Christie Extended DEP Highlands Rules, but Only Until December 31, 2015
[With End Note]
Today’s Bergen Record has an important story, see:
The local government is going to attempt to poke some holes in the Highlands Act.
Earlier this month, West Milford’s Township Council initiated an attorney-led examination into the act’s standing as a potential unfunded state mandate. Council members say they are ultimately planning to develop and file a complaint with the state’s Council on Local Mandates. The 20-year-old council is authorized to declare state directives that lack a funding source as optional, enforcing New Jersey’s “state mandate, state pay” amendment to the state constitution.
But the story failed to connect the strategic dots or hold Gov. Christie accountable for his unfunded mandate policy.
The Council on Local Mandates could do a lot more than “poke holes” in the Highlands Act – it could essentially strike it down if it found the Highlands Act imposed unconstitutional unfunded state mandates.
The Highlands Act is implemented and enforced by the mandatory Highlands Regional Master Plan and mandatory DEP regulations. Those planning requirements and DEP regulations impose mandates not just on developers, but on local government too.
Lending support to the unfunded mandate cause, Governor Christie – in the first hour of his first day in office – issued a set of sweeping Executive Orders, including Executive Order #4, which provides:
1. No State agency shall recommend, propose, publish or submit any regulation containing an unfunded mandate, as defined under New Jersey law (N.J. Stat. 52:13H-2), unless expressly authorized in writing by the Governor or the Lieutenant Governor.
Now here’s where the timing of the West Milford challenge and the DEP Highlands regulations gets interesting – suggesting critical decisions on the Highlands are in the balance.
Gov. Christie extended the DEP Highlands regulations, but only until December 31, 2015:
By the authority vested in him pursuant to N.J.S.A. 52:14B-5.1d(2), Governor Chris Christie, on November 7, 2013, directed that the effectiveness of the Highlands Water Protection and Planning Act Rules be restored as of its expiration date and the expiration date for N.J.A.C. 7:38 be extended from November 2, 2013 to December 31, 2015.
Even without action by the Council on Unfunded Mandates, the Christie DEP could gut the Highlands Act via regulatory rollbacks – something I fear has already been agreed to to resolve the Farm Bureau’s still pending lawsuit on the septic density standard.
Adding to the timing issue, the Highlands Council is now in the process of reviewing and updating the Highlands Regional Master Plan – another possible unfunded state mandate target.
Interestingly, the entire Council on Unfunded mandates memberships expire in February 2016.
If this Council is going to review the Highlands Act, it needs to happen quickly and right now – and the issue comes before the Council just during the same timeframe that DEP rules expire and the Highlands Master Plan is being updated.
Is all this just a coincidence?
Or is the West Milford attack strategic, signaling the beginning of the end of the Highlands Act as we know it?
Will someone wake up the”advocates” at the NJ Highlands Coalition and ask them?
(or are they too busy filling out Dodge Foundation grant application and organizing pub crawls, micro-brew promotions, and festivals?)
[End note: Think this can’t happen? Well, think again. Follow the numbers:
1. The DEP just proposed to repeal – that’s right, repeal – the Category One (C1) 300 foot stream buffer rules.
[C1 is repealed and replaced by “riparian zone” standards under Flood Hazard Act. As I’ve written several times – and DEP admits in the proposal – a C1 stream and buffer are very different from and have more protection than a FHA regulated water and a “riparian zone”. While FHA regulates more activities than C1, the net effect is a significant loss of protections. And the linkage to water quality standards and federal Clean Water Act protections are eliminated.]
As a result, thousands of miles of C1 streams will lose protections, including many miles of streams in the Highlands Planning area, where the DEP Highlands rules don’t apply and the RMP is voluntary.
Yet there was not a peep of public opposition to that proposal by conservation groups, the Highlands Coalition or the Keep It Green crowd.
Seems they only want to spend your money to give to their friends to protect their backyards.
They seem to have abandoned the regulatory tools and DEP altogether.
Perhaps they fear that the public will ask why we spend millions of dollars to protect a place like Wichecheokie Creek, when DEP regulations can do most of the same job for nothing.
In contrast, Rich Bizub at PPA recently convinced the Pinelands Commission to raise concerns with DEP about impacts on the Toms River, which flows into the Pines.
2. But that’s not all – DEP issued a draft water pollution discharge permit for a new sewage treatment plant on a low flowing headwater stream (Crosswicks Creek) and Delaware tributary, designed to serve new development on farmland and forested stream buffer in a rural town on the edge of the Pinelands.
If DEP can permit a new sewage treatment plant here, DEP can do it anywhere.
This permit reversed 2 decades of DEP’s statewide water resource protection policy concerning new wastewater infrastructure.
Again, that permit got no public criticism from conservation groups, who recently noted that they are too busy to litigate the final permit expected to be issued by DEP any day now.
3. DEP adopted new coastal rules that not only ignore climate change, they actively promote new development in hazardous and environmentally sensitive coastal locations, including on top of shellfish beds.
Again, no public opposition from the conservation crowd.
4. DEP is flouting the Clean Water Act across the state, most obviously in Barnegat Bay, which is on the verge of ecological collapse.
Yet coastal groups work favorably with DEP, including praising bullshit projects, all while receiving $1 million grants.
5. The State Plan and all forms of water and land planning at DEP have been abandoned or weakened until death.
Silence.
6. But when the Christie DEP issued completely toothless Combined Sewer Overflow (CSO) permits in response to a lawsuit by NY/NJ Baykeeper, the applause by planning and conservation groups was loud and sustained.
Anything can happen folks, particularly with this Governor and DEP Commissioner and the current compromised and cowed conservation group “leadership”.