November 26, 2002
Hon. Bradley Campbell
NJ Department of Environmental Protection
P.O. Box 402
Trenton, New Jersey 08625-0402
RE: New Watershed Rules
Dear Commissioner Campbell:
On behalf of the Regional Planning Partnership, an organization which shares
your Smart Growth goals, I am writing with some recommendations that we
think will be helpful in making sure any new rules pertaining to protecting
water resources will achieve Smart Growth outcomes.
Overall Goals of the Rule: First, we feel that any new proposal should be based on the following principles:
1) Integrate DEP Programs into a Watershed Approach to water resources:
- Watershed Management Area Planning Projects: Having been involved as
the contract entity overseeing the project in Central Delaware Tributaries
Watershed Management Area (WMA) 11 and as a subcontractor for DVRPC in
Crosswicks and Doctors Creek WMA 20, we know the shortcomings of the
previous administration's approach to the process. We would welcome an
opportunity to be candid with the Department about what we feel have
been the programs strengths and weaknesses.
We continue to hold out hope, however, that your administration will redirect, not end, watershed management planning projects. These projects still hold the potential for constructing a truly integrated water resource protection system, bringing together not only all of NJDEP's disparate regulatory programs, but also the power that local government and the private sector hold to affect the quality and supply of our water.
There has been quality work accomplished in various WMA projects. We like to think that RPP's use of our zoning build-out model, GOZ®, and our completion of a comprehensive Draft Action Plan are models that would be of value in other parts of the state. If the project is ended now, before we have had a chance to work with the stakeholders to implement the recommendations, the investment that all these participants have made will have been wasted, and it will be all the more difficult to get agreements among the many parties that will be ultimately responsible for
2) continue to hold out hope that the Department will build on these projects and move to integrate water supply and quality programs into a watershed approach to water resource issues.
3) The rule adds important new restrictions on construction outside of existing sewer service areas, particularly in rural and environmentally sensitive lands. This is necessary in the effort to stop sprawl.
4) The completely new permitting requirements for septic systems for six or more housing units or more than 2000 gallons per day is a significant breakthrough. This closes an enormous loophole in the current system, although we hope it will not cause a CAFRA-like loophole of its own, allowing five "start-up mansions" at a time in rural areas.
5) And, most importantly from my perspective as a member of the State Planning Commission, the rule requires an assessment of the "coordination and integration" of new plans or amendments with the State Plan.
Although the linkage between the Plan and the rule remains controversial, I urge you to resist any request to remove it. It is clear that the Legislature expected State agencies to use the Plan as a guide for functional plans, such as those regulated under this rule. Not only is the language "coordination and integration" important legally, since it has been taken from the federal and State water quality statutes, it is an excellent means for achieving the legislative intentions of the State Planning Act.
The Rule's Purpose: It is my understanding that the rule was written to solve some major problems with the existing system:
- First and foremost, the current system has not improved New Jersey's water quality fast enough or well enough, and the new rule is intended to provide a better approach and better tools.
- Second, the existing 208 plans are old, and have been amended so many times as to no longer reflect an effective planning process.
- Third, a more effective and comprehensive watershed approach to water supply and water quality protection is the preferred process for developing new plans to replace the old 208 plans.
- Fourth, the new watershed-based plans are expected to deliver the multiple benefits of Smart Growth by being "integrated and coordinated" with the State Plan.
Our Concerns in General: It is our judgment that in spite of its improvements over the old rule, the new one will not meet these four challenges. Overall, there is too much Departmental discretion and lack of standards in the rule to deliver water quality. The rule still seems to focus on amending the old 208 plans rather than creating a system that redirects focus to the watershed plans. And, although we recognize and support the breakthrough inclusion of watershed planning and certain parts of the State Plan, the provisions in the rule are not strong enough to deliver on Smart Growth expectations.
Improving the rule to meet the challenges identified above would mean fully integrating the goals and policies of the State Plan as a guide to the watershed plans. After all, the watershed plans are expected to do the heavy lifting for Smart Growth and improving water quality and supply protection. In fact, it is this expectation that is supposed to motivate us to wait for them, while existing plans remain in place. But the rule does not, yet, make these plans worth waiting for.
Our Concerns in Detail: I have outlined our concerns as follows:
1) Goal Oriented Regulations: The rule links only certain water quality and water-related policies in the Plan to a substantive amendment to a Water Quality Management Plan. Such a limitation is not required legally, since the phrase "coordination and integration" taken from the statutes refers to whole plans, not just the parts related to water. In addition, linking only a portion of the plan to a portion of the rule is far too limited to achieve the multiple benefits expected from Smart Growth.
To be "smart", the flow of any regulation should clearly demonstrate that: goals shape plans, plans shape regulations, regulations shape investments and permits, and investments and permits shape outcomes on the ground. The Regional Planning Partnership has coined the phrase Goal Oriented Regulation for this standard. It means that "coordination and integration" should clarify the flow from goals (State Plan and water supply/quality protection) to outcomes.
Following this premise, the rule proposal should have clearly articulated goals and targets, or standards, which shape the watershed plans, which then shape wastewater plans, which then shape DEP's permits and public and private investments, which then shape how well we protect and improve water quality in this State.
"Coordination and integration" demands that the rule's goals and all the State Plan's goals should be mutually supportive - including urban revitalization, affordable housing, efficient infrastructure and the protection of our resources. In order to achieve this, the rule must include, at least by reference, the Plan's two most important strategies - its center-based land use strategy, based on Planning Area policy objectives, and the Plan's investment priority system.
These strategies are relevant to the rule because of the comprehensive
nature of watershed planning and the broad discretion given in the watershed
planning process over strategies that will be adopted to achieve watershed
goals. Watershed plans are expected to achieve water quality and supply
standards and address multiple social, economic, and other environmental
goals. That is what makes the approach new and comprehensive.
These strategies are also important to the rule because of its new focus
on controlling non-point source pollution. The amount and layout of impervious
surface is directly related to such pollution, and of course is controlled
by land use patterns. Reducing the growth in impervious surfaces on open
land requires facilitating redevelopment and development in urban and suburban
areas at the same time as improving the water quality in these growth areas.
That is what watershed planning should be about and the rule should make
it clear how it will be accomplished.
2) Fix It First: The State Plan's investment priority system is important to this rule because, although it does not directly govern investment, if it is a "smart", goal-oriented rule, it will influence investment through permits which are consistent with the plans. This State Plan's system gives first priority to health and safety - a natural component of water quality protection. The next priority is for maintenance in urban areas and downtowns - also a natural, since most of our historic cities and towns are located on impaired rivers and lakes. Implied in the system is also a "fix it first" priority, a concept already embraced by the Legislature in the newly adopted Transportation Trust Fund.
Following a "fix it first" tenet will encourage watershed plans to favor strategies which improve our cities' and towns' outdated or crumbling sewer treatment facilities and use existing (built) capacity first. This will have multiple benefits - including improving water quality throughout the State. But this will not happen without the State Plan's goals and policies - all of them - being referenced in the section on watershed plans.
3) Performance-Based Regulations: There is far too much discretion given to the Department throughout the rule. Although I applaud moving away from "command and control", the direction should be toward a more "performance-based" approach. This cannot be achieved without clearer standards on the expected performance which are now missing from the rule.
Discretion is so broad in this rule that the Department could block development where it is appropriate or allow it where it is not. In a meeting I attended to discuss this rule, the affordable housing advocates in the room felt that the Department was likely to do the former, and the environmentalists felt they were likely to do the latter. Reducing the amount of discretion by clarifying the standards will provide the predictability that developers want and the protections that environmentalists want.
Discretion, even though it has a real place in regulations, should only be applied in situations in which there are clear guidelines about what is expected to be achieved - through goals, targets, performance measures, or standards - and in which there is good information on which to make a judgment call.
4) Facts Before Choices: The "smart" part of Smart Growth is having more facts before making decisions. Although there is a laudable list of assessments and analyses listed as "required" in Subchapter 8, there are too many circumstances in which the Department can exercise discretion over whether or not they will be waived. One of these is during the "pre-planning conference" where the public has been banned, in which the Department is able to exercise discretion over which assessments should be done. This is clearly inappropriate.
In addition, this section of the rule specifically exempts TMDLs, regional stormwater plans, and watershed area management plans from carrying out these assessments. It is not clear why there would be such exemptions in these areas, where assessing the state of existing and planned conditions is crucial. We need more and better information about the relationship between development and water quality. The rule should do the job of getting it.
Furthermore, even when the assessments are required, we at The Regional
Planning Partnership know enough about doing them to recognize that the
rule does not specify clearly enough how they should be conducted. The
build-out analysis requirement is a case in point. The methodology for
establishing developable land on which a build-out analysis is based was
done differently by DEP in 1996 than it was in 1986. What methodology will
private applicants use? Without further specifications in the rule, the
data will not be collected consistently across the State, and therefore
will not provide an improving body of information about existing or expected
conditions. Again, we need this information to make better decisions to
get "smart" outcomes, and the rule should ensure we get what
we need.
5) Monitoring/Enforcement/Sunsetting: If the "smart" part
of Smart Growth is having more facts before making decisions, it also implies
being "smart" about follow up. The rule should spell
out how the approved plans will be monitored and enforced. This
is especially important in moving away from "command and control" and
toward performance-based regulations. This must cover all plans (watershed
as well as water quality and wastewater plans), and must cover whether
or not the approved plans have been implemented, as well as whether or
not the outcomes resulting from plan implementation are as expected.
Besides implementation and outcomes, monitoring also requires periodic
review of the all approved plans and permits. Sunsetting, such as the 6-year
review of municipal master plans, should be written into the rule to trigger
an effective review.
NOTE: The budget in DEP has been reduced so much over recent years, that there is not the manpower to do these important jobs. Besides inserting language in the rule to have effective monitoring, I have also asked the Governor and Commissioner Shin to include in enough resources for DEP in its budget to do the job.
6) Public Involvement: The Department should be praised for their clearly evident intentions to provide an effective role for the public in the development of the watershed management area plans. This is totally appropriate, since the goal-setting and plan development phases of the process, are where the public's vision for their region should be incorporated.
In its goal statement (7:15-1.5), the rule lays out its intentions to have an effective public involvement process within all provisions of the rule. Because of the concern about the pre-planning conference, the credibility of this intent should be bolstered by a flow chart of the rules' provisions for public involvement, demonstrating the points at which the public will have access to influence the process as well as the ultimate decision.
7) Plan Coordination and Integration: Since the promise of Smart Growth is expected to be achieved through the new, comprehensive approach of watershed-based planning - a process intended to replace the old way of continually amending 208 plans without any real planning - then the rule must demonstrate the primary role of the watershed plan in relation to all other relevant plans. A flow chart would aid in this process.
The flow chart should also specify where, when and how the influence of one plan will be "coordinated and integrated" with the others. In which direction will the influence flow - from the State Plan through the watershed management area plans to local plans? Or the other way? Will there be a "cross acceptance" process to accomplish the integration? The rule is unclear and the results of these three scenarios would be very different. Without a flow chart, the public - and most professionals - cannot read this rule and see how the planning process will work.
8) "Grandfathering": One of the most controversial aspects of the rule is the proposed "grandfathering" of existing permits and plans until the watershed plans are in place. The term "grandfathering" is not strictly accurate in this case, since the new rule allows changes to these plans and even makes provisions for improving the amendment process over the existing system.
Leaving the existing plans in place, however, continues the current focus on filling in the undeveloped areas within sewer service boundaries and does nothing to refocus attention on the many places we wish to revitalize - historic towns and cities which are located on impaired rivers and lakes. These places often have systems that pollute and need improvements now. The rule does not address this enormous problem.
A DEP representative has said at a public meeting that although this rule raises the bar for restricting development outside of sewer service areas, it does nothing to facilitate development inside them. This is a serious concern of ours, which I know to be shared by the New Jersey Home Builders Association as well as city and affordable housing advocates.
Another problem with most of the existing plans is that they are so old and overly amended, that they often have inappropriate service boundaries and may have permits for inappropriate amounts of discharge. At the earliest, watershed management area plans will not be in place until 2004, which is far too long to wait for change. Although I understand that leaving the existing plans in place is necessary to provide some continuity to the process, conditions for bringing in existing plans for revision even before the watershed plans are in place must be added to the rule.
As a member of the State Planning Commission, I know that we have harbored concerns about the existing 208 plans for some time. The Commissioners considered reviewing Planning Area 2 boundaries, which were originally based on 208 maps, to get better information on the accuracy of the maps, the amount of vacant unsewered land within the boundaries, and the environmental constraints which may make the land inappropriate for sewering in the future. Because of the pressures of the Cross-acceptance process, however, we have never done this review. It should be done, and I hope that the Governor and the Legislature will be able to provide the Office and DEP with the resources with which to do it.
Leaving the existing plans unchanged has angered some people because of
their cynicism that even when watershed plans are in place, they will not
achieve the expected outcomes. This cynicism is fueled by the weaknesses
in the rule I have outlined above, as well as by the "soft" approach
to the development of the plans taken by DEP so far, emphasizing public
education and "partnerships", rather than standards and outcomes.
We do not share this cynicism about watershed plans. The approach to watershed
management must be inclusive and comprehensive. But we do agree that DEP
staff has not made clear the expected provisions of the plans. The rule,
and its acceptability, would be improved by more clarity about the goals,
process, and outcomes intended to be achieved.
9) State Plan Endorsement: One final concern, which arises from my role as Chair of the Plan Implementation Committee of the State Planning Commission: I hope that there will be staff assigned, both from DEP and the Office of State Planning, to work on how the soon-to-be-approved endorsement process will work to achieve the expectations written into the rule. It is my hope that the process will provide permit streamlining and incentives to develop in locations where we have all agreed there should be growth, at the same time as protecting our water quality and supply. Since this has not yet been accomplished, I am concerned that the balance between protecting water quality and providing incentives to develop in the right locations - such as the sector permit in Long Branch - has not been fully developed in this rule.
Thank you for the opportunity to comment on this rule. If you have any questions regarding these comments and recommendations, please do not hesitate to contact me.
Yours sincerely,
Dianne R. Brake
President
Copy: Hon. Christine Todd Whitman, Governor, State of New Jersey
Hon. Robert Shinn, Commissioner, Dept. of Environmental Protection
Hon. Eileen McGuiness, Director, Office of Policy and Planning
Hon. Jane Kenny, Commissioner, Dept. of Community Affairs
Joseph Maraziti, Esq., Chairman, State Planning Commission
Board of Directors, The Regional Planning Partnership