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DEP Ignored Environmental Concerns Of Hundreds Of Local Opponents

Environmental Groups Threw In The Towel And Didn’t Even Try To Stop It

The Murphy DEP just issued a Water Quality Management Plan approval of extension of sewers to serve a proposed warehouse complex – 4 warehouses of over 1.5 million square feet on 160 acres of farmland:

The amendment, identified as Russo Warehouse Harrison, also known as Swedesboro Warehousing, expands the sewer service area (SSA) of the Gloucester County Utilities Authority (GCUA) Sewage Treatment Plant (STP) by 73.07 acres in Harrison Township, Gloucester County. The remaining 87.25 acres of the project site are located within the

already approved SSA of the GCUA STP within Woolwich Township. The overall project is for four proposed warehouses (of over 1.2 million square feet).

The DEP approval will be published in the October 7, 2024 edition of the NJ Register.

Once again the media is ignoring the regulatory role of DEP and focusing exclusively on local government. According to the Philadelphia Inquirer, this warehouse project is part of a massive development scheme:

A North Jersey real estate firm’s preliminary plan for 10 warehouses, 84 affordable and 116 conventional housing units, a 100-room hotel, and a buyers-club style retail building in Richwood already has been approved by the township’s Joint Land Use board. …

Meanwhile, a proposal for four warehouses totaling two million square feet near the township’s Mullica Hill section, rejected by the township after a surge of public opposition, is likely on again following a state Superior Court ruling last year that found the rejection to have been “capricious.”

I) DEP Reverses Policy On Sewering Farmland – Murphy DEP Worse Than Whitman

Once again, the Murphy DEP reversed the DEP’s historic policy to strongly discourage and block extension of new sewer lines to serve intensive new development on rural farmlands.

DEP’s former  policy, which I was part of crafting and implementing at DEP during the McGreevey administration (e.g. see Executive Order #4), integrated land use and water resources issues and imposed rigorous water quality standards and environmental review requirements to protect water quality.

Rejecting that historic rigorous regulatory approach, the Murphy DEP has reversed course and allowed a lax “site specific amendment” review. The Murphy DEP has informally interpreted the WQMP regulations so narrowly as to be a meaningless exercise that results in an abdication to corrupt local government “home rule” land use decisions. In this case, there is another abuse of the “redevelopment” loophole in the NJ Municipal land Use Law that allows developments to bypass local Master Plan and zoning ordinances.

Even the pro-development “Open For Business” Whitman administration retained some of those McGreevey DEP water quality regulatory policies. After she faced huge public and media criticism for sewer extensions to farmlands and proposed clean water regulatory rollbacks, Whitman admitted error and went to Princeton University to make a speech titled: “Sewers, the Last Frontier in Sprawl”.  Whitman issued an Executive Order # 109 that required enhanced environmental reviews 25 years ago. Whitman even bragged about that in the biographical sketch she submitted for the US Senate Confirmation hearing for President Bush’s EPA Administrator:

Governor Whitman encouraged greater use of the revised State Development and Redevelopment Plan as a tool for “smart growth,’‘ and encouraged redevelopment of cities through programs to streamline cleanups of abandoned industrial “brownfield” sites. She also established a new watershed management program and in 2000 proposed an overhaul of the state’s water regulations to direct future development to areas already approved for sewer service. […]

As the Governor of our Nation’s most developed State, she initiated and passed a landmark $1 billion bond measure to preserve open space. By the time this program is finished, New Jersey will have preserved 1 million acres of farmland, forests, watershed and urban parkland.

Responding to my testimony to the Senate that harshly criticized Whitman’s record and her attempt to roll back DEP’s water quality regulations, Whitman’s testimony specifically touted her WQMP regulations and restrictions on extensions of sewers to farmland:

Response. The proposed watershed rules are one of the most comprehensive continuous planning regulations in the country. They address the water resource impacts of new development that will occur if the area will be on sewers or use septic systems. Ensuring that new development does not cause the pollution of the State’s water resources is a main purpose of the rules. The rules also establish a watershed management planning program for the entire State to address existing problems and develop long term solutions for areas that are continuing to develop. The legislative action on the rule was more a reaction to the inclusion of a linkage to New Jersey’s State Development and Redevelopment Plan rather than a concern about the need for the proposed planning efforts to protect the State’s water quality and water quantity.

So let that sink in: Governor Murphy and his DEP are WORSE than WHITMAN!

The dismantling began under the Christie DEP (see Christie Executive Orders on “regulatory relief”(see EO#2) and elimination of “Red Tape” (see EO#3).

II) DEP Abdication of Legal Duty To Protect Water Resources

Now, the Murphy DEP has expanded that Christie rollback (without the accountability provided by formal notice and comment rule making) in their interpretation of various regulatory provisions and standards related to water quality and stormwater management.

Here’s a stunning example of that abdication to local government by the Murphy DEP:

the Department considered the land uses allowed in adopted zoning ordinances, future land uses shown in adopted municipal and county master plans, and other local land use objectives. The Woolwich Township Administrator/Clerk confirmed through email on March 2, 2022, that the proposed project is consistent with the Woolwich Township zoning and Master Plan. The Solicitor for Harrison Township confirmed through email on March 5, 2022, that the proposed project is consistent with the land uses allowed with the Harrison Township zoning and Municipal Master Plan. Gloucester County deemed the project consistent with the Gloucester County Development Management Plan’s Goal Statements on February 24, 2022.

Think about that for a moment: an email from a local clerk is sufficient evidence for DEP to rely on regarding their review of land use issues! Are you kidding me?

Here is another example of DEP abdication to protect water resources and reliance on local government:

RESPONSE TO COMMENTS 2 THROUGH 9: The Department acknowledges the commenters’ concerns; however, the above issues are beyond the scope of the WQMP amendment review. The WQMP Program does not determine where these projects should occur or the nature of these projects. The role of the WQMP Program is to review applications submitted to the Program against the criteria established in N.J.A.C. 7:15. Local government, through master planning and zoning ordinances, determines the type of development and the density level the municipality desires for an area.

Residents raised numerous relevant concerns regarding impacts to water quality, wetlands, flooding and other environmental issues. DEP totally ignored them. Here is the DEP’s response. It is another an example of the lax environmental review by the Murphy DEP, which completely ignores stormwater and non-point pollution impacts on water quality:

RESPONSE TO COMMENTS 13 AND 14: The WQM Plan amendment is just one approval required from the Department and is not meant to address all possible issues related to the project.

16. RESPONSE: The WQMP Program does not review for compliance with the Stormwater Management rules at N.J.A.C. 7:8, and compliance with the Stormwater Management rules is not a prerequisite for SSA eligibility.

By their own words, DEP conducted a piecemeal environmental review and abdicated to local government.

The DEP covers their ass legally with this caveat at the very end of the WQMP approval:

Sewer service is not guaranteed should this amendment be adopted as it represents only

one part of the permit process and other issues may need to be addressed. Inclusion in the SSA as a result of the approval of this amendment does not eliminate the need to obtain all necessary permits, approvals or certifications required by any Federal, State, county, or municipal review agency with jurisdiction over this project/activity.

III) Next Steps

When the warehouse developer applies for various DEP wetlands, stormwater, stream encroachment, and water pollution permits, their lawyers will argue that DEP must approve the permits because they are “consistent with the water quality management plan”.

This perverts that law (Water Quality Planning Act), which prohibits DEP from issuing any permit that is inconsistent with the water quality management plan.

The lawyers for the developers will also argue that they “relied” on the DEP’s WQMP approval as a green light and invested millions of dollars in planning and engineering for the project permits.

The lawyers will then use that “reasonable investment backed” permit application to threaten DEP that any permit denial would be reversed by the NJ Courts based on the “reliance” doctrine, and the “takings” doctrine.

DEP will fold and approve the permits.

This is how the corrupt game is played. Get it?