Cutting Through the Bullshit on Barnegat Bay Bills

[Update: further evidence of the BS spin: The Asbury Park Press reports that these key remaining two bills in the Barnegat Bay package passed the Senate today, but not the Assembly yet. Where is Christie on the tough choices? see: Senate passes two Barnegat Bay bills, despite unpopularity with Ocean County officials

One piece of legislation, S-1815, would permit creation at the county level of a new storm water utility, similar to sewer or water supply authorities, that would have the power to issue bonds and impose fees on local property owners to pay for the repair and maintenance of storm sewer systems. […]

A second bill in the Senate today, S-1856, would give the Ocean County Planning Board authority to charge new fees on developers to pay for dealing with storm water runoff pollution. That passed the Senate by a similar margin of 22 to 17, amid concerns that it is too burdensome on a building industry that’s already been flattened by the recession. [links to bills mine. End Update]

I’ve written about this issue extensively, but want to make a few points on yesterday’s Barnegat Bay bill signing by Governor Christie.

The alleged water quality benefits of the 3 bills the governor signed are being greatly exagerated. The Governor did not sign and DEP is still sandbagging the toughest and most effective bill in the package, the one that would mandate a TMDL. And the Governor’s plan ignores major problems, like land use and CAFRA reforms.

As Kirk Moore reported:

The administration has promised a less specific “narrative standard” for nutrients in all coastal waters. Environmental advocates say that won’t be enough to measure whether actual progress is being made.

“If they take out the (hard) TMDL, it’s a weak bill,” said Bill Wolfe of Public Employees for Environmental Responsibility, a former DEP employee who’s worked on water issues.

If the U.S. Environmental Protection Agency “could do this with Chesapeake Bay, which is a much bigger and more complex system . . . then clearly EPA could put some money into this,” Wolfe said in a telephone interview after the bill-signing ceremony. [Note – in addition to EPA funding, I was comparing the Chesapeake timeframe with the 3 year deadline in the bill,a period that DEP finds “not feasible”]:

The DEP should commit itself to that goal this spring when the EPA formally reviews the state of New Jersey waters under the Clean Water Act, Wolfe said.

The state has an obligation under that federal law and “we need to move forward on that,” said Tim Dillingham of the American Littoral Society.

Now to my quick take on the bills signed:

I) Fertilizer bill

The bill exempts major nitrogen pollution sources, including farms, golf courses, septic systems, horse farms, historic chicken farm residuals, and atmospheric deposition.

Senator Beck (R-Monmouth), a prime sponsor of the bill, told me that more than 70% of fertilizers produced by Scott’s already meet the standards of the bill.

As I noted previously, it is mathematically impossible to get to a nitrogen pollution load reduction (i.e. in pounds) via a reduction in nitrogen concentration of the fertilizer without additional limits on application. 

A simple hypothetical illustrates this: [Note: see Josh’s comment and response below – these arbitrary number are provided solely to illustrate the relationship between concentration and loadings, not to specify actual reality].

1) Let’s say your neighbor fertilizes his lawn twice a year, applying 2 fifty pound bags of fertilizer each time, which contain 20 pounds of nitrogen per bag (N = 40%, by concentration).

2) Next year, he goes to Home Depot, where the salesman tells him that the new environmentally sound “Green” fertilizer has a 50% reduction in N concentration (to N = 20%).

Now what do you think that guy is going to do? Buy the same 2 fifty pound bags? Gimme a break. Anyone who has drank 3.2% beer knows better.

He’s going to buy 3 fifty pound bags, to offset the reduction and just to be sure that his lawn will be as green as last year.

After the spring application, he will be convinced by mid May that his lawn is looking less green than last year. Being a macho man, he will blame it on that damn weak stuff forced down his throat by the wacky enviro’s.

So he’s going back to Home Depot for more.

Result: he will apply 3 fifty pound bags 3 times a year, instead of twice.

Do the math – the net effect is NEGATIVE – MORE NITROGEN! The law makes the situation WORSE:

Before the law:

(2 applications per year) X (2 bags/application) X (50 lbs/bag) X (.40 Nitrogen) = 80 lbs nitrogen

After the law:

(3 applications per year) X (3 bags/application) X (50 lbs/bag) X (.20 Nitrogen) = 90 lbs nitrogen

Worse, keep in mind that there will be hundreds (or thousands) of NEW homes built in the watershed, most of which will be using septic systems and applying lawn fertilizer – at 90 lbs per home, that’s a major nitrogen load increase.

Then consider that the Bay requires a TOTAL NITROGEN LOAD REDUCTION.

You simpy can’t get there from here.

II) Soil Compaction bill

The soil compaction bill only applies to limited set of “post construction” activities that are regulated under the current ineffective Soil Conservation Service program.

Due to lobbying by the Builders Association, the bill exempted the following activities, all of which are the primary causes of soil compaction:

1) pre-construction activities, where builders destroy existing vegetation, scrape the soil from the site, and stockpile the soil. This destroys the natural soil structure, biological functions, and its ability to store water and otherwise function as soil;

2) After stripping soil from the site, builders then bring in huge heavy equipment which compacts the little natural soil that’s left;

3) after building is done, the soil is then redistributed and again compacted by heavy construction equipment.

These 3 activities are what cause soil compaction from construction – and ALL OF THEM ARE EXEMPTED.

The bill is riddled with loopholes and will not reduce current soil erosion and sedimentation problems.

III) Stormwater bill

There is no dedicated funding source to deal with significantly costly stormwater infrastructure and management issues.

The alleged $100 million local loan program is a fiction. Local stormwater management costs have long been eligible to receive loans from the NJ Environmental Infrastructure Trust. The Governor has not changed anything in the current NJEIT program with respect to eligibility or funding.

Towns will not voluntarily take on local taxpayer backed interest bearing loans – so the alleged $100 million is highly misleading.

The $10 million is a drop in the bucket and may merely result from a reallocation of federal EPA 319 grants – or current watershed management funds (whose revenue source is the constitutionally dedicated Corporate Business Tax).

No new state funding source for this $10 million has been identified. So, it may not be new money but merely a shift away from current uses of existing funds – thus, some other program may suffer while the Bay benefits.

This is a zero sum game, not environmental leadership.

IV) TMDL (on the Gov.’s desk, conditional veto expected to gut the bill)

I previously summarized  the key benefits of the TMDL program, including:

• a pollution budget, which sets an enforceable total cap on pollution, mandatory numeric pollution reductions, and allows monitoring and measurement of progress towards water quality goals, thereby promoting accountability
• regulation of ALL sources of pollution, including agriculture, golf courses, horse farms, new development, and atmospheric deposition;
• deadlines and schedules for discrete tasks, which promote efficiency, accountability, and public participation and oversight
• a “margin of safety” to account for scientific uncertainty
• a “reserve margin” to accout for future growth, limit additional new pollutant loads, and provide a framework for pollution off-sets and mitigation
• TMDL would triggger 300 foot buffers as water quality BMPs on all tributaries
• TMDL is a tool to enforce the current CAFRA statute, which says DEP may deny a CAFRA permit due to”impairment”. This leverage could reduce development intensity, reduce impervious surfaces, increase preservation of natural vegetation, and strengthen current DEP stormwater maangement at future CAFRA developments.
• provide federal EPA oversight and federal resources
• address all pollution sources, point source and non point source, regardless of ownership. The TMDL approach provides a framework to pursue the most cost effective retrofits and pollution source reductions in a phased manner over time
• TMDL allows for integration with ongoing scientific work, DEP permitting, and the overall BBay NEP management plan – no need to reinvent the wheel
• TMDL provides regulatory teeth.

Governor Christie did not sign the TMDL bill, DEP opposed the TMDL bill in the legislature, and DEP Commissioner Martin said the following in Kirk Moore’s story:

That bill, with its call for hard numerical limits within three years, is “too premature,” Martin said, because without new data and nutrient standards “it’s going to take a couple of years” for the DEP to decide if a Barnegat Bay TMDL is feasible and, if so, what the numbers should be.

And so it goes –

ps: and while we’re on the topic of bullshit, don’t forget:

During his remarks, Christie recognized Pringle as “a strong, strong voice for the environment, and a reasonable voice” who helped advocacy groups and the administration agree on action to save the bay.