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DEP waiver rule / A foolish proposal

DEP waiver rule / A foolish proposal

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Streamlining the state Department of Environmental Protection and making it more responsive to permit applicants, as the Christie administration wants to do, is a good thing. The DEP has a well-deserved reputation for foot-dragging, overreaching and generally torturing applicants.

However, a proposed new rule that would allow the DEP to waive its own regulations and statutory requirements approved by the Legislature is a dangerous and unwise move. And, some think, illegal.

The rule, which was the subject of a public hearing this week, would allow the DEP commissioner to waive environmental regulations "to address situations where rules conflict, or a rule is unduly burdensome in specific application, or a net environmental benefit would be realized, or a public emergency exists," the DEP's summary of the proposal says.

The Christie administration is pushing the rule in an attempt to limit unreasonable, unfair or unintended results - which admittedly do occur in the bureaucratic maze of environmental regulation.

But the damage the proposal would do - on two fronts - far outweighs any benefits.

Environmental groups are understandably concerned about the damage the proposal would do to environmental protection. The net result, they say, would be a New Jersey that is less clean and less green.

Frankly, we find those fears a little overblown. It is unlikely that a DEP commissioner would approve a waiver that caused major environmental damage. And if he or she did, opponents would surely take the matter to the courts. But it's true - the whole point of the proposal is to put other interests ahead of the environment. And that's dangerous.

However, the most significant damage of this proposal, as Michael Catania, a former deputy DEP commissioner, pointed out in a March 25 guest column, would be the damage it would do to the rule of law - and to the logistics of regulating the environment in New Jersey.

The Legislature writes the laws. The DEP writes rules based on the laws. Some laws include a provision allowing a waiver of strict compliance. Some laws don't. But either way, that was a decision made by the people elected to write the laws. Furthermore, as Catania pointed out, regulatory agencies like the DEP already have wide latitude to resolve conflicting regulations and avoid inappropriate results.

And here's the biggest problem: The waiver rule will create chaos.

Once applicants know a waiver process exists, they will automatically ask for a waiver anytime they are denied a permit. Why wouldn't they? Others will sue because someone else got a waiver and they did not. And all of this adds up to an increased workload for the DEP, which has already seen its budget and staff cut.

Rather than streamline the regulatory process, this proposed new rule could have the exact opposite effect.

The Christie administration should drop this unwise proposal.

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