NJ Legislature Considers Invalidating NJDEP Regulations

On June 1, 2015, after significant outreach to the relevant stakeholders, the New Jersey Department of Environmental Protection (NJDEP) released for public comment sweeping proposed changes to the rules governing Coastal Zone Management (CZM), N.J.A.C. 7:7E-1.1 et seq., Stormwater Management (SWM), N.J.A.C. 7:8-1.1 et seq., and the Flood Hazard Area Control Act (FHACA), N.J.A.C. 7:13-1.1 et seq. However, the New Jersey Legislature is poised to use its constitutional authority to find that the proposed regulations are inconsistent with the legislative intent of the enabling statutes.

Since 2011, the NJDEP has sought to amend the complex and occasionally conflicting FHACA, CZM, and SWM rules in order to create a uniform regulatory policy regarding development in flood hazard areas, and the preservation of vegetation within riparian zones. On June 1, 2015, the NJDEP released for public comment the proposed regulatory changes. 47 N.J.R. 1041. Generally focusing on six main areas addressed by the FHACA, CZM, and SWM, the proposed rule changes would:

1. Increase the amount of vegetation that may be disturbed within riparian zones and add additional methods of compensation for the disruption of vegetation, which reflects the NJDEP’s experience in permitting these activities;
2. Repeal the special water resource protection area rules within the SWM and replace those regulations with the protections that exist under the FHACA, in order to create a uniform regulatory scheme;
3. Give greater control within the FHACA and CZM rules to the local Soil Conservation Districts for mitigation of acid producing soil deposits in riparian zones;
4. Clarify the forty-seven existing permit-by-rule provisions within the FHACA and add nineteen new permit-by-rule activities;
5. Allow the NJDEP ninety calendar days to review general permit applications under the FHACA, and add nine new categories of general permits; and
6. Streamline the permit programs administered by the Division of Land Use Regulation by, in addition to the foregoing, aligning the rules in a standardized format.

In response, the State Senate introduced Senate Concurrent Resolution (SCR) 180 which declared that the NJDEP’s proposal violated the legislative intent of the enabling statutes, finding that the proposed rules lessen environmental protections and permit development in flood-prone areas. Although infrequently used, the New Jersey Constitution authorizes the Legislature to “review any rule or regulation adopted or proposed by an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature . . . .” N.J. CONST., art. V, § IV, 6.

The NJDEP testified before a Senate committee and disagreed with the Legislature’s assessment, noting that the changes would promote efficiency, while maintaining the strictest flood and water quality protections in the nation. Notwithstanding, the resolution was released from committee and the State Senate passed SCR180 on October 22, 2015.

The New Jersey General Assembly returned to session on November 9, 2015, and introduced Assembly Concurrent Resolution (ACR) 249, which is the Assembly version of SCR180. If the General Assembly passes ACR249, the NJDEP will have 30 days following transmittal of the resolution to amend or withdraw the proposed rules. N.J. CONST., art. V, § IV, 6. If the NJDEP does not act, the Legislature can pass another concurrent resolution to invalidate the rules and regulations in whole or in part.

This potential showdown between the legislative and executive branches should be watched closely, particularly by those in the regulated community. The disagreement over the scope of the regulatory changes may force NJDEP to adjust its rulemaking. However, both branches of government seem to agree that reforms to NJDEP’s permitting procedures are necessary.

We will continue to monitor the progress of the proposed rule changes and the Legislature’s response.