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Opinion: Compelling the DEP to Think Outside the Black Box

Designing to a site rather than a spreadsheet should help reduce runoff, wastewater and flooding

Credit: Amanda Brown
R. William Potter

How much can one obscure court case do to prevent flooding, reduce water pollution, protect natural areas, compel a government agency to abide by its rules, and promote public participation in permit decisions on major developments?

Plenty, as it turns out.

In a densely worded 46-page opinion handed down last week by a unanimous three-judge panel of the Appellate Division, one court decision appears to have done all that and perhaps even more. (Full disclosure: This writer was the lead attorney for the winning side in that case.)

The name of this landmark case -- “In the Matter of Authorization for Freshwater Wetlands General Permit No.6 . . . ” -- lacks the pithy punch of “Roe v. Wade” or “Brown v. Board of Education,” landmark decisions known by virtually everyone.

But lack of marquee appeal does not diminish the importance of this case, which should be widely studied by regulators at the Department of Environmental Protection (DEP), land-use attorneys and engineers, and consultants, as well as by environmental groups seeking to take advantage of the ruling as useful precedent.

The decision will also be fodder for real estate interests and lobbyists looking to find ways to mitigate -- if not nullify -- the widespread impact of the court’s finding.

So what exactly did the court do?

The court reversed DEP permits that allowed a developer to fill an acre of freshwater wetlands in order to build a complex stormwater management system for a rehabilitation facility in Hamilton Township (Mercer County).

In doing so, the court struck down the DEP’s reliance on a “black-box” computer spreadsheet to prove compliance with one of the most important single regulations on the books for controlling runoff and pollution from “impervious surfaces” such as roofs, roads, and parking lots.

That regulation, which the DEP had been systematically ignoring, requires every applicant for a “major development” -- defined as any project disturbing more than one acre of land -- to show it will use “nonstructural strategies to the maximum extent practicable” to control stormwater runoff and prevent nonpoint water pollution.

And what are these “nonstructural strategies?”

Put simply, they are natural ways to control flooding -- ones that we ignore at great peril. Adhering to them means designing to “minimize land disturbance, minimize impervious surfaces, minimize the use of storm water pipes, and preserving natural drainage features” wherever possible.

They are nature’s alternative to the pipes and concrete-lined drainage ditches that engineers typically favor and developers install around the perimeter of projects.

As the court found, starting in 2006 the DEP began allowing developer applicants to prove they were maximizing their use of natural systems by plugging numbers or calculations into a computer program called the Nonstructural Strategies Point System. (The black box I alluded to earlier.) The NSPS would then spit out a spreadsheet.

If that spreadsheet showed enough “points,” the project was approved. And few, if any, additional were asked by DEP reviewers. Only if the spreadsheet came up short would the DEP staff actually review the site-specific facts to determine if the project complied with the regulation. Sort of heads I win and tails I don’t necessarily lose.

The legal problem with the NSPS was not that it was bad for the environment -- as it demonstrably was -- but that it conflicted with the very regulation it claimed to implement. Worse, it had never been vetted in the public rule-making process mandated by the Administrative Procedures Act or APA, unlike the design-with-nature rule it effectively nullified.

To put it mildly, as the court’s opinion suggests, the NSPS was a developer’s dream come true. Besides violating the APA, it largely shut out public input on the merits of any particular project. That’s because once the NSPS approved a project as a sort of surrogate DEP -- as doubtless happened dozens if not hundreds of times during the seven years it has been in use -- all review was at an end.

So what happens now? I can almost hear the cries of alarm and gnashing of teeth by developers who will argue that this decision means the end to economic development and job creation in a state with persistently high unemployment.

Far from it. What the court ruling means -- if it withstands the inevitable backlash -- is that designers of major projects must avoid the cookie-cutter approaches to stormwater control that have so thoroughly failed to prevent flooding all across this soggy Garden State.

Architects, builders, and engineers will be challenged to build homes and shopping centers and office parks near woodlands and natural areas, preserving them so that rainwater reaches the earth instead of being sluiced through pipes as runoff off and wastewater into drainage ditches and overflowing storm sewers.

In short, if the court’s decision stands up to the expected counterattack -- more precisely, if defenders rally strongly behind it -- “In the Matter of Authorization for Freshwater Wetlands General Permit No. 6" may well join other landmark decisions.

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