Environmentalists Say DEP’s New Flood-Prevention Compromise Is A ‘Dirty Deal’

Tom Johnson | August 3, 2016 | Energy & Environment
Critics say new rule will increase development, pollute drinking water supplies, make flooding more likely

A compromise aimed at ending a dispute between lawmakers and the Christie administration fails to protect drinking water and to prevent flooding as intended, according to environmentalists.

The agreement, announced the day before the Legislature was poised to rescind controversial new rules adopted by the Department of Environmental Protection, has no force of law and would be quickly nullified if challenged in court, critics said yesterday.

The issue, festering for a year, has become the top priority of the state’s most prominent environmental groups who said they will ask the U.S. Environmental Protection Agency for help in blocking implementation of the regulation.

Adopted in June despite widespread opposition, the regulation overhauls three different programs run by the agency in an effort to streamline the permitting and eliminate duplicative requirements while maintaining environmental protections, according to the state.

By relaxing buffers around the state’s most pristine streams, however, the changes will increase development that will result in more pollution threatening the state’s drinking water supplies and boosting the chances of flooding, critics said.

The department sought to mollify opposition by making changes in the rules , but not enough to satisfy lawmakers, who were scheduled to vote to revoke the regulations under a rarely used constitutional provision at last week’s Senate session. That step was averted by the last-minute agreement reached with Senate Democrats for the compromise administrative order.

Sen. Bob Smith (D-Middlesex), who help negotiate the order, argued the changes made the new rule “equal’’ to the protections that were in place under the old regulation.

Environmentalists and others disagreed, dubbing the administrative order a “dirty deal” that does not settle the issue. They said yesterday they would continue to press the Senate to vote to revoke the rule, urge the EPA to block it, and take it to the courts, if necessary.

Early on in the process, the EPA expressed concerns the rule was inconsistent with federal water quality standards. Bill Wolfe, a former DEP staffer, already has written to Judith Enck, the EPA’s Region II administrator, asking the agency to review the administrative order for compliance with the federal Clean Water Act.

“Under any scenario, this is going to be tested in court,’’ predicted David Pringle, campaign director for New Jersey Clean Water Action. That will probably happen soon after the DEP either denies or approves a permit using the administrative order as justification, he said. “The AO is weak and unenforceable.’’

Bob Considine, a spokesman for the DEP argued otherwise. “The administrative order is legal and enforceable,’’ he said in an e-mail.

Unless the rule is blocked, however, some conservationists said the state will experience more water woes. “In the past week, we have experienced flash floods and half the state is under a drought watch,’’ noted Jennifer Coffey, executive director of the Association of New Jersey Environmental Commissions.

“The Governor and DEP have weakened the Flood Hazard Protection Rules and place public health and safety in greater harm’s way,’’ Coffey said.

The rule even drew criticism from the New Jersey Conservation Foundation, a group not often drawn into disputes between environmentalists and the DEP. “We have concerns about development in C-1 buffers,’’ said Amy Hansen, policy director, referring to streams designated for the most protections.

“You cannot split the environmental community when it comes to protecting critical resources like drinking water and protecting people from flooding,’’ said Maya van Rossum, the Delaware Riverkeeper.