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Legislature makes history, invoking Constitution to reverse Christie's weakening of Highlands development limits


TRENTON - The New Jersey Legislature today invalidated the New Jersey Department of Environmental Protection's recently adopted Highlands Septic Density Rules, by employing a rarely used provision of the New Jersey Constitution that enables the Legislature to invalidate an agency rule without the consent of the Governor. After a concurrent finding by both houses of the Legislature that an agency regulation violates the intent of the underlying legislation, the agency is given 30 days to either amend or withdraw the regulation. If the agency does neither, upon an additional concurrent resolution, the regulation is invalidated. That is what happened today after the NJDEP was found to have violated the intent of the Highlands Act by adopting a controversial change in its septic density rules, which limits the amount of new development allowed in the primarily forested Preservation Area, by reducing the minimum acreage required to install a septic system, from 88 to 23 acres.

When the change was proposed in May, 2016, the Department received over 2000 public comments opposing the change. In December, 2016, the Assembly passed a resolution finding that the DEP's proposal was inconsistent with the intent of the Highlands Act. The Senate concurred by passing its resolution in May, 2017. Yet in June, 2017, the NJDEP adopted the rule without any modifications.

In testimony at subsequent legislative committee hearings the Department refused to make any changes sought by the Legislature. By the Senate's and the Assembly's vote in favor today, the full Legislature exercised its authority under Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, and invalidated the NJDEP's septic density provision of its Highlands Rules at N.J.A.C. 7:38-3.4(b).

"Not only is the Highlands Region the source of drinking water for more than half of our residents, but it also contains precious natural resources such as clean air, forest and wetlands, pristine watersheds, and many significant historical sites and recreational opportunities," said Assemblyman John F. McKeon, prime co-sponsor of the 2004 Highlands Act and the Assembly Concurrent Resolution. "The proposed new standards have the potential to add up to 12 percent more septic systems in the Highlands Region, which would have an adverse impact on the quality of the drinking water available to a majority of our residents and run starkly counter to the original intent of the Highlands Act."

Senator Linda Greenstein, a co-sponsor of the Senate Concurrent Resolution said, "This legislation is critical to protecting the environmental integrity of that beautiful region, the Highlands, which is the source of clean drinking water for millions of people in New Jersey."

"The Highlands Region supplies 136 billion gallons of water or approximately one-third of the total amount of potable water used in the state. It is critical for the DEP to swiftly and efficiently take the necessary steps to maintain high quality water standards," said Assemblyman Tim Eustace, Chairman of the Assembly Environment and Solid Waste Committee and prime co-sponsor of the Assembly Concurrent Resolution.

Environmental and conservation groups from across the State were quick to thank the Legislature for its bold action:
"The Legislature showed its commitment to the citizens it represents by this action, which is intentionally an arduous procedure and a last resort," said Elliott Ruga, Policy Director of the New Jersey Highlands Coalition. "And it should
indicate to all that what the Legislature intended in 2004 when it passed Highlands Act remains vital today, fourteen years later, and that the Highlands Act and its mandated regulations are here to stay."

"This is a big victory for the Highlands and for clean water. Today the Legislature stood up against Governor Christie to protect the Highlands. It was an important vote since for the first time, the Legislature has overturned one of Christie's terrible environmental rules. The Septic Density Rule would have weakened critical protections in the Highlands and pushed development in the mountains above our reservoirs. We applaud the Legislature for blocking these rules and protecting some of the most important and environmentally sensitive areas in the Highlands," said Jeff Tittel, Director of the New Jersey Sierra Club. "Now with the Christie Administration leaving, we can look forward to a new Administration that will actually work to protect the Highlands and clean water in New Jersey."

"DEP's dilution of the Highlands regulations would allow pollution in our drinking water to continue to get worse," said Bill Kibler, Director of Policy for Raritan Headwaters. "We've worked long and hard to protect the people of New Jersey from the callous disregard of the Christie administration, and we thank our legislators for taking this historic step to keep our drinking water safe."

Alison Mitchell, Director of Policy, New Jersey Conservation Foundation said, "The Highlands Act clearly points to permanent preservation of the critical forested watershed lands of the Preservation Area as the ultimate goal. The original DEP septic density rule protected these lands from development until they could be acquired as public lands or protected through permanent conservation easements-a process that is ongoing in the region. We strongly support a return to the original rule, and we thank the Legislature for its wisdom in choosing this course of action."

"The Musconetcong River is the only major watershed entirely within the Highlands, representing nearly 160 square miles of drainage area. We appreciate the Legislature acting to protect water quality," said Alan Hunt, Executive Director, Musconetcong Watershed Association.

"Kudos to the Legislature's standing up to Christie's attack on the NJ Highlands," said David Pringle, New Jersey Campaign Director, Clean Water Action. "This is the first of many needed restorations of critical drinking water protections that have been under attack for the last 8 years."

"We commend the legislature for once again confirming their commitment to protecting water in the Highlands," said Ed Potosnak, Executive Director, New Jersey League of Conservation Voters. "The Highlands not only provide clean drinking water to millions of individuals, but also to businesses that are key economic drivers in our state and require the high-quality water that is only possible because of the natural filtration provided by protected lands. The state cannot afford to put this incredibly valuable resource at risk."

"Today, NJ's elected state officials demonstrated strong leadership by voting yes to protect clean drinking water! They stood up and said that Governor Christie's attempt to rollback protections in the NJ Highlands, which provide clean water to nearly 6 million people was unacceptable," said Jennifer M. Coffey, ANJEC Executive Director. "I am hopeful that this is the sign of a bipartisan return to protecting and restoring natural resources in the Garden State."

"In an epic battle 14 years ago, the New Jersey Highlands was protected by the Legislature. The Christie Administration has tried to undermine the Highlands Act through regulatory rollbacks to the protections for our drinking water. It is a telling moment that the last day of the Christie era, the Legislature formally revokes one of his many environmental rollbacks. The Highlands are worth fighting for, and we look forward to working with the Murphy Administration to protect the Highlands," said Doug O'Malley, Director of Environment New Jersey.

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