DEP Moves to Adopt Revised Water Rule Despite Legislative Warning

If state agency pushes ahead, lawmakers could rescind regulations as being contrary to existing laws

The state Department of Environmental Protection is moving ahead to adopt a much-criticized rule to overhaul water-quality and flood-hazard regulations after incorporating changes that, according to one of its chief skeptics, improve the original proposal.

But even with that praise, the version could be revoked by legislative action unless the agency delays its adoption, Sen. Bob Smith (D-Middlesex) strongly hinted to DEP officials yesterday during a committee hearing.

The question over how and when to adopt the rule — a contentious issue ever since it was first proposed last June — threatens to result in the rare action by the Legislature to rescind a regulation adopted by the administration because it is inconsistent with previously enacted laws.

The proposal, which overhauls three separate permitting programs run by the DEP, covered more than 900 pages when it was originally published. The agency said it sought to make the permitting process less cumbersome, but critics argued it would threaten water quality and increase flooding.

At this point, the fight is not over the substance of the new rule, widely opposed by the state’s environmental community, but over the process. The department has made numerous changes to the rule based on the criticism it has received, but has not yet made public the revisions.

In addition, the agency said it also plans to adopt other changes to the regulations in yet another proposal later, changes state officials argued would strengthen its protections for the environment. Smith, the chairman of the Senate Environment and Energy Committee, wants to incorporate all the changes into one consolidated rule and allow more public input.

“It would create a lot of good will with the Legislature to adopt a consolidated rule,’’ Smith told the department, which has been working on the proposal for more than five years. “Save yourselves some heartbreak. Put it in one rule.’’

Ray Cantor, a special advisor to the DEP Commissioner, disagreed. “All that does is delay a very good rule from going into effect,’’ he replied.

If the impasse is not resolved, Smith indicated that the Legislature is prepared to approve a resolution that would rescind the rule. “I’d like to save you from yourselves,’’ he said. “Let’s not have the Legislature go to ‘Defcon-4’”– apparently using the military jargon to suggest that the lawmakers would be ready to shoot the bill down.

In trying unsuccessfully to persuade the department, Smith noted the regional office of the Environmental Protection Agency (EPA), which had raised concerns that the original version did not comply with federal water rules, had not signed off on the latest changes.

Earlier in the meeting, the tone was much more conciliatory with Smith, the only one outside the department who has read the revised rule, saying there is no question there has been some progress in improving the regulation.

It is not clear how far those changes go, but the DEP said they focused on clarifying certain sections of the rule — protection of headwaters and what types of activities would be allowed in other environmentally sensitive areas. In general, those activities would lead to fewer disturbances close to water, according to officials.

The dispute may come to a head early in June at the committee’s next scheduled hearing but before the revisions to the rule are published. The agency may allow the public and other stakeholders to view the changes before then.

The outcome could shape future discourse between the Legislature and the Christie administration over major policy issues in the remaining months of his term. Much of the environmental community has been disappointed with what it perceives as rollbacks of the state’s stringent environmental laws.