Battle On Christie DEP Highlands Clean Water Rollback Shifts To Legislature

Will Sweeney – Christie-crats Finally Pull The Veto Trigger?

Tomorrow (11/3/16), the Senate Environment Committee will take testimony “from invited guests” on the Christie DEP’s proposed rollback of the Highlands Preservation Area “septic density standard”. The Committee agenda reads:

 The committee will receive testimony from invited guests on the issues of chromium-6 in drinking water and the Department of Environmental Protection’s proposed changes to the septic system density standards for the Highlands Region

The Christie DEP “by invitation only” policy is expanded to the Legislature. Critics need not apply.

I drafted the underlying legislative provision in the Highlands Act (i.e. “deep aquifer recharge”), and was directly involved while at DEP and later as a consultant to environmental groups in developing the implementing regulation (i.e. “septic density standards”). We warned about exactly this rollback over 6 years ago. We filed a complaint with the US Geological Survey to block the rule, and I’ve written in some detail about the proposal several times, see this and this and this. Oh well. We didn’t get an invite on the chromium issue either.

The DEP Highlands rollback proposal was published in the May 2, 2016 NJ Register. The public comment period is closed and DEP is now considering public comments. Given the Christie DEP’s prior non-response to public comments, we expect that they are working on an adoption document as we speak.

The hearing is basically a political shot across the bow by Chairman Bob Smith – a threat of a legislative veto. Under NJ’s Constitution, the Legislature may veto a State Agency regulation by simple majority votes in both Houses upon finding it “inconsistent with legislative intent”. The Governor is powerless to stop this kind of legislative veto (Democrats have majorities in both Houses).

But, given Smith’s prior collapses – under orders from Senate President Sweeney – on prior legislative vetoes of DEP rules, we don’t have a lot of confidence that this is anything more than another dog and pony show and not a serious effort to legislatively veto the DEP proposal.

There is other evidence that the Highlands challenge is not a priority or a locked in political commitment with Senate Democrats by Smith: the Committee agenda is jam packed with other controversial major issues, thereby diminishing the focus on the Highlands, which deserve a stand alone hearing.

However, since those prior collapses by Smith and Senate Democrats, the politics have changed – and the Highlands Act is perhaps Senator Smith’s greatest legislative achievement (I hate the word “legacy”). So I assume Smith would put up a stronger fight to push back on Sweeney and defend the integrity of the Highlands Act from Christie DEP rollbacks.

The policy challenge is very clear: By the Governor’s own words (i.e. Act was “based on a lie”), the Christie Administration is seeking to compensate property owners whose land equity was reduced by the Highlands Act. That is consistent with the intent of the Highlands Act and a policy objective that is mainstream in Trenton.

But they are using a rollback in clean water protections to do so.

That is a radical policy approach that directly contradicts the both the letter and intent of the Highlands Act, and thus is clearly “inconsistent with legislative intent” (as I’ve written).

In terms of politics, since the Senate folded on the Legislative veto of the Flood Hazard rules, Senate President Sweeney threw in the towel for the 2017 Governor’s race.

Given Governor Christie’s downfall, Sweeney’s “bi-partisan” alliance with the Governor is also a huge threat to his continued Senate leadership in the next Administration, as “Christie-crats” face challenges from progressive Democrats.

So, a more aggressive posture by Smith and a weakened Senate President Sweeney – and a less aggressive challenge by the NJ Builders Assc., Chamber of Commerce, NJBIA and trade unions – may bode well for a better outcome than the collapse on the Flood Hazard Rules.

We’ll be following this one and keep you posted – “invited guest” or not.