DEP Won’t Rescind Highlands Septic-Tank Rule, Despite Legislative Action

Tom Johnson | January 16, 2018 | Energy & Environment
Agency argues lawmakers overstepped authority when they moved to abolish controversial rule increasing number of septic tanks in region

septic tank
The state Department of Environmental Protection is refusing to withdraw a rule involving development in the New Jersey Highlands, a proposal lawmakers recently sought to invalidate.

In a letter to legislative leaders Friday, DEP Commissioner Bob Martin said the Legislature acted outside its constitutional authority to abolish a rule governing septic tank density within the preservation area of the Highlands.

The letter may be moot because Martin will be replaced as commissioner of the department this week and a new commissioner is likely to move to repeal and change the regulations, although that process could take months given the constraints of changing state rules.

If nothing else, Martin’s action underscores the controversy surrounding the rule, which the department adopted last summer, saying it would provide a reasonable opportunity for economic growth in a region where property owners believe tough land-use regulations create an unfair economic burden.

In a series of votes, the Democratic-controlled Legislature disagreed, arguing the new rules allowing more than 1,100 additional septic tank systems in the Highlands preservation area are inconsistent with the legislative intent of the 2004 law establishing the Highlands region.

“The Legislature lacks the constitutional authority to invalidate a rule because it does not like the result or to effectively amend a statute by reading in words that do not exist,’’ Martin wrote. “The department properly exercised its delegated authority to establish a scientific standard consistent with expressed language of the Act.’’

Assemblyman John McKeon (D-Essex), a sponsor of the resolution invalidating the rule, said the DEP’s action once again demonstrates the Christie administration’s disregard for the environment.

“This attempt to ignore the will of the Legislature would be outrageous if the Christie administration did not have one foot out the door already,’’ McKeon said in a statement issued Friday. “Thankfully, we’ll have a new governor in Phil Murphy come Tuesday, one who is committed to protecting our natural resources rather than appeasing the highest bidder.’’

In rescinding the rule, lawmakers claimed the new septic tank regulations would not preserve water quality, a stance Martin disputed. “This is a factually and scientifically inaccurate statement,’’ the commissioner argued in his letter, noting it was basing on findings by the department’s own scientists and the U.S. Geological Survey.

The effort to repeal the rule, however, was one of the conservation community’s biggest environmental victories. They had repeatedly clashed with the Christie administration during his two terms, particularly over his perceived efforts to roll back regulations governing the Highlands, more than 800,000 acres of forested hills, lakes, and farmland supplying drinking water to six million New Jerseyans.