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Deadline looms for DEP stream buffer protections

Builders and Powerful Developers opposing DEP behind the scenes

Jeff Tittel, Sierra Club, joins DEP Commissioner Lisa Jackson (center) to praise DEP proposed “Category One” stream protections at Earth Day press conference at Stony Brook Millstone Watershed Association in Hopewell. Jim Waltman, Director (SBMWSA), Dave Pringle, NJ Environmental Federation, and Julia Somers, Director, Highlands Coalition joined Tittel.

Environmentalists and developers eagerly await May 21, 2008, which marks the deadline for DEP Commissioner Lisa Jackson to decide whether to adopt proposed stream protection designations of 910 miles of environmentally sensitive and water supply streams. The DEP proposal would establish 300 foot wide protected natural buffers along each side of designated “Category One” (C1) streams, rivers, and lakes. Buffers protect water quality, provide wildlife habitat, and reduce flooding. (To see the list of all the proposed C1 streams and rivers click on link to DEP proposal: http://www.nj.gov/dep/rules/notices/052107b.htm
The “Category One” waters buffers initiative was developed by the McGreevey Administration, who designated over 1,000 miles of new water supply and exceptional ecological C1 streams and rivers, including all of NJ’s major reservoirs. McGreevey’s DEP also established new 300 foor buffers along all existing trout based C1 stream (about 3,000 total miles), providing protections for over 200,000 acres of environmentally senstiive riparian lands. The C1 anti-degration policy later became the framework for much of the Highlands Act’s water protections.
In a high profile Earth Day event last April at the Stony Brook Millstone Watershed Association, Commissioner Jackson built on the McGreevey initiative and boasted:

TRENTON – Department of Environmental Protection Commissioner Lisa P. Jackson today announced more than 900 miles of waterways and 1,300 acres of reservoirs that supply drinking water to millions of New Jerseyans deserve special protection from the dangers of development – one of two unprecedented water-quality initiatives unveiled by Governor Jon S. Corzine’s Administration to mark the 37th anniversary of Earth Day.”
(Link to DEP Press release: http://www.nj.gov/dep/newsrel/2007/07_0023.htm
DEP rules were proposed in the May 21, 2007 NJ Register. Under NJ law, DEP has one year from that date to either adopt the proposal or it will expire.
As of yesterday, the proposal had not been signed.
Almost 1,400 public comments were submitted on the proposal, overwhelmingly in support of the stream upgrades.
But powerful opponents are seeking to kill or scale back the proposal, including the NJ Builders Association, NJ Business and Industry Association, Chamber of Commerce and Schoor-DePalma Engineers.
Major corporate entities with controversial development projects calling for thousands of new housing units and millions of square feet of commercial development in the pipeline also objected, including Bristol Myers Squibb (Hopewell Campus expansion), IntraWest Mountain Creek Resort, BPG (former Lucent Technologies Hopewell site), Princeton Institute for Advanced Study, Heritage Minerals, and the Departments of the Army (Picatinny Arsenal) and Air Force strongly opposed the proposal.
Environmental groups, while supporting the proposed specific designations of rivers and streams, strongly criticized and opposed DEP’s proposed changes to narrow and restrict the scope of the scientific methodology, which will limit future “C1″ designations. The proposed changes in the C1 method also will eliminate a list of 1,600 current qualified but backlogged C1 stream designations proposed by DEP in the March 2003 NJ Register for public comment.
The proposal was also opposed by Corzine’s own Office of Smart Growth – Director Ben Spinelli claimed the proposal conflicts with the State Plan’s Smart growth policies. The State Department of Transportation also objected to restrictions on new highway construction (so much for the DOT spin about “context sensitive design” and “fix it first”)
Comments are available upon request.
I argue that the proposal has a legal procedural defect that requires re-proposal. I have implored the DEP Commisisoner not to give the opponents another legal bite at the apple by changing the C1 designation methodology, which was upheld by the Appellate Division. The Court rejected a challenge by the NJ Builders Association and found the current C1 designation methodology was scientifically and legally sound. Thus there is no reason to change it and risk another legal challenge, one which I believe will be successful this time around as a result of a procedural defect.
It should be interesting to see how this one turns out.
(full disclosure: I headed the C1 program initiative for former DEP Commissioner Campbell from 2002-2004, staffed the Governor’s Highlands Task Force, and drafted the DEP regulatory provisions of the Highland Act, so I am a biased observer).

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