July 18, 2000

COMMENTS ON THE WATER QUALITY AND WATERSHED MANAGEMENT PROPOSED REPEAL AND NEW RULES: N.J.A.C. 7:15
DEP DOCKET NUMBER: 20-0006/62

The indented passages which follow below are from Theodore J. Lowi's The End of Liberalism, The Second Republic of the United States (Second edition, 1979, by W. W. Norton & Company, Inc.). Dr. Lowi is Professor of American Institutions at Cornell University, and has taught at Columbia Univ. as well as the Univ. of Chicago. He is respected as a master of the history of American administrative and "regulatory" policy and the book we cite from is widely used in graduate programs in Public Administration. We are quoting extensively from him because what he chronicles in the End of Liberalism perfectly describes the mess we have in New Jersey with our wastewater planning rules, the new ones before us today and the existing ones they are meant to replace, as well as the New Jersey State Plan, the Plan that these rules purport to be "coordinated and integrated" with. The DEP and the Whitman administration have taken two ongoing procedural/administrative disasters and managed to create an incomprehensible, ineffective, time and money wasting bureaucratic morass, without clear and effective standards. It will not achieve the lofty ("Biblical") and long delayed goals of the Water Pollution Control Act, the Water Quality Planning Act and the Water Supply Management Act, and the State Planning Act.

The New Jersey Audubon Society has chosen to weave our commentary around the processes of illusion before us today instead of descending into or repeating the technical criticism of the rule so ably performed in the Sierra Club's thirty-two page Report, "Analyzing Our Future," (authored by Bill Wolfe). We endorse and concur with the Sierra Club's findings. Rather than repeat those findings in detail, we think we owe the citizens and the press of this state a clear statement about why the wastewater rules and the State Plan will not deliver effective "Smart Growth" or sprawl control, and will fail to deliver all parties, builders and citizen groups, and local governments, what they all say they seek, and which is a fundamental goal of good planning: predictability.

The rule ultimately fails, as the State Plan has before it, because of a lack of clear and enforceable standards and grounding in focused legislation. At the heart of the rule's murkiness, and this is what has crippled the State Plan, is the failure to come to grips with land-use densities, which are now, and remain despite this rule, firmly in the hands of local governments. The rural building densities allowed under municipal zoning represent a clear threat to the biological integrity of our best rural lands - and our most pristine waters. Whether these local densities are consistent with the intent of the Clean Water Act and the NJ water laws cited above, and the goals of the State Plan, are one of the core dilemmas that the Whitman Administration keeps evading.

After more than 200 pages of analysis and 200 pages of new rules with nary an explicit example of how a given project might be turned down, the citizens of this state are getting the water pollution and land use status quo. They will have a lot more studies to read, maybe. That depends on how the DEP exercises the enormous amount of discretion created by this rule. Citizens will be administratively tortured on this 400 page trip to nowhere.

We think that Professor Lowi has shown remarkable insights into the spirit of this administrative age for someone writing 30 years ago at the zenith of active government. Please don't be misled by his use of the word "liberal." He doesn't mean it as the purely pejorative and polemical term of contempt that it has become in past ten years in the hands of political conservatives. Rather he uses to describe the broad phenomenon of an expansive governmental regulatory state, especially federal, but duplicated as well at the state level, beginning with the Interstate Commerce Commission in 1887 and culminating in the late 1960's and 1970's with the Nixon and Carter Administrations. But please don't misunderstand. Professor Lowi is not anti-regulatory, as our quotes show. He is very critical of poorly drafted laws and the regulatory messes they endanger.

We're sure the inner circle of the Whitman administration doesn't consider themselves "liberals" in any sense of the term, but nonetheless, they have managed to reproduce a textbook case of bad regulations and don't see anything wrong either with the terminally hamstrung State Plan - a Plan that is a Lowi "classic" of soaring aspirations with no credible standards or powers to achieve them.

Liberal governments cannot plan. Planning requires the authoritative use of authority. Planning requires law, choice, priorities, moralities. Liberalism replaces planning with bargaining. Yet at bottom, power is unacceptable without planning. (P.67)

A good clear statute puts the government on one side as opposed to other sides, it redistributes advantages and disadvantages, it slants and redefines the terms of bargaining…Laws set priorities. Laws deliberately set some goals and values above others. In brief, law, in the liberal view, is too authoritative a use of authority. (P.92)

Obviously, modern law has become a series of instructions to administrators rather than a series of commands to citizens…The citizen has become an administre, and the question now is how to be certain he remains a citizen…delegation (of power) has been elevated to the highest of virtues, and standards have been relegated to the wastebasket of history…Bargaining …must be preferred over authority at every level and phase of government. (P106)

At its best the system* is a hell of administrative boredom. At its worst, it is a tightly woven fabric of legitimized privilege. (p. 107) (*The American regulatory and administrative system - our note)

The reason why Congress makes policy-without-law and commits full discretion to administrative agencies is simply that we had to have each program and no one was willing or able to make a clear decision or set any guidelines.

Modern liberals cannot plan in domestic affairs because of their opposition to stating real goals in clear and authoritative language.

The language of laws under the Second Republic is virtually a language of the Bible, expressing broad and noble sentiments, giving almost no direction at all but imploring executive power, administrative expertise, and interest-group wisdom to set the world to rights. Whether the field is…environmental pollution, unemployment, or inflation…congressional actions now amount to little more than an invocation…" (p.276).

Liberals are copious in plans but irresolute in planning. Nineteenth-century liberalism had standards without plans - an anachronism even in its own time. But twentieth-century liberalism turned out to have plans without standards. Delegation of power was widely advertised as a counsel of strength but turned out to be a formula for weakness - an alienation of public domain, a gift of sovereignty to private satrapies… Liberalism weakens democratic institutions by opposing formal procedure with informal bargaining…Interest group liberalism possesses the mentality of a world universalized ticket-fixing. (PPS. 296-297).

In many cases the powerful would be immobilized if they had to articulate what they were going to do before they did it…the institutions of government ought to say what they are going to do to us before they do it; and if they cannot say they cannot act."

This power to promulgate general rules has been validated by the Supreme Court. But the trouble is, few agencies do this, and even fewer like to do it… They try to work without rules in order to live with the loose legislative mandate, and then they try to treat their cases and practices as though they were operating under a rule." (P.303).

The Civil Rights Act of 1964 still stands as a reminder to anyone who cares to reflect upon it that Congress can, under proper conditions, be the center of government and the source of juridical democracy…nothing serves better to direct bureaucracy than issuing it clear orders along with powers. One can hardly avoid being impressed with how effective a clear statute or a clear presidential order is upon the behavior of bureaucracies and bureaucrats. (PPS. 311-312).

Note: all the underlining and boldface are NJAS emphases.

Why the Rule Fails to Improve the Status Quo:

At the heart of the Sierra Club's detailed critique of the proposed rule lies the judgment that it lacks clear standards for evaluating the studies and analyses it may require. Indeed, one must go to other sources in the law and regulatory system to find out what the standards are, and there are two key ones. If a party proposes to discharge to groundwater, there is one standard, for package treatment plants or septic systems, and varying tiered ones for discharge to surface waters, depending on the category of the water and which parameters apply. But none of these standards have been toughened from where they have stood for a number of years now, so why anyone expects them to deliver greater protections is not clear. And the standard for water withdrawals that was present in the July 1999 rule has also been withdrawn. One of the acceptable models for individual septic discharge to groundwater (7:15-8.9(e) is the one which led to .8 acre lots on the highly sensitive soils of the Cape May peninsula as presented in the Cape May County 208 report from the summer of 1999. So much for sprawl control. The Department pointed out to us that we should be thrilled with this outcome because it was an improvement over some local zoning. At this realization, we jumped as high as we could without our feet leaving the floor.

Indeed, the clearest standards and judgments in this rule address what has been grandfathered from analysis. Where the rule is firm, it is firm to excuse or ratify questionable discharges from treatment plants and grandfathered development projects with committed flows.

What Rural Protections?

We are amazed in early press accounts to see the assumption being promoted that these rules will protect Planning Areas 4-5, the farmland, forests and rural watersheds of our state, as mapped by the State Planning Commission. But there are no clear standards to protect these areas. The Sierra Club has rightly pointed out that the rule does allow for package treatment plants outside centers in PA's 4-5, which is weaker than the current State Plan non-quantitative "standard." But don't forget that the State Plan calls for growth everywhere, and most of it that is occurring in rural PA's 4-5 is happening outside of centers under local municipal zoning of between one unit per three to eight acres. We see or hear no explicit criticism of this from either the Whitman Administration or the State Planning Commission. This type of zoning will not protect the biological integrity of our best rural lands, especially our contiguous forests, and we doubt it will protect our most pristine waters from beginning the slide downhill. And most emphatically, the cumulative impact of such development densities will forever alter whatever currently remains of the sense of the "rural" in our State.
Revealingly, the rule calls upon the applicants, under certain avoidable situations, to show how what they propose can be "coordinated and integrated with" some 64 State Plan policies, but not with the land use policies of Planning Areas 4-5, such as they are! ( See 7:15-1.2(a)9 and 7:15-8.12.) We infer that this is ground the Attorney General's office and the front office said not to tread on, and precisely the area that needed a full airing in front of the State Planning Commission.

One would have hoped, by this time now more than 18 months after the passage of the implementing legislation for the Whitman open space program, that the Garden State Trust, a municipality or a county could tell our citizens what percent of the rural landowners in a given jurisdiction are willing sellers? Isn't that a fundamental data set to do proper wastewater planning? We are greeted with blank stares and sometimes downright hostility when we raise this rather obvious question. We apologize for our curiosity. If only 10% of landowners in a rural township are willing sellers, doesn't this have profound planning implications? Zoning implications? One would think that this is a very troubling point. The fact that it is not, is a very strong clue that real planning is not taking place and that the decision to sewer or go package treatment plant will once again be deferred to the actual time of the permit decision, and not in the areawide water quality management planning stage. Citizens can therefore expect the same old battles in front of their local planning boards, new rules or not.

Another clue to things going amiss in Planning Areas 4-5 is the gaping potential loophole found at 7:15-9.9(a)4 under the heading "Registrations - Scope and Process." It is very troubling to see HUC 14 watersheds, of which there are nearly a thousand (933) being thrown open for sewer service expansion if certain conditions are met and the specific HUC in question has reached a 25% impervious cover limit. The DEP has provided no sense of scope for this loophole, and the technical obstacles to citizens in coming up with an estimate puts this in the category of fine print legalese at the bottom of the page in health care plans. Citizens should be very distrustful of a Department willing to put such obscurantism on the table. We are being played with here.

The Path not Taken: Why The Whitman Administration won't change the status quo

NJ Audubon has been an unhappy participant in the stakeholder process working on this rule for nearly four years now. In 1997, when we clearly saw the lack of candor in facing up to the key dilemmas, we said to the chairman of the State Planning Commission, the DEP and the Governor's Office that three great circles of conflicting values had to be squared. One, the State Plan needed density or population standards to clearly define the rural from the suburban, and so that the wastewater rules could have a land use density that would work towards protecting the more pristine rural waters. This discussion never happened in front of the State Planning Commission, to the best of our knowledge. Second, the DEP needed a legal opinion on how far they could go to mesh with the verbal values that defined Rural Planning Areas 4-5 in the State Plan - in other words, how much land-use leverage could flow from the water laws that are the foundation of these regulations. And local zoning, hopelessly weak on both achieving the goals of protecting Planning Area 4-5 from habitat fragmentation and attaining water quality goals in certain areas, would always be at odds if the DEP decided to press ahead and tighten its regulations. And looming over all this is the Legislature's likely great discomfort over any regulation or law that would effectively change local land use densities from their current status quo.

Our legal finding, widely distributed through this stakeholder process, was never formally discussed, although some of the issues it raised were reluctantly talked about by the stakeholder's DEP staff. But we never received a written or verbal reply from the Attorney General's office or Governor's office to our formal written legal finding that the DEP could go a long way in affecting land-use density to achieve water quality goals, and mesh more openly with the State Plan's land use goals than this version of the rule does. And there never was a meeting where our legal paper and these dilemmas were fully discussed by the final decision-makers: the same Governor's Office and the Attorney General's Office. Indeed, we don't think it's an exaggeration to state that the mood surrounding these crucial issues - the interface between protecting/improving water quality and land-use densities - had all the tensions one would expect discussing cold war era defense secrets in 1955.

New Jersey Audubon has signed on to the Defend New Jersey's Water's campaign because we think it offers a better program for achieving clean water goals and more protective land-use densities in rural Planning Areas 4-5 than this rule. At the heart of any effective attempt to use existing water laws to achieve both these goals would be an upgrade in the classification of all waters in and adjacent to Planning Areas 4-5. In addition, the nitrate standard for discharge to ground water and septics would have to be tightened from the current levels. If these two basic steps were taken, it clearly would mean that some rural communities in PA 4-5 would have to toughen their zoning laws and reduce their densities a great deal from their current average of one unit per three acres. It is a fair question how far the Legislature would allow this to go, given their reaction to the far from tough CAFRA laws and failure to close the CAFRA loophole. To do this right, the Legislature will have to authorize the State Planning Commission to set a genuinely protective density standard in Planning Areas 4-5, and this will allow the parallel recommendations in the Defend NJ Water's Campaign to pull in the same direction. This is a far cry from rule we have before us today, which seems to rely mainly on the threat of expensive and burdensome studies loaded on developer's backs to drive them away from building in the wrong places. But because of the numerous loopholes detailed by the Sierra Club, we doubt the builders will complain very loudly about the burdens they will likely escape. We think they are bright enough and clever enough to know that despite all the feints and fuzzy yellow lights in these proposed regulations, the rule has not fundamentally altered what they can and can't do, with the possible exception of discharge to surface waters in trout streams in Planning Area 5. They'll go instead to other systems discharging to groundwater or stick to the septic and private wells that we see spreading throughout rural Hunterdon County in PA's 4-5.

As Professor Lowi clearly foresaw, the lack of standards will turn regulations into extensive bargaining sessions and "ticket fixing." The amount of discretion the DEP has in this rule to exempt or grandfather is astounding. The history of the water laws themselves, prior to this rule, leaves a lot to be desired. The history of the Clean Water Act, in Washington and in Trenton, is laced with decade long stalls and evasions, even as it has clamped down upon the egregious forms of point source, pipeline discharges. Environmental groups have had to go to court repeatedly to have Congress and the administrative agencies (EPA and DEP) to grapple with even listing our impaired waters. So when faced with regulations that deal with multiple "Biblical" water laws, and a State Plan that is "Biblical" in its goals but self-limiting (and crippling) in its volunteerism, the regulatory trainwreck this rule has become should surprise no one. The description of the mess and the dilemmas was foreseen more than 30 years ago. The New Jersey Audubon experience through this process has been not that of a citizen in a democracy, but of an administre, and the process has been exactly a "hell of administrative boredom" and in the end it looks like we have a "tightly woven fabric of legitimized privilege," judging from the interests that have been grandfathered from even the standardless analyses. In the end, this rule perpetuates the cycle that we thought all good planning was meant to avoid. Good planning is meant to tell average citizens and economic interests alike what they could expect from projects proposed for different parts of the state: Yes you can, no you can't. The fact that this rule in four hundred pages doesn't have a single example of a proposed project and its likely fate is troubling and telling at the same time. It's pure bargaining, and the strongest economic interests are going to come out just about where they were before it was put down on paper. At this point the best we can hope for is a full and candid hearing in the Legislature, the one we never got from the State Planning Commission, the Governor's Office and the Attorney General's office.

New Jersey Audubon Society doubts that any dramatic revision of our wastewater rules can protect our water quality and rural lands from negative aquatic impacts and habitat fragmentation without a complete overhaul of the vague standards and lack of enforcement powers at the State Planning Commission. Their silence and contentment with the Status Quo on the municipal zoning books is a very ominous sign for our State. Land use and water quality cannot be separated. Hinting that some zoning might have to be changed - but "we can't tell you until deep into a specific project's proposed studies have been done" - as this rule holds out - is no way to solve this dilemma. We have two largely successful models of legislation and regulations working together in our state to accomplish similar goals to those attempted by the rule before us today. They are our Pinelands and Freshwater Wetlands Protection Act. The secret of both is clear and enforceable standards. This rule needs to go back to the drawing board. It cannot accomplish the objectives the Whitman Administration has publicly proclaimed for it. This rule is full of straddles and dodges. To do better means making tougher and clearer choices. And then crusading for them in public, and having a nasty showdown with the Legislature. So far Governor Whitman has shown no stomach for such a struggle. But that's what it will take.

William R. Neil
Director of Conservation