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Petition For Rulemaking To Upgrade DEP Surface And Groundwater Standards 

The Highlands Water Protection And Planning Act (Act) was a political compromise. In order to get a bill passed through the Legislature, Gov. McGreevey had to make concessions to local governments in the Highlands and to Republican Legislators.

The biggest compromise is the structure of the Act that divides the Highlands region into a “Preservation Area” and a “Planning Area”. That framework is political and has no scientific basis or land use policy rationale.

Both DEP regulatory protections and the Highlands Council’s Regional Master Plan (RMP) are mandatory in the Preservation Area but are voluntary in the Planning Area, where local land use plans and zoning control development.

The Highlands Act supplemented and is in addition to DEP’s existing statutory authority and regulatory standards. The Act did not block DEP regulation in the Planning Area.

The Highlands Act leaves the Planning Area virtually unprotected from over-development, despite the fact that the legislature found that “exceptional” natural resources must be protected by more stringent DEP regulatory standards (emphasis mine)

The Legislature further finds and declares that the New Jersey Highlands is an essential source of drinking water, providing clean and plentiful drinking water for one-half of the State’s population, including communities beyond the New Jersey Highlands, from only 13 percent of the State’s land area; that the New Jersey Highlands contains other exceptional natural resources such as clean air, contiguous forest lands, wetlands, pristine watersheds, and habitat for fauna and flora, includes many sites of historic significance, and provides abundant recreational opportunities for the citizens of the State. […]

The Legislature further finds and declares that the protection of the New Jersey Highlands, because of its vital link to the future of the State’s drinking water supplies and other key natural resources, is an issue of State level importance that cannot be left to the uncoordinated land use decisions of 88 municipalities, seven counties, and a myriad of private landowners; that the State should take action to delineate within the New Jersey Highlands a preservation area of exceptional natural resource value that includes watershed protection and other environmentally sensitive lands where stringent protection policies should be implemented; that a regional approach to land use planning in the preservation area should be established to replace the existing uncoordinated system; that such a new regional approach to land use planning should be complemented by increased standards more protective of the environment established by the Department of Environmental Protection for development in the preservation area of the New Jersey Highlands; that the new regional planning approach and the more stringent environmental regulatory standards should be accompanied, as a matter of wise public policy and fairness to property owners, by a strong and significant commitment by the State to fund the acquisition of exceptional natural resource value lands; and that in the light of the various pressures now arrayed against the New Jersey Highlands, these new approaches should be implemented as soon as possible.

The DEP has regulatory authority to adopt land use and water resource standards that can strengthen protections in the un-regulated and vulnerable 400,000 acre Planning Area.

The legal basis for these standards pre-dated and is independent of the Highlands Act, so DEP can pull the trigger and adopt these stricter standards at any time, with adequate legislative policy findings, scientific basis, and formally adopted existing regulations.

Those State laws and regulations include: The Flood Hazard Act; The Freshwater Wetlands Act; The Stormwater Management Act, The Watershed Protection Act, The Water Supply Management Act, The Water Quality Planning Act, and the Clean Water Act (Water Pollution Control Act), including DEP adopted implementation regulations.

But the DEP is NOT using these regulatory powers and therefore is NOT protecting the Highlands from over-development and other destructive practices, like logging.

Therefor, in keeping with the intent of the Highlands Act and legislative findings of “exceptional natural resource” values (a term of art in DEP regulations),I am now drafting and will be submitting a petition for rulemaking to the DEP. The petition will demand the following more stringent regulatory standards be adopted in the Highlands Planning Area to protect “exceptional natural resources”:

• Upgrade all surface waters to FW 1 and/or “exceptional” Category One waters under the Surface Water Quality Standards;

• Upgrade all groundwaters to Class I-A “exceptional” classification under the Ground Water Quality Standards;

• Upgrade all wetlands to “exceptional value wetlands” under the Wetlands rules;

• Revoke the current 30 year old voluntary BMP Manual for Forestry and subject any forest disturbance or tree cutting (logging) on public AND private land to all DEP land use and water quality standards.

I am putting DEP on notice via this post in the highly unlikely event that they would like to preempt, take credit for, and announce these upgrades themselves.

Via this post, I also am seeking the support of the Highlands Coalition, Sierra Club, NJ Conservation Foundation, Environment NJ, NJ Environmental Federation, and all other State and local groups seeking to protect natural resources. I’m not holding my breath in wait for that.

We expect the petition to be filed soon and will post it when we do.

[Update: As it’s the 20 year anniversary of the Highlands Act, I reached out to the original sponsors I worked with for assistance: