Showdown in the Offing over Controversial DEP Water Rule

Legislature close to invoking never-used mechanism that will let it permanently revoke regulation

Unhappy with a modified rule, the environmental community is gearing up to press lawmakers to permanently revoke a much-contested regulation that they believe will degrade water quality and increase flooding around the state.

The regulation, adopted earlier this month by the Department of Environmental Protection, is aimed at streamlining three key regulatory programs the agency oversees, making them more efficient and less cumbersome.

The Legislature already has voted once to rescind the 900-plus page rule, a step that led the agency to adopt a new proposal. Some lawmakers view that proposal as an improvement over the original, but it does not go far enough for most environmentalists.

The rule, which applies to permitting for flood hazards, coastal planning, and stormwater management, is the latest and most controversial effort by the Christie administration to revamp the state’s generally stringent environmental regulations.
Besides in-state critics, the regulation raised concerns among federal officials that it was inconsistent with their own standards.

The Assembly is expected to take up a resolution to revoke the rule when it meets a week from today. The Senate Environment and Energy Committee held a hearing on the latest iteration of the rule this week, but took no action despite calls from environmentalists to rescind the proposal.

Under the state constitution, the Legislature can revoke a newly adopted rule if it determines it is inconsistent with previous laws it has passed. That mechanism has never been used, setting up a rare confrontation between the executive and legislative branches.

To opponents, the changes made by DEP to quell criticism of the proposal amounted to minor modifications, not the kind of substantive changes they had sought from the agency. They include Assemblyman John McKeon (D-Essex), the sponsor of the resolution in the lower house.

“What they have come back with is nearly as detrimental,’’ the lawmaker said. “These rule changes would continue to allow more developers to have exemptions to flood-hazard rules, purposefully working against the spirit of the Flood Hazard Control Act. Buffers and buffer zones around rivers and tributaries would be drastically reduced or even completely eliminated,’’ he added.

For the most part, the chief objections centered on eliminating buffer zones around streams given the most protections under existing regulations, typically those with trout and that serve as the source of drinking water. In the past, regulations were aimed at preventing any activity that would lead water quality to degrade in those waterways.

Several environmentalists said that will happen under the new rule. “We’re not allowed to make waters worse,’’ said Mike Pisauro, policy director of the Stony Brook-Millstone Watershed Association, noting water quality is deteriorating already in many streams in the state.

But Ginger Kopkash, an assistant commissioner for DEP, defended the changes to legislators. “With the deletions (in the rule), we believe we are consistent with the high bar that was set years ago,’’ she said. “We are maintaining buffers; we are maintaining water protections.’’

Business representatives echoed her view, arguing that the old rules were so stringent they prevented activities that the state wanted to occur — like cleaning up polluted areas — from being carried out because they are located in buffer zones.

“The rule, as adopted should be allowed to stand,’’ said Dennis Toft, an environmental attorney who spoke for developers and the business community.

But others suggested the new rule grants too many exemptions to activities in buffer zones. “We set a standard. It should be difficult to violate the standard,’’ said Tim Dillingham, executive director of the American Littoral Society.