DEP Rule Amendments – Easier for Developers, Doesn’t Fix Broken Programs

The NJ Department of Environmental Protection has published proposed amendments and new rules to the Coastal Zone Management Rules, Freshwater Wetlands Protection Act Rules, and Flood Hazard Control Act Rules. The proposed amendments would require electronic submission of applications for all general permit authorizations, individual permits, water quality certificates, and freshwater wetland transition area waivers.

“Once again, DEP is changing their rules to have more process without any substance. They are making it easier for developers, engineers and others to apply for permits electronically. DEP once again has missed an opportunity to update rules to deal with climate change, sea-level rise, more frequent storm surges, or to get rid of Christie’s rollbacks. They have failed to change the problems that New Jersey has with permitting programs,” said Jeff Tittel, Director of the New Jersey Sierra Club. “DEP’s amendments to the Coastal Zone Rules, Wetlands Rules, and Flood Hazard Rules make it easier to give out permits. It also doesn’t allow for more transparency or public input.”

These rule changes are part of DEP’s transition to mandatory submission of online applications. They say that this will improve the efficiency of the application process. However, the public still needs to file Open Public Records Act (OPRA) requests to gain access to these documents to review and comment.

“DEP’s rule amendments are completely one-sided. They are allowing applicants to do everything online, but they don’t mention allowing the public to review documents online. If the public wants to look at these permits, they still have to file cumbersome OPRA requests. If they are making the process more transparent for developers and engineers, they should make it more transparent for the public. They could easily have a portal for the public to review or comment on files,” said Tittel. “DEP needs to get rid of HDD drilling under streams and wetlands. There are two general permits that allow HDD. Just last month, an Upper Freehold resident’s home was condemned after NJNG caused a blowout while drilling for the SRL pipeline. Allowing HDD is dangerous and can cause irreparable harm to the environment and people’s homes.”

According to a recent Zillow report, New Jersey is developing in risk zones more than 2x faster than safer locations. In order to protect New Jersey from sea-level rise, climate impacts, and flooding, we need the state to look at a holistic and comprehensive approach. They also need to fix Christie’s rollbacks to prevent overdevelopment.

“New Jersey needs to do more to prevent overdevelopment along the coast and in flood-prone areas. DEP needs to fix the Coastal Zone Management Rules and CAFRA that allow overdevelopment, stormwater problems, and algae in our lakes. We need a long-term solution to reduce development by using a holistic approach with green infrastructure, buyouts, and elevating homes in the most flood-prone areas. We should also be restoring wetlands and removing and eliminating impervious cover,” said Jeff Tittel. “What we really need to address flooding is a focus on green infrastructure including natural systems restoration, and green building codes, green roofs. We also must consider regional planning and establish a Coastal Commission.”

Governor Christie published new Coastal Zone Management Rules that threaten people, property, and the environment before leaving office in 2018. These rules opened up high hazard areas for commercial development in flood-prone areas of the Hudson River and Atlantic City, while threatening environmentally sensitive dunes, wetlands, and coastal areas. That same month he rolled back the Freshwater Wetlands Rule, which removed important protections and allowed construction of pipelines and other projects through environmentally sensitive wetlands.

The state should also be taking this opportunity to fix our Coastal Zone Management Rules. Christie’s rollbacks allow for more development on piers, putting more people and property in harm’s way. DEP needs to fix the rules to stop developers from building new commercial and residential projects along beaches and coastal areas,” said Tittel. “DEP also needs to fix the Wetlands Rules because wetlands are critical for the environment. They protect against flooding, improve water quality, recharge aquifers, and provide important habitat. Wetlands belong to all of us and we need to do a better job of protecting them. The rules don’t examine the loss of wetlands due to impacts outside the regulated area. They need to be fixed to consider localized impacts and deal with flooding and water pollution.”

In 2016, Governor Christie rewrote the Flood Hazard Rules despite opposition from the Legislature and the EPA. 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.

“These proposed amendments do nothing to fix Christie’s rollbacks. Instead, they are still taking care of developers and businesses at the expense of environmental protections. DEP needs to fix rollbacks to SWARPA as well as improve upon older rules, restore 300-foot stream buffers and natural systems, close loopholes, and add water withdrawal regulations. They need to fix these rules because they are allowing more water pollution and flooding, threatening our waterways and drinking water,” said Tittel. “They also need to reverse Christie’s rollbacks to the Flood Hazard Rules that removed important protections for headwaters, increased permit by rules, and letting a permit by certification process increase development in flood-prone areas.”

Written Comments on DEP’s proposed rule amendments are due by October 2, 2020. They can be submitted electronically at http://www.nj.gov/dep/rules/comments or by paper to Gary J. Brower, Esq., Attn.: DEP Docket No. 03-20-07, Department of Environmental Protection, Office of Legal Affairs, Mail Code 401-04L, PO Box 402, 401 East State Street, 7th Floor, Trenton, NJ 08625-0402.

“We need DEP to take real action instead of more announcements without any substance. This is due to Christie’s realignment of DEP to make it a more business-friendly agency instead of protecting the environment. We still have a Commissioner that calls polluters, developers, and other applicants ‘customers.’ DEP could fix these rules to prevent unnecessary development in wetlands and flood-prone areas, but instead they choose to make no real changes. We need them to fix Christie’s rollbacks and to add climate change to our rules and regulations. They need to update our maps and coastal development planning with the latest science,” said Jeff Tittel, Director of the New Jersey Sierra Club. “Study after study is showing that New Jersey is one of the most vulnerable states in the nation. We need to act now to protect New Jersey for future generations.”