgment in private on a plan submitted by another private engineering firm, all done with no public review or testimony.

Meanwhile, developer interests are pressing the DEP to formally adopt the NSPS, thereby authorizing the use of computerized regulation which the Appellate Division had rejected.

What’s to be done? The courts must be vigilant in enforcing the stormwater regulations. First, this means rejecting the common practice of zoning authorities relying on conclusory testimony -- called “net opinions” in legalese -- in which experts solemnly vow that, say, “the XYZ Co. has fully complied” but without providing actual evidence that the builder has maximized options for designing with nature .

Second, courts must reject the secretive practice of zoning agencies delegating vital decision-making responsibilities to private consultants.

And third, the DEP needs to resist a return to the bad old days of developers piping stormwater offsite or getting a free pass because the computer decides it’s OK.

R. William Potter is a partner in the Princeton-based law firm Potter and Dickson. The views expressed are his own and do not necessarily reflect the views of the firm or any client.

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