New Regulations to Discourage Inappropriate Development
Despite the aggressive leadership of DEP Commissioner Brad Campbell, several new regulatory proposals to control growth were not adopted in the waning days of the Codey administration. The first of these proposals was an attempt to severely limit development throughout the suburban and rural areas of the state by prohibiting the extension of sewer service for a wide variety of projects which are not included in regional wastewater management plans. This proposal was recently withdrawn by an embattled Campbell shortly before he left office in response to broad opposition from local officials and the development sector, who felt that the measure was exceedingly heavy-handed.

Wastewater management plans are a vestigial organ of the massive federal sewer construction grants program which fueled substantial construction of sprawl-inducing sewer construction throughout the boom years of the 1970s and 1980s. The idea was to insure that federal funds went to plan, design and build projects which were consistent with detailed plans and sewer service areas prepared and adopted by designated areawide wastewater management planning agencies.

When the Reagan administration changed the construction grants program to a revolving loan program, wastewater management plans nevertheless endured, and evolved into an arcane and lengthy regulatory process which represented full employment for environmental attorneys and consultants, and virtually guaranteed excruciating frustration for local officials and developers who sought sewer service for their projects. Securing approval of a plan amendment through this multi-year process became the stuff of legends, and many plan amendments simply never made it through the ping-pong approval process, leaving large areas of the state with obsolete plans which reflected reality when the Tocks Island Dam was still a viable project several decades ago.
Even the more rabid opponents of Campbell’s proposal acknowledge, however, that sewer service plans really do need to be updated, and that it does not make sense to permit new sewer service in many environmentally sensitive areas of the state. Accordingly, a new initiative to more selectively weed out areas inappropriate for sewer service – and to streamline the process of updating plans and encouraging sewer service for areas which should be developed or redeveloped - will obviously need to be proposed in 2006 as one of the key ways in which growth management can be achieved.

A second much-heralded regulatory proposal (which was never actually officially proposed) was a complex new rule to protect threatened and endangered species, nicknamed the “T&E.” rule. This rule would have mandated the preparation of what are knows as “habitat conservation plans” under the State Endangered Species Act as a way to balance the protection of adequate habitat for rare species while allowing development to proceed in appropriate areas. The environmental community waited in vain literally for years as McGreevey and Campbell promised that this rule would soon be proposed. Many others, however, viewed this initiative as merely a new guise for the much-maligned “BIG” (Basis for Intelligent Growth) Map battles which Campbell eventually lost to his colleague and fellow cabinet member, Susan Bass Levin, the former (and probable future) Commissioner of the Department of Community Affairs. In any event, the Codey administration never gave this proposal its support, and the “T&E Rules” never even appeared as a formal rule proposal in the New Jersey Register.

Despite the reticence by both the McGreevey and Codey administrations to proceed with these rules, however, a thoughtful, workable new process which provides a mechanism for habitat conservation plans would serve both development and environmental interests alike. These plans would make it easier to avoid what former Interior Secretary Bruce Babbit called “train wrecks” -- those case in which the discovery of a rare species late in the development approval process escalates the legal and political stakes and often results in lengthy and bitter litigation. If carefully crafted, a new rule proposal could actually make it easier and more politically acceptable to provide more protection for critical habitats for imperiled species, while also making it somewhat easier and more efficient to develop or redevelop other, more environmentally-appropriate areas. Given that this effort remains one of the environmental communities top priorities, we can expect that the new administration will have to grapple with this matter early on.

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