Have Gov. Christie and Commissioner Martin Broken DEP Beyond Repair?

Court’s Opinion Striking Down DEP Stormwater Permit Reveals Systemic Decay

Courts and The Legislature Pile Regulatory Burdens on DEP While Christie Dismantles

All three branches are on the same wavelength, and it is not a good one

DEP Regulatory Failure Nightmare Groundhog Day

“We have a DEP that is dysfunctional’’ ~~~ Senator Bob Smith, Chairman of Senate Environment Committee. NJ Spotlight 5/31/13

[Update below]

[Intro – I strongly encourage readers to hit the links in this post for a ton of good information.]

My good friend and attorney Bill Potter has an excellent Op-Ed today over at NJ Spotlight – read the whole thing: COMPELLING THE DEP TO THINK OUTSIDE THE BLACK BOX

After reading Bill’s piece, which focused on the DEP’s implementation of what is known as the “nonstructural storm water point system” (NSPS) scheme in the DEP storm water rules, I went and read the Appellate Court’s opinion he writes about.

And it just made me sick to my stomach to read how the Court lays out a longstanding regulatory nightmare and dysfunctional DEP bureaucracy.

Very few DEP decisions get anywhere near this degree of scrutiny by competent engineers and lawyers. The errors they found in this case were egregious and point to systemic failure – which basically means that thousands of DEP permits and approvals are deeply flawed and are not protective of the environment or public health.

Nothing is being done to remedy these systemic failures – and that is what made me sick in reading the case. It’s like regulatory nightmare groundhog day.

[Full disclosure: I was involved in adopting the storm water rules at DEP (that’s where we chose to implement the C1 buffers) and internally opposed the “maximum feasible test”, which lacked standards and mandates and was toothless in the context of merely shifting the burden on the applicant to “identify” as opposed to “implement” non-structural alternatives. I was NOT there when the NSPS “black box” was adopted and opposed it from the outside.]

Being a gentleman and scholar, Bill went easy on DEP – so, I’ll take some time here today to explore the issues in this case that cry out for reform. Unfortunately, I must part company with my good friend in terms of the meaning of this decision, which Bill optimistically feels will lead to real reforms, as he notes:

How much can one obscure court case do to prevent flooding, reduce water pollution, protect natural areas, compel a government agency to abide by its rules, and promote public participation in permit decisions on major developments?

Plenty, as it turns out.

But my bottom line take is quite different – here’s why.

Unfortunately, Bill’s headline is slightly misleading – the Court did not “compel” DEP to  think outside the box. In striking down DEP’s granting of a permit, invalidating the NSPS scheme, and remanding the case back to DEP, the Court did just the opposite – and it did so obscurely in a concluding footnote:

“12 We express no opinion, one way or another, concerning the propriety of the use of the NSPS should the Department adopt it through formal rule making.“

The Court didn’t compel DEP to do anything on the regulatory front, and left that decision up to DEP.

So, rather than reforms, I fear that the decision will be welcome by DEP and become the excuse to abandon non-structural storm water management techniques that engineers in DEP – and their developer “clients” – have long opposed.

In a larger sense, while the decisions may be a site specific win for neighbors of the proposed development scheme involved in the litigation, my sense is that it is Pyrrhic victory because it reinforces across the board legal and political attacks on DEP that will further hamstring the Agency and further undermine its ability to enforce environmental laws.

The court ruled:

Appellants argue that the use of the NSPS, as described by the Department, improperly shortcuts the application review process because it has not been subjected to the rulemaking process and its opportunity for public comment. We agree. (@ p. 41)

In that legal sense, it is very similar to the March 21, 2013 Appellate Court decision that rejected the environmental community’s challenge of the Christie Administration’s “waiver rule”, while finding that the only safeguards DEP put in place in a review Guidance document violated the rule-making requirements of the Administrative Procedures Act. That decision amounted to a double whammy loss: rejection of the merits of the enviro’s challenge to the waiver rule (allowing waivers to be implemented)  and a rejection of the DEP’s minimum safeguards for preventing waiver abuse.

But lets get back to the storm water case at hand.

Primarily, the Court’s opinion reinforces an attack on environmental protections by striking down the DEP’s NSPS scheme and requiring that it be promulgated formally as a regulation before DEP can enforce it.

The Court thus joins the Legislature and the Christie Administration in erecting procedural hurdles to DEP’s enforcement of environmental laws.

All three branches are on the same wavelength, and it is not a good one.

The Legislature recently prohibited DEP from enforcing technical Guidance documents that had not undergone formal rule making adoption (we wrote about that here – for the law, see P.L. 2011, c. 215)

At the same time that the Legislature and the Courts are requiring DEP to promulgate more regulations, the Christie Administration has shackled DEP’s rule making efforts via an across the board attack.

Specifically, Christie’s Executive Order #2 imposes  several new procedural and substantive requirements before DEP can even propose a rule, and mandates that DEP provide “regulatory relief” from what the Gov. has repeatedly scapegoated by slogans and formally targeted under Executive Order as “job killing red tape”.

These new requirements include a “pre-propoosal” “stakeholder process – including a new non-transparent political review role by the “Red Tape Czar” Lt. Gov.’s Office, which amounts to a back door for industry intervention. These new requirements provide industry an advanced warning, promote industry’s ability to exercise inside influence, and amount to an effective political veto in blocking rules.

This additional industry control is done while scaling backing public involvement via DEP’s practice of hand picked “stakeholders” and conducting closed door deliberations.

EO #2 also mandates that DEP conduct cost benefit analysis (CBA) to justify new rules and limits DEP rules that are stricter than their federal minimums. DEP has one economist – 1 – on staff, and he is not qualified to conduct CBA.

DEP’s scientific capacity to support regulation is under attack as well.

Last, researching and writing rules is difficult and time consuming. It requires teams of DEP veterans, with deep knowledge of the DEP programs, laws, regulations, science, and environmental issues  involved.

But those few capable and experienced DEP professionals have been told to stand down on the science and regulatory front, to “serve customers”, and support political stunts designed by incompetent managers, the press Office and the Governor’s Office – and therefore it’s no surprise that experienced veterans are leaving DEP in droves.

At this point, DEP simply lacks the manpower and expertise to get its regulatory house in order.

Gov. Christie’s anti -regulatory policy – and DEP Commissioner Martin’s incompetence – make all this much worse.

Not surprisingly, the Christie DEP has adopted a record low number of new regulations – some via emergency procedures that do not allow public comment. And the very few rules DEP has adopted uniformly roll back existing requirements.

Now that the Court has blocked the DEP from implementing the NSPS, it is very doubtful that DEP will adopt rules requiring non-structural  storm water management techniques – especially given the development community’s strong opposition.

But, the Court’s opinion involved a lot more than the DEP’s NSPS – here are other critical issues and abuses the opinion discuses that cry out for legislative and regulatory reforms.

While the Court found DEP’s handling of there permit “inappropriate” – and the opinion rehashes the substance of a scathing technical critique by engineers at Princeton Hydro – the Court did nothing to correct the egregious DEP errors, some of which bordered on bad faith and abuse.

But all of this was ignored by the Court in terms of retaining jurisdiction and mandating some further action by DEP. Here they are:

1. Legal Roadblocks to meaningful Citizen involvement in DEP decisions

Neighbors attempted to seek an administrative hearing on the DEP decision to grant the permit for the development.

The Legislature has set very restrictive standards that limit the ability of 3rd party’s – like neighbors and environmental groups – to be granted “standing” in administrative appeals of DEP permits.The Court applied that law:

Appellants presented only their fears of flooding and Princeton Hydro’s calculations evidencing the possibility of flooding on neighboring properties from CareOne’s project. We find no error in the Acting Commissioner’s determination that appellants “have not demonstrated a particularized property right which gives rise to a constitutional basis for granting a hearing.”

Consequently, we affirm the denial of appellants’ request for an adjudicatory hearing. (@ p.33)

In this case, the Court found that the neighbors’ mere “fear of flooding” based upon engineering calculations is not a sufficient “particularized interest” to demonstrate standing.

If that is not a “particularized interest” then what is?

Something is seriously wrong with our law. The Legislature should fix this longstanding problem that denies people an effective voice in government decisions.

So, who will introduce that bill? (which would be denounced by industry).

2. DEP Abuse:  Using Privately Negotiated Settlements to Cut Deals and Block Public Participation

DEP must make permit decisions transparently and allow public review and comment. DEP often tries to dodge these public participation requirements.

We criticized some of those abuses here : DEP Dispute resolution: Deals Done in the Dark 

Prior Court decisions have criticized what I’ve called back room dealings, where DEP secretly negotiates a settlement and then issues permits based on that settlement.

It is an abuse the Court again admonished DEP for:

“We again caution against the use of a notice of settlement to avoid regulatory compliance.”

Who will introduce the bill banning these DEP abuses?

3. DEP Abuse: Reliance on Private Certifications of Industry Engineers With No Verification

DEP increasingly relies on private certifications by industry engineers and lawyers to satisfy permit requirements (aka “mercenaries”), with no DEP or independent verification.

This amounts to privatization of the permit process, because it puts complete control of the facts and regulatory judgements in private hands – remarkably, in the hands of people representing industry, paid by industry, that have gross conflicts of interest.

The Court found this “inappropriate” and implicitly criticized DEP for doing this by including Princeton Hydo’s criticism in the opinion:

Further, [the Department] relied on a Certification Letter from the applicant’s engineer for soils data and groundwater recharge design rather than evaluating the conclusions and integrity of design. 

Who will introduce the bill banning DEP reliance on private certifications that are not verified?

4. DEP Abuse: Piecemeal Decision-making – Permits Issued in Silo’s

This issue is too complex to explain adequately here.

Let me summarize by saying that DEP regulations, DEP bureaucracy, and DEP practice are program specific and the epitome of what is criticized as making decisions in “silos”. Read the decision for multiple illustrations of where DEP wetlands and storm water views were simply not coordinated  and in conflict with each other.

To address these “cross media”, “cumulative impact” and “integration” issues, the Legislature set up a pilot “Facilty-Wide permit” under the 1990 Pollution Prevention Act. But that has been abandoned due to industry opposition.

Similarly, in the late 1980’s, I lead DEP’s efforts to develop “Facility Management Plans” a a few hundred RCRA facilities, so I know this can be done.

So, who will introduce the bill to mandate that DEP conduct a site wide and cumulative impact permit review process and substantively integrated permit requirements across all programs and media (in consideration of environmental justice and “esoteric” climate change issues?)

5. DEP Abuse: Lax regulatory oversight, with little environmental awareness or concern

The opinion makes it very obvious that DEP rubber stamped extremely flawed permit applications. Please read the opinion  – here’s a list the Court went out of its way to cite – in what Princeton Hyrdo called a “lengthy and abnormal process”.

It is really hard to make this many mistakes – 14! – all of which DEP ignored in approving the permit:

CareOne’s design: (1) failed to address as a primary consideration the use of natural (non-structural) stormwater management techniques, such as “minimizing disturbance, minimizing impervious surfaces, minimizing the use of stormwater pipes, [and] preserving natural drainage features,” as required by Departmental regulations; (2) improperly exempted existing impervious groundwater recharge; (3) improperly allowed the post-development rate of runoff to exceed the pre-development runoff rate in at least two locations; (4) failed to consider the recharge capabilities of certain soils, which led to erroneous stormwater calculations; (5) planned to employ manufactured treatment devices that were not effective at reducing nonpoint water pollution; (6) violated safety standards by installing retaining walls around the detention basin; (7) proposed a wetland basin that conflicted with TWT’s statements at the zoning board hearing proposing a dry basin; (8) failed to account for runoff from existing wetland after it is filled; (9) relied on onsite soil testing logs that erred in regard to the depth to seasonal high groundwater, understated groundwater levels and overstated recharge, and ultimately understated the amount of stormwater runoff; (10) relied on “test pits” that were not dug to sufficient depths or in the deepest location of the proposed detention basin to verify groundwater depth; (11) relied on a soil survey that contradicted the submitted soil boring logs; (12) relied on a flawed annual groundwater recharge analysis, resulting in the under-assessment of stormwater flows; (13) violated best management practices by failing to test near the proposed recharge facility; and (14) failed to describe the construction schedule to ensure the maintenance of stormwater controls as the existing basin is being filled.

So, does that list of design errors – rubber stamped by DEP, sometimes based on the applicant’s engineer’s certification – inspire confidence in the DEP as aggressive protector of the environment?

In closing, who will conduct the top to bottom review of DEP regulations and propose necessary legislative and regulatory reforms?

No one –

But instead of doing this desperately needed work to fix DEP and the regulations, DEP Commissioner Martin did require that all DEP staff attend “customer training”.

Heckofajob Bobby!

[Update – 9/19/13 – It’s not just science and adoption of new and reform of existing regulations that are dead in the water at DEP (excuse the pun), but planning programs as well – take a look at this list, which does not include the Watershed Planning program or Clean Water Act’s “Total “Maximum Daily Load” (TMDL) program:

The Christie Administration has blocked, gutted, defunded, deregulated, weakened, privatized, outsourced, or just plain ignored all the other State level policy and planning tools that could  address the multiple critical climate issues, including 1) the State Plan; 2) the Global Warming Response Act; 3) the Regional Greenhouse Gas Initiative; 4) The Energy Master Plan;  5) the Water Supply Master Plan; 6) the Water Quality Planning program;  7) the Drinking Water Quality Institute; 8. CAFRA and coastal planning; 9) regional planning in the Highlands and Pinelands (it appears that some science is being done in the Meadowlands); and 10) NJ’s power on the Delaware River Basin Commission. [In fairness, DEP did adopt emergency Flood Hazard rules to incorporate FEMA ABFE’s – but has ignored necessary updates for inland river flood hazard maps.]

There is literally NO ACTION on any of these State programs – while reforms, like a Coastal Commission, have been opposed and basically blocked by the Gov. That is unprecedented and truly remarkable.