Part One Of Stormwater Management Rules

In a new Appellate Division decision, the New Jersey Builders League unproductively challenged as ultra vires the 300 foot "No Build" buffer around Category 1 waters established by the Department of Environmental Protection. In the Matter of Stormwater Management Rules, the court's decision applied New Jersey's traditional broad construction of regulatory allowing legislation as well as the State's general compliance to administrative regulation. See, e.g., Aqua Beach v. N.J. Dept. of Community Affairs, 183 N.J. 256 (2006). The decision also discusses the transfer of land use control from local authorities to centralized State-wide environmental regulation.

In 1981, the Legislature adopted the New Jersey Stormwater Management Act (SMA), NJS 40:55D-93 to 99. Stormwater is "water resulting from precipitation (including rain and snow) that runs off the land's surface. . . ." Stormwater runoff is "a water flow on the surface of the ground, or in storm sewers resulting from precipitation." Ibid. Running water picks up the usual by-products of office parks, turnpikes, and industrial sites and deposits these contaminants into the nearest outlet, which may be the cool clear Category 1 stream a few hundred feet away.

A primary objective of the SMA is "to prevent, to the greatest extent feasible, an increase in non-point pollution". N.J.S.A. 40:55D-95. Every municipality must prepare a stormwater management plan and enabling ordinance which conforms to the comprehensive DEP regulations.

The appellant did not deny that the DEP enjoyed statutory rulemaking power to regulate local and regional stormwater planning, to enact safety standards for retention basins, to prevent flooding and protect water quality by regulating development "to control the quality and quantity of stormwater", to classify the State's waterways according to their ecological significance and to provide varying standards of protection for these different classes of waterways.

Although this Act granted broad authority to the DEP to regulate development otherwise permitted under local ordinances, it did not expressly grant the DEP power to substantially ban all building and development on thousands of acres otherwise committed to local zoning jurisdiction. No less than six legislative Acts expressly confer upon various State administrative agencies the authority to plan new land development or to impose buffers around waterways or other environmentally sensitive areas. Absence of such language in the SMA could, in the exercise of strict interpretation of the statute, be read to exclude this power from the DEP's rulemaking authority, particularly in view of New Jersey's comprehensive statutory scheme for local regulation of land use.

New Jersey, however, has never given much force to the doctrine of ejusdem generis, see Stryker Corp. v. Dir., Div. of Taxation, 168 N.J. 138, 155-157 (2001), which, when applied, is as much a rule of inclusion of the omitted material as a rule of exclusion, see, Dale v. Boy Scouts of America, 160 N.J. 562, 594 (1999), rev'd on other grounds, 530 US 640 (2000).

"The close correlation between riparian land use and water quality, over which the DEP does exercise plenary power", led Stormwater to find an implied grant of incidental rule-making power by "looking beyond the specific terms of the enabling act to the statutory policy sought to be achieved by examining the entire statute in light of its surroundings and objectives", quoting N.J. Guild of Hearing Aid Dispensers v Long, 75 N.J. 544, 562 (1968). The Court also noted the extensive scope of the DEP's general enabling act, which is to formulate "comprehensive policies for the conservation of the natural resources of the State". N.J.S. A. 13:1D-9.

Although it is not noted in Stormwater, the primacy of statutory intent over literality in New Jersey case law, Perez v. Rent-a-Center, Inc., 186 N.J. 188 (2006); New Capitol Bar & Grill Corp. v. Div. of Emp. Sec., 25 N.J 155, 160 (1957), as well as New Jersey's broad deference to agency expertise, Aqua Beach Condominium v. Dept. of Community Affairs, 183 N.J. 256 (2006); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) supports the result.

This article is for informational purposes only and does not constitute legal advice. For your specific situation, consult an attorney licensed in your jurisdiction.