Archive for the ‘Highlands’ Category

More promises on NJ's open space

Written by Mike Pisauro on January 18th, 2009 in Clean Air, Clean Water, Global Warming, Highlands, legislation, Politics, Sustainability | 1 Comment »

During this year’s State of the State speech, Governor Corzine stood before both houses of the legislature and spoke about the State’s commitment to open space. He said:

A second topic of vital concern is “open space,” and it’s a tough one. Not because we don’t want it, but because it’s a tough financing issue. Open space preservation has always been one of New Jersey’s priorities and which should be today, and it must be addressed before June 30th. It is my preferred approach that we put in place a long-term funding solution.

That said we need, at a minimum, an interim-bonding question for November’s ballot to extend the financing the voters approved in 2007.

On the face of it this is good news for the State’s open space program as that program is out of money. Unfortunately, this is not the first time that the Governor committed himself to open space preservation. He has on multiple occasions spoke on his and the State’s commitment to preserving open space. He has not followed through with his commitment. In fact he has on occasion worked against open space funding. In 2007 the legislature was moving strongly on passing legislation that would have created, with voter approval, a long term funding solution for open space. The Governor’s office stopped it and gave us a temporary solution instead, P.L. 2007 Ch. 119. When he signed P.L. 2007 Ch. 119, he promised that he would work with the legislature, during the lame duck session, to put in place a permanent solution. There was no leadership from the Governor’s office and his promise that during Nov and December 2007 a solution would be worked out did not occur.

Then on Sept. 5, 2008, Gov. Corzine issued Executive Order 114 regarding the Highlands. That E.O. provides that:

WHEREAS, in enacting the Highlands Act, the Legislature found and declared that, as a matter of wise public policy and fairness to property owners, a strong and significant commitment by the State is necessary to fund the acquisition of exceptional natural resource value lands; and

WHEREAS, it is vital that the Garden State Preservation Trust be reauthorized and that a statewide transfer of development rights program be considered to meet the open space and agricultural preservation needs of the Highlands Region and the State, and, in part, to address landowner equity issues in the Highlands Region.

Since September there has not been any direction from the Governor’s office on open space funding.

At the beginning of December, the Department of Environmental Protection released its draft Global Warming Response Act Recommendation. The Plan calls for funding of GSPT and calls for the legislature to

Reauthorize the Garden State Preservation Trust, and provide for incentives, technical assistance, and project facilitation, to continue and enhance conservation of the State’s natural assets.

I hope that the cumulative weight of all these promises forces the Governor and the Legislature to act and put in place a permanent solution for open space funding. New Jersey needs to actively preserve open space. Preserving open space is vital to the State of New Jersey for multiple reasons.

Over the last several years, NJ has been loosing open space at a rate of 16,600 acres per year. As we continue to lose space we increase sprawl, increase the time it takes for people to travel from home to work and back again. This increases everyone’s commuter costs and increases the amount of air pollution, including greenhouse gases, we emmitt.

As we continue to develop and put impervious cover over our lands, we diminish our ability to recharge our aquifers. New Jersey relies heavily on aquifers for its drinking water, especially in South Jersey. It is also one of the most important tools for preserving the drinking water from the Highlands, which supplies water to over half of new jerseyans.

As we loose more and more open space, one of our tools to address global warming is lost. From a global warming perspective the “estimated 1.5 million acres –one third of New Jersey’s dry land mass” which has been preserved provides for “substantial amount of carbon storage.” Open space, especially forest, act as a carbon sink.

Open space preservation is also important from an economic perspective. The eco-tourism industry in New Jersey provides close to $3.9 billion in economic benefits. Our natural resources also provide about $19 billion in economic benefits. In a time when property values are decreasing, it has been found that properties in close proximately to open space have a higher value than properties further away. Our open space funds also go to preserving farmland. Open space funds can be used to get people out of the flood plains so that we do not have to rebuild homes that have been destroyed by floods on multiple occasions. Open space is a multifunction tool in our economic engine.

In short, the Governor and the Legislature must keep their promises to putting in place a permanent funding solution for open space. It is too important economically and environmentally for us to allow this promise to be broken again. For more information on the campaign for open space, you can visit the Keep It Green Campaign’s website.

Appellate Division examines Highlands regulations

Written by Mike Pisauro on July 23rd, 2008 in Clean Water, Highlands | 1 Comment »

The Appellate Division recently issued an opinion upholding part of DEP’s Highlands Act rules while sending a part of it to the Office of Administrative Law for a hearing. The Court’s opinion can be found here. In May 2005, DEP adopted interm rules implementing the Highlands Act. Final rules were adopted by DEP in December 2006. The New Jersey Farm Bureau filled an appeal of these rules challenging the sections dealing with water allocation and the septic density.

Essentially the Farm Bureau alleged that the water allocation rules, as proposed by DEP, were not authorized by the statute. DEP’s rules provided that DEP may modify an existing water allocation permit if the permittee had been using less than 80% of the allocation over the five years or if “all practical water conservation measures are not undertaken.” NJAC 7:38-3.2. Before DEP may reduce an allocation DEP must provide a permittee with a public hearing on the reduction prior to the modification of the permit. The Farm Bureau argued that the authorizing statute, NJSA 13;20-32(d) provide DEP the authority to reduce an allocation only when, “measures to the maximum extent practicable are not implemented to reduce demand.”

First the Court noted that DEP could not modify an allocation solely because the permittee was using less than 80% of the allocation. The Court then went on to uphold the DEP’s regulations because the regulations were permissive not mandatory. It noted that “DEP ‘may’ reduce an approved water allocation if the actual usage has been less than 80% of the allocation for the previous five years.” And that before tDEP could modify the permit, the permittee has to be afforded a hearing on the modification. If a permittee could show that it has reduced demand “to the maximum extent practicable” then DEP could not reduce the permittee’s allocation. Therefore, the Court reasoned there was no conflict between the authorizing statute and the implementing rule.

The Court also made short work of the Farm Bureau’s other argument that the rules conflicted with the Water Supply Management Act by noting that the Highlands act specifically permitted the regulations to conflict with the Water Supply Management Act. NJSA 13:20-32(d).

Where the Farm Bureau did score somewhat of victory was its challenge to the septic density standard. The Highlands Act directs DEP to adopt a septic system density standard, in the preservation area, that will prevent the degradation of water quality or that is necessary to restore the water quality and that is protective of ecological uses. NJSA 13:20-32(e). The DEP regulations provided that on lots containing all forests a septic system would require 88 acre lots. On non-forested lots a septic system would require 25 acre lots. N.J.A.C. 7:38-3.4(b)(1) & (2). The Farm Bureau alleged that DEP should have used average recharge rates instead of recharge rates based upon a drought. They also argued that DEP’s assumption of the number of people per household was too high and DEP’s selection of ambient nitrate levels were too low. Therefore, the Farm Bureau argued that if DEP used better numbers in their calculations that the density requirements would be much lower.

The Court found that the Farm Bureau had raised sufficient questions as to the methodology used by DEP to arrive at the standards that a hearing before the office of administrative law should be held to create a sufficient record to determine whether DEP’s methodology could be found not to be arbitrary and capricious. In essence the Court found that DEP did not create a sufficient record in its rulemaking to allow the Court to defer to the agency’s expertise. In its opinion the Court directed DEP in the OAL hearing, “that this methodology has been used by any other agency with comparable regulatory authority.”

The remand by the Court is either an opportunity for DEP to back up its methodology with facts or an opportunity for the Farm Bureau to show that DEP’s methodology and resulting rule is not based upon science and the facts; therefore it is arbitrary and capricious.