Sierra Club: Senate Committee Releases Highlands DEP Rule Override Resolution



Today the Senate Environment and Energy Committee released a resolution, ACR192 (McKeon)/SCR148 (Smith), that determines DEP Highlands Septic Rule is against legislative intent. The DEP’s proposed rule threatens the most environmentally sensitive Forest Preservation Area that helps protect our drinking water, pristine trout streams, and reservoirs based on arbitrary science. The Highlands Forest Preservation Area is also a major source of drinking water for up to 6 million people. These rules will not only threaten our water supply, but target open space and will increase flooding. Even though the original rules were held up in Court, DEP is using the same basic nitrate model, but adding one change, which is allowing more nitrates and 4 times more pollution in the Forest Preservation Area, which will threaten New Jersey’s drinking water. If the resolution is passed twice in both houses of the legislature, it will help overturn these dirty water rules. The resolution has already been passed by the Assembly.


“We are glad to see the resolution move through the Senate process. They must pass it as the Assembly has done in order to protect Highlands’ water. These rules clearly violate the law and legislative intent. With this rule, the DEP has targeted the most environmentally sensitive areas of the Highlands. This is the area that contains the mountains above our reservoirs and water supply intakes, but with these rules development will be increased by 400 percent. This will threaten the drinking water for over 6 million people,” said Jeff Tittel, Director of the New Jersey Sierra Club. “The rules violate legislative intent because the Highlands Act requires a nitrate model from ‘deep aquifer re-charge’ that has not been impacted by development. Instead, the DEP is using data from mostly developed areas of the Highlands around lakes that have shallow aquifers in areas outside the Preservation Area.”


Our own water quality expert issued a study that refutes the USGS study that the rules were based because it used a shallow aquifer, not a deep aquifer, outside of the Forest Preservation Area and does not reflect the real conditions. Peter Demicco, PG stated that the USGS study DEP is using has data from the entire Highlands region, not undeveloped areas, including lake communities that have higher levels of nitrates and those that had a shallow aquifer. These rules violate the Highlands Act because these standards must be based on deep aquifer recharge and go against the non-degradation standard.


“These dirty water rules violate legislative intent. We believe they violate the Highlands Act because the law says that existing water quality in the Highlands must be maintained based on the day it was passed on August 10th 2004. That means any data used after that date cannot be used. Therefore, the whole USGS study that the rule was based on should be thrown out and these rules should be overturned,” said Jeff Tittel. “Again this Governor is proposing rules based on political science instead of real science. What this all shows is the DEP is not using the best science, not following the right procedure, and not following the law. That is why the legislature must step in to stop these dirty water rules.”


This change will allow at least 61 more units in Bethlehem and Byram Township, but it will actually double the requirement when you consider the COAH decision. If the town builds an additional 61 units, it will require at least 12 new affordable housing units. If towns don’t come in and comply, they can get sued with builder remedy lawsuits. These lawsuits would mean for every affordable unit of housing developers build they would get four market units bringing the total to 60, leading to an additional 121 units.


“Instead of using the peer reviewed information that was upheld by the courts, the new DEP rules changed the nitrate standard that has nothing to do with scientific standards or the law. Highlands water carries a non-degradation standard, which means no additional pollution can be added. However, this new rule is based on an average throughout the Highlands, while the law requires the most protective standard everywhere. This means in areas below .21 mg/l, you will see a 4 times increase in the amount of nitrate pollution, which clearly violates the ‘non-degradation clause,’ said Jeff Tittel. “These changes will also double the density of preserved farms and promote growth on environmentally sensitive Hamburg and Wawayanda Mountains. We will also see more pollution from septic systems that leach into our groundwater impacting human health.”


The Highlands Septic rules were put in place to protect our drinking water and public health, but this proposal is a dirty deal for dirty water. This is part of the Administration’s weakening of the Flood Hazard Rules, Water Quality Management Planning Rules as well as the failure to update the Water Supply Master Plan and preventing the Drinking Water Quality Institute from meeting.


“With this resolution, the Assembly has clearly stood up to the Governor to uphold Highlands protections. Now we need the Senate to do the same. The DEP putting out these rules is not a surprise since Governor Christie has said he wants to repeal the Highlands Act but the Legislature would never let him. Instead he’s trying to do it one roll back at a time like DEP’s Water Quality Management Planning rules, failing to update the Water Supply Master Plan, and stacking the Highlands Council. Now we need the Senate to follow the Assembly and take action to protect the clean drinking water for over 5.5 million people,” said Jeff Tittel, Director of the New Jersey Sierra Club. 


Contact: Jeff Tittel, NJ Sierra Club, 609-558-9100

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