DEP Highlands Septic Rule Blasted As Massive Unwinding of Highlands Water Quality Protections

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Environment New Jersey Research and Policy Center

Environment New Jersey Director Doug O’Malley delivered these comments during the June 1 New Jersey Department of Environmental Protection (DEP) public hearing on the proposed revisions to the rules governing septic density in the Highlands Act watershed lands in Chester, NJ.

“Gov. Christie has said he clearly wants to dismantle the Highlands Protection Act.  These rules are following through on the Governor’s explicit promise to weaken the Highlands Act. These proposed rules are a massive unwinding of the long fought protections for the water quality for more than half of New Jerseyans. If NJDEP wishes to rubberstamp more rollbacks for the drinking water for more than half the state, it is imperative that the Legislature stand up to the Christie’s Administration’s regulatory rollbacks.

This is part of an overall race to the exits by the Christie Administration to complete a two-term attempt to gut the structure of water quality protections set up more than a decade ago, from stream buffers to water quality management plans to now the septic density standards for the Highlands act.

This has been aided and abetted by the 10-year push-back against the Highlands Act from developer lobbyists and a legal challenge from the Farm Bureau. The builders failed to kill these strong standards in the courts, so now they’re trying to use a back-door entry to torpedo them.

These septic density standards have created 88 acre lot sizes in forested areas, which was the intent of the Highland Act — preserve critical watershed lands from overdevelopment that provide drinking water for more than half the state. The only thing unique about this attempt is that NJDEP outsourced its research to an independent body, USGS, to attempt to give the patina of independence. But clearly, the parameters of that study ensured that the results would be more favorable to DEP’s mission of undermining these rules.

The rules follow the mantra of the Governor’s first Executive Orders from 2010: “Draft all proposed rules so they impose the least burden and costs to business, including paperwork and other compliance costs, necessary to achieve the underlying regulatory objectives.

It follows a two-term effort to roll back environmental progress over the last decade plus: The Governor said that “the person who started the EPA’s overreach was Lisa Jackson, who came from New Jersey,…. and I have spent the last five years dismantling her overreach in the area of environmental protection.” March 2015

And the Governor’s strategy is clear from his own statement 4 years ago: “The Highlands bill, if it had actually been implemented the way it was supposed to be, may not have the worst idea in the world — close,” he said. But “the way it was implemented, it was clearly one of the worst ideas by Democratic legislators. I can’t change the law because the Legislature won’t change the law, so I’m trying to work through the executive branch…to loosen the rules a bit,” he said. West Milford, 2012

These rules are a culmination of the Christie Administration’s goals to rollback the legacy of environmental protections from the last decade plus. Unchecked development is still one of the greatest threats to our water quality. Make no mistake – this is a direct regulatory attack on the Highlands.

This rule is bad science.  NJDEP has inappropriately utilized data from populated areas of the Highlands to calculate acceptable septic waste loads for the undeveloped, forested areas, which were intended by the Highlands Act to retain their pristine condition, in order to protect their water quality and water supply protection capabilities.   

NJDEP should focus on redevelopment as opposed to new “greenfields” development in the Highlands.  Redevelopment has been a fundamental Highlands Act theme. Promoting new development in the core forests of the Highlands Preservation Area rather than focusing on development opportunities in existing developed areas is contrary to the central objectives and goals of the Highlands Act.

Even DEP admits there would be at least 1,140 new septic system based developments (and very likely considerably more because of the way DEP made that estimate, which was based on individual parcels).

The Highlands Act set forth a “comprehensive approach to the protection of the water and other natural resources of the New Jersey Highlands, that this comprehensive approach should consist of the identification of a preservation area of the New Jersey Highlands that would be subjected to stringent water and natural resource protection standards, policies, planning, and regulation” …  that this comprehensive approach should also include the adoption by the Department of Environmental Protection of stringent standards governing major development in the Highlands preservation area.

The current DEP septic density rules are a core feature of the DEP’s comprehensive regulatory scheme authorized by the Act that was designed to implement these findings. Instead, NJDEP is pulling the wool over our eyes because the Legislature authority for the rules clearly states BOTH that the septic density standard is “prevent the degradation of water quality” AND “ in consideration of deep aquifer recharge available for dilution.”

The current DEP standard was a good faith effort to implement this charge – this current rule proposal is a backdoor attempt to undue the Legislature’s intent. This is an environmental regulatory coup by the NJDEP that directly undermines Legislative intent because the current septic density standards were based on “pristine” groundwater quality, not comprised sources of groundwater. This sleight of hand is tantamount to a repeal of the Legislature’s intent — it’s the DEP’s stealth veto pen. (This argument is more persuasively conducted by Bill Wolfe, who helped craft the Highlands Act language during his NJDEP tenure, in his extensive comments, which these comments are indebted to.)

This is not an academic issue. This regulatory coup will have a real world impact – which is why the Farm Bureau sued in the first place. From the NJDEP’s rule proposal, the proposed amendments to the septic system density standards could result in up to 1,145 additional septic systems, or about 12 percent more individual septic systems than under the existing rule.

The change from the original DEP “nitrate target concentration” of 0.21 mg/L – and 0.76 mg/L based on pristine or natural background concentrations to the USGS median regional comprised values decreases lot sizes tremendously.

The current lot sizes under the current septic density standards are 88 acres in forested areas and 25 acres on farmlands. The proposed new lot sizes under the proposed new rule are 23 acres in forested areas and just 11 and 12 in farmlands.

This does not take a scientist to deduce that increasing septic density and allowing at least 1,145 additional septic systems that discharge to Highlands Preservation Area groundwater – a 12% increase – will cause a decrease in water quality WHICH is directly a violation of the Legislative intent. In short, this regulatory change should go through the legislative democratic process, not a backdoor rule change.

In addition to discharge of pollutants from septic systems to groundwater, the impending development that uses these new septic systems will convert open spaces to impervious surface, which decreases recharge and increase runoff and non-point source pollution, which degrades and impairs surface water quality.

Also, the DEP based the new septic density standards on a USGS study. The USGS study relied almost exclusively (96% of data) on data from the NJ Private Well Testing Act. According to USGS’ own study, the source of the PWTA data was shallow residential wells and the data did not include well depth or aquifer, which are essential data attributes required to determine if “deep aquifer recharge” is considered. This is a critical component of the rule change because these NJDEP rule changes are heavily based off the patina of purity of the USGS study.

But the USGS study was not looking at what should be the basis for any rule changes for septic density standards — deep aquifer recharge. Any other data comparison will inherently create a skewed result — which is exactly what we have now.

These regulations weaken the Highlands Act, will hurt our water quality and should be not adopted. If DEP is willing to weaken the Highland Act, it is imperative for the Legislature to stand up to Gov. Christie’s crusade to gut the Highlands Act through regulations through a regulatory veto override.”