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Senate To Hear Resolution To Veto Christie DEP Flood Hazard Rule Rolbacks

Can Legislative Democrats Block Gov. Christie’s Avowed “Dismantling”?

Headwaters of the Alexauken Creek, a designated Category One Water in West Amwell, NJ

The Senate Environment Committee announced that they will conduct a hearing next Monday, October 19, 2015  on SCR 180, the Senate Resolution to veto the Christie DEP’s proposed flood hazard rule as “inconsistent with legislative intent”.

This is a rare exercise of the Legislature’s Constitutional power to veto Executive Branch regulations.

Ironically, newly founded NJ 101.5 talk radio and precursor to Tea Party right wing outrage, the press ginned up public opposition to the Florio administration’s “runny egg rule”, and the NJ Constitution was amended to grant this new legislative power to prevent regulatory over-reach:

6.   No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law.  The Legislature shall provide for the prompt publication of such rules and regulations.  The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.  Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation.  The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  

A simple majority of both Houses of the Legislature is sufficient to block any proposed rule, so there is no need for a “super majority”, like that necessary to over-ride a Gubernatorial Veto of legislation.

Governor Christie has used the veto power to block numerous legislative initiatives – and the Democrats have been unable to muster the super majority required to over-ride. Republicans have remained loyal to the Governor, regardless of the public interest.

The Legislative Veto of the Governor’s regulations changes the politics of all that – The Democrats have majorities in both houses, so Democrats don’t need ANY Republican votes to veto the DEP’s propose rules.

Politically and environmentally, this Resolution is incredibly important.

But the Resolution is even more critical, because the DEP’s proposed rule would repeal that Category One Waters 300 foot buffer established during the McGreevey Administration – and because DEP Commissioner Martin has openly pledged to rollback additional land use and water quality protections – this Resolution is vital to water quality, land use, and ecosystem protections.

I also have a personal dog in this fight, because I was involved and led the DEP team that created the Category One waters program at DEP in 2002 – 2004.

Therefore. this week, in the run-up to Monday’s Senate hearing, we dedicate ourselves to showing readers, the public, and policy makers exactly what is at stake in DEP’s proposed rules to repeal the Category One buffers rules and rollback stream buffer protections.

We will get out in the field to show the beauty of C1 waters that are at stake.

We explain the regulatory nuance in plain language.

We begin on Monday, in Clinton NJ, where the C1 waters designation and buffer program really began.

As DEP noted:

On April 22, 2002, Governor James E. McGreevey announced that the State intended to strengthen water quality protections provided to six streams and nine reservoirs as the start of a broader initiative to provide New Jersey residents with clean and plentiful water. Governor McGreevey’s announcement included the identification of each of the waterbodies to be proposed. These 15 “high quality waters” covered approximately 200 stream and reservoir miles. The Department also indicated its intent to upgrade Sidney Brook and South Branch Rockaway Creek, two of the waterbodies identified by Governor McGreevey, in response to rule petitions for Category 1 upgrades in a notice published in the New Jersey Register on October 21, 2002 (34 N.J.R. 3651). The Governor’s Office issued a press release on October 21, 2002 announcing that Commissioner Campbell had signed the proposed regulation necessary to complete the upgraded antidegradation designation.

In part, is was a response to the controversial battle over a development known as Windy Acres:

COMMENT 110: The commenter believes that the existing categorization of the South Branch Rockaway Creek provides sufficient protection of the wood turtle and re-categorizing the stream is both unwarranted and unnecessary. Proposed amendments to N.J.A.C. 7:9B-1.15(f) would upgrade the surface water classification of the South Branch Rockaway Creek to Category 1(C1) from its headwaters to Cushetunk Lake. This stream runs through proposed Windy Acres Development and is the stream to which the proposed Clinton East advanced wastewater treatment plant will discharge. The reclassification of this stream centers on protecting the State threatened wood turtle, which has been found in the South Branch Rockaway Creek. (634c,3015b)

To frustrate public awareness of all this, the DEP has scrubbed its website of all the links to the C1 history and C1 regulatory documents (e.g. see that DEP killed all the C1 links to Oradell Reservoir et al I posted in response to Senator Cardinale’s attack on C1 streams and all the  C1 links in this post are dead).

But that will not dissuade us, because we’ve written numerous times about C1 buffers and know enough of the history to find the links in the public domain to document the history.

Curiously, DEP forgot to take this DEP Report down, An Evaluation of NJDEP’s Category One Antidegradation Designation Process which traces the C1 program history and shows DEP scientists support for the C1 program and recommendations to designate 121 new stream miles C1:

In 2002, the Department began an intensive effort to identify additional waters that warranted enhanced protections afforded by this designation. The Department adopted new C1 designation categories: Exceptional Ecological Significance, Exceptional Fisheries Resource(s), and Exceptional Water Supply Significance in order to clarify the data requirements necessary for a waterbody to be designated as C1 waters.

Yes, I’m proud to say I did that.

So, stay tuned.

And all hands on deck in Trenton on Monday October 19 for the Senate Environment Committee hearing on SCR 180!