Opinion: DEP Water Quality Management Rules — An Opportunity, Not a Battle

Feb 10, 2012   //   by PlanSmart NJ   //   Opinion, Policy, Speaks Out Blog, Uncategorized, Water Quality Management Rules  //  Comments Off on Opinion: DEP Water Quality Management Rules — An Opportunity, Not a Battle

A broader planning framework recognizes that rules are about saying ‘yes,” as well as ‘no’ 

By Lucy Vandenberg, February 2, 2012 in Opinion, NJ Spotlight

Image Source: Becker's Environmental Law Update

Amid much controversy, Gov. Chris Christie earlier this month signed a law providing an extension to counties to submit updated water quality management plans. These plans are important because they delineate where sewers will be permitted and, consequently, play a large part in where, and at what density, New Jersey will grow into the future.

Under the new law, county extensions are automatically granted for six months, with up to two years leeway at the approval of the DEP commissioner. In the meantime, counties will continue to operate under outdated sewer service maps.

The environmental community strongly opposed the law, fearing that it will further degrade New Jersey’s water quality and permit development in environmentally sensitive areas. Conservationists contend that up to 300,000 acres of environmentally sensitive land would be removed from sewer service areas under the new mapping. The U.S. EPA similarly warned that the law could violate the Clean Water Act.

The New Jersey Builders Association, NAIOP, and the New Jersey Business & Industry Association supported the bill, calling for greater predictability to help foster economic growth and competitiveness while New Jersey climbs out of a recession.

While the “war” has been described as over, with the environmental community emerging as the losers and the business community as the winners, this was actually just an early skirmish, with the real war still ahead.

Actually, this analogy is wholly inadequate to describe the situation at hand. While there are always perceived winners and losers, in this case, New Jersey has an opportunity to take a fresh look, and better balance all planning interests.

It is useful to go back a bit in time to understand how we got here. DEP adopted the new Water Quality Management Rules in 2008. Counties were given a year to update their plans. While some forged ahead, others struggled with the new requirements and were slow to move forward. The negotiation process between DEP and the counties was laborious, with discussions taking place over microscopic issues such as whether individual lots should be in or out of sewer service areas.

While this undertaking was time intensive, expensive, and unnecessarily detailed, that in and of itself would not be sufficient reason to delay or, more drastically, jettison, the 2008 water quality management rules.

Rather, the crux of the problem has to do with a failure to balance multiple planning objectives.

The DEP, while scrutinizing all possible environmental constraints that might favor retraction from a sewer service area, never looked — or was directed to look — at the big picture. What big picture might they have looked to? The State Development and Redevelopment Plan. The State Plan, in addition to considering environmental protection, also identifies other priorities that New Jersey as a state should address — priorities such as economic development, center-based and transit-oriented development, and affordable housing provision. The State Plan exists to balance these interests and, ideally, strives to maximize outcomes in each area. It is not intended to pursue one of these objectives over others.

Rather than working within the framework of the State Plan, the DEP essentially sought to override the plan and subsume its objectives — and its map — underneath the proposed DEP mapping. Location of land within a center, near transit, or in a planned growth area was largely irrelevant. So were regional and local planning objectives.

Worse yet, the updating of the sewer service areas, while protecting some environmentally sensitive lands, also provided an opportunity at the local level to pull locations for planned growth out of sewer service areas — including proposed centers, suburban development opportunities near transit, affordable housing sites or redevelopment of obsolete office buildings, to name a few examples.

Do these flaws mean that New Jersey should operate indefinitely under old sewer service maps or that the state should allow development to run rampant in places that our citizens want to protect for future generations or that are vital for our water quality? Absolutely not. But neither should the Water Quality Management Rules remain as they are. The state has a unique opportunity to fix what went wrong with the Water Quality Management planning process, and, most importantly, to make decisions within a broader, more balanced planning framework.

What is that framework? The newly released State Strategic Plan. Last fall, Gov. Christie unveiled a new State Strategic Plan, which provides a policy context in which to reevaluate the DEP regulations. The new plan sets forth four goals: targeted economic growth, effective planning for vibrant regions, preservation and enhancement of critical state resources, and tactical alignment of government.

At the same time the governor released the new strategic plan, he signed an executive order creating a new State Strategic Plan Steering Committee consisting of state agency heads who were tasked with ensuring alignment of state agency goals under the plan. This body would be an appropriate one to take a fresh look at the DEP water quality management rules through the lens ofall relevant planning objectives. DEP should not be the only agency involved in drafting, or implementing, the Water Quality Management Rules.

This proposed approach does not mean rolling back our environmental protections. In fact, if done properly, it should do the opposite. The new rules could encourage compact development of centers, transit-oriented development, multifamily housing development near downtowns, and the identification and protection of priority wildlife and open space corridors and strategies for protecting ground and surface water quality. The rules could actually encourage development in urban and suburban centers — and create incentives for development that makes efficient use of our existing and planned infrastructure. The rules should not just be about saying “no,” but also about saying “yes.”

So, the post-mortem on the water quality management extension law is not really a post-mortem at all. It is the beginning of a much more important — and urgent — task of reworking the 2008 rules to determine where sewer service areas should be located and where they should not. This must take place within the framework of a broad set of planning goals — goals that balance the environmental protection, economic development, housing, and transportation needs of our state. Instead of winners and losers, the result will be better outcomes for everyone.

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