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Murphy DEP’s Slow Walk Of Climate Land Use Rules Will Exempt Many Bad “Legacy” Development Projects

August 17th, 2024 No comments

DEP Denies Public Records Request For List Of Exempt “Legacy” Projects

Developer Gold Rush Underway To Submit Permit Applications To Exploit Exemptions

Largest Loophole In DEP History

I)  In The Beginning

In the beginning, there was the [DEP] word – dripping with patronizing arrogance:

To understand the discussion regarding the science of climate change and the related policy decisions that follow, it is helpful to have an understanding of the current underlying principles of climate science.

So, if you oppose this proposal, you are either ignorant of or deny the “current underlying principles of climate science”.

I can not imagine a worse way to begin a regulatory tome of 1,044 pages of sesquipedalian regulatory jargon – whose scope harkens back to and is likely headed down the same road as the failed McGreevey DEP “Big Map” – and one that the Murphy DEP has delayed for almost 7 years.

Yeah, smart move: condescend to and insult the reader right out of the gate.

II)  Gaping “Legacy” Loopholes

But if you can get that far, you’ll find buried on page 214 of the DEP’s 1044 page proposal, the largest loophole in DEP history – for so called “legacy projects”:

complete applications submitted before new requirements become effective are subject to the standards in place before those amendments are adopted. (N.J.A.C. 7:8-1.6 Applicability to Major Development)

[Note: Even larger than prior loopholes.]

Translation: if you submit permit applications before the effective date of the rule – which could be sometime in early 2026 – then you are exempt from the new requirements. A get out of jail free card – and advertised prominently by DEP.

Here’s how one of NJ’s most politically powerful law firms is marketing this loophole to its developer clients:

“Legacy (previously, grandfathering) provisions remain consistent with current NJDEP rules and depend largely on securing relevant approvals or the filing of a complete application before the rules become effective. Applications submitted before the effective date and declared technically complete will qualify for legacy status.”

What the hell is “legacy status”? It’s code for loophole.

Obviously, this is a major concession to the development community and an invitation to “come on in” abuse. It will stimulate a new gold rush, as lawyers and developer’s engineers submit permit applications to evade the new requirements. That volume of permit applications will overwhelm DEP staff resources and result in even more cursory rubber stamp certifications of “complete” “legacy” permit applications (DEP must issue a decision in less than 90 days).

Accordingly, those “legacy loopholes” will lead to an acceleration and increase in new development in hazardous and environmentally sensitive locations, which is exactly the opposite of DEP’s purported goals of reducing climate vulnerability and protecting the environment. 

When I served in DEP, we KNEW how the effective date of regulatory requirements impacted the incentives for new development, so we put controls in place, e.g.: In the Highlands Act, the legislature made the effective date of the law retroactive to the date the bill was introduced in the legislature. In the DEP Category One stream buffer rules, we provided “transition rules” to prevent abuse.

The DEP also limited grandfathering in a prior adoption of flood hazard rules to similarly limit abuse.

But reliable DEP sources tell me that the Commissioner did NOT support staff proposed limits on grandfathering.

Even worse, the Commissioner also opposed staff recommended “no build zones”, which I will discuss in a future post.

III)  DEP Abuses OPRA To Conceal The Extent Of Loophole Abuse

Given the significance of this “legacy loophole”, I filed an OPRA public records request for development permit applications that had been filed to date to claim “legacy status”.

In my experience, DEP tracks this information as part of their permit database, which they are required by law (“Doria” or “EMAP”) to maintain and publicly Report annually.

DEP has been in violation of the Doria legal reporting mandate for years, and the legislature and media and environmental groups have all given them a pass for a blatant legal violation.

The DEP denied my OPRA request on the following sham basis:

The NJDEP has denied the aspect of reviewing every application received since the “Real Rule” was published to determine if any applicant has mistakenly requested “legacy status” on the basis that it requires the NJDEP to conduct research & correlate data, which is not required pursuant to N.J.S.A. 47:1A-9 & Mag Entertainment v. Div. of Alcoholic Beverage Control 375 N.J. Super 537 (App. Div. 3/05). – 08/14/2024

The DEP does NOT have to conduct “research” to obtain this information.

The DEP maintains and tracks this information in permit databases.

And if they don’t, they are not only violating the Doria law, they are flying blind and proposing grandfathering legacy loopholes with no clue of the impacts – which is gross mismanagement as well.

The Murphy DEP delayed proposing these rules for almost 7 years after they promised to do so.

IV)  Over A Decade Of Delay

The DEP cites scientific and policy recommendations that are more than a decade old (Rutgers study):

In response to a stakeholder engagement process between 2012 and 2014, Rutgers University, on behalf of the NJ Climate Adaptation Alliance (NJCAA), convened a Science and Technical Advisory Panel (STAP) to help identify planning options for practitioners to enhance the resilience of New Jersey’s people, places, and assets to regional sea-level rise (SLR), coastal storms, and the resulting flood risk.

The Murphy administration repeatedly signaled that these rules were coming, in press releases and Governor Murphy’s Executive Orders, for over 5 years.

The DEP proposal itself acknowledges decades of disaster and delays:

In New Jersey, major flood events were observed in 2000, 2004, 2005, 2006, 2007, 2010, 2011, 2012, 2016 (NJDEP, 2020), and most recently in 2021, associated with the remnants of Tropical Storm Ida. According to the 2019 State Hazard Mitigation Plan, NOAA’s National Climatic Data Center (NCDC) database reported that New Jersey experienced 1,582 flood events in a 63-year period beginning in 1950 and ending in 2012 (NJ Office of Emergency Management, 2019).

So the private sector (banking, insurance) and the development community had years to prepare and design and finance projects and submit permit applications to DEP to exploit “legacy loopholes”.

In addition to the huge delays in proposing regulations, the DEP provided a 90 day comment period. Given the intense opposition to this rule from developers, DEP is likely to take months preparing responses to comments.

I was told that it took over 3 months for the Office of Administrative Law (OAL) – who reports to Governor Murphy – to publish the DEP proposal in the NJ Register. This typically takes a few weeks. So, that delay is unacceptable and suggests that the Gov. Office is either opposed or has not made this a priority.

DEP, OAL and Gov. Office similar delays will likely take the effective date of these rules – if the Legislature doesn’t veto them or Courts invalidate them – into early 2026.

V)  Big Map 2.0?

Finally, DEP proposed a massive omnibus comprehensive set of rule amendments, instead of taking smaller permit program specific bites incrementally over the 7 year term.

Strategically, DEP made the same error on “The Big Map” – and we know how that turned out.

(subsequent posts will focus on the merits, particularly the NJ BIA Big Lie that this proposal represents “strategic retreat” from the coast.

We’ve long advocated “strategic retreat”, and DEP’s Coastal Zone Management Plan once even stated that as a policy that needed to be fleshed out. That CZMP text was deleted by the Christie DEP. So, we know that – just like “Senator, you’re no Jack Kennedy” – that this proposal is not strategic retreat, but affirmatively designed to promote development.)

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Me And Charlie

August 16th, 2024 No comments

1 (312)

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I Tried But I Ain’t Going To Chicago

August 15th, 2024 No comments

From Vietnam To Gaza

The “Demonic Suction Tube” Is Alive And Well

But I ain’t going down
That long old lonesome road
All by myself
I can’t carry you, baby
Gonna carry somebody else.  ~~~  “OnThe Road Again”, Canned Heat (1968)

There’s blood in the streets, it’s up to my ankles
Blood in the streets, it’s up to my knee
Blood in the streets, in the town of Chicago
Blood on the rise, it’s following me ~~~ “Peace Frog”, The Doors (1970)

[Update below]

The Democratic Convention in Chicago next week is an historic event.

In my mind, it recalls the politics and violence of Chicago 1968, where a police riot assaulted hundreds of peaceful anti-war protesters and a fascist demagogue like Chicago Mayor Daley ruled the Democratic Party.

I vividly recall that I watched this vicious spectacle from a cabin on the shores of gorgeous Lake George in the NY Adirondacks while on vacation with my mom and two sisters. I can not and I will not ever forget that scene and what it meant.

Then, as now, the Democrats were supporting a genocidal war (from Vietnam to Gaza).

Then, as now, the Democrats spent billions on war and failed to invest in America, and, as Dr. King compellingly argued, were destroying the fabric of American society: (“Beyond Vietnam: A Time To Break Silence”):

Then came the buildup in Vietnam, and I watched this program broken and eviscerated as if it were some idle political plaything of a society gone mad on war. And I knew that America would never invest the necessary funds or energies in rehabilitation of its poor so long as adventures like Vietnam continued to draw men and skills and money like some demonic, destructive suction tube. So I was increasingly compelled to see the war as an enemy of the poor and to attack it as such.

In 1968, my mom was a huge Humphrey supporter.

I was just 11 years old and didn’t understand the politics, but I knew that something was very, very, wrong.

I saw cops beating protesters and the news media and mainstream American culture approved all that.

It sickened me then and has my life since.

So, I thought I might try to drum up support of some old friends of mine – who shall remain nameless – to see if we might take an awesome road trip to witness that history. We’re now old men. A last hurrah.

In short, I got zero support.

It’s hard not to despair, when those whom you respect let you down like this.

Shine on you crazy diamond!

[Update: 8/18/24 – Norman Solomon echoes and drills down on my thinking – but with more emphasis on morality than domestic justice – in a superb piece at CounterPunch comparing Harris to Humphrey,

Like Hubert Humphrey six decades ago, Kamala Harris has remained in step with the man responsible for changing her title from senator to vice president. She has toed President Biden’s war line, while at times voicing sympathy for the victims of the Gaza war that’s made possible by policies that she supports. Her words of compassion have yet to translate into opposing the pipeline of weapons and ammunition to the Israeli military as it keeps slaughtering Palestinian civilians. …

If maintained, that stance will continue to be a moral catastrophe — while increasing the chances that Harris will lose to Donald Trump. In effect, so far, Harris has opted to stay aligned with power brokers, big donors and conventional political wisdom instead of aligning with most voters. A CBS News / YouGov poll in June found that Americans opposed sending “weapons and supplies to Israel” by 61 to 39 percent. …

If Kamala Harris loses to Trump after sticking with her support for arming the slaughter in Gaza, historians will likely echo words from biographer Offner, who wrote that after the 1968 election Humphrey “asked himself repeatedly whether he should have distanced himself sooner from President Johnson on the war. The answer was all too obvious.”

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Murphy DEP Conducted Lax Water Quality Review To Expedite Proposed New Warehouse In Chesterfield

August 15th, 2024 No comments

FORE! The DEP approved building a 1.13 million square foot warehouse on top of this (the 6th green!) (source memo):

Yesterday, I wrote an initial brief post to overview the Murphy DEP’s proposed approval of a new wastewater system to serve a new 1.13 million square foot warehouse.

My objective was to quickly get out the word for today’s virtual DEP public hearing (at noon, see this link for how to comment).

I quickly reviewed the DEP proposal and sent them the below preliminary comments.

My overall sense is that DEP conducted a superficial and flawed environmental review and seems to have expedited the approval process. Once again, the DEP’s actual regulatory actions belie the lofty rhetoric and spin. It’s very hard to justify this kind of massive warehouse project with DEP’s alleged efforts to reduce greenhouse gas emissions, protect water quality, and adapt to the climate emergency (i.e. the project is NOT subject to the DEP’s REAL climate resilience regulations).

I focused on noting regulatory flaws and deficiencies – it’s wonky but may be of use to those opposing the DEP approval and the project. I have worked with DEP (as a DEP staffer and an ENGO leader) to use exactly these water quality regulations to kill many major developments, e.g. Milligan Farms, Windy Acres, Berwind, et al), see:

Dear DEP – please accept the following preliminary public comments on the subject proposal: Old York Country Club Warehouse – Tri- County WQMP Amendment Proposal.

1. Prior to receiving public comment, it is premature and “arbitrary and capricious” for the Department to issue a regulatory determination that “the proposed amendment is compliant with the applicable regulatory criteria at N.J.A.C. 7:15.”

The public has relevant information and expertise to contribute to that determination. Making it prior to the Public hearing renders the public hearing meaningless and violates the public’s due process rights.

2. The proposal failed to conduct an antidegradation review to determine if the project complies with the antidegradation policies in DEP’s surface and groundwater quality standards (cites omitted).

Antidegradation policies specifically apply to “the Water Quality Planning Act, 58:11A-1 et seq.” (NJAC 7:9B-1.1 Scope of subchapter). The proposed WQMP amendment is reviewed pursuant to the WQPA. The Department therefore may not ignore those policies and review requirements.

Antidegradation policies apply “to all surface waters of the State.” (7:9B-1.5(a)1.)

There are regulated “waters of the state” on site (including regulated wetlands) and adjacent to the site that would be adversely impacted by the proposed WQMP amendment and proposed new development.

The proposed development would generate wastewater and non-point source polluted stormwater runoff that would be discharged to and adversely impact and lower water quality of “waters of the state”, including water quality characteristics of wetlands.

The Department failed to conduct an antidegradation review to determine if the proposed development complies with the antiegradation policies.

Antidegradation policies must be applied and interpreted broadly, see: 7:9B-1.2 Construction “This subchapter shall be liberally construed to permit the Department and its various divisions to discharge their statutory functions.

3. The applicant and the Department failed to conduct a water quality analysis and review to determine if the proposed WQMP amendment and proposed development would comply with the surface water quality standards, including impacts on designated uses, existing uses, and compliance with narrative and numeric water quality standards (for physical, biological, and chemical parameters, including in wetlands).

The Department therefore has no factual or scientific basis to determine if the project is in compliance with all applicable requirements and would attain water quality standards.

The public has had no opportunity to review, understand, comment on, or otherwise participate in the water quality related impacts of the proposed development.

Accordingly, the proposed amendment is “arbitrary and capricious” and “an abuse of discretion” in violation of applicable law, including the NJ Administrative Procedures Act, NJ Water Pollution Control Act, NJ Water Quality Planning Act, and federal Clean Water Act.

4. The Department failed to independently make a determination of whether the WQMP and proposed development are consistent with and in compliance with local master plan and zoning. Instead, the Department deferred to local and County governments. This is a violation of the DEP WQMP rules NJAC 7:15 et seq, which require the Department to find facts, apply the law, and make a regulatory determination about whether the proposed WQMP amendment and development are consistent with local and regional plans and ordinances.

5. There are multiple other significant stormwater, flooding, traffic, air pollution, greenhouse gas emissions, energy, noise, light pollution, and public safety impacts from this massive new development.

The Department failed to review or consider any of these likely significant impacts and determine whether they were in compliance with all applicable regulatory standards.

The Department’s WQMP rules mandate compliance with all other applicable requirements.The Department ignored this provision of its own regulations.

The failure to consider these impacts is a violation of law and further renders the proposal arbitrary and capricious and an abuse of discretion.

6. The Department recently proposed comprehensive REAL regulations regarding both inland and coastal flooding, stormwater management and wetlands protections. It appears that the Department’s approval of this proposed WQMP is an evasion of these new requirements. This is an abuse that suggests bad faith.

7. As I recall, there is a 20,000 gallon per day (GPD) wastewater generation threshold that triggers regulatory requirements. It appears that this 19,985 GPD system is designed to evade those requirements. This is an abuse that suggests bad faith.

Additionally, daily and monthly wastewater generation is highly variable, and there are margins of error in accurate and precise measurement of wastewater generation. The proposed 19,985 GPD is just 15 GPD below the 20,000 GPD threshold for additional regulatory requirements and therefore should trigger those requirements.

8. As I recall, the Department previously had a WQMP and groundwater management policy to highly discourage site specific amendments for discharge to groundwater based WQMP amendments (package plants) to serve new development outside approved sewer service areas, particularly in rural and agricultural areas.

The proposed WQMP amendment would contradict those policies.

9. The Department failed to conduct a full consistency review with all the policies, maps, and standards of the NJ State Development and Redevelopment Plan. Such consistency is required under the Department’s WQMP rules, NJAC 7:15 et seq. Accordingly, the Department lacks a basis to determine full compliance.

10. I saw no attempt made to analyze the impacts of a new groundwater discharge on surface waters and wetlands in terms of water quality or water quantity. This oversight is a fatal flaw.

11. I saw no attempt to analyze whether there is sufficient groundwater capacity to serve this new development and current and projected development in the region. This oversight is a fatal flaw.

12. I saw no attempt to consider cumulative and secondary impacts. This oversight is a fatal flaw.

13. The proposed warehouse development is grossly out of character with Chesterfield, which has a rich tradition of farmland and historic preservation.

It is simply outrageous that the Department has conducted such a cursory review and is expediting this proposed WQMP amendment to enable that development.

I reserve my right to submit additional comments.

Bill Wolfe

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Murphy DEP Proposing Wastewater Plan To Serve 1.1 Million Square Foot Warehouse In Rural Chesterfield

August 13th, 2024 No comments

Chesterfield, NJ Was A Pioneer In Farmland And Historic Preservation

The Murphy DEP Rubber Stamps Another Huge Warehouse

Screenshot 2024-08-13 at 6.47.57 AM

The above map is from DEP – it’s pretty colors mask what the landscape really looks like. Does this landscape look appropriate for a massive warehouse and truck traffic and polluted stormwater runoff? Look:

Screenshot 2024-08-13 at 6.59.05 AM

There has been an explosion of millions of square feet of highly unpopular warehouse development during the Murphy Administration.

But public criticism, environmental group opposition, and negative media attention have focused almost exclusively on failures by local government “home rule” planning and zoning, or failure to enact new legislation, thereby giving Governor Murphy and his DEP an accountability free zone.

Few people understand that DEP has regulatory power to block warehouse developments that they have not enforced, instead choosing to rubber stamp numerous warehouse developments.

The latest DEP rubber stamp approval is in Chesterfield, ironically once a State leader in farmland and historic preservation. Burlington County, led by the folks in Chesterfield, was way out front in leading and establishing these important programs.

Now in Chesterfield, the DEP is proposing a “site specific” amendment to the regional “Tri-County” water quality management plan to allow a new septic system to serve as massive 1.13 million square foot warehouse and office park in rural historic Chesterfield Township in Burlington County.

A “site specific” DEP approval is kind of like “spot zoning” – it’s the antithesis of planning.

The DEP will hold a virtual “public hearing” tomorrow (8/14) at noon – hit this link for information on how to comment or monitor what’s going on.

I just became aware of this proposal an hour ago this morning, so will post the basic info and a few preliminary thoughts as aheads up, before I actually review the plan amendment.

The DEP proposal states:

The proposed amendment, identified as the “Old York Country Club Warehouse” (Program Interest No. 435433, Activity No. AMD220009) would establish a 115.6-acre sewer service area (SSA) for a proposed 1,135,260 square foot (SF) building consisting of 1,115,260 SF of warehouse space and 20,000 SF of office space on Block 701, Lot 2.01 in Chesterfield Township, Burlington County. … The proposed project will generate a projected wastewater flow of 19,985 gallons per day based on flow calculated in accordance with 7:9A-7.4 and is to be served by a new onsite discharge to groundwater wastewater treatment and disposal system to be regulated under a new NJPDES permit.

Putting the cart before the horse, prior to tomorrow’s public hearing, the DEP has already determined that the proposal complies with DEP regulations:

This notice represents the Department’s determination that the proposed amendment is compliant with the applicable regulatory criteria at N.J.A.C. 7:15, as described below.

And check out how DEP failed to address basic land use planning considerations. Note in particular how DEP totally abdicates any DEP State role in essentially deferring to local plans (emphasis mine):

Pursuant to N.J.A.C. 7:15-4.4(h)1 and 2, 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 Township of Chesterfield adopted the “Old York Redevelopment Plan” on October 27, 2022, via Ordinance No. 2022-15 (amended by Ordinance No. 2022-17 on December 8,2022). The proposed project was deemed consistent with the Redevelopment Plan in Resolution 2022-12-22 and received Bulk Variance and Preliminary Major Site Plan approval on October 17, 2023, via Resolution No 2023-10. The Burlington County Department of Resource Conservation issued a letter, dated April 9, 2021, stating that Burlington County has not adopted a master plan for development, but has adopted a Highway Master Plan. Any site plan for land development must be reviewed by the County Planning Board to determine if such development would impact County roads or County drainage facilities.

Because this is a DEP approval of a “water quality management plan”, one would assume that water quality was rigorously considered and a priority consideration by the DEP.

One would be wrong.

There is none.

There is no “antidegradation review” and water quality impact analysis on nearby Blacks Creek, on groundwater, or in wetlands that are present on the site. The DEP did not evaluate the impacts of the project and whether it complies with surface and ground water quality standards. According to DEP’s own GIS data:

The Department determined that there are wetlands located on the project site based on the “Wetlands 2012” GIS data layer, in accordance with N.J.A.C. 7:15-4.4(e)4; however, pursuant to N.J.A.C. 7:15-4.4(j)3, the applicant provided a Freshwater Wetlands Letter of Interpretation (LOI)/Line Verification File #0300-20-0002.1 FWW200001 confirming that there are no wetlands within the proposed sewer service area.

The plan calls for a large septic system to discharge 20,000 gallons per day of wastewater to groundwater. Not only does the DEP approval fail to assess impacts to groundwater and whether groundwater quality standards can be met (including the antidegradation policy), but the DEP previously had a policy to strongly discourage “site specific” approvals of large septic systems in rural and agricultural areas. The Murphy DEP has quietly abandoned that policy.

Obviously, there are multiple other stormwater, flooding, traffic, air pollution, greenhouse gas emissions, energy, noise, light pollution, and public safety impacts from this massive development.

These are largely beyond the scope of this brief note, particularly as I just became aware of it an hour ago.

But I hope that the public raises hell and holds DEP accountable.

And that the media finally reports critically on DEP’s role in rubber stamping all these poorly planned warehouse developments that are destroying what’s left of NJ’s farms, forests, water quality, and rural character.

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