Legislature, DEP at Loggerheads Again Over Septic Tanks in Highlands

Tom Johnson | November 13, 2017 | Energy & Environment
Lawmakers moving to block agency proposal, could use rarely employed tool to rescind rules judged inconsistent with legislative intent

The Legislature is moving once again to potentially block a controversial proposed rule that would expand development in the Highlands, a step critics argue would threaten drinking water supplies for six million residents.

A new resolution (SCR-163) has been introduced in the Senate that would prevent the state Department of Environmental Protection from implementing the rule, which was adopted this past June.

Earlier this summer, final approval was given to an identical resolution stipulating the new rule is inconsistent with legislative intent of the 2004 law creating the Highlands Act, a measure adopted to protect roughly 800,000 acres of forested lakes, hills, and land that supplies drinking water to more than half the state.

But the department refused to amend or withdraw the rule, setting up a confrontation with lawmakers if the resolution wins approval again. Under a rarely used tool, the Legislature can revoke rules that are deemed inconsistent with laws passed by that branch of government.

The rule, proposed by the DEP in the summer of 2016, would open up parts of the preserve’s more environmentally sensitive areas to development by increasing the density of septic tanks allowed in those areas. Septic systems can leak nitrates, a major source of groundwater pollution.

DEP officials have repeatedly defended the proposal, saying it will not harm water supplies while creating reasonable opportunities for economic growth.

In the past, the Legislature has threatened to block other DEP rules, but has never followed through. It came within one vote last year of overturning a rule dealing with water quality and flood protections, but failed to do so after a compromise was reached between legislative leadership and the agency.

Environmental groups are hoping to avert that scenario from occurring again.

“We need the Legislature to act before the Christie administration adopts the rule,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “This is critical because it could weaken protection in the most environmentally sensitive areas of the Highlands.’’

Doug O’Malley, director of Environment New Jersey, agreed. “This is the beginning of what needs to be a large-scale effort to reverse the damage put forward by the NJ DEP during the Christie era,’’ he said.

Sen. Bob Smith (D-Middlesex), the chairman of the Senate Environment and Energy Committee, introduced the new resolution at Thursday’s session, the first to be held since the gubernatorial election earlier this month. The current legislative term ends early in January.