Senate Asked To Review Murphy DEP Embrace of Christie Stream Buffer Rollback
Senate Previously Vetoed Christie DEP Rule That Eliminated Stream Buffer Protections
- “We as a legislature have consistently supported the sanctity of buffers for our C1 streams. These are the purest waters we have in the State of NJ.” ~~~ Bob Smith, Senate Environmental Committee Chairman (6/16/16 – vote to pass SCR 66).
- “Kudos to Bill Wolfe. We heard all kinds of testimony over these three meetings. But the one that stuck in my mind is [Bill’s testimony] that there’s no guarantee that they’ll be no deterioration in the State’s water quality standards if there’s development in the first 150 feet of buffer of C1 streams. That’s the critical missing legislative intent item for me. ~~~ Bob Smith, Senate Environmental Committee Chairman (6/16/16 – vote to pass SCR 66).
The Murphy DEP, on December 3, 2018, proposed a major new stormwater management rule that would, among other things, codify and expand the controversial Christie DEP rule that eliminated strict protections of 300 foot wide buffers along “exceptional value” streams, known as “Category One (C1) waters”.
That Christie rule was vetoed by both Houses of the Legislature in 2015, and again vetoed by the Assembly in 2016 but died in the Senate, killed by Senate President Sweeney (see also, the less focused NJ Spotlight story):
Sen. Bob Smith (D-Middlesex), who help negotiate the order, argued the changes made the new rule “equal’’ to the protections that were in place under the old regulation.
Environmentalists and others disagreed, dubbing the administrative order a “dirty deal” that does not settle the issue. They said yesterday they would continue to press the Senate to vote to revoke the rule, urge the EPA to block it, and take it to the courts, if necessary.
Early on in the process, the EPA expressed concerns the rule was inconsistent with federal water quality standards. Bill Wolfe, a former DEP staffer, already has written to Judith Enck, the EPA’s Region II administrator, asking the agency to review the administrative order for compliance with the federal Clean Water Act.
The Statement to SCR66 (6/16/16) lays out the procedural history of the Legislature’s efforts to veto this Christie DEP rule as “inconsistent with legislative intent“:
As required by the Constitution, the Legislature previously informed the Department of Environmental Protection, through Senate Concurrent Resolution No. 180 of 2015, of the Legislature’s findingthat this rule proposal is not consistent with legislative intent. In addition, the Senate Environment and Energy Committee held a public hearing on the resolution on March 7, 2016 as required by Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.
Senate Environment Committee Chairman Bob Smith
Given the major flaws in the proposed new rules and the legislative veto of the same Christie DEP rules, I just wrote the below letter to Chairman Bob Smith:
Dear Chairman Smith & Senators Greenstein and Bateman:
I write to you in your joint Constitutional and statutory capacities for:
1) legislative oversight of executive branch rule making – specifically pursuant to Article V, Section IV, paragraph 6 of the Constitution which provides authority to veto rules “inconsistent with legislative intent” and the NJ Administrative Procedure Act, which requires, among other things, legislative notification of agency rule making; and
2) as legislative sponsors and supporters of climate change and stormwater management reforms.
As you may know, on December 3, 2018, DEP proposed a major overhaul of current stormwater management rules, with proposed revisions to, among other major rules, the DEP’s Highlands, CAFRA, and stream encroachment/Flood Hazard Act rules. Here is a link to the proposal:
https://www.nj.gov/dep/rules/proposals/20181203a.pdf
This rule making provided at least 3 huge opportunities, including:
1) to repeal prior Christie DEP rollbacks, including the Christie DEP’s repeal and revision of the stormwater management rules regarding encroachments into protected C1 stream buffers;
2) to address the current and projected impacts of climate change, including sea level rise, storm surge, extreme weather events, more frequent and intense rainfall events, drought, heat waves and associated urban heat island effects, and the need to sequester carbon in soils and forest biomass; and
3) to close long known loopholes and strengthen standards and DEP’s review authority over major controversial projects, including pipeline crossings of NJ streams.
Unfortunately, the DEP proposal failed to do any of that, and instead, actually codified and expanded the Christie DEP’s elimination of the prior ban and strict limitations on encroachments in C1 stream buffers.
As you will recall, Chairman Smith & Senator Greenstein were prime sponsors of SCR66, a concurrent resolution to legislatively veto the Christie DEP’s proposed stormwater management rules, including most importantly, the repeal of the prohibition on disturbance of the buffers of “exceptional value” Category One streams (for text of SCR66, see:
https://www.njleg.state.nj.us/2016/Bills/SCR/66_I1.PDF
During Senate Committee hearings and release of SCR66, on June 16, 2016, Chairman Smith stated (verbatim quotes):
- “We as a legislature have consistently supported the sanctity of buffers for our C1 streams. These are the purest waters we have in the State of NJ.”
- “Kudos to Bill Wolfe. We heard all kinds of testimony over these three meetings. But the one that stuck in my mind is [Bill’s testimony] that there’s no guarantee that they’ll be no deterioration in the State’s water quality standards if there’s development in the first 150 feet of buffer of C1 streams. That’s the critical missing legislative intent item for me.“
Given the prior legislative opposition to and partial veto of the Christie DEP elimination of protections for C1 stream buffers and the legislature’s focus on climate change (Global Warming Response Act, S3207, et al) and stormwater management (S1073, et al), I strongly urge you to conduct the following legislative oversight of the current DEP proposal:
1) hold an oversight hearing. Call DEP Commissioner McCabe to testify and allow experts and the public the opportunity to testify and understand the implications of the 169 page complex proposal
2) request that OLS consider whether the proposal is “inconsistent with legislative intent”, consistent with SCR66 and recent climate and stormwater management legislative policy developments.
3) contact DEP Commissioner McCabe and request a 90 day extension of the public comment period.
I urge your immediate attention to this matter, as time is of the essence.
The DEP proposal was not put on a regulatory calendar, thus there was no ability for the public to anticipate its proposal in the 12/3/18 NJ Register.
While DEP proposed a 60 day public comment period, the holidays and New Year celebrations consume a significant portion of the public’s review time.
I appreciate your timely and favorable reply.
Bill Wolfe