Christie DEP Adopts Flood Hazard Rule Pending Legislative Veto
DEP Admits They Routinely Violated and Did Not Enforce C1 Buffer Rule
DEP now claims C1 buffer “was never a “no-build” regulation”
The ball is back in the legislature’s court
The Christie DEP has adopted the controversial Flood Hazard rules pending legislative veto (see the DEP’s adoption and response to comment document).
The adoption of that controversial rule proposal was accompanied by a new proposal that allegedly responds to criticisms and alleged unintended consequences of the original proposal (see the new “concurrent proposal” here).
The whole process recalls Malcolm X’s famous observation:
If you stick a knife in my back 9 inches and pull it out 6 inches, there’s no progress
As we warned, the simultaneous adoption and concurrent proposal makes it very difficult to understand what is going on and very easy for DEP to spin the press and Legislators and environmental groups:
This sets up a very dangerous game of bait and switch and spin – DEP could adopt the bad parts and promise to re-propose the fixes but never adopt them.
The public and the Committee will be drowned in the weeds of a lengthy adoption – response to public comments document on the original proposal along with an entirely new and complex re-proposal document. This is a formula for political manipulation. It will take weeks to decipher the documents. Meanwhile, by the time the dust settles, the original proposal will be adopted into law and the Veto Resolution will have withered on the vine (faded into the budget debate) and the Legislature adjourned for the summer.
In fact, in an effort to spin this whole situation, just last week there was exactly the kind of political posturing I called Kabuki, see NJ Spotlight’s set up story:
But one thing is very clear – the ball is in the Legislature’s court.
If they do not follow through with their threat to veto the rule then they have failed and they concur with the same environmental policy as the Christie administration.
Both adoption and new proposal documents are lengthy and complex and will take a least the weekend to digest and write about, but in this first post, I do want to note one extraordinary admission by the DEP.
Much of the controversy over these rules focused on the repeal of the 300 foot wide Category One buffers (known as a “SWRPA”) and replacement by a less protected “riparian zone” and how the proposal would allow more disturbance and development of C1 stream buffers, particularly inside the 150 feet and closer to the stream.
As DEP notes, citing the rule text at N.J.A.C. 7:13-5.5(h)1ii, the current rules strictly prohibit disturbance and development inside 150 feet:
In no case shall the remaining SWRPA be reduced to less than 150 feet
“In no case” – NO means no. None. Sorry, can’t do that. If a landowner objected, they could exhaust administrative remedies and then file a “takings” challenge and see if the courts agree. Good luck with that (look at takings waiver in Highlands rules, NJAC 7:38-6.8).
But, shockingly, DEP – for the first time – now says that NO means YES.
DEP now claims that they flat out violated that regulation for 12 years and routinely reduced the buffer to less than 150 feet and approved development inside the 150 feet!
Thus, while N.J.A.C. 7:13-5.5(h)1ii provides no allowance for any disturbance within the inner 150 feet of the 300-foot SWRPA, and permits limited disturbance in the outer 150 feet, the Department has authorized encroachments into these portions of the SWRPA under the hardship exception provisions of the FHACA Rules and other relevant permitting programs cited in the response to comment above under which the SWM rules have been implemented. Since the Department amended the FHACA Rules and expanded the riparian zone along Category One waters to 300 feet in 2007, all encroachments within the SWRPA, which required a flood hazard area individual permit and were not otherwise provided for under prior N.J.A.C. 7:8-5.5(h), have been processed under the hardship exception provisions of the FHACA Rules at prior N.J.A.C. 7:13-9.8.
The SWRPA was never a “no-build” regulation. Instead, disturbance, while discouraged, was allowed in limited circumstances. (see page 118)
To justify this flagrant violation of their own regulations the DEP, after the fact, remarkably cites a response to comment in the 2004 rule adoption document!
The Department anticipated that unavoidable encroachments would need to be allowed when the SWM rules were adopted on February 2, 2004, and indicated that the hardship provisions, found in other permitting rules, created a process for allowing such encroachments (see response to comments 440-441, 36 N.J.R. 716).
Surely, DEP lawyers know that a response to comment has no legal standing and can not over-ride and justify violation of very clear regulatory prohibition.
No means NO.
And if that kind of abuse and Orwellian bullshit is allowed by the Legislature and the NJ Courts and legal community, then DEP’s regulations are meaningless.
Adding insult to injury, the DEP then very cynically and very politically points the finger of blame to Gov. Corzine’s DEP Commissioner Lisa Jackson.
More to follow.
[End note: Thus far, this is my favorite Alice in Wonderland or Orwell in the DEP’s response to comments (I am #193 who made comment 159)
159.COMMENT: In this proposal, the SWRPA is technically eliminated. The regulations under SWM rules are different due to scope, technical requirements, demonstrations, disturbance restrictions, and buffer width. The requirements are more stringent under the SWRPA than under the FHACA Rules. Eliminating the Category One buffers and relying on the FHACA Rules’ flood hazard area program will significantly reduce the level of protection for both water quality and flood prevention. (193)
RESPONSE TO COMMENTS 150 THROUGH 160: The riparian zone requirements under the FHACA Rules are protective of the special features of Category One waters, including water quality, water supply, threatened and endangered species, and fisheries resources. The fact that limited disturbances within the 300-foot riparian zone are authorized under the FHACA Rules does not mean that the riparian zone protections under FHACA Rules are less protective of water quality than the SWRPA.