DEP Rule Proposal Based On Legally Flawed Agreement with Pinelands Commission
DEP Attempts to Ratify Arbitrary Policy Decision Dictated Without Public Review
At the end of yesterday’s wide ranging and lengthy post on DEP’s plans for Pinelands sewers, I argued that the DEP Memorandum of Understanding (MOU) with the Pinelands Commission was illegal because it was a “rule” that was not adopted in accordance with rule making procedures.
The MOU deceptively calls itself a “framework”, but it made major policy and regulatory decisions, including:
- DEP “deemed” Pinelands CMP designated growth areas as sewer service areas without detailed planning required under DEP Water Quality Management Planning regulations, NJAC 7: 15 – 1 et seq.;
- DEP did not enforce WQMP requirements that environmentally sensitive lands be eliminated from sewer service areas; and
- DEP unilaterally initiated and conducted planning on behalf of the Counties, a deviation from prior practice, where Counties are the WQMP planning entities.
Once those major decisions were made, DEP and Pinelands staff merely engaged in a tedious technical GIS mapping exercise of reconciling CMP maps with DEP SSA maps.
That exercise is what produced the “WQMP plan amendments” that were the subject of yesterday’s public hearing. It was all a sham, posed after the fact, an attempt to ratify arbitrary dictates from Trenton.
This exercise by DEP and Commission staff was not land use planning required by the CMP or wastewater planning required by DEP WQMP rules - it was a rote technical exercise. As a result, the public is not able to review facts and planning analyses that formed the basis of the original policy decisions made in the “framework” MOU.
All those decisions were “deemed” by DEP BEFORE technical review or public comment.
I was told, by a reliable professional source, that the MOU was stealthed before the Pinelands Commission: it was not listed on the meeting agenda, it was not in the Commissioners’ meeting packet, and it handed to the Commission by Nancy Wittenberg and approved on the same day without review by the Commission or the public.
That is bad enough – but there are fatal legal flaws in the MOU – which is the basis of DEP’s WQMP rule proposal – that I want to drill down on today.
This is a complex legal issue, but it goes to the heart of democracy and how we govern – including issues like whether the public is involved in major Executive branch decisions by government, whether government decisions are transparent and based on evidence, and whether people have opportunities to challenge government actions.
The general principle is that when executive branch agencies craft policies or regulations to implement laws in ways that establish requirements that significantly impact people or economic interests, that government must do so by subjecting those policies to public review, through a process called rule-making, which includes these steps: 1) propose, explain, justify, and publish the policy; 2) allow public comment and hold a public hearing; 3) respond to public comment; and 4) provide opportunity to challenge the policy in court.
Here are the factors that NJ Supreme Court’s Metromedia decision found define when a government policy is a “rule” that must be promulgated via rule making procedures:
(1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.
So, let’s examine the DEP Pinelands sewer MOU in light of these 6 factors to see if it meets the definition of a “rule”.
Keep in mind that not all 6 factors must be met – just ONE triggers legal rule making requirements.
1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group;
The MOU applies to over 13,000 acres across the entire Pinelands region. It influences the land use and development pattern in multiple counties and communities throughout the Pinelands. It involves sewers infrastructure which could cost hundreds of millions of dollars, allow building of thousands of new homes, and increased property values and local taxes. CHECK
(2) is intended to be applied generally and uniformly to all similarly situated persons;
The essence of the MOU is that is applies uniformly to all Pinelands CMP designated growth areas and lands situated in those growth areas, with respect to sewer service. CHECK
(3) is designed to operate only in future cases, that is, prospectively;
The MOU is about wastewater planning, which is by definition a prospective policy that applies to future conditions on the ground. CHECK
(4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization;
The MOU prescribed at least two new legal standards:
a) that lands designated for growth under the CMP adopted under the Pinelands Protection Act are “deemed” by DEP as sewer service areas under the WQMP regulations and Water Quality Management Act; and
b) that lands designated for growth under the CMP adopted under the Pinelands Protection Act and “deemed” sewer service areas are not required to eliminate “environmentally sensitive areas” from from the SSA’s.
These administrative determinations by DEP were not inferable from existing DEP WQMP regulations. CHECK
(5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter;
The MOU itself is described as a “framework” and it reflects a significant new administrative policy by DEP concerning the relationship between the Pinelands CMP and the DEP WQMP regulations.
This is a material and significant change in historic DEP policy under the WQMP rules. CHECK
6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy
The MOU refelcts DEP’s policy decision to “deem” CMP growth areas as “sewer service areas” – and to do so without a detailed compliance review of those growth areas with respect to the requirements of the WQMP regulations. The MOU also establishes a policy to waive a DEP requirement to eliminate ESA from SSA’s.
Obviously, these are regulatory policy determinations. CHECK
- Breaking Down and Summing up:
1. The MOU made substantive regulatory policy decisions that DEP and Pinelands staff complied with and later merely reflected in maps.
2. Those policy decisions constitute a rule, as defined in the NJ Supreme Court’s Metromedia decision;
3. The MOU was not promulgated in accordance with rule making procedures;
4. The MOU “framework” policies were later incorporated – verbatim, and without technical analysis – in a DEP rule proposal. The rule proposal came 3 years after the actual policy decision was made, rendering the rule proposal a sham.
5. Conclusion: The DEP’s proposed rule is fatally flawed – the DEP can’t after the fact comply with rulemaking requirements that should have been followed when the original huge and binding regulatory policy decisions were made in the MOU.