Trenton — Even as it formally unveils its controversial “Category One” waters initiative, the New Jersey Department of Environmental Protection has created a major grandfathering loophole, allowing many major development projects to circumvent the new protections, according to an analysis by Public Employees for Environmental Responsibility (PEER). As a result, construction will be allowed to pierce protective buffers around the state’s most ecological valuable rivers, lakes and streams.
“Buried in these rules are enough special interest gifts to keep the spirit of Christmas alive in Trenton for many years to come,” stated New Jersey PEER Director Bill Wolfe, a former DEP official who once headed the Category One (C1) program designed to shield water-bodies that either support critical wildlife or feed into a major drinking-water source from development-induced pollution. “Favors for developers with politically connected projects can only be found by playing hide-and-go-seek through 300 pages of regulatory underbrush.”
Although hailed by DEP as “unprecedented” protections when proposed on Earth Day 2007, the final rules are far more modest, omitting hundreds of miles of waterways vital to wildlife and drinking water. In addition, the new rules contain a raft of convoluted exceptions and set aside science-based criteria for new legally untested methods that may be a poison pill, causing the entire rule to be invalidated.
One gaping loophole buried in the C1 adoption document would grandfather hundreds of projects that had previously obtained DEP permits or local land use approvals. As a result, thousands of acres of environmentally sensitive streams and buffers would be destroyed by projects with old permits that now trump the new C1 stream protections.
Another key issue is exemptions for pending projects. Even though DEP Commissioner Lisa Jackson signed the C1 adoption document on May 20, 2008, she delayed the effective date until it is formally published in the New Jersey Register, which will be June 16th at the earliest.
This grandfather loophole has already exempted one big project, an 800,000 square-foot corporate office park expansion known as Berwind, located on Carter Road in Hopewell (previously known as Lucent Technologies). According to August 20, 2007 comments submitted by a lawyer on behalf of Berwind Property Group (BPG) in Hopewell campus, the project would be precluded by a C1 designation: “If adopted, the [C1] rule would have a devastating affect on BPG’s ability to redevelop its property…”
On May 29, 2008, the Hopewell Township Planning Board approved the project while refusing to acknowledge that the new C1 rules, adopted just days earlier, would preclude the project.
“By delaying the effective date, DEP has set off a land rush by developers to exempt themselves from the new rules,” Wolfe added, noting that the Hopewell Township Planning Board blocked his submission of testimony last week so that the impending CI rules would not be part of the hearing record. “Whether by design or oversight, DEP has crafted this so that the exceptions swallow the rule.”
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See the final C1 rules (grandfather language starts on page 105)
Read the PEER testimony on Berwind which could not be delivered
View the C1 comments from BPG lawyer
Look at the major flaws in the new C1 rules
New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability