State’s Proposed Wetlands Rule Would Speed, Simplify Developer Permitting

Critics particularly concerned about new rule that would allow developers to certify they’ve met all regulations without any DEP oversight

The state is proposing a comprehensive overhaul of its freshwater wetlands program, a three-decade old regulatory scheme aimed at preserving swampy areas vital to filtering out pollution and controlling flooding.

In a massive rule proposal of nearly 700 pages, the state Department of Environmental Protection is seeking to reduce unnecessary rules, add flexibility, and provide more consistency with other state and federal environmental programs.

But the proposal is triggering concern among some environmental groups that the new rule would loosen up regulatory requirements and go too far in streamlining rules at the expense of existing protections.

A signature achievement

The Freshwater Wetlands Act is one of the signature achievements of former Gov. Thomas Kean’s legacy, a record with no shortage of environmental milestones. Enacted after a bruising legislative battle in 1987, the law sought to save disappearing wetlands, a natural resource crucial to protecting drinking-water supplies and serving as critical habitat for a wide variety of species.

In the rule, the state agency said it aims to align the wetland rules with the other two permitting programs administered by its Division of Land Use Regulation. The other programs — the coastal zone management and flood-hazard management sections — underwent a similar revamping late last year over the protests of most of the state’s environmental groups.

“The transformation of the operations of the land-use permitting program also involves streamlining functions, re-energizing engineering business processes, and leveraging technology to eliminate unnecessary paperwork,’’ according to the rule proposal.

The Environmental Protection Agency determined the changes proposed by New Jersey fulfill the requirements of the federal Clean Water Act. New Jersey has been delegated authority to oversee administration of the law.

A protracted process

The development of the rule has been a lengthy process — even by Trenton’s protracted standards. The department held three stakeholder meetings with interested parties — the most recent occurring in March 2014 and the two others in April 2011. The rule was published last month and a public hearing was held last week.

“These rules create open season on wetlands,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “We have lost more than half of our wetlands in the last 200 years and we can’t afford to lose more.’’

By streamlining permitting and making it easier for developers to obtain permits with less regulatory oversight, it could threaten the state’s efforts to protect its remaining wetlands, critics argued.

“At a time when we are being inundated with more flooding, we are taking away nature’s ability to protect us,’’ said Michael Pisauro, policy director at the Stony Brook-Millstone Watershed Association.

More pollution

By easing land-use permitting rules, it could lead to more pollution, Pisauro said. “We know wetlands filter out pollution. You cannot degrade wetlands and expect water quality to improve.’’

The new rules ease permitting in several ways, but critics cite the new use of allowing permit-by-certification for the wetlands program as particularly troublesome. It would allow developers to simply certify they followed all the standards without departmental oversight before undertaking actual activities in the wetlands.

The changes also allow some permits to last for 10 years, instead of five, and establishes conditions to allow “temporary disturbances,’’ a provision that does not now exist, according to Tittel.

To others, the sheer extent of 700 pages to lay out rules governing wetlands activities is a sign the department is moving in a wrong direction.

“The longer the regulations, the less teeth they have,’’ said Bill Kibler, policy director at the Raritan Headwaters Association. “If the DEP wants to be serious about protecting wetlands, then the answer is just say no and mean it,’’ he said. “Stop building exemptions and processes to get around the rules.’’