HUNTERDON COUNTY, NJ - With resolutions passed May 19 by the Hunterdon County Board of Chosen Freeholders, the Raritan Township Committee and the Raritan Township Municipal Utilities Authority have banded together to contest the Department of Environmental Protection’s new rule for adding a total of 19 waterways in Hunterdon County as part of another 600 miles of Category One (C-1) level water body designations, “based on exceptional ecological significance and exceptional fisheries resources,” according to an April NJDEP press release on the rule.
The C-1 designation is the second cleanest designation after “Outstanding Natural Resource Waters” and with the new rule, a total of 7,400 total miles of New Jersey waterways qualify as C-1 designations.
The three local entities entered into an agreement for Joint Prosecution, Defense and Common Interest Agreement against the NJDEP, and Raritan Township approved the contract with firm Giordano, Halleran & Ciesla, P.C., not to exceed $37,500 from the 2020 budget.
The NJDEP noted that property owners including municipalities and public entities are likely to be impacted “if they are planning to develop or redevelop within 300-foot riparian zones surrounding the new C-1 category waterways and their upstream tributaries.” The DEP also noted that new private developments including buildings and parking lots would require a hardship exception, or waiver, to comply with the rule.
Hunterdon County waterways among those covered in the new rule include the Neshanic River and Third Neshanic River tributary, the Lamington River, Lake Solitude, Prescott Brook, Beaver Brook, the Rock Brook from East Amwell through Hillsborough to Montgomery, and most notably the Raritan River and South Branch spanning 12 municipalities.
However, Hunterdon County Economic Development Director Marc Saluk pointed out that areas closest to the county seat of Flemington, and surrounding Raritan Township, would be most hard-pressed with the higher standards of water protection.
Freeholder Director Shaun C. Van Doren, who has a record of environmental advocacy as a Tewksbury township committeeman for over 21 years, said he supports and finds necessity for the designated stream corridors in 14 Hunterdon municipalities. The other five, however, are seen as potentially detrimental to business, real estate and economic development planning which the county office of economic development, and the freeholder board believes it could hamper the chances of an economic recovery, in particular in Raritan Township and the greater Flemington community.
Van Doren noted that, in 2019, to gain input on the proposed DEP rule for C-1 designations, he and then-Freeholder Director Suzanne Lagay met with the Raritan Headwaters Association representatives, a nonprofit “whose commitment to the environment I have long-respected.” He said consensus was then reached with the board submitting comments for the 14 waterways to be protected and Lagay “ensured that this happened.”
But evaluating regulations on the other five remained a challenge.
“In nearly 25 years of public services in this county, I say with modesty I would put my record for the protection of waterways, natural areas and open space up against anyone else,” Van Doren said. “While when the NJDEP pursued this rule last year, I was taken aback by the fact that stakeholders like Hunterdon County were kept in the dark before it was announced. When we discussed the matter, one of my concerns was that there are 14 waterways that deserve restricted C-1 designation in order to protect them. At the time, the county made what I believe was a solid case for stating the damaging economic impacts with over-restricting the five waterways that would particularly affect Raritan Township, Flemington Borough and the Town of Clinton.”
“For the NJDEP to ignore these comments is disappointing,” he added.
Freeholder J. Matthew Holt took an even harder line in standing with the county economic development’s urgency for actions countering the DEP’s new rule. He said the NJDEP’s final adoption of the rule this spring “without a legitimate Economic Impact Statement (EIS) which is required by law” as part and parcel to its decision-making was “clearly a mistake.”
“The NJDEP’s decision to adopt these water quality standards on April 6, in my opinion, was a mistake," ,” Holt said during the board’s May 19 meeting. "To not heed Hunterdon County’s very reasonable request which agreed with the restrictions for 14 of the 19 targeted waterways and simply requested that the remaining five remain as they have been for years – in a C-2 category in order to avoid a negative impact on the local economy – is a big mistake."
Holt added that adoption of the new rule April 6, coming in the height of pandemic shutdowns and declarations by Gov. Phil Murphy, “creating an economic shutdown in the state” is not a justifiable action. He said that because the economic environment in the state has so dramatically changed in the last few months, “the NJDEP should have put the brakes on this new rule and they should have allowed this to have economic impact considered as a serious part of this submission.”
Holt, said that, for many years, the freeholders and their predecessors worked to protect clean water.
“They did this through preservation of over 8,000 acres of open space and over 33,000 acres of farmland,” he said. “But the shame of this whole thing is that the DEP’s rulemaking process is flawed. There are legitimate issues with the rulemaking process and this should be challenged in court.”
At the Raritan Township Committee meeting May 19, Committeeman Lou Reiner pressed for the matter to be filed in federal court as he said, “Constitutional questions rise to the federal level, with takings of equity” from potentially impacted businesses and entities in the township and elsewhere.
“If this doesn’t go into federal court, the same corrupt state courts that gave us the Highlands Act and everything else that has damaged New Jersey, it will bury us with this in my opinion,” he said. “You can’t expect the person that broke it to fix it and federal court is the only avenue I see that we’d have a whole lot better shot in.”
Deputy Mayor Karen Gilbert reminded her colleague that for any action to get to federal court, it would have to be coordinated with partners in the lawsuit, namely the Raritan Township Municipal Utilities Authority and Hunterdon County governing body.
Special counsel Michael Gross from Giordano, Halleran & Ciesla, P.C. (approved by the freeholders at the May 19 meeting and as joint defense by Raritan Township that same day), said there are two short-term possibilities for the legal action, with an appeal underway to the appellate division of the Superior Court of New Jersey. The matter can be referred to mediation under the guidance of a retired judge, but Gross said Hunterdon County’s representation is prepared to indicate mediation is not appropriate, “because we don’t think the State will be amenable to withdrawing the rule-making and starting over again.”
Gross told the Raritan Township Committee he will discuss a federal process with environmental counsel as they worked on the notice of appeal.
He added that the other immediate outcome would be the state comprising a “record of items” for the case, including documentation of the public hearing on the rule when it was proposed, as there was no trial prior, but an administrative hearing instead.
“The public hearing transcript and all documents that NJDEP indicated that they relied on in the rule-making will be part of the record,” Gross said. “There can certainly be a dispute as to what constitutes the record on appeal, and that would be subject to either a negotiation or a motion before the state appellate court.”
After either process takes shape, a briefing schedule is anticipated to outline exactly when the county would have to file its initial motion to the court, and the timeframe for the state (representing the NJDEP) to file its brief.
Gross added that there’s likely to be motions to intervene to permit public input into this case, as there are interested parties, individuals and advocacy groups, supporting either side of the NJDEP C-1 rule.
Special Counsel Pillar Paterson said Hunterdon County commented on the Agricultural Impact Statement with this rule, “but in that they only talked about treatment plants and they did not talk about riparian zone buffers and how that might impact the agricultural community. The NJDEP answered that this is not an issue because they have many permits that regulate that aspect.”
She said that there’s numerous inconsistencies and deficiencies in the new DEP regulation.
“In my 30-plus years of dealing in this arena, this is probably the most poorly-done rule that I have witnessed,” Paterson said.
Van Doren said learning about the process failures of the NJDEP described by counsel in promulgating the new rule “is a disservice to the public.” He said Pillar Paterson knows the substance very well, given her 30 years of DEP career background.
“For NJDEP to finalize this rule just as the nation, state, county and our municipalities were entering this economic tailspin demonstrates a total lack of awareness,” Van Doren said. “We are pleased to join Raritan Township in this court action.”