DEP Adopts New Waiver Rule That Critics Claim Is A Giveaway To Developers

TRENTON – The state Department of Environmental Protection has adopted a new rule that gives it flexibility to modify compliance with rules in certain limited circumstances.

Waivers will only be issued in situations that do not compromise protections for the environment or public health, according to the agency, and all waiver applications and actions will be posted prominently on the DEP’s website. Requests for waivers will be accepted beginning Aug. 1.

“A lack of flexibility can sometimes produce unreasonable, unfair or unintended results that actually undermine the goal the rule or requirement was intended to attain,” said DEP Commissioner Bob Martin. “This rule provides us with a modest measure of flexibility to manage special circumstances but through a process that will be used under limited circumstances and with total transparency.”

Critics contend that the new waiver rule will open too many loopholes for developers to bypass regulations that protect the environment.

“This rule is an attack on environmental protections and will open up New Jersey’s regulatory system to pay-to-play,” said Jeff Tittel, the director of the NJ Sierra Club. “This is one of the worst rules ever adopted in the state. This rule will not only undo 30 years of environmental protections but will create more pollution, traffic and flooding and threaten public health and safety,”

Tittel continued, “This rule is so bad we will challenge it through every means possible: the Legislature, politically and in the courts. This rule attacks citizens’ right to have input in governmental decisions and is subject to abuse. This is one of the worst giveaways ever to polluters and developers.”

“The environment is not something that should be horsetraded by bureaucrats,” said state Sen. Barbara Buono (D-Middlesex.) “Environmental protections that took decades and multilateral cooperation to put in place are now going to be bypassed based on unilateral decisions of the Christie administration.

Buono is sponsoring a resolution to declare the waiver rule to be inconsitent with legislative intent. “We are fighting this rule in Trenton, but it never should have been put in place to begin with,” she said.

“Environmental advocates predict increased pollution, flooding, and sprawl as a result,” the senator said.  “There could also be unintended consequences; for instance, the perception that politically-connected entities are being given waivers by the Christie administration.”

To apply for a waiver from the DEP, a requester must demonstrate that at least one of four criteria is met:

1. Public Emergency — There is a public emergency that has been formally declared.

2. Conflicting Rules — Conflicting rules (between federal and state agencies, or between state agencies) are adversely impacting a project or activity from proceeding.

3. Net Environmental Benefit — A net environmental benefit would be achieved.

4. Undue Hardship — Undue hardship is being imposed by the rule requirement(s).

DEP officials compare the waiver rule with the municipal zoning variance process, allowing some leeway to existing rules in certain, limited circumstances.

Waivers will be granted only on a case-by-case basis after careful review by technical staff and approval of the commissioner, officials said. A waiver cannot violate state or federal statute or federal regulation.

“This allows us to change how government operates in a positive way. We can cut through the maze of red tape and regulations to provide real solutions to real-world problems, while maintaining our core priority mission of protecting the air, water, land and natural resources of New Jersey,” Martin said.

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