Christie DEP Denies Public Records Request For Emails On Highlands Act Science and Legislative History

Emails between DEP Commissioner’s Office and the State Geologist shine light on legislative intent for septic density standards in the Highlands Act

The DEP just denied my request for emails between the DEP Commissioner’s Office and the NJ State Geologist regarding the science and policy objectives considered in developing the technical approach to the septic density standard provision incorporated into the Highlands Act.

That information is very important in the current debate regarding whether the DEP’s current proposed rollback of the septic density standard is “inconsistent with legislative intent“.

Assemblyman John McKeon (D-Essex) has introduced a Resolution (see: ACR 192) that declares the DEP proposal “inconsistent with Legislative intent”. That is the first step in a legislative veto of the proposal.

McKeon recently said a companion Resolution would soon be introduced in the Senate by Senator Bob Smith, Chair of the Environment Committee.

On June 23, 2016, I requested the following public records under OPRA:

I request all emails between Jeffrey Hoffman, NJ Geological Survey and Bill Wolfe, NJDEP Commissioner’s Office of Policy, Planning and Science, regarding NJGS GSR 32, nitrate dilution models, and the concept of “deep aquifer recharge”. The period of these emails was roughly March 2002 – June 2004.

The DEP denial was based on the “deliberative privilege” exemption under OPRA. But importantly, DEP confirmed that those records consist of 7 emails and that those emails still exist. On July 5, 2016, DEP wrote:

This request has been denied on the basis that the requested records (i.e. 7 emails) are not considered government records pursuant to N.J.S.A. 47:1A-1.1, being intra-agency advisory, consultative, and deliberative material

At the time of this email correspondence with State Geologist Hoffman (at the time, he was not yet appointed State Geologist but was the lead scientists and expert at NJGS on the issues at hand), I was working on the Highlands Act and the policy and technical approach to the Act.

In that capacity, I worked for DEP Commissioner Campbell and staffed Governor McGreevey’s Highlands Taskforce (see their Report, p.40 to confirm).

I also represented Commissioner Campbell on Senator Smith’s small workgroup (myself, and 2 OLS staffers) that drafted the introduced version of the Highlands Act (see Senate, No.1). 

The S1 was the version of the bill before Senator Sweeney and others weakened it with all the exemptions and pro-development amendments that were incorporated in the Senate Committee Substitute, S1 [1R] version – read it and take a look at all the new underlined language, including new Section 30 – exemptions. I had no role in any of that.

At any rate, as I recall the email exchange, I was asking Mr. Hoffman to respond to the criticism a well respected NJ licensed geologist provided to me on the NJGS statewide nitrate dilution model known as GSR32, specifically its failure to reflect Highlands slopes, soils, and geology with respect to groundwater recharge and water available for nitrate dilution.

That GSR32 model was producing septic densities of 4-10 acres in the Highlands, which I told Hoffman was a lot size far too small to prevent the degradation of surface an groundwater quality and preserve large blocks of intact forest, the fundamental policy goals of the Highlands initiative.

That email exchange between myself and Hoffman is what led directly to the “deep aquifer recharge” provision I wrote into the Highlands Act.

The Governor’s Office, DEP Commissioner, OLS professionals, and legislators were aware of that scientific and policy debate I had with Hoffman and agreed to my policy recommendation and legislative language.  The language subsequently was passed by the Legislature and signed by the Gov. and upheld by the Courts.

Obviously, that email exchange and the scientific and policy discussion it reflected, are very important to the question of Legislative intent.

The emails are also directly relevant to the current DEP rule proposal. I testified at the DEP public hearing on the proposal and discussed this issue and filed the OPRA to provide factual evidence to support my testimony. The proposal is not only facing Legislative veto but also is pending DEP consideration, so the emails involve a current regulatory controversy.

It is outrageous that the Christie DEP is denying an OPRA request for these important public documents.

The good news is that the documents still exist – so they are discoverable in a lawsuit or under a Legislative subpoena.

We discuss those issues in our next post.