DEP Could Go Toe to Toe with Legislature over Septic Tanks in Highlands

Department wants to open preserve to greater development, claiming water quality would not be adversely affected

septic tank
The state Department of Environmental Protection may be heading toward another confrontation with the Legislature — this time over a rule it is reviewing that would open up parts of the Highlands to more growth.

The regulation, proposed last year by the agency, would allow more septic systems in sensitive parts of the Highlands, a step critics argue would threaten the drinking water supplies of millions of residents.

Under a resolution to be considered by the Senate Environment and Energy Committee on Monday, the DEP could be blocked from adopting the rule because lawmakers contend it violates the legislative intent of a 13-year-old law to preserve and protect hundreds of thousands of acres in the Highlands, a region in central and north Jersey of woodlands, lakes, and rolling hills.

The rarely used legislative tool allows the legislative branch to overturn actions by the executive branch the former believes are inconsistent with laws that have been adopted. It has been used more often during the Christie administration in disputes over environmental policies, but not successfully, falling short of reversing rule changes, other than winning a procedural victory.

The proposed rule would increase the density of development in the preservation area of the Highlands by allowing more septic tanks per acre, a red flag to environmentalists because they are a primary source of nitrate pollution.

The resolution already has cleared the Assembly in a mostly partisan vote. If passed by the Senate, it would put the department on notice to withdraw the rule, or amend it. If the DEP chooses to take no action, the Legislature could rescind the regulation by approving the resolution once again in both houses.

DEP officials have vigorously defended the rule, arguing it protects water quality while allowing a minimal amount of growth in the region. Many property owners in the Highlands have long criticized restrictions in the region hindering growth there. The New Jersey Farm Bureau also backed the new rule.

The resolution (SCR-148) noted there is no provision in the original Highlands law directing the DEP to review or weaken septic-tank density standards and argued the new rule will not promote restoration of water quality.

“This is an opportunity for the Legislature to assert that the DEP cannot slash and burn its way through Highlands protections and violate legislative intent,’’ said Doug O’Malley, director of Environment New Jersey, which supports the resolution.

O’Malley argued the Highlands Act is a legacy law for a lot of legislators, including Sen. Bob Smith (D-Middlesex), the sponsor of the resolution and chairman of the committee. “Legislators don’t take nicely to having their legacy diminished.’’