Bob Martin Rolls Back Clean Water Rules – Holds Sham “Stakeholder” Meeting To Provide Cover

[Updates below]

On March 24, 2010, Department of Environmental Protection (DEP) Commissioner Bob Martin quietly issued Administrative Order 2010-3.

In doing so, Martin followed the unilateral, radical, and lawless rollback approach established by his boss, Governor Christie, who issued a series of Executive Orders 1-4.

Just one week after he killed DEP’s proposed perchlorate drinking water standard, Martin’s Order makes significant substantive changes to the DEP’s Water Quality Management Planning Rule: N.J.A.C. 7:15.

The Martin changes significantly weaken the WQMP rules, benefit developers and property owners, prohibit enforcement, and delay implementation (see below for details of Order). So Martin is just beginning to deliver the “regulatory relief” promised by Governor Christie in Executive Order #2.

The DEP’s WQMP rules have long been highly controversial, because they dictate where sewers and high density development can occur and are a means of protecting NJ’s last few remaining environmentally sensitive lands. Ever since the Whitman Administration tried to weaken them (does anyone recall the Whitman April 17, 2000 “Sewers: The Last Frontier of Smart Growth” speech at Princeton’s Woodrow Wilson School?), the WQMP rules have been one of the highest priorities of both builders and environmentalists. The WQMP rules have been the subject of several failed lawsuits filed by the Builders and led to scores of high profile battles in Trenton and at the local level (probably the most visible were the Merrill Lynch and Washington Valley sewer wars).

The WQMP rules are so significant, that the the NJ Builders Assc. and the development lobby convinced the Legislature to pass a bill during the Lame Duck Session to weaken and delay their implementation. The US EPA opposed that bill as a violation of the federal Clean Water Act and the bill was vetoed by Governor Corzine.

DEP, explicitly conceding political pressure by legislators and developers, caved in before a bill was even passed. Political influence over DEP is now so deep that it is an accepted fact of life. For example, in a July 14, 2009 letter, DEP Acting Assistant Commissioner Scott Brubaker explained why he was setting aside enforcement of the WQMP rules because legislators had introduced a bill to bully DEP to bend over:

The Department is also under pressure from the development community, which fears that the Department will unilaterally remove sewer service areas. Recently, legislation has been introduced that would extend the submission deadline. Together these added burdens would preclude the Department from adopting any new or updated wastewater management plan for the foreseeable future. Any Department effort to withdraw sewer service areas would encourage this legislation.

So, rarely does a DEP regulatory issue rise to this substantive significance and political controversy.

This all proves that Martin’s Order is highly substantive – and therefore patently illegal – because it amends DEP regulations without complying with the public notice and comment due process rule-making procedures mandated by the NJ Administrative Procedures Act.

Martin not only arrogantly ignored and blatantly violated NJ legal requirements, he is on a collision course with US EPA over Clean Water Act compliance. Again, US EPA opposed the WQMP rule rollback. A harsh statement issued by Judith Enck, EPA Regional Administrator said:

“EPA continues to disagree with this misguided policy. We thought this was a bad bill, it’s now a bad DEP policy. Delaying water quality planning is never a good idea. We urge the New Jersey DEP to explain to the public and to the EPA why this is a good thing for water quality.”

But we’re getting ahead of ourselves here, so let’s talk more broadly before we get into the weeds of a critique of the Martin Order.

To make matters even worse, when the Order was disclosed to the media (see Star Ledger), DEP Deputy Commissioner Ray Cantor not only spun to downplay the significance of the Order, incredibly, he claimed that a “Stakeholders meeting” would somehow fix it all! According to the March 30, 2010 Bergen Record:

“We are more concerned with getting the plans right than getting them in early,” said Ray Cantor, a special assistant to Martin. “The underlying plans still apply. Nothing has really changed. A county can submit their plans tomorrow if they want to. This just gives them a little more room, which is what they have been asking for.”

DEP officials said the order is not as severe as the bill, which was sponsored last year by state Sen. Paul Sarlo, D-Wood-Ridge. Business groups had supported the bill, saying it was needed to help builders weather the economic downturn.

Tittel said Martin’s order was done with no public input, unlike the Sarlo bill, which was the subject of several public hearings in Trenton. [My note: see Sarlo bill]

Cantor said a stakeholder meeting is scheduled for Thursday to hear concerns from developers, environmentalists and government officials.

The so-called “stakeholder meeting” is being held today. It is a complete sham and transparent “divide and conquer” strategy.

Not only is the meeting being held AFTER Martin made a very bad decision to issue Administrative Order, the meeting is secret, by invite only, and will be attended by a small hand picked group of friends. No statewide environmental advocacy groups are going – one was invited but will not attend – sadly, I am told, due to scheduling conflicts, not as a matter of principle.

Ironically, while Martin issues edicts that blatantly violate public participation requirements of administrative law and hides behind sham “stakeholder” political cover, in his January 20, 2010 inaugural address, Gov. Christie declared that:

Today, a new era of accountability and transparency is here.

So Martin has failed early tests of transparency reform.

Martin is also failing to comply with law. The lead case is known as “Metro-Media“. That NJ Supreme Court decision sets out clear criteria to judge when a State agency action amounts to “regulation” that must be subject to public notice and comment rule-making procedures to preserve fundamental rights of due process and democratic accountability. The Metro-Media decision set out 6 criteria, any one of which trigger mandatory rule-making procedures. The Supreme Court found:

We can synthesize from this authority that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

The Martin Administrative Order triggers not one, but ALL 6 Metro-Media criteria!

Ironically, the Christie Administration’s Red Tape Review Group is using this specific case law as a means to beat up DEP, rollback environmental requirements (A2486), and erect new political and procedural barriers to effective regulatory protections (A2464). At their first hearing, the Red Tape Group took testimony from builders lawyer Neil Yoskin who implied that DEP informal practices routinely violated legal requirements under Metro-Media. Yoskin later gave legislative testimony in support of A2464 (see this), legislation that would handcuff DEP and lead to weakening of environmental protections. Yet Yoskin provided no examples or case law where courts have found that DEP failed to follow the law.

It is beyond hypocrisy that Martin is clearly violating exactly the legal requirements he and the Christie gang are using as an excuse to rollback environmental protections and demonize DEP. Where is the outcry from Neil Yoskin and the NJ legal community about Martin’s gross abuse?

Adding to the irony, the NJ Builders Association has launched lawsuits attacking the Administrative Orders of former DEP Commissioners for alleged violation of public participation and due process requirements. For example, builders unsuccessfully challenged former DEP Commissioner Lisa Jackson’s Administrative Orders issued in 2007 and 2008 on 300 foot stream buffers. They also challenged former DEP Commissioner Bob Shinn’s Administrative Order regarding making DEP rules consistent with the State Plan.

Substantively, Martin’s Order does the following – all of which are substantive and trigger Metro-Media rule-making requirements (sorry, I have the Order as pdf file and am unable to post. Drop me an email and I will forward):

1) further delays implementation of the mandatory requirements and timetable of the rules, until April 7, 2011;

2) surrenders the DEP’s authority to withdraw lands from sewer service areas, in direct conflict with the mandate of the rules;

3) pledges that the DEP will not act upon or enforce the new development impact build-out requirements of the rules. The order also adds additional substantive mapping requirements and new procedural steps in the rules in this regard, including web posting, public notice, public comment, and public hearing procedures that are not in current rules;

4) provides new opportunities, standards, criteria, and procedures for a property owner to request that his/her property become part of a sewer service area; and

5) provides new opportunities and procedures for a property power to block DEP’s deletion of environmentally sensitive lands from a sewer service area.

[Update 1: per points #1 & 2 above, thought I’d make things easier on readers by providing the applicable regulatory text. What is it about the term “shall” that DEP can’t understand? Non discretionary duty:

NJAC 7:15-5.23

[(a)]

(b) If a wastewater management plan in compliance with the schedule in (a) above is not
in place on July 7, 2008, the WMP agency shall submit a WMP or WMP update by April 7,
2009. If a municipality accepts wastewater management plan responsibility through alternative
assignment under N.J.A.C. 7:15-5.13, the municipality shall submit a wastewater management
plan by July 7, 2009 or in accordance with the schedule established in (e) below.

(c) If the wastewater management planning agency fails to comply with the schedule in
(a) or (b) above or an alternative schedule established under (e) or (f) below, the general service
areas for wastewater facilities with planning flows of less than 20,000 gallons per day which
discharge to ground water, the general service area for wastewater facilities with planning flows
of less than 2,000 gallons per day which discharge to ground water, and sewer service areas shall
be withdrawn in accordance with N.J.A.C. 7:15-8.1.

7:15-8.1 Withdrawal of wastewater service area designations

(a) Except as provided in (b) and (d) below, wastewater service area designations shall
be withdrawn in areas which fail to adopt and maintain a wastewater management plan in
accordance with the requirements of N.J.A.C. 7:15-5.2(b), 5.13 and 5.23.

[Update 2 – 4/2 – I was just informed that Martin was not at the meeting, which was run by Cantor. While I never said Martin was, just thought I’d clarify.]

[Update 3 – again, to make it easier on readers, here is the Legislature’s intent for passing the WQMP rule extension. Whether one agrees with these findings and policy is not the issue. Note the substantive significance of what is at stake. Given the essentially legislative policy nature of the substantive issues the Legislature considered, it becomes crystal clear why Bob Martin of DEP may not effectively legislate by Administrative Order:

l.The withdrawal of wastewater service areas on a Statewide basis would have a severe negative economic impact and would further exacerbate the current economic recession, precluding development projects and activities, which would otherwise generate jobs, act as sources of fee generating activities for sewerage authorities and other public and private utilities, and act as a source of tax and other revenues. Such an occurrence would hamper the State’s ability to recover from the economic recession, slowing job creation and redevelopment that are normally a source of revenue, increasing the revenue shortfall in the State’s budget, and further hampering the State’s ability to provide for the general welfare needs of its residents.

Here is the summary of the bill that passed the Legislature and was vetoed by Governor Corzine – compare what the Legislature tried to do with points #1-5 above from Martin Administrative Order and it becomes OBVIOUS that Martin was illegally legislating via AO:

The Assembly Housing and Local Government Committee reports favorably and with committee amendments Assembly Bill No. 4345.

As amended, this bill would extend for two years the requirement for wastewater management planning agencies to prepare and submit a wastewater management plan or a wastewater management update to the Department of Environmental Protection (DEP) and would maintain during the extension period the validity of wastewater service areas and sewer service areas. The amended bill defines “extension period” as the time period beginning on April 7, 2009 and ending on April 7, 2011.

Under the DEP’s current Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq., adopted effective July 7, 2008, wastewater management planning agencies are required to submit a wastewater management plan or a wastewater management plan update to the department by April 7, 2009. This bill would extend that time period by two years, and would further provide that no sewer service area designations would be withdrawn during the extension period.

The bill would also require the DEP to act upon site specific or project specific amendments or revisions to wastewater management plans and water quality management plans within 90 days after receipt of a complete application.

In addition, the bill would establish a specific requirement for notice and public hearing whenever the department proposes to remove property from a sewer service area.

The bill also sets forth conditions for the inclusion of property within sewer service areas. Specifically, under the bill, sewer service areas shall include all parcels of land for which at least one of the following approvals were issued prior to the wastewater management planning agency adopting a new, revised, or updated wastewater management plan and that plan is approved by the department: preliminary or final site plan approval, preliminary or final subdivision approval, municipal building or construction permit, or general development plan approval pursuant to the “Municipal Land Use Law”; a treatment works approval; or a New Jersey Pollutant Discharge Elimination System permit. As amended, the legislation provides that a landowner may petition the department and the applicable wastewater management planning agency during the extension period for a change to the sewer service area designation for the real property identified in the petition. Upon approval of both the department and the applicable wastewater management planning agency, the change to the sewer service area designation would take effect immediately.

Further, the bill requires the department and wastewater management planning agencies to consider the following when making a determination regarding the inclusion of a parcel in, or the exclusion of property from, a sewer service area under any new, revised or updated wastewater management plan:  (1) the zoning of the property; (2) the existing development and land use surrounding and in the vicinity of the property; (3) the existing infrastructure and availability of utilities; (4) any affordable housing obligations; (5) redevelopment opportunities and objectives; (6) the designation of the property pursuant to the State Development and Redevelopment Plan; and (7) any prior or existing development or partial development on or associated with the property.

The amended bill also provides that, during the extension period, whenever the State, a local government unit, or a qualifying tax exempt nonprofit organization is contemplating the acquisition of a specific parcel of land for recreation and conservation purposes or farmland preservation purposes using public funds, or a landowner is contemplating the sale or other transfer of land for such purposes, the governmental entity, nonprofit organization, or landowner may request in writing of the department to decide, in consultation with the applicable wastewater management planning agency, and within 180 days after receipt of the request, whether the specific parcel of land will or will not be included in a sewer service area. If the landowner disagrees with the decision of the department, the landowner may follow the appeal procedure set forth in the bill. The decision of the department, in consultation with the applicable wastewater management planning agency, would be used to assist in the valuation of the parcel for possible preservation under open space and farmland preservation programs.

COMMITTEE AMENDMENTS:

The committee amended the bill:

1) to provide that, during the extension period, a property owner may petition the department and the applicable wastewater management planning agency for a change to the sewer service area designation for the property, and upon approval of both the department and the wastewater management planning agency, the change to the sewer service area designation would take effect immediately;

2) to provide that, during the extension period, whenever the State, a local government unit, or a qualifying tax exempt nonprofit organization is contemplating the acquisition of a specific parcel of land for recreation and conservation purposes or farmland preservation purposes using public funds, or a landowner is contemplating the sale or transfer of land for either of those purposes, governmental entity, nonprofit organization, or landowner may request in writing of the department to decide, in consultation with the applicable wastewater management planning agency whether a specific parcel of land will or will not be included in a sewer service area, when the State, a local government unit or qualifying non profit is contemplating the acquisition of a specific parcel of land for recreation, conservation, or farmland preservation purposes. The modifications also set forth an appeal procedure for this decision;

3) to change the ending date of the extension of the validity of sewer service areas and wastewater service areas from April 7, 2012 to April 7, 2011.