Stormwater Not Health Regs Could Require Warning Signs On Beach Outfalls

Last week someone on the Beachnet listserv was asking about better ways to tell people about the risks of swimming in stormwater plumes. 

Not the kind of email I usually get while I am putting off Christmas shopping. I'm in.

They wanted to know what states have warning signs permanently posted on stormwater outfalls by bathing beaches.

New Jersey doesn't require this, but could - using the current regulations for stormwater, but not health.

The Mandate in the Stormwater Rules

N.J.A.C. 7:8 (Stormwater Management) and 7:14A, (Chapter 25, Municipal Stormwater Regulation Program) were first adopted in 2004. 

That's why fish icons are stenciled on catch basins.  Agencies responsible for a Municipal Separate Storm Sewer System (MS4) were mandated to provide outreach about stormwater “impacts" in 7:14A-25.6(b)3 iv (3) (B) 4. 

The wording is pretty general: agencies "... shall implement a public education program about the impacts of stormwater discharges on surface water and groundwater ...".  This became a requirement by the NJ Department of Environmental Protection for stenciling catch basins along sidewalks, as well as other areas that are visible to the public. 

The NJDEP policy didn't exclude putting advisories on stormwater outfalls, it just didn't specify it, in 2004.

Determining who owns what outfall is also built into the regulations.  It's one of the Statewide Basic Requirements for getting a MS4 permit from the NJDEP.  N.J.A.C. 7:14A-25.6(b)5i, required the responsible agency to map every outfall they operated that discharged into  surface water and "submit a copy of this map to the Department if requested" by 2009. 

How many stormwater outfall pipes in NJ have been inspected and mapped statewide?  According to the Municipal Stormwater Regulation Program 2010 Status Summary Report, 94%, or 60,752 pipes out of 64,630 in every creek, lake, estuary, and the ocean.

So if permanent advisories are ever required, or even considered, it would be practical to begin with outfalls near places used for primary recreational contact – beaches.

Bathing Beach Rules: No Lifeguard, No Beach

Simply put, the bathing beach regulations in NJ only recognize shoreline that have lifeguards.  Everything else is not a beach. No lifeguard, no beach.

This is in three definitions and one sentence in Chapter 9 of the NJ State Sanitary Code, Public Recreational Bathing, N.J.A.C. 8:26, that is administered by the NJ Department of Health.

"Public recreational bathing place" is a bathing beach.  "Bathing beach" is the "designated area ...  used for bathing and swimming purposes".  "Lifeguard" is a person holding a lifeguarding certificate recognized by the NJDOH.

"Bathing Beach Supervision", 8:26-5.10(c), states: "At least one lifeguard for every 300 feet of visible shoreline shall be on duty at all times when the bathing beach is in operation."

You Can't Close a Beach That Isn't Open

The criteria for closing a lifeguarded beach is spelled out in N.J.A.C 8:26-8.5(c):

"1. Poorly maintained equipment, structures, areas, or enclosures or lack of equipment, structures, areas, or enclosures which jeopardize the health or safety of the users and/or operators;

2. Lack of required supervisory personnel and/or required lifeguards;

3. Failure to meet specific water quality standard(s);"

Again, this doesn't address shoreline without lifeguards, because they are not legally open for swimming. In NJ, you can't close a beach that isn't open. 

That's why the NJDOH will not approve "Swim At Your Own Risk" signs on beaches, with or without lifeguards.  The NJDOH considers these signs an invitation for illegal swimming when a lifeguard is not on duty.  A couple of years ago, the NJDEP notified health departments that the federal grant they administer would no longer reimburse the costs for any samples taken at beaches without lifeguards.  These "environmental sites" had been funded since the current mandates in the Cooperative Coastal Monitoring Program began in1986.

But what about posting advisories on lifeguarded beaches?  The NJDEP clarified this in 2009 during a series of back-to-back meetings held by the NJDOH to update these regulations, which also included local and county health departments, advocacy groups, and members of the private sector.  (The NJDOH readopted the rule without amendments on September 6, 2009; it will sunset September 6, 2016.)

The NJDEP determined, with the concurrence of the NJDOH, that health departments could post advisories at lifeguarded beaches, but only after an initial set of samples failed the water quality standard, currently 104 colonies of the enterococcus bacteria.  If that happens, the beach has to be resampled a few hours after receiving the results of the 24-hour test. Two consecutive exceedences will close a beach.

An advisory can only last one day before it is lifted or becomes a closure. That means the bathing beach regulations do not authorize permanently posting advisories on beaches.

When something like this falls between the cracks, the conversation usually turns to some general, unspecified authority that local health departments have for taking of, gosh, anything.  Whenever someone talks like this, whether they know it or not, they are usually referring to two sections of the Public Health Nuisance Code.  That authority went away in 2008.

The New Jersey Libertarian Party and the PHNC

The Public Health Nuisance Code is the first public health law in NJ, dating from 1892. It gave health departments very broad powers, but balanced this with a heavy burden of proof, and fines of only a few hundred dollars. 

In May of 2008, the New Jersey Libertarian Party challenged the constitutionality of Sections 2.1(a) and 2.1(b) of the PHNC for being too broad:

"2.1 The following matters, things, conditions or acts and each of them are hereby declared to be a nuisance and injurious to the health of the inhabitants of this municipality:

(a) Any matter, thing, condition or act which is or may become detrimental or a menace to the health of the inhabitants of this municipality.

(b) Any matter, thing, condition or act which is or may become an annoyance, or interfere with the comfort of general well-being of the inhabitants of this municipality."

By September the NJDOH was advising health departments to stop enforcing these two provisions while they worked out the rulemaking to cut them from the code.  The latest gasp was a public notice on July 2, 2012 in the NJ Register, Volume 44, Issue 13, section 1920(a). 

So - while the stormwater rules in NJ can be used for permanently posting warning signs on stormwater outfalls, health regulations cannot, as currently written.

Meanwhile

There are two bills that would require advisory signage for Combined Sewer Overflows in NJ.  CSOs are storm drains that legally dump untreated sewage as well as stormwater into estuaries when it rains. S831 and A2852 were last reported out of Assembly Committee with amendments on May 13 2013.  New York had already passed their Sewage Pollution Right to Know Act on May 1.

N.J.A.C. 7:8 (Stormwater Management) was last amended on April 19, 2010, and will come up for public comment seven years later in 2017.  N.J.A.C. 7:14A, including Chapter 25, the Municipal Stormwater Regulation Program, looks like it was readopted on 1/5/2009. So if I am reading this correctly, it will come up for public comment around the same time as the bathing beach regulations, in 2016.

But since the enabling statute for Chapter 9 only authorizes beaches with lifeguards, regulating other types of recreational shoreline would likely require new legislation.