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DEP Agrees to New Water Regulations, Legislature Will Not Rescind Rules

Environmentalists deeply disappointed in deal, argue that administrative order used to effect change can be revised at any time

stream water

The state Department of Environmental Protection yesterday reached agreement on changes to a much-criticized rule dealing with water and flood protections that will likely avert lawmakers voting Monday to revoke the regulation.

The settlement, spelled out in an administrative order reached with Sen. Bob Smith (D-Middlesex) and made public late yesterday, means the rule will remain in effect, an outcome lamented by critics who say it will increase water pollution and the risk of flooding in the state.

The issue emerged as one of the top priorities of environmentalists ever since it was unveiled a year ago this past June, a massive rewriting of rules governing three key permitting programs overseen by the DEP. The agency argued the new proposal streamlined permitting and eliminated onerous requirements, while still protecting the environment.

By making further changes in the regulations — the second time the agency has done so—it means the Senate will not vote on a resolution (SCR-66) to rescind the proposal under a rarely used legislative tool. It allows lawmakers to invalidate rules that are inconsistent with legislative intent.

For environmentalists, the deal is a bitter setback in what would have been the first successful attempt to block what they view is a trend by the Christie administration of rolling back stringent environmental protections.

But Smith, the chairman of the Senate Environment and Energy Committee, called the agreement a compromise that will prevent the “weakening of water-quality protections’’ and protect buffers around the state’s purest streams.

“What we were trying to achieve with a legal and constitutional challenge has now been achieved through negotiation,’’ Smith said. He argued, in a press release by partisan staff, that the changes to the regulations and the administrative order signed by the DEP commissioner are “equal to the protections that were in place before the rule changes were made.’’

Environmentalists disputed that rosy view.

“This is locking in regulatory rollbacks, perhaps for years, for buffers that protect the sources of drinking water,’’ said Doug O’Malley, director of Environment New Jersey. “You never win when you compromise with the Christie administration.’’

Jeff Tittel, director of the New Jersey Sierra Club, described the agreement as not a deal, but ‘’a sellout.’’ The latest changes are minor and an administrative order can be changed at any time, unlike a regulation, he said.

“It’s window dressing; it has no force of anything,’’ Tittel said, adding he believed the rule still violates federal clean water laws.

Most of the controversy over the proposal stems from provisions critics say erode buffer protections around the state’s most pristine waters, which could lead to more development, pollution, and flooding.

The latest changes to the rule, outlined in the administrative order, try to address those concerns, but not enough to satisfy those opposed to the original proposal. Beyond most of the environmental community, the proposal raised concerns from the U.S. Environmental Protection Agency’s Region II office, the Federal Emergency Management Agency, and even former Republican Gov. Thomas Kean. He wrote an op-ed published in the Star-Ledger, saying the rule should be scrapped.

Martin signed the administrative order a week ago today, but only made public after business hours yesterday.

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