Barnegat Bay TMDL Update

In light of recent events (see below COA letter), I thought it timely to provide an update on the Barnegay Bay TMDL bill, conditionally vetoed by Governor Christie on February 3, 2011.

As we previously wrote, we look to EPA to enforce Clean Water Act Section 303(d) TMDL requirements that currently apply to Barnegat Bay, and to hold NJ DEP to the TMDL commitments made in a 2002 EPA/DEP Memorandum of Agreement.

There are 2 very specific and transparent regulatory steps for EPA to take to enforce this commitment. EPA has adequate legal and funding leverage over DEP to make both happen, and has used this leverage previously plenty of times, e.g. a threat to withold EPA funds and federally implement the TMDL program in NJ is what led to the 2002 MOA. I was in the room representing DEP Commisioner Campbell when the threat was made in 2002 by Kevin Bricke of EPA Region II.

First, EPA must demand that the entire Barnegat Bay be included by NJ DEP on the 2010 impaired waters list, as impaired for failing to comply with nutrient policies in the NJ SWQS and failure to attain designated use of aquatic life support, fisheries, and direct contact recreation. There are multiple lines of existing scientific evidence and scientifically robust water quality and ecological indicators that support this impairment determination (see eutrophic condition indicators in Rutgers Professor Kennish powerpoint).

DEP could support an impairment determination under the same “weight of evidence approach” that DEP uses to support other site specific regulatory determinations (such as the Category One Waters designation, which is based upon an integrated ecological assessment). DEP lawyers have advised that this methodology – and similar site specific applications of scientific judgement – do not require public notice and rulemaking adoption. Similarly, the current aquatic life criteria use support assessment methodology used to determine designated use attainment relies on best professional judgement in interpreting the macro-invertebrate sampling data and assessment methodology.

DEP public noticed a draft 303(d) impaired waters list in November 2010 and is scheduled to submit the 2010 303(d) list to EPA for review and approval this spring.

Second, EPA must demand that NJ DEP include the Barnegat Bay on the DEP’s 2010 2 year TMDL priority list. This priority list was published for public comment in November 2010 and will be submitted to EPA for review and approval this spring.

If EPA and DEP deliver on these two steps, there is no need for any NJ State legislation.

Last, we noted that at the state level, the ball now is in the Legislature’s court.

We urge the Legislature to either let the bill die or over-ride the Governor’s veto language. Since over-ride majorities are unlikely, the best path is to let the bill die and informally urge EPA to act.

We went into great detail laying out our reasons why the Governor’s CV is an unacceptable step backwards.

Basically,  among other things, the CV language does not mandate that a TMDL be conducted by DEP. The CV would allow DEP to avoid tough regulatory decisions because it would allow DEP to delay – perhaps indefenitely – making a formal “impairment” determination, i.e. specifically included in the CV language are new legal factors DEP must consider including: 1) lack of adequate science; 2) lack of adequate data; 3) lack of a numeric standard for nitrogen; 4) economic considerations; 5) or exercise of State discretion under the Clean Water Act.

An impairment finding is a pre-requisite to a TMDL, so regardless of the 3 or 5 year period for a TMDL, if there is no impairment finding by DEP there can be no TMDL and obviously no TMDL implementation.

We were disappointed – but not surprised – to learn that COA is pushing to have NJ environmental groups sign on to a letter to the Legislature is support of the Governor’s CV (see below). We urge those groups not to do so and are willing to engage in discussion as to why.

But it is obvious that we have more than a failure to communicate here, as there are glaring flaws in COA’s analysis of the CV and their very selective excerpts of same.

First off, COA fails to note that DEP has long opposed a TMDL on the Bay and that, most recently, DEP testified AGAINST a TMDL when the bill was up before the Senate Environment Committee (I was there to testify at that hearing, COA did not).

Second, the COA letter naively quotes a key sentence from the Governor’s CV totally out of context.

In the CV language COA quotes and praises, the Governor – consistent with his “common sense” regulatory policies in Executive Orders 1-4 and the Red Tape Commission – was disparaging the regulatory mandates and enforcement aspects of a TMDL, especially federal oversight and control by US EPA and the adverse economic cost impacts on property owners and local governments.

That’s why the Governor’s 10 point Barnegat Bay plan is based on voluntary local partnership and incentives, and why it lacks any regulatory teeth and enforcement tools (the Plan even says it will “determine if a TMDL is feasible” – and retains the lead of the non-regulatory Barnegat Bay Partnership).

And of course, given the strong political opposition by the Ocean County Freeholders, the Governor is not going to undercut his Republican colleagues.

Is COA on the same planet? Are they that naive? Or incompetent? Or just providing cover for the Governor?

And last, COA simply fails to understand the CV language that impacts the DEP impairment determination.

If the Governor and DEP were seriously committed to a TMDL, they would take the first two steps outlined above to get the TMD process underway.

— Clean Ocean Action— Pinelands Preservation Alliance —

New Jersey Senate Leadership

New Jersey Assembly Leadership

Cc: The Honorable Chris Christie

March 28, 2011

To whom it may concern;

We write to you today to express our support for Assembly Bill 3415, the TMDL Bill, which was conditionally vetoed by Governor Christie on February 3rd, 2011. Please inform your colleagues that our groups support the bill as amended by the Governor and urge them to act swiftly to approve the changes. The bill, if made law, provides a tool to ensure that cuts to pollution harming the bay are comprehensive and strong even with the Governor’s amendments. A TMDL, to quote the Governor’s conditional veto, “is ultimately an enforcement tool under both state and federal law that compels parties to implement measures to reduce the amounts of pollutants they discharge.

Although the Governor’s changes may slow down the timeline for adoption of the TMDL, changed language adds an additionally enforceable mandate that we find beneficial for the Bay  that the TMDL must be adopted and implemented within the timeframe of 5 years. Also, nothing in the amended bill would preclude the DEP from implementing the TMDL before the 5-year deadline. The environmental community plans on helping to develop the state of science and policy in the Bay to see that this process is as quick and thorough as possible.

Encouragingly, the Governor’s changes keep the provisions of the original bill that expand the DEP’s use of science and they leave unchanged the section of the original bill that requires the DEP to use all its existing authorities to “to the maximum extent practicable to reduce sediments and nutrients during the study and the development of the total maximum daily loads.” To that end, our groups look forward to meeting and discussing with you additional approaches to stemming the tide of pollution flowing into the Bay.

In closing, we want to thank you for your leadership to protect New Jersey’s natural pearls – the Jersey Shore and Barnegat Bay – and recommend that the Governor’s conditional veto be accepted by both Houses of the New Jersey Legislature.

Sincerely,

Cindy Zipf

Executive Director, Clean Ocean Action

Jacylyn Rhoads, Director for Conservation Policy, Pinelands Preservation Alliance