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The Case For A Legislative Veto of Christie DEP Flood Rules

DEP justification based on “experience”, not published data

I can’t end this series without presenting and rebutting DEP’s arguments in support of the proposal.

In a prior post, I explained why a C1 buffer (SWRPA) has far stronger protections than a “riparian zone”.

Today, we consider the opposite: DEP’s arguments about how some riparian zone rules are broader than C1 SWRPA.

DEP’s Arguments Are Not Fact Based and Their Conclusions Are Ludicrous

Back in 2003, in the original DEP C1 buffer regulations, the McGreevey DEP was required to justify the 300 foot buffer width based on published scientific research and data about various buffer widths and pollutant removal rates.

In contrast, the current Christie DEP proposal is based on DEP’s claim of “experience“, which is simply asserted without supporting evidence, published data, or science:

The Department is proposing various amendments and new rules reflecting the experience it has gained in regulating riparian zones to assure protection is sufficiently robust, while adding flexibility in how the necessary protection can be achieved and making it easier to conduct necessary activities in a manner that will have minimal impacts on these important near- water areas. (proposal, @ p. 42)

Note that DEP’s “experience” is limited in scope to the “riparian zone” provisions of the FHA.

DEP failed to mention their “experience” with the C1 SWRPA program and regulations. That “experience” is documented in a November 2012 DEP technical Report titled:

That Report found that the C1 buffer were scientifically justified and recommended designation of an additional 121 miles of C1 waters.

There was no discussion in that report of any need for “alignment” or “streamlining” of the C1 buffer regulations – just the opposite – DEP scientists recommended that the Department expand the C1 SWRPA program. 

That Report is a critical part of the DEP’s “experience”, but it was ignored in the DEP’s proposed rollback.

The DEP claims – again without supporting evidence – that their proposal will “strengthen” and provide “better” protections:

Repealing the special resource protection area provisions (SWRPA) from the SWM rules and amending the standards for the 300-foot riparian zone in the FHACA Rules will appropriately regulate development near Category One waters and their tributaries and more effectively protect and promote the many benefits of near-stream vegetation …..

The Department anticipates that the proposed standards for development within a 300-foot riparian zone will provide better protection of vegetation along surface waters, thereby strengthening the attendant benefits to water quality and flood protection.  ~~~ DEP Environmental Impact of Proposed Flood Rule – at page 493-494

It doesn’t get more bizarre and Orwellian than that.

DEP asserts this claim, despite: 1) repealing strict restrictions on buffer disturbance, 2) weakening existing standards to allow more destruction of vegetation & more development closer to a stream, 3) allowing mitigation and credit trading to evade disturbance standards; and 4) by providing more variances and lax waivers from standards.

DEP claims that doing all that will strengthen benefits to water quality and flood protection.

If DEP can say something like that, they have absolutely zero credibility.

The DEP’s Orwellian conclusion is based on 2 claims:

1) the “riparian zone” rules regulate more streams that C1 SWRPA rules;

2) the “riparian zone” rules regulate more activities that C1 SWRPA rules;

DEP wrote:

Whereas the SWRPA applies only when a proposed project is deemed a major development, the requirements for development within the FHACA 300-foot riparian zone apply irrespective of the size of development. Furthermore, while the SWRPA applies only to features depicted on a USGS or soil survey map, a FHACA 300-foot riparian zone exists along a broader set of surface waters. (proposal at p. 493)

These claims are technically accurate but the conclusion is absurd. Let me briefly explain.

The C1 SWRPA protections apply to “major development”, defined as

Major development” means any “development” that provides for ultimately disturbing one or more acres of land or increasing impervious surface by one-quarter acre or more.

It is technically correct that the riparian zone rules apply to more activities, smaller than an acre of disturbance. [Note: the 1 acre land “disturbance” to trigger major development is not buffer disturbance, but disturbance for the entire project. In contrast, some “riparian zone” “standards” allow disturbance of almost an acre of the C1 buffer! And far more for linear development like pipelines.]

But what are the factual implications of this distinction? DEP has permit data to answer that question.

Regardless, if DEP were sincerely seeking to “enhance protections” of buffers, all they would need to do would be to apply the broader scope of riparian zone regulated activities to the stronger SWRPA rules.

If DEP had valid arguments, they would be able to show, with actual permit based data, how many projects regulated under “riparian zone” rules are not regulated under C1 SWRPA rules and how many acres of buffer are disturbed as a result.

But DEP produced no data to back this conclusion up – they only waived the magic wand of their “experience”.

The “broader set of surface waters” claim is more complex, but even if true the same argument applies: if DEP truly wanted to enhance protections then they would apply the alleged broader “riparian zone” definition to mapping a C1 SWRPA water.

DEP has sophisticated GIS mapping technology and a robust stream network data layer.

DEP can use this GIS technology to illustrate with maps – and calculate in square feet or acres – the difference between stream miles and buffers regulated under C1 SWRPA versus stream miles and buffer acres regulated under the riparian zone rules.

But DEP did not conduct this technical mapping exercise to support their conclusion.

Plus, DEP’s conclusion failed to consider all the many weaknesses in riparian zone rules that will allow far more buffer disturbance – the “net negative impact” of the rule is obvious.

Senate Hearing

The Senate Environment Committee meets Monday morning (10/19/15) at 10 am in the Legislative Annex in Trenton to hear SCR 180 (Lesniak/Smith), a Resolution to begin the process of vetoing the Christie DEP’s proposed massive “overhaul” of the Flood Hazard, coastal, and storm water management rules.

I’ve done my level best – short of self immolating on the State House steps – to make the case as to why this DEP proposal is a huge rollback of current protections and why that is inconsistent with legislative intent.

I’ve been deeply disappointed by the passive public stance of my so called colleagues, who all backed the dramatic expansion in buffer protections enacted by the McGreevey DEP in 2002 – 2004.

Granted, 25 NJ environmental groups were unified and all quietly submitted  formal written comments to DEP opposing the proposal.

But there is a big difference between signing on to written comments and actually investing resources and mounting a public opposition to the DEP rules.

Very few groups showed up at the public hearings to testify, there was very little press coverage, and instead of using their resources to build public awareness and garner media coverage and pressure Democratic Legislators to step up and over-ride Gov. Christie self avowed rollback agenda, the have not only been silent, but spent the last weeks on the most lame, frivolous and inane self serving stunts and diversions.

The last few weeks have been a bizarre spectacle – truly “NJ’s Best” (Dodge confab): from road rally’s (Highlands Coalition), to oyster bars (NY/NJ Baykeeper), to events with boaters (ALS), to champagne toasts with Governor Christie’s Lt. Governor ( (NJEF/Clean Water NJ) . These are real events that actually happened. I’m not making this shit up.

Meanwhile, the biggest land use and water quality battle in over a decade has gone totally un-engaged and unreported.

The DEPs proposed rule impacts hundreds of NJ towns, over 2,00 stream miles, more than 150,000 acres of ecologically sensitive lands, all drinking water reservoirs, thousands of homes, and billions of dollars in property value.

So, it all boils down to Monday.

Preliminary political signals going into the hearing do not look good for the Resolution being released by the Committee on Monday.

In addition to the silence from the environmental groups – with the exception of an “Action Alert” from Sierra Club that was forwarded to me – to wit:

1)  the actual text of SCR 180 has not been publicly released and posted on the Legislature’s web site. In fact, I just learned that, contrary to a September 25, 2015 NJ Spotlight story that said the Resolution had been introduced on September 24,, the Resolution is “pending introduction and referral”:

“These so-called rule changes would eliminate important protections for our waterways, degrading water quality, endangering fish habitats, and increase the risk of flooding,’’ said Sen. Raymond Lesniak (D-Union), who introduced the resolution yesterday in the Senate.

2) the press has done no set up stories, but somehow has found space to cover 3 set up stories on the Liberty State Park oversight that was added to the Senate Environmental Committee’s Monday agenda.

So, here are the recent posts since DEP released the rule proposal on 6/1/15 – where I’ve tried to provide sufficient information and analysis to make the case:

That’s all folks – we’ll keep you posted on what goes down on Monday. We urge you to let members of that Committee know how you feel or better yet, come to Trenton and tell them in person!

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