When is a stream a stream?

This little stream seems the poster child for why there is a Flood Hazard Area Act.  It drains a relatively large upland area.  If not considered in the site design, a bunch of water would be flowing out from a culvert into someone’s house, yard, or parking lot, and maybe into their basement window.  Whether or not it is connected to the Musconetcong River, there is occasionally a lot of water in this stream, and it can flood a large area of the farm fields.

February 4, 2016

We heard back from NJ DEP Flood Hazard Area Applicability Determination for the Hampton Farms LLC site (NJDEP Letter on FHA AD).  Despite our submission of a map signed and sealed by a professional engineer showing the presence of regulated stream with a connection to the Musconetcong River, the DEP indicated that the stream channel was not regulated under the Flood Hazard Area Act because it was not connected to the Musconetcong River.  NJ DEP staff did make site visits, but not during a rain event as far as we know.

They reference section 7.13-2.2(iii) as the reason for it not being regulated “The water is not connected to a regulated water by a channel or pipe, such as an isolated pond or depression that has no outlet” based upon the information submitted by Tony DiLodovico.  The map that was submitted is below.  Yes, this is the actual submission (OPRA FHA AD Map).  It is a tiny map on half of an 8.5 x 11 sheet of paper, the same as the one originally submitted.  And guess what – it doesn’t even show the Musconetcong River!

Before the Flood Hazard Area Act rules changed in June last year, this stream would have had a direct connection to the Musconetcong River.  The part connected to the Musconetcong was clearly shown on the USDA County Soil Survey Map.  It’s not hard to see that the internment stream in the County Soil Map (below) links through the hedgerow to the channel shown on the FEMA Flood Map (second image below).

1974 USDA Hunterdon County Soil Survey

FEMA Flood Map from NJ DEP

With the Special Water Resource Protections removed, which allowed the use of the USDA County Soil Maps to show a stream location, there was no longer a mapped direct connection.  Rather, each site now has to be reviewed on a case-by-case basis.  While the NJDEP said in their July 22, 2016 Administrative Order that “nothing in the June 20, 2016 rulemaking… is intended to relax the protections afforded to Category One waters” (NJDEP FHA AO, page 3) like the Musconetcong, DEP did relax the protections on this stream.  There are a few ways of determining a Flood Hazard Area, including an engineering study at a 100 year flood event plus 25% of flow.  We will look into the method DEP made its determination.  We are looking into this further to determine next steps.  Once we do, we’ll schedule an update meeting.

Now, if the stream disappears into the ground, perhaps due to sinkholes from the karst (dissolved limestone) topography, this could resent a challenge for seeking other approvals, such as storwmater permitting and permitting for the groundwater discharge sewer system.  Karst is present throughout the site, as shown below.

 

 

It’s a stream! How many ways can you say it?

Well, you don’t want to know how long it took, but we made a 215 page submission to NJDEP providing detailed evidence of an intermittent stream on the Haberman site. Our submission included:

• 72 photographs of the stream taken between May 2015 and June 2016.  These show the water flow and a significant area of ponding that may be another wetland area.
• 15 aerial photographs of the site from 1930-2015.  These clearly show the stream is natural and a direct connection to the Musconetcong River.
• Site plans, and information on the proposed site use, which the developer did not include in their application, but is required to provide to NJDEP.

You can see some of the highlights of the submission in the meeting’s powerpoint (haberman-meeting-10-11-16-final_for_web).

Also, the report by Amy S. Greene Environmental Consultants, Inc. was submitted October 6, 2016.  By their mapping, the intermittent stream has a 300′ riparian zone because of a direct connection to the Musconetcong River.  One of my favorite aerial photographs is below.  It’s an infrared photo from 2007 and it shows the stream’s channels going directly to the Musconetcong River.

Probably, the next step is DEP making a site visit, and then potentially a request for the full, formal Flood Hazard Area Verification.  The Verification would define the floodway and flood fringe of the Musconetcong River (the area above the banks water flows in a 100 year flood), and the riparian zone of the Musconetcong River and streams on site.  An engineer approves the verification because it requires estimating the water volume in a 100 year flood event + 25% more (lots of complex math).

We have some other updates from the meeting, which I’ll post later on.

Meeting – Tuesday October 11 7pm Asbury

We’ve been busy this summer and we’ve got lots to update you on!

• An update on where we are in the permitting process
• The Haberman site Flood Hazard Area Applicability Determination (haberman_fha_applicability_determination_copy)
• A report by Amy Greene Environmental Consultants who we hired to review their submission to NJDEP and indicate the location of the intermittent stream with the new NJDEP Flood Hazard Area regulations (just completed on Friday)
• Photographs of the intermittent stream over the last year showing water flow and ponding
• A meeting with NJDEP on the new Flood Hazard Area Regulations
• A grant awarded by the Highlands Coalition to support our work
• What you can do
• Ideas for fundraising

Meeting location: Musconetcong River Watershed Association River Resource Center, 10 Maple Ave. Asbury NJ.  Extra parking at the Mill across the street.

Meeting time: 7pm

 

Time to Comment! Flood Hazard Area applicability determination

On August 12, 2016, the Flood Hazard Area applicability determination was submitted to the NJDEP for the “Haberman” affordable housing site on Valley Road, Hampton.  An Applicability Determination is an NJDEP-led assessment of whether there are riparian areas on a site, an area that drains 50 acres or more, potentially protected intermittent streams, and areas that can flood.  This determination is primarily made by material submitted by the applicant, such as site plans and engineering work, and can take 30-45 days.  NJDEP can conduct site visits.

If areas protected by the Flood Hazard Area Control Act are found, or likely to be found, on the site, NJDEP can request an in-depth Flood Hazard Area verification. The verification is a second step, and usually involves a technical assessment of water flows by an engineer and vegetated areas by an environmental specialist.

Public comments can be submitted.  Also, the applicant’s submission is a public record and can be requested via the Open and Public Records Act.  Contact us if you are interested in more information.  Also, if you have photos of water in the stream on the site, let us know.  They can be submitted at this stage.

Statehouse’s “compromise” with NJDEP makes stream protections weaker

Down Valley Road, leaving Hampton, the town ends and the country begins.  Just past the stone church built in 1837 are rows of corn to be transformed into a 333 unit housing development, an unsettled hold over of Mt. Laurel affordable housing suits.  It is sandwiched between the Musconetcong River, a National Wilde and Scenic River, and the Highlands Preservation zone.  Bisecting the site in half is a much disputed intermittent stream, which the developer calls a “manmade ditch” – a sinuous curve across fields visible from aerial photographs since the 1930s.  The Legislature’s recent compromise with the NJ DEP on Flood Hazard Area regulations may mean this stream loses nearly all protection, allowing development up to the stream banks.

This site floods, too.  The stream is intermittent and carries water at different times of the year.  In heavy summer thunderstorms the rain water runs across the road over the stream’s culvert and inundates the fields.  In late winter, when the ground is still frozen, the stream runs fast and creates a pond a few hundred feet wide and a few inches deep in a low spot.  It’s the poster child for the type of upland tributary meant to be protected by the flood hazard area act’s riparian zone.

2/3/16

A year ago, this stream was protected by the NJ DEP’s Flood Hazard Area Act with a 300 foot “no go zone” riparian buffer.  It drains into the Musconetcong River, a high quality Category One water and was afforded the same protections as the river’s main stem.  The stream drains over 50 acres, nearly 60 acres in total, and its connection to the Musconetcong is shown in the 1974 Hunterdon County Soil map – important criteria for attaining a 300 riparian buffer.  Combining this stream’s riparian zone with the Musconetcong’s riparian zone leaves no more than 43% of the site developable, 33 acres of a total 76.  It’s a tight fit for the needed sewage disposal fields (2.5 acres), parking, retention basins, required setbacks, and, of course, 333 housing units (even a tight fit as garden apartments).

Earlier this year, the DEP’s proposed Flood Hazard Area rule changes largely left this site unaffected because of its more than 50-acre drainage.  However, a recent Administrative Order AO_2016_06 issued by the DEP intends to stave off the Legislature from nullifying those rules.  While the Order stated that “nothing … is intended to relax the protections afforded Category One waters” the Order does relax standards on waters flowing into Category One waters.  This negotiated “solution” goes from bad to worse, allowing development in riparian zones in the “public interest” in areas that were previsouly protected.

This Administrative Order turns a public policy which is meant to be enforced the same across the state to a site-by-site enforcement process, providing unequal protection across the state.  The Administrative Order adds the “public interest” to the many criteria NJDEP already has to assess.  The NJDEP now must directly balance local Affordable Housing needs with state law and regulations for protecting water quality and residents from flooding.  It  creates an inherent conflict of competing public interests, between the downstream public’s desire to not be flooded out, and in this case, the need for affordable housing.  This insertion of “public interest” ultimately benefits the landowner and developer, leaving downstream resident’s and onsite residents susceptible to flooding.

There are alternative sites.  Yet, for a small borough like Hampton, with hardworking volunteer Councils and Planning Boards, finding a feasible alternative site for affordable housing likely means less time with families and earning a living and more professional fees for the Borough budget.  Alternative sites exist.  Sites along Route 31 and in town are underutilized and abandoned.  The alternative to the developer’s way could include in-fill development, tax increment financing for affordable housing zones, forming a public housing corporation, or using below-market USDA rural development housing loans, is out of reach.  The deck is stacked against small, rural towns, the Statehouse’s “compromise” just made matters worse.

 

 

Getting Organized

In March 2015, a long proposed but never built housing development started to meander its way closer to reality in Hampton, New Jersey.  It would generate 72 affordable housing units out of 333 total units.  The proposed site is along the banks of the Musconetcong River on 77 acres of land.  It is currently a mix of farm fields, forest, and wetlands.  It contains a spring-fed pond and an intermittent stream on site.

The proposal comes from a 1981 affordable housing lawsuit.  At the time, Hampton, like many small New Jersey towns, had not yet proposed an affordable housing zone as required by a collection of court cases referred to as “Mt. Laurel doctrine.”  Affordable housing is important in a high-cost state like New Jersey, and the approach of Mt. Laurel doctrine was to allow the private developers to sue out of compliance towns in order to facilitate high-density development that subsidized the creation of a number of affordable housing units.  Typically, developers favored the lower-priced farmland for acquisitions and subdivision rather than acquiring a number of lots within a town center.  Unlike the regular development process, where the Planning Board retains control, a Mt. Laurel process goes through the State’s Superior Court.

For six days last year, about 30-60 residents of Hampton and neighboring Bethlehem Township participated in the Court’s hearings.  The Public was able to ask questions of the developer’s expert witnesses and was able to bring their own expert witnesses.  At the heart of last year’s court was shifting the proposed development from farm lot in the Highlands Preservation Zone, where subdivision is strictly limited, to a Highlands Planning Zone lot, where subdivision can be allowed.  Ironically, this move across Valley Road placed the development site next to the Musconetcong River and impacts an unnamed tributary to the river.

Concern about the river, including and unnamed intermittent stream on site, is what catalyzed an informal meetings and an information sharing network.  One of the projects we conducted was hiring Amy Greene Environmental Consultants Inc. to assess maps of the site for regulated water features.  This showed a regulated tributary, per the then NJ Department of Environmental Protection regulations.  Because we had Amy testify as an expert, we were able to get parts of her report entered into evidence during the court hearings.

Hampton is generally one of the most affordable towns in Hunterdon county.  It has a mix of single-family, duplex, apartment homes, garden apartments, condos, and trailer homes.  However, because most of this housing wast built prior to 1980, it does not count as affordable housing for Mt. Laurel requirements. The borough also has some lots in need of redevelopment in the town center and along state highway 31.  Additionally, a number of houses are in foreclosure.  Alternatives to the proposed development would require greater local government involvement to entice redevelopment and direct involvement in affordable housing provision.

Today, we are just at the start of the permitting process for the development.  as part of a March 30, 2016 court settlement. Hampton had to revise its zoning ordinance and affordable housing plan.  Now the developer needs to apply to the NJ Department of Environmental Protection for several permits, including for a onsite sewage groundwater discharge facility.  Also, the project will need to go through the Planning Board review process.  It needs to be developed within the next 10 years in order for Hampton to meet its affordable housing obligations.  Along the way, Hampton will need to upgrade its drinking water infrastructure, including a back-up well, which the developer has offered to contribute payment.

We are in for a long haul and are committed that the land use laws and regulations are followed on the proposed site.  New construction is not always necessary, a point made by the Fair Share Housing Center, an affordable housing advocate, at one of the court hearings.  We hope that Hampton develops a “Plan B” to meet affordable housing requirements in case the site is too environmentally constrained to be developed to meet any or all affordable housing needs.