DEP “Fact Sheet” reveals loopholes that DEP Commissioner and Press Office spun so hard to deny
South Branch Raritan River, at Ken Lockwood GorgeSadly, it’s now official and no longer an alleged criticism.
DEP quietly has admitted that they created HUGE loopholes in the recently adopted Flood Hazard regulations (known as “stream encroachment”) and the highly touted “Category One” 300 foot buffer program for exceptional water quality streams.
For the smoking gun, see: Fact Sheet on Flood Hazard Rules and Stormwater Rules Related to C1 Adoption http://www.state.nj.us/dep/wms/bwqsa/BUFFER_Fact_Sheet_2.pdf
The DEP loopholes explicitly grandfather hundreds of development projects, allowing them to escape the protections of the new Flood Hazard and C1 stream buffer rules.
Both concessions will greatly worsen flooding and water quality problems that Governor Corzine and DEP Commisisoner Lisa Jackson allegedly have made a priority and pledged to combat.
Flood protection purportedly was a high priority of Governor Corzine – looks now like he is willing to sacrifice flood victims at the alter of the developers agenda. See:
Governor’s Flood Mitigation Task Force
http://www.njflood.org/
“Governor Corzine Tours Flood Areas to Assess Damage”
http://www.nj.gov/governor/news/news/approved/20060629a.html
Similarly, Jackson defended strong DEP flood protection rules on moral grounds just last March 24 with this bright line quote:
“Building affordable housing there [in flood zones] would be morally wrong.”
N.J. urged to weaken DEP rules for housing – Report is from panel co-led by developers
http://www.nj.com/news/ledger/jersey/index.ssf?/base/news-9/1205300314279400.xml&coll=1
The “Category One” (C1) 300 foot buffer initiative was highly touted last Earth Day by DEP Commisisoner Lisa P. Jackson. Looks like she too is just following orders from the Corzine pro-development camp
See: DEP DELIVERS ON COMMITMENT TO PROTECT NEW JERSEY’S
WATER QUALITY
TRENTON – Department of Environmental Protection Commissioner Lisa P. Jackson today announced more than 900 miles of waterways and 1,300 acres of reservoirs that supply drinking water to millions of New Jerseyans deserve special protection from the dangers of development – one of two unprecedented water-quality initiatives unveiled by Governor Jon S. Corzine’s Administration to mark the 37th anniversary of Earth Day.” http://www.nj.gov/dep/newsrel/2007/07_0023.htm
Well, at least our criticisms are now confirmed. Hopefully, DEP spin and credibility have been destroyed in the process. See:
“GRANDFATHER” STAMPEDE IN DELAYED NEW JERSEY STREAM RULES — Statewide Clean Water Protections Honeycombed with Special Interest Exceptions
http://www.peer.org/news/news_id.php?row_id=1058
CORPORATE DEVELOPMENTS TRUMP NEW JERSEY CLEAN WATERS — Loophole-Riddled Stream Protection Plan: One Step Forward, Three Steps Backward
http://www.peer.org/news/news_id.php?row_id=1054
NEW JERSEY CUTS DEEPLY INTO PROTECTED STREAM BUFFERS — Commissioner Revokes Her Year-Old Order, Leaving Buffers at Mercy of Politics
http://www.peer.org/news/news_id.php?row_id=986
WHEN IT RAINS…IT FLOODS — New Jersey Continues to Lose War on Sprawl New Figures Show
http://www.peer.org/news/news_id.php?row_id=845
Is NJVoices meant to be a mouthpiece for PEER? Why isn’t it prominently disclosed that the author is the director of PEER, as it would be for any other editorial?
First off, existing projects are always grandfathered. This is both for practical and ethical reasons. It’s unfair to anyone (even those evil developers) if you change the rules in the middle of the game. Also, ex post facto laws are forbidden by the Constitution. While regulatory changes do not always fall under this protection of the Constitution, governments generally follow the spirit of ex post facto prohibition.
PEER claims the 300′ buffer is “effectively” rolled back to 150′. But that just isn’t the case. Encroachment to 150′ is allowed under the new regulations, but only when certain conditions are met. PEER makes it sound like there are no conditions and that anyone can now encroach to 150′ willy-nilly.
Encroachment from 300′ to 150′ is required for practical reasons in many cases. Generally this additional encroachment is only allowed where it has already occurred. Without this provision, people who have developed under old (or no) regulations would be prevented from simply replacing old buildings. All special encroachments require a detailed application to, and approval from, NJDEP, a fact conveniently omitted from the PEER press release (for some reason the PEER releases goes off on a tangent about bald eagles).
Again, I know PEER means well. However, environmental defense organizations have to understand that there are practical considerations that must be taken into account when regulations are crafted. Failure to do so, and misrepresenting the facts, risks backlash against the environmental movement. All too often, interest groups allow perfect to be the enemy of good.
Politburo – I feel a certain stalking on your part, so back off friend.
Again you are factually and legally incorrect.
Grandfathering has NOT always been the policy adn ther is no ex post facto application.
Traditionally, “time of decision rules” would subject a permit applicant to the DEP rules in effect at the time the permit decision was made.
This is in keeping with a long administrative law legal tradition and the “technology forcing” principles of envrionmental law.
This policy and practice was substantially changed under the last DEP Commissioner, who developed “transition rules”. It has now been expanded to wholesale grandfathering. That flawed policy is about to be even more broadly expanded under the Permit Extension Act to include insulation form PROSPECTIVE changes in regulations.
I WROTE the C1 and stormwater buffer rules while at DEP in 2002-2004.
The “new” rules you refer to may be Jackson’s revocation of the “FVA” demonstration required under the “old” rules. THis does in fact border on a “willy nilly” enabling of disturbance and reduction of the 300 foot buffer to 150 feet because the BUilders methodology now determines the outcome.
My PEER affiliation has always been prominently disclosed here – before I was asked to write by Ledger editors and to all readers since. Please DO NOT DARE claim that I have undisclosed conflicts..
Fact is, if you click through to here from nj.com (as I did), you have no notice of the affiliation. One has to click on your bio to get that information. You and NJ.com may feel that is ethically sufficient, but imo it is not a “prominent” disclosure. As for your “stalking” claim.. you write a blog, and I wrote a few comments. How that equals stalking is truly beyond me.
My statements regarding grandfathering are based on my experience on the air side, where permit application dates are what is used to determine applicability of new regulations. This is so that the DEP can’t “oops” and lose your paperwork or otherwise delay their decision so that you’re subjected to regulations coming down the pipe but not yet in effect. The fact is when you make new regulations there has to be a line somewhere. In my opinion (and obviously I’m biased being from the regulated community), the line should be drawn so that the burden is on the applicant to apply, not the DEP to approve.
The “new” rules I referred to is the Jan. 24, 2008 guidance document linked to by PEER, which DEP now considers (as of April 11) a Technical Manual. And again, from the DEP fact sheet you link to, “All disturbance in the SWRPA must be approved by the Department.”
I’ve gotten a lot of anger from people who write on NJ Voices. It seems like they don’t really want a blog (or don’t understand how blogs work). It’s not a soapbox where your assertions go unchallenged. But I give you credit since at least you don’t delete my comments like Mulshine does.
Poliburo – every single one of my posts at NJVoices comes with a photo head shot of me and a link to a Bio (click on my name). You should click a few links and read before making false allegations about lack of disclosure and related negative insinuations.
My NJ PEER blog has very similar Bio information too.
I understand blogging – I am generally very responsive to comments and bend over backwards to educate here. But you attacked me, you represent a regulated entity, and you have an agenda – so you are subject to a very different standard.
AND you need to READ before you criticize – the 1/24/08 Jackson Order REPEALED Jackson’s 2007 FVA Order establishing the Guidance (which was NOT adopted a TECHNICAL MANUAL PURSUANT TO LAW). The 2008 change greatly reduced the enforceability of the 300 foot buffer regulations.
Closest thing on the air side is how the original 1970 Clean Air Act grandfathered old highly polluting coal power plants – everyone realizes what a major problem this is and no one now defends it. DEP is moving in that discredited direction.
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When regulated entities come here to spew misleading adn false innuendo (non disclsoure claims) they ought to expect – and not cry about – some pretty strong pushback.
And speaking of non-disclosure, why don’t you disclose your name, photo, bio, and company affiliation for all readers to judge your credibility and integrity? (just like I have)
My comments here only represent myself and my opinions.
As for the guidance, I’m not sure what to say. The document on the DEP website identifies itself as the technical manual. However it’s unclear if this document is still in effect because DEP has not updated this section of their website.
http://www.nj.gov/dep/stormwater/docs/fva080124.pdf is what I have been referring to.
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