September 26, 2000
The Hon. Christine Todd Whitman
Governor of New Jersey
The State House
Trenton, New Jersey 08626
RE: Water Quality and Watershed Management Rules (NJAC 7:15)
Dear Governor Whitman:
When I wrote to you in May congratulating you on your national Smart Growth award, I mentioned how eager we were to see the new wastewater rule proposal. The Regional Planning Partnership agrees with you that the location and capacity of sewers has an enormous influence on where development goes. Now that I have seen the rule proposal, I want to congratulate you, Commissioner Shinn and your staffs for the innovations in it.
As a participant in the lengthy advisory process associated with this rule - a contentious process from start to finish - I know how controversial these innovations are. You and the Commissioner did the right thing speaking up early and strongly in support of the rule, as you both did recently in the press.
You made clear then, as you have on many previous occasions, that you
want your legacy as Governor to be Smart Growth. You want to lay down the
framework through which the promise of the State Development and Redevelopment
Plan will be realized. Your Open Space Initiative is an excellent first
step, and you have made clear that this rule is intended to be the next.
After carefully examining the rule proposal, however, I believe that if
you do not strengthen it in specific areas, you will find that it will
not deliver the means to achieve your goals.
On behalf of the Regional Planning Partnership, an organization which shares
your Smart Growth intentions, I am writing with some recommendations that
we think will be helpful in making sure this rule will achieve Smart Growth
outcomes.
The Rule's Strengths: First, I want to emphasize the four significant improvements over the current system that the July proposal introduces:
1) We are excited about the advancement of watershed management planning as the best means for addressing all water issues. Congratulations for setting a deadline of September to have all 20 of the watershed management areas' planning processes up and running. The Regional Planning Partnership is proud to be working with DEP on a proposal to oversee the development of the plan for Watershed Management Area #11, the Central Delaware Tributaries.
2) 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.
3) 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. Your leadership is clearly evident here. 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.
4) 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. As above, I can attest to the significance of this breakthrough and see your stamp on it.
To back up this State Plan linkage, I call your attention to a quote from the current plan (p.128-129), which compares New Jersey's State Planning Act to other state statutes around the country:
". . . the State Development and Redevelopment Plan is a set of recommendations to the people of New Jersey and their elected representatives. The State Plan creates a vision or design for the future that is based on the mandates of the State Planning Act. The Goals, Strategies, and Policies of the Plan and its supporting documentation constitute an agenda and guide for the State to make the vision or design become a reality.
. . . The SDRP is not a substitute for functional State agency plans or
local master plans. The Plan in fact would have little meaning or effect
without such plans. The State Plan provides a context, a vision and process
within which these more specific plans can be developed and implemented
to achieve commonly derived goals."
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, the preferred process for developing new plans to replace the
old 208 plans is a more effective and comprehensive watershed approach to water
supply and water quality protection.
· 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 Sum: It is my 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 assure the community that water quality will be delivered. 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.
Overcoming the rule's weaknesses is necessary to deliver your legacy of Smart Growth. Improving the rule to solve the problems 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.
NOTE: Separate from these concerns over the rule, we are also worried about the resources of both the Department of Environmental Protection and the Office of State Planning to follow through on the work that would be generated by the rule. Please be sure that your budget provides the necessary increases to these agencies.
I have written more detailed comments to the Public Hearing Officer, Gary Brower, which are enclosed for your information. Again, I congratulate you on your endeavors to make your legacy as Governor one of the most important in recent times. The Regional Planning Partnership stands ready to help you ensure that you are able to accomplish your goals. If there is anything we can do to aid you in the important task of making this rule proposal achieve Smart Growth, please do not hesitate to contact me.
With very best wishes,
Dianne R. Brake
President
Copy: 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