“Common Sense” Waivers Nonsensical

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by Michele S. Byers, Executive Director, New Jersey Conservation Foundation

Most New Jerseyans in this state we’re in probably think that the New Jersey Department of Environmental Protection (DEP) protects the public’s health and safety and the environment. And in many ways it does! But a proposed rule, under the guise of streamlining, would allow the agency to ignore its other rules! Yes, that is as crazy as it sounds.

The proposed new “waiver rule” would provide blanket approval to waive nearly 100 existing environmental programs and rules. It would essentially grant the Department of Environmental Protection the power to void state environmental rules on a case-by-case basis. It would replace “rule of law” with “rule by decree.”


The proposal is billed as a “common sense” approach to dealing with regulatory logjams and to making New Jersey more business-friendly.

But the DEP already has waiver provisions that provide flexibility in certain instances, including hardship cases for applicants. And, unlike the proposed waiver, the current waiver provisions have real safeguards to protect both the environment and the public interest.

The DEP says the proposed rule would “enable it to remove unreasonable impediments to economic growth while ensuring net environmental benefits for the state.” Below are the waiver criteria:

Conflicting rules – Rules that conflict with other DEP, other state or federal agency rules.

”Unduly burdensome” – If the strict application of a rule would result in either an “actual, exceptional hardship for a particular project or property” or “excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits”, the rule can be waived.

Net environmental benefit –The granting of a waiver could be justified if the environment would be enhanced by a project enabled by a waiver or if the project includes an environmental offset that the DEP determines will compensate for the environmental damage.

Public emergency – When a Federal or State official with the authority to do so, declares a public emergency, rules may be waived.

This may not appear so bad, but a closer look reveals that this proposal is so broadly written that it could allow fundamental environmental protections to be waived.

Generally, environmental rules are already waived in declared public emergencies. However, most would agree that the best long-term decisions are rarely made in the heat of the moment. Protective rules – and not just environmental ones – guard against spur-of-the-moment decisions that can have far-reaching long-term implications.

Although many would agree that most public permitting programs need streamlining, those with common sense can see that cutting red tape shouldn’t open the door to gutting important rules that protect the public and the environment.

The DEP needs to hear what you think of this proposal!

For a copy of the rule http://www.nj.gov/rules/proposals/030711b.pdf
Submit written comments by May 6, 2011 to Gary J. Brower, Esq., Office of Legal Affairs, Attn: DEP Docket Number: 03-11-02, NJ Department of Environmental Protection, 401 East State St., Floor 4, PO. Box 402, Trenton, NJ 08625-0402.

If you’d like more information about conserving New Jersey’s precious land and natural resources, please visit the New Jersey Conservation Foundation’s (NJCF) website at www.njconservation.org or contact me at info@njconservation.org.

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