Senate Asked To Review Murphy DEP Embrace of Christie Stream Buffer Rollback

Senate Environment Committee Chairman Bob Smith

Given the major flaws in the proposed new rules and the legislative veto of the same Christie DEP rules, I just wrote the below letter to Chairman Bob Smith:

Dear Chairman Smith & Senators Greenstein and Bateman:

I write to you in your joint Constitutional and statutory capacities for:

1) legislative oversight of executive branch rule making – specifically pursuant to Article V, Section IV, paragraph 6 of the Constitution which provides authority to veto rules “inconsistent with legislative intent” and the NJ Administrative Procedure Act, which requires, among other things, legislative notification of agency rule making; and

2) as legislative sponsors and supporters of climate change and stormwater management reforms.

As you may know, on December 3, 2018, DEP proposed a major overhaul of current stormwater management rules, with proposed revisions to, among other major rules, the DEP’s Highlands, CAFRA, and stream encroachment/Flood Hazard Act  rules. Here is a link to the proposal:

https://www.nj.gov/dep/rules/proposals/20181203a.pdf

This rule making provided at least 3 huge opportunities, including:

1) to repeal prior Christie DEP rollbacks, including the Christie DEP’s repeal and revision of the stormwater management rules regarding encroachments into protected C1 stream buffers;

2) to address the current and projected impacts of climate change, including sea level rise, storm surge, extreme weather events, more frequent and intense rainfall events, drought, heat waves and associated urban heat island effects, and the need to sequester carbon in soils and forest biomass; and

3) to close long known loopholes and strengthen standards and DEP’s review authority over major controversial projects, including pipeline crossings of NJ streams.

Unfortunately, the DEP proposal failed to do any of that, and instead, actually codified and expanded the Christie DEP’s elimination of the prior ban and strict limitations on encroachments in C1 stream buffers.

As you will recall, Chairman Smith & Senator Greenstein were prime sponsors of SCR66, a concurrent resolution to legislatively veto the Christie DEP’s proposed stormwater management rules, including most importantly, the repeal of the prohibition on disturbance of the buffers of “exceptional value” Category One streams (for text of SCR66, see:

https://www.njleg.state.nj.us/2016/Bills/SCR/66_I1.PDF

During Senate Committee hearings and release of SCR66, on June 16, 2016, Chairman Smith stated (verbatim quotes):

• “We as a legislature have consistently supported the sanctity of buffers for our C1 streams. These are the purest waters we have in the State of NJ.” 

• “Kudos to Bill Wolfe. We heard all kinds of testimony over these three meetings. But the one that stuck in my mind is [Bill’s testimony] that there’s no guarantee that they’ll be no deterioration in the State’s water quality standards if there’s development in the first 150 feet of buffer of C1 streams. That’s the critical missing legislative intent item for me.“

Given the prior legislative opposition to and partial veto of the Christie DEP elimination of protections for C1 stream buffers and the legislature’s focus on climate change (Global Warming Response Act, S3207, et al) and stormwater management (S1073, et al), I strongly urge you to conduct the following legislative oversight of the current DEP proposal:

1) hold an oversight hearing. Call DEP Commissioner McCabe to testify and allow experts and the public the opportunity to testify and understand the implications of the 169 page complex proposal

2) request that OLS consider whether the proposal is “inconsistent with legislative intent”, consistent with SCR66 and recent climate and stormwater management legislative policy developments.

3) contact DEP Commissioner McCabe and request a 90 day extension of the public comment period.

I urge your immediate attention to this matter, as time is of the essence.

The DEP proposal was not put on a regulatory calendar, thus there was no ability for the public to anticipate its proposal in the 12/3/18 NJ Register.

While DEP proposed a 60 day public comment period, the holidays and New Year celebrations  consume a significant portion of the public’s review time.

I appreciate your timely and favorable reply.

Bill Wolfe