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Senate Resolution Declares Rules “Inconsistent with Legislative Intent”

A Long List Of Regulatory Rollbacks 

We await text of SCR 180 and Senate Committee oversight hearings

This necessarily will be a long post – it analyzes DEP’s 900+ page rule proposal – so please, grab a cup of coffee and hit the head now. As usual, I left the best for last.

Back in June, upon initial review of the DEP rule proposal,  we requested a legislative veto in an email to legislators. We concluded:

Among many other things, the proposal would

1) repeal and eliminate the “Category 1″ 300 foot stream buffer program incorporated in the DEP storm water management rules that were adopted during the McGreevey Administration;

2) systematically roll back regulatory protections enacted during the Corzine Administration, which incorporated and expanded the scope of the Category One stream buffers in the DEP Flood Hazard Act stream encroachment permit program;

3) create a radically new stream mitigation program and mitigation bank that would provide relief from current stream buffer protections.

The mitigation scheme lacks legislative authorization and is inconsistent with legislative intent under the Flood Hazard Act;

4) propose numerous new technical loopholes that would promote new development in flood hazard areas; reduce or eliminate current protections for stream buffer and riparian vegetation; reduce water quality; put more people and property in harms way; and reduce or eliminate DEP and/or public reviews; and

5) ignore climate change impacts and risks, which include increased frequency and severity of extreme weather,including rainfall and flooding events. Climate impacts magnify flood risks caused by hydrological changes caused by NJ’s high degree of development and imperious surfaces. The rule also ignores prior FEMA objections to DEP’s Emergency Flood Rule enacted in the wake of Sandy.

Since then, NJ legislators introduced a Senate Resolution (SCR 180 – Lesniak, Smith) that would veto DEP’s proposed rollbacks of Flood Hazard, Coastal Zone Management, and Stormwater rules, see NJ Spotlight story:

• PROPOSED DEP RULE CHANGES STILL CATCHING FLAK, THIS TIME FROM LAWMAKERS

Although announced as introduced in the Senate over a week ago, the Resolution appears to not have been drafted yet. A copy is not available yet on the Legislature’s website.

The DEP rule proposal is complex and comprises more than 900 pages, so it is a technically difficult Legislative resolution to draft. Adding to the challenge is the fact that legislators and OLS professionals are better versed in the broad brush language of legislation than the fine print of regulatory proposals.

How the resolution is drafted, e.g. what DEP provisions are targeted by Legislators, raises important political and policy concerns.

So we thought we’d draft an outline of the major provisions of the DEP rule we see as “inconsistent with legislative intent”. This is just an outline – we omit the specific regulatory citations, although these can readily be determined by reviewing the Table of Citations on page 27 and in Table 11.2 on page 690.

It will be very interesting to see how many of what we see as major flaws are targeted by the Resolution.

I)   Clean Water – Water Pollution Control Act

The most significant controversy will be over proposed changes to various stream buffer rules that would allow more disturbance to those buffers by development, which would generate additional non-point source pollution and negatively impact water quality.

A. Legislative  intent

The fundamental goals and policy of the federal Clean Water Act, upon which NJ is delegated authority and State law is based, are:

The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. 

With respect to the subject DEP rules, it is important to note that one of the original fundamental goals of the Clean Water Act included control of non-point source pollution:

(7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution.

It is also important to note that although Congress recognized State interests, that those State interests were: a) subordinate to national policy, b) that State’s were expected to consult closely with US EPA, and that c) the linkage between land use – exclusively a state prerogative and limited federal role – and water resources was specifically identified:

It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.

B. How DEP rule is inconsistent with legislative intent

The proposal has numerous weakenings of existing rules that would exacerbate current poor water quality.

1. The proposal would repeal the current 300 foot “Special Water Resource Protection Areas” (SWRPA) C1 buffers in the storm water rules (@ NJAC 7:8), including their regulatory prohibitions and strict restrictions on disturbance, and replace them with “riparian zones”.

The proposal would then weaken the current standards for allowable disturbance in “riparian zones”.

Here is how DEP justifies that (@ page 9-10)

DEP admits that the rule will weaken buffer protections and make it easier to develop closer to streams. As far as I’m concerned, that’s enough. Case closed. There is no legislative intent to promote development closer to streams. Period.

But it’s even worse: under the waiver and mitigation scheme, in effect, there would no longer be enforceable restrictions on buffer disturbance. A waiver and mitigation scheme would replace the current prohibitions in the stormwater rule C1 SWRPA buffers and weaken the current riparian zone limits set out in current Table C.

This would be a radical regulatory policy shift and it works only to increase buffer disturbance and further reduce water quality.

2. The proposal would make a series of smaller technical changes to current rules whose cumulative impacts will reduce already poor water quality, including:

3) New Mitigation scheme and creation of mitigation bank

The proposal includes a new SUBCHAPTER 13. RIPARIAN ZONE MITIGATION, which is sweepingly broad in scope and hugely significant in substance, both economically and environmentally.

A change in regulatory policy of this magnitude requires express statutory authorization by the Legislature.

The Flood Hazard Act (Act) does not authorize the Department to enact regulations that would create a mitigation scheme or a mitigation bank.

The Act lacks any provision for “mitigation” or a “mitigation bank”.

In contrast, the Act clearly establishes standards and authorizes the Department to enact regulations to enforce these legislative standards via a traditional regulatory permit program.

The Act does not specifically – or implicitly – authorize a mitigation program and mitigation bank – nor does any other authority the Department relies on as the legal basis for the proposal.

Because such a program is a radical departure from many years of DEP regulatory policy and practice, the Department’s proposal is ultra vires, not legislatively authorized, and contrary to law and the express framework and provisions of the Act.

The mitigation scheme and mitigation bank are also inconsistent with legislative intent.

II)  Flood risk – Flood Hazard Control Act

The most significant controversy will be focused on proposed changes that would allow more development in flood hazard areas.

A. Legislative  intent

The legislative intent of the Flood Hazard Area Control Act is to prevent and reduce risks to people and property from flooding by regulating development. The Legislature declared:

B. How DEP rule is inconsistent with legislative intent

The proposal is inconsistent with legislative intent because several provisions would allow more people and property to be placed in flood hazard zones, thereby increasing flood risk.

For the general thrust of that, we’ll keep things brief and note Jon Miller, head on the Association of NJ Flood Plain Managers, comments from the prior round of rule changes, which are still apt (actually, any Senate Resolution SCR 180 should include these prior rules as well)

Sea level rise, driven by global climate change and by geological, climatic, and human factors particular to our region, poses a growing risk to New Jersey, threatening property, infrastructure, ecosystems, and livelihoods. Intensifying development in increasingly vulnerable coastal areas will magnify this risk. The proposed rules do not consider the effects of sea level rise; incorporating sea level rise into the permitting process is critical if it is to meet its goal of not putting the inhabitants of the New Jersey shore at risk. The Department should address this issue when revising the rules. …

The consolidation and simplification of the rules is supported; however, there is concern with respect to increased development in high risk areas. Public safety, property protection, and reducing risk which strengthens local and State economies are paramount. This position is also supported by the New Jersey Legislature through the enactment of CAFRA, at N.J.A.C. 13:19-2, and the Wetlands Act of 1970 at N.J.S.A. 13:9A-1 and 2. The legislative intent of these laws is violated by intensifying density and uses in coastal high hazard areas. The proposed rules do not consider increased risk in coastal development in the impact assessment, whether to the financial interests of local, State, or Federal taxpayers and to the NFIP and other disaster assistance programs well utilized after Superstorm Sandy.

III)  Stormwater Management

The most significant controversy is likely to focus on proposed repeal of what are known as “Special Water Resource Protection Areas”, commonly known as the 300 foot wide buffers, along Category One Waters (C1), first adopted by DEP in 2003/04 as water quality “best management practices”.

A. Legislative  intent

Stormwater has water quality, flooding, and habitat impacts.

The DEP storm water management rules are designed to prevent, reduce and mitigate those impacts. DEP adopted these rules pursuant to the authority of

Statutory Authority: N.J.S.A. 12:5-3, 13:1D-1 et seq., 13:9A-1 et seq., 13:19-1 et seq., 40:55D-93 to 99, 58:4-1 et seq., 58:10A-1 et seq., 58:11A-1 et seq. and 58:16A-50 et seq.

The legal eagles at OLS can read all that statutory law – but I suggest a shortcut would be to read the DEP rule proposal basis and background document. DEP website has rule adoption archives.

B. How DEP rule is inconsistent with legislative intent

Back in 2003, the DEP adopted major upgrades to storm water management rules. One of the most significant provisions of these new rules were new water quality requirements: a 300 foot buffer along designated Category One (C1) “exceptional value” waters (see NJAC 7:8-5.5(h))

The objective of these rules was to strictly limit disturbance by “major development” in order to preserve stream vegetation, which provides the following benefits, according to both the US Army Corps of Engineers and the DEP: (@ page 1-5)

The SWRPA buffers were designated a “best management practice” (BMP) for water quality protection.

Under the Clean Water Act and various EPA implementing regulations, states are required to adopt anti-degradation policies, implementation procedures and “best management practices”.

The Clean Water Act does not mandate 300 foot buffers. Nor does it mandate 300 foot buffers in EPA’s water quality standards, municipal storm water, or “TMDL” programs.

EPA did not put a gun to NJ DEP’s head and require that they adopt 300 foot buffers. Traditionally, most BMP’s and non-point source pollution controls are not mandatory at the State level and are not federally enforceable.

Instead, NJ DEP chose to adopt 300 foot buffers as mandatory water quality BMPs in NJ’s state storm water management regulations.

Then, DEP chose to justify these BMPs as federally mandated State anti-degadation implementation procedures.

Finally, DEP chose to demonstrate compliance with federally mandated municipal storm water permit rules by including a link in State municipal storm water permit rules to these mandatory storm water water quality BMPs.

For all these reasons, the 300 foot buffer water quality BMPs are federally enforceable. The State of NJ has used them to demonstrate compliance with federal Clean Water Act requirements.

The selection of all these are under the control of the States – but once designated by regulation, become federally enforceable. Even DEP agrees with this interoperation (see page 58 which responded to my comment):

According to Section 4.5 (“Protection of Water Quality in High- Quality Waters”) of the Environmental Protection Agency’s Water Quality Standards Handbook, which is available at http://www.epa.gov/waterscience/standards/handbook/, the Federal Water Quality Standards do “not mandate that States establish controls on nonpoint sources” but requires the implementation of best management practices where established. The adopted riparian zone requirements are considered a best management practice that is designed to address nonpoint source pollution and their implementation is, consistent with Federal regulation.

The C1 buffers are BMPs are “established” and they are State SWQS implementation procedures for attaining the anti-degradation policy for C1 waters. They may not be repealed without EPA prior approval.

Additionally, C1 buffers are linked to and satisfy State compliance obligations of EPA’s municipal stormwater permit program.

Specifically, the NJDEP municipal storm water permit requirements specifically mandate compliance with the storm water management water quality rules.

Accordingly, the C1 buffers are federally enforceable and may not be eliminated without EPA prior approval.

Unfortunately, EPA folded and did not assert these federal regulatory oversight powers in their letter to DEP, which was more saber rattling than serious federal oversight.

Therefore, it becomes even more important for the NJ Legislature to step up where EPA failed and strike these rules down.

IV)  Coastal protections – Coastal Area Facilities Review Act (CAFRA)

The most significant controversy is likely to focus on proposed changes to allow more development in previously prohibited areas (like shellfish growing waters) and promoting development in designated flood hazard areas (like on piers over the Hudson river)..

A. Legislative  intent

The primary objective of CAFRA is to protect coastal resources by regulating development in the coastal zone. The Legislature declared:

B. How DEP rule is inconsistent with legislative intent

(see Jon Miller’s comments above)

V)  Federal Flood Insurance Program Compliance and Eligibility

The issue here is that the proposal does not meet minimum National Flood Insurance Program (NFIP) requirements and thereby jeopardizes eligibility for NFIP and federal funds.

A. Legislative  intent

The Flood Hazard Area and CAFRA would establish an overall intent, but I could not find a State law that was specific to the federal Flood Insurance Program (NFIP).

However, especially given NJ’s status as a coastal state and national leader in flood damage and repeat flood damage claims, particularly after the devastation wrought by Sandy, it would seem obvious that the Legislature intends to meet the minimum requirements of the NFIP and maintain municipal eligibility for participation in the NFIP.

B. How DEP rule is inconsistent with legislative intent

The rule does not meet minimum NFIP requirements and FEMA and the League of Municipalities have objected to the proposal on that basis (see this for details).

The most egregious provision is to allow new development on piers over the Hudson River in mapping high hazard areas.

It will be interesting to see if the Legislature finds that DEP’s failure to include more conservative flood elevation requirements, above and beyond the 1 foot of “freeboard” adopted during the Corzine administration, is inconsistent with Legislative intent because it would allow development at hazardous elevations and put people and property at risk, especially given projected sea level rise and storm surge.

VI) Failure to consider risks and impacts of climate change and sea level rise

This is a key issue that will test whether the Legislature is serious in reforming policy or is more interested in politically embarrassing the Governor

The DEP’s proposed rule does not consider climate change, projected sea level rise, and more severe storms and storm surge.

There is no specific law that mandates that DEP consider climate change and base flooding and coastal management regulations on climate change.

The Legislature recognized the reality of climate change in the Global Warming Response Act and funded various related climate mitigation programs in the RGGI law.

DEP has already adopted climate change related permit requirements that would require that 500 year flood elevations be considered in CSO planning and engineering.

It would be scientifically justified to consider more conservative rainfall events and flood elevations in flood hazard and coastal rules.

President Obama issued an Executive Order on Climate Adaptation in federal programs and most all coastal states have adopted climate adaptation plans.

Back in 2004, DEP regulated greenhouse gases as “air pollutants” – more than a decade before EPA.

NJ’s 2014 Hazard Mitigation Plan recognizes climate change risks – but that plan lacks enforceable implementation requirements.

DEP clearly has the authority to consider climate change –

Will the legislature find their failure to do so inconsistent with legislate intent?

The whole world’s watching.