Commentary: N.J. Senate Sides with Christie and Sells Out Clean Water
Saturday, July 30, 2016
N.J. Sierra Club
The Department of Environmental Protection (DEP) issued their Administrative Order to implement their Flood Hazard Rules with some of the changes from the Concurrent Rule. The DEP has already signed their hazardous Flood Hazard Rules into effect, allowing developers to gain permits under these weak rules that will be active even if we can get better rules in the future. Even with this Administrative Order, the Flood Hazard Rules will still increase pollution and flooding in New Jersey.
“The Senate has sold out our clean water to the Christie Administration by supporting this Administrative Order. This was an excuse not to block the Flood Hazard Rules from going into place. This was a dirty deal for dirty water. This AO does nothing to fix the Flood Hazard Rules and will still allow a significant rollback of water protections and increase flooding and pollution across the state. The Legislature fell for this cynical move by Governor Christie to stop them from blocking these damaging Rules. They got the Legislature to go along with the biggest rollback on water protections in over 40 years,” said Jeff Tittel, Director of the New Jersey Sierra Club. “By taking this dirty water deal SCR66 will not be put up for a vote and the Flood Hazard Rules will go forward, jeopardizing open space and clean water with dirty water permits that will start flowing. If the Senate thinks this is a good deal for the environment, then they must have thought the Red Sox had a good deal when they traded Babe Ruth to the Yankees.”
These rules are still a hazard and violate the anti-backsliding criteria of the Clean Water Act, the TMDL river clean-up process, the EPA Municipal Stormwater Rules (MS4), and the anti-degradation criteria in our laws. The rules allow for multiple disturbances of up to 7,000 ft2 until you get to a quarter acre. Above that you have to do mitigation. Mitigation doesn’t work because it ignores localized impacts. You can do it anywhere in the watershed, even miles away in another stream. Most importantly, there is no legal authority for this.
“Once again the Christie Administration manipulated the Legsialture to get what they want, which was preventing them from blocking the Flood Hazard Rules. The Legislature had originally stood up to the Governor and tried to block these rules but now they’ve folded. The DEP promised them some minor changes but these rules are still a threat to New Jersey’s environment. This AO is just worthless cover to get the Legislature to stop pushing back with the threat of a Legislative Veto,” said Jeff Tittel. “Instead of continuing forward with SCR66 to block the rules, the Senate has just rolled over to the Christie Administration again.”
The Administrative Order does address one particular issue with the new rules. In the original proposal they eliminated Special Water Resources Protection Areas (SWPA)s. These are the closest 150 feet and the most environmentally important areas along these streams. By eliminating SWARPA, they removed the linkage between Surface Water Quality Standards, these rules, and the Stream Encroachment Rules.The Administrative Order replaced this linkage.
“They traded our clean water for an AO that isn’t worth the paper it’s written on. The changes are minor, they may not even be enforced, and the whole thing was only done for public relations sake. The Administrative Order fixes the defect of the Surface Water Quality Standards loophole. Originally the Rules disregarded any standards, allowing unlimited pollution. This would have violated the federal Surface Water Quality Standards and Clean Water Act. With this AO they’ve replaced that linkage. This needs to be put into a rule and codified so it can be upheld if challenged by developers,” said Jeff Tittel. “This is true for the entire Administrative Order; you can’t do rulemaking through an AO and the whole thing can be thrown out by court.”
The Sierra Club believes these rules continue to violate the Federal Clean Water Acts and the EPA’s municipal Stormwater Rules. They also violate the anti-degradation criteria and the waters of the United States under the Clean Water Act. These rules not only do not comply with existing federal legislation, but they will add more flooding and loosen water quality in New Jersey. We are asking the Legislature to step in and stop these rollbacks by the Christie Administration. The Assembly has passed a resolution to block the rules and now we need the Senate to do the same.
“The Administration Order is just an excuse for the Senate to go along with Christie’s rollbacks in clean water. This Rule is still dangerous for our environment because it allows for development in sensitive areas near important streams and will increase flooding and pollution throughout the state. These rules will allow stormwater to be pumped directly into streams, get rid of important buffer protections, and allow improper development, even making it easier for pipelines to go through. The Rule will rollback decades’ worth of environmental protections. They will threaten waterways across the state, especially in environmentally sensitive areas such as The Highlands and the Pinelands,” said Jeff Tittel. “This was negotiated without input from the environmental community or anyone else.”
The Legislature originally found that these rules violate legislative intent when they passed the first resolution to override them. This resolution would once again try to block the DEP's proposal to revise the Flood Hazard Area Control Act Rules, Coastal Zone Management Rules, and Stormwater Management Rules because they violate legislative intent. The Sierra Club continues to support and promote the resolution to override them because we believe that these proposed rules will increase flooding and degrade water quality and violate state law, even with the minor changes made by the DEP.
“The only people that benefit from this deal are developers, polluters and those who like dirty water. Again the Governor got what we wanted and the Senate fell for his bluffing and bullying once again. With these rules stream buffers are going to be severely weakened and we will see a lot more development and pollution. When the Governor was in Iowa he boasted about overturning Lisa Jackson’s ‘overreach’ water protections. Now he’s been able to continue that assault on our water protections and even worse, he’s got the Legislature going along with his rollbacks.” said Jeff Tittel, Director of the New Jersey Sierra Club. “New Jersey has seen enough water pollution and enough flooding and these rules will make it much worse. We will keep fighting to get SCR66 posted to block these dirty water rules and we will keep fighting until the Legislature stands up for clean water and against the Governor’s rollbacks.”