EPA Intervenes, but DEP Still Spinning on the Dock of the Bay – Wasting Time

Sittin’ in the mornin’ sun
I’ll be sittin’ when the evenin’ come
Watching the ships roll in
And then I watch ’em roll away again, yeah

I’m sittin’ on the dock of the bay
Watching the tide roll away
Ooo, I’m just sittin’ on the dock of the bay
Wastin’ time (~~~ “Dock of the Bay“  (1968)  Otis Redding (listen))

In what looks like good news, US EPA Region 2 has weighed in in support of a TMDL on Barnegat Bay (see today’s Asbury Park Press story by Kirk Moore: EPA region shief says bay nutrient limit possible in three years).

I have not read EPA Regional Administrator Enck’s letter and don’t know if it pulls any regulatory triggers or threatens to withhold federal funds or is merely a warning [Update: here is the EPA letter h/t Jeff Tittel – it doesn’t really do anything], but we’ve been recommending that EPA step in to enforce the Clean Water Act’s TMDL requirements for many months, most recently, last week:

“We have argued for a Clean Water ActTotal Maximum Daily Load (TMDL) as the vehicle to address the Bay’s ecological collapse.

But Governor Christie vetoed a bill passed by the Legislature that would have mandated a TMDL for the Bay.

We have called on EPA to mandate a TMDL, given NJ’s continuing gross violation of the Clean Water Act and prior TMDL commitments with EPA.

We believe there are many reasons why this science based TMDL regulatory stick is preferable to the current Barnegat Bay Partnership locally driven management model and Christie Administration’s voluntary SAMP approach.

But despite EPA’s intervention, DEP still remains in denial on the TMDL issue and is politically defending the Governor’s veto of the TMDL bill.

DEP  remains opposed to a TMDL on the Bay. DEP testified in opposition to the TMDL bill as it moved through the Legislature. We’ve explained that the reason is grounded in Governor Christie’s ideological opposition to regulatory tools, not in science or law.

Worse, given the EPA letter, DEP now is attempting to shift the focus to EPA’s denial of NJ’s funding request, instead of where it belongs: on NJ DEP’s failure to comply with the Clean Water Act which has allowed the Bay to deteriorate to the point of ecological collapse.

And once again, the DEP press office is caught spinning the science.

Usually reliable Tom Johnson’s NJ Spotlight story leads with the EPA funding denial instead of the real issue, which is EPA TMDL support. But aside from downplaying the more significant federal EPA Clean Water Act oversight story, DEP is quoted with this whopper:

“We need more science and data before we decide whether a TMDL is needed,” Ragonese said.

The DEP Press Office needs to get out more often and talk with the scientists instead of parroting Commissioner Martin’s spin. Some old news:

• “We’ve actually reached a critical threshold where action is required to protect the bay” said Michael DeLuca, the senior associate director of Rutgers University’s Institute of Marine and Coastal Science. “Now it is clearly time to act.” (Star Ledger; 7/31/09)
• “We have the data already. We’ve had it for years,” said Michael Kennish, a research professor who heads Rutgers University efforts to study Barnegat Bay’s pollution problems. “We know what the problems are. We need to have big stuff done, mandates and requirements imposed by DEP.” [Asbury Park Press. 8/6/2010]

More recently, DEP’s own Science Advisory Board just recommended a TMDL for the Bay and coastal plain streams.

The DEP SAB findings explicity supported the TMDL approach for Barnegat Bay and coastal plain streams.

As we wrote last week, the SAB Report found:

“The most sensitive receptors for for excess nitrate are likely to be estuaries and low nutrient coastal plain streams. Given the nature of estuaries, a load-based regulatory approach (TMDL type approach) would make the most sense. Such an approach, furthermore, would be based on total nitrogen, not nitrate alone. (@ page 8)

So now even Commissioner Martin’s own hand picked SAB agrees with what we’ve said all along: that a “regulatory approach (TMDL type approach) would make the most sense” to address nitrogen eutrophication in estuaries and coastal plain streams.

But curiously, in Tom Johnson’s article, Willie DeCamp of Save Barnegat Bay blasts DEP Commissioner Martin and rants against “bureaucrats”:

“It is a disgrace that six months into the process, the commissioner does not even know that by far the largest vector of nitrogen into Barnegat Bay is air pollution,” said Willie DeCamp of Save Barnegat Bay. “The Governor’s ten points are silent on air pollution. Save Barnegat Bay came to the event wanting to constructively and interactively address that fatal flaw.”

“If Commissioner Martin can’t listen to what the public has to say, Barnegat Bay can never be saved,” DeCamp said. “You can’t do the whole thing with bureaucrats. Air pollution will not go away by being ignored.”

As a harsh critic of Martin, I have no problem with that. I too blasted Martin for spinning as did the Asbury Park Press editorial board for frustrating public comment. But, in fairness, the criticism must be fact based.

So, I question on what basis (data) Decamp claims that atmospheric deposition (air pollution) is “by far” the largest source of nitrogen to the Bay.

The data I’ve seen does NOT support that statement. Just the opposite: atmospheric deposition is the smallest source, and perhaps the relatively least able to be managed cost effectively because years of effort and billions of dollars have already been invested in NOx air pollution controls, so the low hanging fruit has been picked.

The total nitrogen loadings and relative source contributions are what a TMDL is supposed to derive. That work has not been done yet.

However, a December 7, 2009 USGS study estimated that total nitrogen loadings for the Bay are 650,000 kg/year, with only 22% from atmospheric deposition, 66% from surface water, and 12% from groundwater.

Furthermore, directly on point, that study found:

This new loading estimate was compared to a previously published estimate produced by using a similar methodology but lesss current data through 1997.  Findings of the present study include a substantially lower estimate of atmospheric deposition of nitrogen to the estuary compared to the previous estimate. The study results also offer further support of the relation btween land use and nitrogen levels, and indicate that the Toms and Metedeconk river basins account for more than 60% of the nitogen load to the estuary from surface-water discharge.

The TMDL is the best tool in the toolkit for restoring water quality.

The TMDL’s scientific findings and enforceable numeric nitrogen loading restrictions can be incorporated in and implemented in DEP land use and water regulatory programs:

• CAFRA (to restrict impervious cover, preserve vegetation, and reduce the number, size and rollback current high impervious cover limits in centers)
• wastewater planning (to limit wastewater flow capacity and restrict extensions of sewers in environmentally sensitive lands, limit septic density, better manage septic systems, and assess aging infrastructure for leaks);
• stream buffers (by mandating 300 foot buffers on all streams as non-point pollution BMPs)
• NJPDES (by requiring sewer authorities to upgrade treatment, resuse, and reinject clean highly treated wastewater to replenish aquifers);
• water allocation (to mandate water conservation, cap or lower existing water allocation permits, and restrict future allocations to address loss of freshwater inputs to the Bay, loss of flow in coastal streams, salt water intrusion into aquifers, and adverse wildlife and wetlands effects associated with over-pumping and over-allocation of freshwater);
• stormwater management (by providing a scientific and regulatory stick to drive upgrades of existing stormwater impoundments and limit future ones, and force new development to reduce imperviousness and better manage stormwater).

The local advocates need to get with the Clean Water Act’s TMDL program, focus criticism on DEP Commissioner Martin and not DEP staffers, and not blast people on false grounds and mislead the public about the science.