Response to NJ Farm Bureau Lies On Highlands Water Quality Rollback

Woe unto them that join house to house, that lay field to field, till there be no place, that they may be placed alone in the midst of the earth! ~~~ Isaiah, V, 8

The NJ Farm Bureau has a Letter-to-the-Editor in today’s Bergen Record, see this link.

In order to rebut their lies and spin, I fired off this LTE that I doubt they will print (I submitted a much shorter version!):

Dear Editor

I am compelled to rebut misleading statements and outright falsehoods published in a letter by the NJ Farm Bureau  “Septic change good for the farmers” regarding the Christie DEP’s proposed Highlands “septic density standards”.

The current DEP rules were designed to prevent degradation of water quality, as mandated by the Legislature in the 2004 Highlands Act.

In order to cut through the spin on this debate, it is important to understand why the Legislature passed the Act.

A 2002 US Forest Service study that found that local zoning and lax environmental regulations would allow massive development that would compromise critical water supplies and natural resources of the region, see:

http://na.fs.fed.us/pubs/stewardship/ny_nj_highlands02_hr.pdf

In the Highlands Act, echoing the prior USFS finding, the NJ Legislature found that pre-existing DEP regulations were not sufficiently protective of the Highlands’ water and natural resources and needed to be strengthened in a 400,000 acre “Preservation Area”. The Act does not call for “balancing” economic development in the Preservation Area. Rather, the Act only allows very limited development that is compatible with stringent regulatory standards designed to protect water and natural resources.

The current DEP rules are based on USGS groundwater monitoring well data in locations where groundwater is pristine and not impacted by human pollution. This is known as “natural background” conditions, a concept long well understood and part of DEP’s own scientific methods and regulations.

There its nothing new or extreme about the concept of natural background. In addition to being a well know scientific concept, DEP’s rules define it:

Groundwater Quality Standards: (NJAC 7:C-1.4)

• “Background water quality” means the concentration of constituents in ground water which is determined to exist directly upgradient of a discharge but not influenced by the discharge, or is otherwise representative of such concentration of constituents as determined using methods and analyses consistent with the requirements of N.J.A.C. 7:14A-10.11(g).

• “Natural quality” means the concentration or level of constituents which occurs in ground water of a hydrologic unit without the influence of human activity, other than the effects of regional precipitation of air pollutants (for example, acid precipitation). The natural quality for SOCs is established as zero (0.0) except where the SOCs are the result of air transport from outside the State, enter the State from ground water transport of pollutants having their origins in other states, or are created entirely by natural processes. Where natural quality for other constituents is not ascertainable from generally acceptable scientific studies, the lowest concentrations known to exist within the same or a similar hydrologic unit and setting (that is, depth) within the classification area shall be used to represent the natural quality, provided, however, that for pH, corrosivity and hardness, the most representative concentration shall be used.

Surface Water Quality Standards (NJAC 7:9B-1.4)

“Natural water quality” means the water quality that would exist in a waterway or a waterbody without the addition of water or waterborne substances from artificial origin.

To prevent degradation of that natural background water quality, the current rules allow one septic system per 88 acres of forested lands and one per 25 acres of farmland. The DEP Highlands rules were upheld by the NJ Courts and found to be “based upon substantial credible evidence … and a valid exercise of the agency’s discretion” …  and  “a rational, scientific basis for establishing the septic system density standards, and that the Farm Bureau did not meet its burden of proving the Department’s methodology was arbitrary or capricious.” (see page 5 of the DEP proposal).

The Christie DEP proposal would allow a significant increase in allowable septic systems to promote development, slashing the current 88 acres to just 22 and the 25 acres to 11-12 acres.

The Legislature did not direct DEP to promote economic development or “balance” economic development in the Preservation Area, or to use water quality regulations as a means to compensate landowners.

In addition to misinterpreting the Highlands Act, more specifically the NJ Farm Bureau make the following false statements:

1.  NJFB claim: “The proposal used a wealth of scientific data from the U.S. Geological Survey.

This is false. Ninety six percent (96%) of the data come from the NJ DEP’s “Private Well Testing Act” database. DEP did not use this data for the current rules because in the 2003 and 2008 PWTA Reports, DEP found that the data has “limitations” and is not reliable because it has not undergone independent credible “quality assurance and quality control” (QA/QC), see page 5 “Limitations of the data”:

http://www.nj.gov/dep/watersupply/pwta/pdf/pwta_report_final.pdf

2. NJFB claim:  “it  appears the DEP and its impartial Science Advisory Board agreed that the rule needed reconsideration.”

This is misleading, as suggested by the weasel word “appears”.

The DEP’s Science Advisory Board never stated that the rules needed reconsideration. Rather, back in 2014, the SAB reviewed DEP’s new Highlands nitrate statistical model (later used in the USGS study and by DEP as the basis for the 2016 proposed rollback) and found the data lacked QA/QC and assumed that this lack was OK:

• “The analyses in the PWTA dataset were conducted by NJDEP-certified laboratories, although they were not as fully qualified as were the [USGS] NWIS data.” (p.3)
• “The model assumes the wells used to obtain the PWTA nitrate concentration values are similar to those used in the 2008 [USGS] NWIS evaluation. (p.7) (SAB Report, see:

http://www.state.nj.us/dep/sab/Final%20WQQC%20Report%20-%20Median%20Nitrate%20Model%20for%20Highlands.pdf

“Not as fully qualified”? What does that mean? It contradicts DEP’s own findings in the PWTA Reports of 2003 and 2008 that there was NO QA/QC (among other data limitations).

The SAB conducted their “review” via two phone calls! That’s some rigorous review, no?

They never consider whether this DEP model and use of the Land use/land cover categories instead of the Preservation Area was consistent with the Highlands Act.

Their finding of statistical significant validation is highly questionable:

The WQQC [SAB] requested validation of the model by applying it to only the well-validated individual NWIS data. The linear correlation between the data and the predictions was about 22%. Although noisy, this was judged to be statistically significant. (page 4)

Under DEP Administrative Order, the SAB is prohibited from considering regulatory policy, a bright line they trampled in this Report. The SAB relies on this fig leaf to evade that restriction:

It should be noted that the WQQC focused exclusively on the validity of the model1 to predict median nitrate concentration, and not on how the model predictions might be used to regulate septic tank density.

That fig leaf, i.e. that the SAB “did not consider how the model might be used to regulate septic density”, flat out contradicts the NJFB claim.

Finally, the SAB inadvertly admits the fatal bias in the method, i.e. that the media values and data were not “natural background” conditions, but correlate with and reflect LAND USE and anthropogenic nitrogen pollution:

Are the model’s results appropriate for use by land use capability zone?

Yes. The combination of choice of input parameters and the modeling approach is able to generate estimates of median nitrate concentrations that take into account land use effects at the regional level that are improvements over estimates that could be made in the absence of this approach. (page 5)

The USGS Report was more honest on this issue. USGS specifically noted a locational bias due to anthropogenic nitrate loadings:

“There is spatial bias in well locations because many sampled wells are located in urban areas; thus, a bias in median nitrate concentrations was expected. Over-representation of urban and possibly agricultural areas and under- representation of forested areas in the combined NWIS-PWTA database must, therefore, result in higher median nitrate concentrations for all water samples than the actual median concentration for groundwater underlying the entire Highlands Region or any Area, Zone, or Area: Zone combination.” (USGS at page 14)

Taking land use effects into account conflicts with the reliance on natural background condition as a target, which is mandated in the Highland Act’s standard to prevent degradation of water quality. The fact that the DEP SAB ignored this critical fact severely erodes their credibility.

3. NJFB claim:  “it was determined that smaller lot sizes could still adequately protect groundwater in this region.”

Note the passive tense: “it was determined”. By whom? In what document?

Neither the SAB nor the DEP made this finding.

Regardless, it is irrelevant because the Highlands Act directs DEP to prevent the degradation of groundwater quality in the Preservation Area, not simply to “adequately protect” it (as DEP attempted under pre-Act lax regulations the Legislature properly over-rode and strengthened in the Highlands Act).

Bill Wolfe