Legislature’s Revoking of DEP Water Rule One Vote Away From Reality

Tom Johnson | June 17, 2016 | Energy & Environment
If Senate passes resolution, state agency’s ‘flood-hazard rule’ will be rescinded using rarely invoked constitutional tool

The Legislature is one crucial vote away from rescinding a rule adopted by the Christie administration that critics say could worsen water quality in the state’s most pristine streams and increase flooding.

In separate votes, a resolution invoking a rarely used constitutional tool to revoke regulations moved forward in a Senate committee and the Assembly yesterday in mostly partisan votes.

The resolution need only be approved by the Senate for the controversial so-called flood-hazard rule to be rescinded. This is only the second time the Legislature has taken that step during Gov. Chris Christie’s tenure in office. The first time that occurred involved a civil service rule a few years ago.

If the rule is blocked, it would mark a major victory for the state’s “green” community, which believes that several key environmental programs have been weakened or abandoned during the governor’s two terms.

The Legislature voted to rescind the regulation in the last session, a step that led the state Department of Environmental Protection to revamp the proposal to quash criticism of changes in three permitting programs overseen by the agency. These deal with flood-hazard areas, coastal management, and stormwater management.

Sen. Bob Smith (D-Middlesex), the sponsor of the resolution (SCR-66), conceded that the DEP has made a lot of progress on revamping the proposal, but after three hearings on the issue, “It’s not quite there.’’

In proposing the rule last June, the DEP said it was aimed at streamlining an onerous permitting process and eliminating duplicative and conflicting regulations among different permitting programs. The changes would enhance, not weaken environmental protections, the agency said.

Smith still has two major issues with the regulation. One involves process: Some of the rule changes are incorporated into a yet-to-be-adopted supplemental regulation. There is an understandable credibility gap over whether those changes will ever be adopted, Smith said.

The other, and perhaps overriding, concern, has to do with changes made in buffer-zone regulations addressing the state’s most pristine streams, dubbed “C-1” waters in bureaucratic jargon. Smith said that despite the agency’s efforts the new regulation does not quite rise to the level of protection of the old rule.

Essentially, opponents argued by opening buffer zones to more uses, it would reduce vegetation that protects water quality and prevents flooding.

In urging the release of the bill, Smith indicated he was troubled by the looming confrontation between the executive and legislative branches, noting lawmakers would be rejecting five-and-a-half years of work by the DEP staff.

“I don’t think we should be second-guessing rules on every day of the week,’’ he said before the committee voted in favor of the resolution with only Sen. Sam Thompson (R-Burlington) voting against.

In the Assembly, the resolution easily passed 47-24-5, again in a partisan vote, without any debate. It now heads to the Senate for consideration; it passed in that chamber in the previous session by a 26-12 vote.

The vote followed a day of lobbying in the State House by many of New Jersey’s environmental groups, which have shown unusual unanimity in opposing the proposal.

“This is huge,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “If we can stop this, then we can stop the Highlands septic tank rule,’’ he said, referring to a proposal that would open the preservation areas in the Highlands to more development.

Assemblyman John McKeon (D-Essex), a sponsor of the resolution, agreed with Smith and others that the proposal violates legislative intent. “The amendments proposed by the DEP threaten the very waters and natural habitat that these regulations are supposed to protect,’’ he said.