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Rules Could Turn Permitting into Rubberstamp

Date : Mon, 30 Apr "01" 11:51:51 -0400

/For Immediate Release/
April 30, "01" Contact Jeff Tittel, 609-558-9100

*Rules Could Turn Permitting into Rubberstamp*

** The Department of State has issued a draft rule to streamline and accelerate permitting for businesses that could impact the environment and cut the public out of the permitting process.The rule is vague and open-ended, potentially opening the door to political pressure and abuse by special interests pushing for their pet projects to the detriment of the environment, public health, and safety.The rule calls on state agencies to draft an annual list of permits they feel can be expedited or are obsolete or redundant.The representative appointed by the Governor or Secretary of State could alter the permitting process based on the agency recommendations.This process creates more bureaucracy and process by requiring the staff of each agency to compile these reports.As proposed this rule will impact everything from clean air to consumer protections.This rule comes from ALEC and the Koch Brothers and is part of Governor Christie’s national corporate polluter agenda.The New Jersey Sierra Club submitted comments urging the Department of State to withdraw this broad rule as it will do more to undermine important protections for our health and environment than to promote job growth or business development.

"This proposed rule opens the door for political abuse by developers and polluters, and jeopardizes the natural resources of the state for short-sighted economic gain.We believe this rule will give state agencies and the Governor’s designee broad powers that go beyond legislative intent.Under this rule the Governor’s designee can make changes to the permitting process that are completely undefined, arbitrary, and subject to abuse," *said Jeff Tittel, Director, NJ Sierra Club*."We are urging the Department of State to withdraw this rule immediately as it violates due process, legislative intent, and separation of powers." The Sierra Club is concerned the expedited permitting process may remove the ability of people and property owners impacted by permits from commenting on those permit applications, undermining due process and the public’s right to comment on permits that may directly affect their lives and property. This rule undermines the authority of the Legislature by calling on state agencies to draft an annual list of permits that can be changed, deleted, or expedited is troubling.Many of these regulations implement laws passed by the Legislature that are still enforceable.This rule would allow state agencies to go beyond implementing standards established through legislation.Under the rule a representative appointed by the Governor or Secretary of State could arbitrarily alter the permitting process based on annual agency reports, making whatever changes he or the administration wants.This gives the designee broad discretionary powers that trample on people’s property rights and protections for public health and the environment.We believe this rule is a violation of the separation of powers clause in the State Constitution.

"This rule is like a blanket waiver that can be used to implement whatever the administration wants without standards," *said Jeff Tittel*. This rule could be used to expedite permits that will have a significant impact on environmental protections and natural resources.Proper review, study and analysis may not be done in order to rush a permit through the process.

The rule calls on state agencies to identify permits that may be "obsolete, no longer necessary, or cost more to administer than the benefits they provide."However, the rule establishes no criteria for determining which permits may meet this standard.This could exclude environmental benefits in cost calculations, such as providing floodwater storage or reducing the amount of air pollution that impacts a community.Permits can be removed unless doing so would "endanger" public health, safety, and welfare, however "endanger" is a legally difficult level to prove because a direct threat or immediate harm has to be shown.This ignores cumulative or indirect threats such as increasing toxins in the water.

"This rule would allow the administration to remove important water and air quality protections for cost considerations for special interests," *said Jeff Tittel*.

The agency report would also identify permits considered redundant.There is no proposed definition of redundant making this provision vague and subject to abuse.Additionally there is no guidance on how inter-agency or state-local redundancies be addressed or how the agency or level of government with final oversight be determined. State agencies would also be required to identify ways to improve consistency in permitting.Permits, even in the same program area, cannot be cookie cutter due to varying site conditions and circumstances.In different program areas, the programs may have different legislative intent and goals.For instance, stream encroachment permits do not look at water quality while stormwater management permits are required to do so.

"We are concerned permit writers will be turned into a rubber stamp that will not even read the permit applications," *said Jeff Tittel*."This could foster a race to the bottom situation were all permit writers will be reduced to implementing the standards of the weakest permit writer in the department." Under this rule, DEP could expedite or accelerate issuance of waivers under the agency’s Waiver Rule.The Sierra Club along with "6 other non-profit organizations are currently challenging this measure in the appellate court due to significant concerns with the concept and scope of this rule.With the streamlining requirements, the DEP would not only have to consider waiver applications, but now may be forced to do so in an accelerated timeframe.

The Christie administration wants to phase out the smart growth impact statement required in rule proposals.This was added by former Governor McGreevey to determine the impacts on a rule proposal would have on the local community.The smart growth statement looks at if the rule would channel development in the right places and protect open spaces while keeping growth out of environmentally sensitive areas.The fact that this administration wants to get rid of this requirement shows Governor Christie wants to promote sprawl and overdevelopment any where in New Jersey and roll back protections for our most critical areas, including the Highlands and the Pinelands.

"This rule would basically apply the DEP waiver rule to every state agency.This is one of the worst rules ever proposed in New Jersey.This is part of the Koch Brothers and corporate polluter agenda to get rid of environmental, public health, and consumer protections. This rule has nothing to do with New Jersey, but is part of Christie’s national agenda to sell off New Jersey’s environment to polluters and developers," *said Jeff Tittel. *

The comments of the NJ Chapter are attached.

Kate Millsaps
Program Assistant
NJ Chapter of the Sierra Club
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