Looming DEP Regulatory Backlog as Major Rules Expire

Gov. Christie’s Hostility Toward Regulation Sets Several Historical Low Records

[Important Update – Correction below]

The Christie Administration has a number of historical environmental records:

• first to allow the Green Acres fund to go broke
• first to have no major environmental achievement to point to
• record low enforcement fines and penalties
• record low proposal and adoption of new regulations
• first to ignore climate change
• first to block the meeting of the Drinking Water Quality Institute for 4 years
• first to stall work at the Water Supply Advisory and Clean Water Councils
• first to attempt to abolish numerous DEP advisory groups
• first to halt the work of the State Planning Commission
• first to politicize and attack the Highlands and Pinelands Commissions
• record high number of self serving press releases
• first to encourage a mass exodus through retirement of scores of experienced professionals
• first to appoint a DEP Commissioner with no environmental training, knowledge, or experience

We can add to this ugly list a looming backlog of updates of DEP regulations as rules expire.

DEP rules set the level of protection afforded our air, water, land, natural resources, and public health.

I spoke last night to the Sierra Club Shore group at Brookdale College on this set of issues.

Let’s just say that I am not a good public speaker, and lack of preparation doesn’t help.

So I wanted to follow up today on my rambling presentation to provide a few resources for anyone wishing to pursue some of the material I threw out there or document the harsh claims I made. Readers can find at the links the following:

• DEP regulations
• Current rule proposal and adoptions
• Rule proposal and adoption archive – this makes it very easy to compare the rule production of the Christie Administration to the prior Administration’s and see record low production.
• Gov. Christie’s relevant Executive Orders # 1 – #4 can be found at this link
• various “by invitation only” industry dominated “Stakeholder” groups

If you go to LexusNexus, you will find that the following DEP rules have expired or will expire in CY 2014. List below.

Regulations used to expire on a 5 year cycle. Expiration was intended to allow DEP to update regulations in light of experience, e.g. close loopholes and fix flaws, to address emerging issues and public concerns, and to incorporate new science, data, or changes in conditions.

In this way, rules are supposed to adapt to changes – the general trend over the last 25 years or so is for rules and standards to get stronger, broader, more specific, more protective, more stringent than federal requirements, and allow for more transparency and more public involvement in DEP decision making.

All that – every historical trend – has changed radically under Gov. Christie’s Executive Orders and DEP Commissioner Martin’s “Transformation Plan“, whereby DEP’s mission now includes “promotion of economic development” and “customer service” to the regulated community – mostly through voluntary and unenforceable Guidance documents, not regulatory mandates.

On top of that, the Legislature recently passed law extending the expiration period from 5 years to 7 years, (sponsored by NJ’s ALEC rep. Sen Oroho and Assemblyman Burzichelli) so rules have become less dynamic and amenable to adapting to changes.

Below are the rules that have already expired (*) or will expire this year, with their expiration date- when rules expire, they remain on the books and still are enforceable, but DEP must go to the Gov. for an extension that must be published in the NJ Register – an embarrassment that is avoided and only done as a last resort.

• CAFRA – 12/15/14
• stormwater – 8/2/14
• * groundwater quality standards – 4/4/14
• * well construction – 3/13/14
• Flood Hazard/Stream encroachment – 11/5/14
• * laboratory certification – 11/22/13
• * water allocation – 2/23/14
• * agricultural water use – 12/15/13
• fish & wildlife – 7/13/14
• hazardous waste management – 10/11/14
• * Highlands – 11/2/13
• * landscape irrigation – 5/19/14 [Correction – this rule was readopted on 3/17/14]

Wonder what all those Stakeholder groups have been doing for 5 years now.

Time for “Metrics” Bob Martin to get on the stick!

[Update – A friend just called to correct this post and advised me that DEP now readopts rules by notice – without public comment opportunity or change to incorporate new science and information.

 I worked on a lot of rules at DEP for a long time, was familiar with the OAL Rulemaking Manual, and never heard of this “re-adoption by notice” procedure.

So, it must be another of the Christie – Martin “reforms”. I’ll look into the legality, but whether or not it is legal, it certainly is an abuse and a stealth practice. – end update]

[Update #2 – 5/22/14 – embarrassed to say that I missed this change in the original bill – I was focused on the 10 year period, not this:

2) establish a new procedure for the readoption of rules without substantive changes.

This really gives the bureaucracy an incentive to avoid the work and controversy of keeping rules current with respect to new science and new conditions,  and serving a role that environmental laws call technology forcing. Awful policy.