SCR163

A Concurrent Resolution concerning legislative review of rules and regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey and invalidating the Department of Environmental Protection rule concerning septic system density standards in the Highlands Water Protection and Planning Act Rules.

Whereas, Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Legislature may review any rule or regulation adopted or proposed by an administrative agency to determine if it is consistent with the intent of the Legislature, and invalidate an adopted rule or regulation or prohibit the adoption of a proposed rule or regulation if it finds that the rule or regulation is not consistent with legislative intent; and

Whereas, Upon finding that a rule or regulation, either proposed or adopted, is not consistent with legislative intent, Article V, Section IV, paragraph 6 provides that the Legislature shall transmit its findings in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation, and the agency shall have 30 days from the time the concurrent resolution is transmitted to amend or withdraw the rule or regulation; and

Whereas, If the agency does not amend or withdraw the existing or proposed rule or regulation, Article V, Section IV, paragraph 6 provides that the Legislature may invalidate the existing rule or regulation or prohibit the adoption of the proposed rule or regulation, following a public hearing held by either House on the invalidation or prohibition, the placement of a transcript of the public hearing on the desks of the members of each House of the Legislature in open meeting followed by the passage of at least 20 calendar days, and a vote of a majority of the authorized membership of each House in favor of a concurrent resolution invalidating or prohibiting the adoption of the rule or regulation; and

Whereas, On May 2, 2016, the Department of Environmental Protection (DEP) proposed for public comment in the New Jersey Register, at 48 N.J.R. 677(a), a rule proposal to revise the septic system density standards in the Highlands Water Protection and Planning Act Rules; and

Whereas, The “Highlands Water Protection and Planning Act” (“Highlands Act”), P.L.2004, c.120 (C.13:20-1 et al.), establishes a comprehensive, long-term approach to the protection and preservation of the drinking water and natural resources of the New Jersey Highlands Region, which is the source of the drinking water for more than half of the residents of New Jersey and contains other exceptional natural resources such as clean air, contiguous forest lands, wetlands, pristine watersheds, and habitat for fauna and flora, includes many sites of historic significance, and provides abundant recreational opportunities for the citizens of the State; and

Whereas, The Highlands Act states that this comprehensive approach to protecting the Highlands Region includes the identification of a preservation area “that would be subjected to stringent water and natural resource protection standards, policies, planning, and regulation,” and directs the DEP to develop and enforce an environmental permitting program with statutorily established standards in the preservation area of the Highlands Region, and the act contains very specific standards to be included in this permitting program; and

Whereas, With regard to septic system density, the Highlands Act requires the DEP’s rules to include “a septic system density standard established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses from individual, secondary, and cumulative impacts, in consideration of deep aquifer recharge available for dilution”; and

Whereas, The DEP originally adopted septic system density standards in May 2005, and subsequently readopted them in 2006, and the methodology used by the DEP to establish those standards was found to be appropriate as part of a fact-finding hearing conducted by the Office of Administrative Law in response to a challenge brought by the New Jersey Farm Bureau; and

Whereas, An Initial Decision by the Office of Administrative Law, dated March 24, 2009, concluded that the originally adopted septic system density standards set out in the DEP’s rules were a valid exercise of the agency’s discretion, and this finding, that the DEP acted properly in adopting its septic system density standards, was adopted as a Final Decision on July 13, 2009; and

Whereas, The DEP’s May 2, 2016 rule proposal states that the proposed standards “could result in up to 1,145 additional septic systems, or about 12 percent more individual septic systems than under the existing rule,” which would necessarily degrade water quality in the Highlands Region; and

Whereas, Even properly operating and maintained septic systems discharge nutrients, such as phosphates and nitrates, and some bacteria or viruses to groundwater, and improperly sited or maintained septic systems can discharge even more contaminants to groundwater, resulting in contamination of groundwater and surface water resources; and

Whereas, When nutrients such as phosphorus and nitrogen are discharged from septic systems into the groundwater, they contaminate drinking water supplies, and also represent a potentially significant nonpoint source of pollution; and

Whereas, Septic systems may also contribute to the contamination of groundwater by toxic chemicals; and the contaminants that may enter groundwater through septic systems include heavy metals and toxic chemicals from small commercial establishments, ingredients in household products, and organic chemicals typically found in septic tank cleaning products; and

Whereas, According to a 2015 report, “Potable Water Supplied in 2011 by New Jersey’s Highlands,” published by the New Jersey Geological and Water Survey, in 2011 the Highlands Region supplied 136 billion gallons of water or approximately one-third of the total amount of potable water used in the State, and Highlands water was distributed to 332 municipalities in 16 counties, home to 70 percent of the State’s population; and

Whereas, This is an increase from estimates in 1999 which calculated that 107 billion gallons of the State’s potable water came from the Highlands Region and was used in 292 municipalities, demonstrating that the Highlands Region serves an increasingly important role in the State’s potable water supply deserving of strong environmental protections; and

Whereas, The provisions of the Highlands Act, with regard to the septic system density standards, have not changed since enactment of the act, and there is no provision in the Highlands Act directing the DEP to review and weaken its originally adopted rules; and

Whereas, The new standards contained in the May 2, 2016 rule proposal and subsequently adopted on April 21, 2017 and published in the New Jersey Register on June 5, 2017 do not comply with the requirement in the Highlands Act for the septic system density standards to be established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses; and

Whereas, In establishing both the original and new septic system density standards, the DEP considered nitrate data obtained from wells in the Highlands Region because nitrate is generally considered an indicator for groundwater quality (i.e., a “surrogate pollutant”); and

Whereas, However, for the new standards, the DEP relied in part on nitrate data generated from wells sampled between 2004 and 2011, after the date of enactment of the Highlands Act and, thus, the proposed standards do not accurately preserve or maintain 2004 water quality conditions or restore water quality, as required by the act, but instead reflect the development and accompanying degradation in groundwater quality that has occurred since 2004 and allow water quality to continue to degrade; and

Whereas, The DEP’s rule proposal also directly contradicted the language of the Highlands Act, by stating that the proposed rule amendments seek to “relate the septic system density standards to the . . . Highlands Regional Master Plan (RMP),” but section 34 of the Highlands Act (C.13:20-32) requires, conversely, that the RMP be based on the DEP’s rules; and

Whereas, Assembly Concurrent Resolution No. 192 (1R) and Senate Concurrent Resolution No. 148 (1R) declared that the proposal by the DEP to revise the septic system density standards in the Highlands Water Protection and Planning Act Rules, published for public comment in the New Jersey Register on May 2, 2016, was not consistent with legislative intent; and

Whereas, On June 8, 2017, Assembly Concurrent Resolution No. 192 (1R) received final approval by the Legislature and was filed with the Secretary of State and transmitted to the Commissioner of Environmental Protection; and

Whereas, Assembly Concurrent Resolution No. 192 (1R) informed the DEP, pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, that the department shall have 30 days following transmittal of that concurrent resolution to amend or withdraw the new rule or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rule in whole or in part; and

Whereas, The DEP has failed to amend or withdraw, or provide any notification to the Legislature of its intention to amend or withdraw, the rule within 30 days after the transmission of Assembly Concurrent Resolution No. 192 (1R); and

Whereas, Prior to voting on a concurrent resolution to invalidate an adopted rule or regulation or prohibit the adoption of a proposed rule or regulation, a public hearing shall be held on invalidating the adopted rule or regulation or prohibiting the adoption of the proposed rule or regulation, and the transcript of that hearing shall be placed on the desk of each member of the Senate and each member of the General Assembly; now, therefore,

Be It Resolved by the Senate of the State of New Jersey (the General Assembly concurring):

1. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Legislature invalidates, in whole, the rule adopted by the Department of Environmental Protection on April 21, 2017 and publishedin the New Jersey Register on June 5, 2017, which revised the septic system density standards in the Highlands Water Protection and Planning Act Rules.

2. Copies of this concurrent resolution, as filed with the Secretary of State, shall be transmitted by the Clerk of the General Assembly or the Secretary of the Senate to the Governor, the Commissioner of Environmental Protection, and the Office of Administrative Law.

3. This concurrent resolution shall take effect immediately.

STATEMENT

Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, this concurrent resolution invalidates, in whole, the rule adopted by the Department of Environmental Protection on April 21, 2017 and publishedin the New Jersey Register on June 5, 2017, which revised the septic system density standards in the Highlands Water Protection and Planning Act Rules.

As required by the Constitution, the Legislature previously informed the Department of Environmental Protection, through Assembly Concurrent Resolution No. 192 (1R), of the Legislature’s finding that this rule is not consistent with legislative intent.