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In the Matter of Stormwater Management Rules

384 N.J. Super. 451, 894 A.2d 1241 (App. Div. 2006)

ENVIRONMENTAL PROTECTION; STORMWATER MANAGEMENT ACT — Under the Stormwater Management Act, the Department of Environmental Protection has the authority to create buffer zones around Category One waters.

Builders challenged a Department of Environmental Protection (DEP) regulation that created a 300-foot buffer on each side of Category One waters. The builders claimed the regulation was ultra vires because there was no statutory authority for the 300-foot buffers which operate as a “no-build” zone. Such a zone would directly regulate the use of land without regard to stormwater runoff and without land-use regulatory authority. The fact that the Stormwater Management Act (SMA) does not specifically grant the DEP authority to create buffer zones was not dispositive. The fact that other statutory enactments (such as the Freshwater Wetlands Protection Act, and the Coastal Area Facility Review Act, inter alia) have either expressly granted the DEP authority to plan land development, or clearly delineate precise areas in which the DEP may regulate, or specifically mandate buffer zones, did not negate the DEP’s authority to establish a regulatory buffer zone around category one waters. The broad scope of water quality and pollution concerns expressed by the Legislature in its several enactments, the totality of powers vested in the DEP to address these concerns, and the larger statutory scheme granting DEP authority to control pollution and stormwater management (of which the SMA is just a part), convinced the Court that the DEP had the authority to create the 300-foot buffer zones around Category One waters. Consequently, the regulation creating the buffer zones was not ultra vires.

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