Christie DEP Blasted At First Public Hearing On Rollback of Water Quality Planning Rules

The DEP held the first of 3 public hearings today in Morris Township’s Freylinghuysen Arboretum on the Christie DEP’s proposal to repeal and totally re-write the Water Quality Management Planning rules (WQMP). This was the only opportunity for north jersey residents to weigh in on the proposal.

About 50 people attended, but only 12 or so testified, all in strong opposition to the DEP’s proposed repeal and “streamlining” of current DEP Water Quality Management Planning (WQMP) rules that govern the location and capacity of sewer service areas and allowable density of septic systems.

No supporters of the proposal testified. They were lurking in the audience however, monitoring the debate.

These rules have long been controversial, given the significant implications for land use and water resources.

Those testifying in opposition to the DEP’s proposal included NJ Sierra Club, NJ Conservation Foundation, Highlands Coalition, Hackensack Riverkeeper. NY/NJ Baykeeper, Musconetcong Watershed Association, and citizen clean water advocates from Lake Hiawatha, Mendham, Denville, and Bordentown.

Notably absent were all the watershed management groups that have fought the numerous “sewer wars” and worked on implementing watershed planning and water quality initiatives, who have long defended strong WQMP rules, such as conservation groups and lands trusts, ANJEC, Environment NJ, Clean Water Action, NJ Audubon, American Littoral Society, Stonybrook Watershed Assc., Pinelands Preservation Alliance, Passaic River Coalition, and many, many, others.

Let’s hope they all get their people out at the next two hearings, scheduled as follows:

Tuesday, November 17, 2015
Time: 5:00 P.M. to 8:00 P.M.
Location: Gloucester County Clayton Complex 1200 Delsea Drive Clayton, NJ 08312

Monday, November 30, 2015
Time: 10:00 A.M. to 1:00 P.M.
Location: New Jersey Department of Environmental Protection

Public Hearing Room
401 E. State Street, 1st floor Trenton, NJ 08625

There were very strong words voiced in opposition –

Some called the proposal a “surrender”, that it would “eliminate important safeguards”, was a “deliberate attempt to favor private economic concerns over public clean water values”, was based on “horrible week kneed weasel words”, allowed builders to determine the presence of T&E, and created “unrealistic development expectations” that would force people to seek hardship waivers.

Julia Somers of the Highlands Coalition questioned who DEP was protecting and said “DEP had lost its way” and “forgotten it mission”. She blasted the DEP’s concern with protecting speculative investment values of farmlands.

Highlands advocates lambasted the proposal as weakening and circumventing Highlands Act and Regional Master Plan land use and water resource protections.

Several people criticized DEP’s elimination of various fundamental planning technical requirements, including no longer requiring consideration of environmentally sensitive areas, build out analyses, riparian buffers and steep slope protections, non-point source pollution controls, mandatory municipal zoning changes and septic pump out ordinances.

DEP’s proposed elimination of current requirements to consider available water supply in mapping sewer service areas and elimination of various municipal zoning and ordinance requirements triggered particular outrage: “that makes no sense at all” concluded Ms. Somers.

I testified in very general terms and will be writing in detail about the flaws in the proposal as soon as I can get my thoughts collected. I took offense to the Hearing Officer, Dan Kennedy (a licensed professional planner) asking if any press were present and referring them to DEP press officer who was there to spin. That’s the first time I’ve ever experience a hearing officer doing that in 30 years of practice. I said it was indicative of the Christie DEP’s elevation of spin over substance and escalating practice of misleading the public about complex regulatory rollback policies.

In the meantime, I encourage folks to spread the word, review the proposal for themselves and attend the next public hearing. The public comment period closes December 18.

We will need to reach out to US EPA and to legislators to request another legislative veto, as it appears that the Christie administration is fully committed to this rollback agenda and simply does not care what the public thinks.

[End Note: I failed to mention that Wilma Frey of NJCF presented strong testimony that highlighted several issues where the DEP proposed rule was weaker than and/or set up conflicts with the Highlands Regional Master Plan. Conflicts include DEP’s failure to recognize and incorporate in WQMP rules the RMP standards or methodologies on definitions of environmentally sensitive areas, capacity analysis, nitrate dilution, water deficits, and other important technical and planning policies. DEP not only created conflicts, but failed to establish adequate hierarchical and technical relationship between the WQMP and RMP or how conflicts would be reconciled. DEP swept all this under the rug and merely stated that they would “coordinate” with the Highlands Council.

The proposal would repeal the following requirements, which requires a consistency determination by the Council and defers to the Highlands Council: (NJAC 7:38-1.1(k))

The Department shall approve a Water Quality Management Plan amendment only after receiving from the Highlands Council a determination of consistency with the Regional Master Plan to be incorporated by reference in (l) below, when adopted by the Highlands Council. Pending completion of the Regional Master Plan, the Department shall not approve a Water Quality Management Plan amendment for a project proposed in the planning area or preservation area without first obtaining a recommendation from the Highlands Council.

So, if there were a plan the Council opposed, they could kill it in two ways: either by not acting or by finding it inconsistent with the RMP.

That power is gone.

The DEP confirms this significant change in policy on mandatory Council consistency determination and deference to the Council on page 90, as follows:

The Department has determined that it is appropriate to seek input from the Highlands Council, although the final decision on any WQM plan amendment or revision rests with the Department.

[PS – in non-conforming towns in the Planning Area, the proposed Flood Hazard “riparian zone” rules would replace the current C1 buffers (SWRPA) along C1 streams – this weakens protections, as we documented in review of those rules. This is inconsistent with legislative intent under the Highlands Act because it weakens existing protections and will result in additional degradation of water quality. While the Act did not mandate 300 foot buffers in the Planning Area, it was enacted with the knowledge that DEP provided those buffers for exceptional C1 waters in the Planning Area.

[Update: 11/12/15 – I just got an email from Jenn Coffey of ANJEC. Although I’ve written tens of thousands of words on hundreds of issues, I don’t recall ever receiving an email from Ms. Coffey.

I’ll let readers judge the merits of the exchange:

Mr. Wolf, (sic)

I have been informed and confirmed  that in your recent WolfeNotes incorrectly states (sic) that ANJEC was absent from the recent WQMP hearing. ANJEC was present and is in the process of assessing the changes and impacts of the proposed rules. As you know, there are 2 addition (sic) hearing (sic) and more than a month before the comment period on the rule is closing. (sic)

I respectfully request that you correct your recent post.

Sincerely,

Jennifer M. Coffey

Executive Director

ANJEC

My reply:

My name is spelled Wolfe.

I spoke with Dave after the hearing.

Reading comprehension matters – ANJEC did not testify, and you will note that groups are categorized with respect to testimony – ANJEC’s testimony was notably absent. No fact error.

(had I been asked to clarify instead of correct and been given the respect of spelling my name correctly and – given I have no personal or organizational relationship to Coffey – at least a thank you for all the work I do for FREE, I might have responded differently).