Christie DEP Adopts Flood Hazard Rule Pending Legislative Veto

DEP Admits They Routinely Violated and Did Not Enforce C1 Buffer Rule

DEP now claims C1 buffer “was never a “no-build” regulation”

The ball is back in the legislature’s court

The Christie DEP has adopted the controversial Flood Hazard rules pending legislative veto (see the DEP’s adoption and response to comment document).

The adoption of that controversial rule proposal was accompanied by a new proposal that allegedly responds to criticisms and alleged unintended consequences of the original proposal (see the new “concurrent proposal” here).

The whole process recalls Malcolm X’s famous observation:

If you stick a knife in my back 9 inches and pull it out 6 inches, there’s no progress

As we warned, the simultaneous adoption and concurrent proposal makes it very difficult to understand what is going on and very easy for DEP to spin the press and Legislators and environmental groups:

This sets up a very dangerous game of bait and switch and spin – DEP could adopt the bad parts and promise to re-propose the fixes but never adopt them.

The public and the Committee will be drowned in the weeds of a lengthy adoption – response to public comments document on the original proposal along with an entirely new and complex re-proposal document. This is a formula for political manipulation. It will take weeks to decipher the documents. Meanwhile, by the time the dust settles, the original proposal will be adopted into law and the Veto Resolution will have withered on the vine (faded into the budget debate) and the Legislature adjourned for the summer.

In fact, in an effort to spin this whole situation, just last week there was exactly the kind of political posturing I called Kabuki, see NJ Spotlight’s set up story:

• DEP MOVES TO ADOPT REVISED WATER RULE DESPITE LEGISLATIVE WARNING

But one thing is very clear – the ball is in the Legislature’s court.

If they do not follow through with their threat to veto the rule then they have failed and they concur with the same environmental policy as the Christie administration.

Both adoption and new proposal documents are lengthy and complex and will take a least the weekend to digest and write about, but in this first post, I do want to note one extraordinary admission by the DEP.

Much of the controversy over these rules focused on the repeal of the 300 foot wide Category One buffers (known as a “SWRPA”) and replacement by a less protected “riparian zone” and how the proposal would allow more disturbance and development of C1 stream buffers, particularly inside the 150 feet  and closer to the stream.

As DEP notes, citing the rule text at N.J.A.C. 7:13-5.5(h)1ii, the current rules strictly prohibit disturbance and development inside 150 feet:

In no case shall the remaining SWRPA be reduced to less than 150 feet

“In no case” – NO means no. None. Sorry, can’t do that. If a landowner objected, they could exhaust administrative remedies and then file a “takings” challenge and see if the courts agree. Good luck with that (look at takings waiver in Highlands rules, NJAC 7:38-6.8).

But, shockingly, DEP – for the first time – now says that NO means YES.

DEP now claims that they flat out violated that regulation for 12 years and routinely reduced the buffer to less than 150 feet and approved development inside the 150 feet!