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DEP Drinking Water System Rules Allow Water Purveyors To Define And Set Standards

DEP Continues Voluntary Status Quo Despite Mandatory Law

The DEP today proposed new regulations to implement a 2021 law designed to assure that drinking water systems are well maintained and that their physical assets are managed appropriately to assure compliance with regulatory standards and prevent failures and threats to human health. The law also sought to upgrade infrastructure to reduce leaks and waste of water resources.

Long before the current crop of Foundation Funded Frauds, we helped put the infrastructure deficit issue on the policy agenda, way back in 2005 testimony to the Clean Water Council and in this 2006 Report, see:

• HUGE NEW JERSEY WATER INFRASTRUCTURE NEEDS NOT BEING MET

We also took leadership in warning of the climate risks a decade ago, see:

• Environmental Infrastructure Funding Bills Continue to Ignore Climate Risks and Adaptation

The 2021 law was passed in order to put teeth in DEP’s voluntary 2014 “Asset Management Guidance” and to mandate that drinking water systems develop Asset Management Plans and finance and actually implement them.

We exposed the flaws of that voluntary “Asset Management” program when it was initially adopted by the Christie DEP, see:

• Christie’s Other Hidden Multi-Billion Dollar Deficit – No Plan to Pay for Huge Water Infrastructure Shortfall Aggravated by Sandy

According to the Murphy DEP proposal:

The [2021] WQAA requires that the specified public community water systems implement asset management plans within 18 months of the Act’s effective date … Asset management programs include the process of ensuring that there is sufficient investment in the system, as well as the planned maintenance, repair, replacement, and upgrade of the physical components of a drinking water system.

Unfortunately, the DEP failed to get the message from the Legislature that their voluntary 2014 Asset Management Guidance Document was the source of the problem because it was voluntary and implementation was not mandatory. 

The DEP proposal delegates essential standards and would allow local water purveyors to define the goals and make the Asset Management Plan effectively voluntary:

Due to the large amount of variability between systems, the Department will not mandate specific goals, nor evaluate specific goals as being adequate or inadequate. These proposed requirements would provide  minimums, such as compliance with drinking water rules and regulations, and being reflective of the service goals and metrics of the system.(@ p.16)

WTF? DEP will not set goals or determine if local goals are adequate? Are you kidding me?

The Department relied on existing regulatory standards – the same standards the new law sought to strengthen:

The 15 percent non-revenue water threshold is consistent with the standard from the existing rules (N.J.A.C. 7:19-6.4(a)).

Even for the most “critical” risks – including climate risks – and engineering and operating features of the drinking water systems, DEP abdicates and continues the current voluntary approach and effective delegation and privatization of setting goals, defining critical conditions, outlining technical elements, and standards:

This rulemaking establishes a process for performing criticality assessments at N.J.A.C. 7:10-6.3(b)4 that is designed to evaluate the risk for each asset in a public community water system. The first step of this process is to use the Business Risk Exposure (BRE) framework. In the BRE framework, the probability of failure (scored between one and five) and the consequence of failure (scored between one and five) are multiplied together to create a criticality rating (scored between one and 25). The BRE framework is a commonly recognized methodology for evaluating risk of assets. It is recommended for use in the Department’s 2014 Asset Management Guidance (https://www.nj.gov/dep/assetmanagement/pdf/asset-management-plan-guidance.pdf), … The Department is not requiring the use of any specific values in criticality assessment. Instead, the Department is emphasizing the comparison of the probabilities and consequences of failure to determine criticality as the essential aspect of this part of the process.

Did you get that? DEP will allow private water purveyors to define critical risks.

Here is another blatant loophole regarding the need to determine and reduce the loss of water – note how DEP did not impose and mandate critical new requirements – that would be too “complicated” (and “expensive”):

To accompany this effort, the Department will work with State drinking water sector training organizations to ensure that systems will receive training that will allow them to complete an audit successfully. Some states have incorporated steps to include the Level 1 validation process. This is a process outlined by the Water Research Foundation and AWWA that would have individuals qualified through a training program, and overseen by the State evaluate data quality of audits prior to submittal to the State. However, due to the complication, expense, and staffing associated with developing a licensing program, which would be necessary to meet the requirements of a robust Level 1 validation program, such a process is not incorporated into this rulemaking.

Coulda, Woulda, Shoulda

The entire proposal is full of discretionary actions the DEP “could take” or “may take” – instead of mandates that the water purveyors “shall take”, again defeating the Legislative intent of the 2021 law, which was to mandate implementation and ratchet down on current discretionary and unenforceable DEP standards.

As the quality of submitted data improves, the Department could, pursuant to the Water Supply Management Act at N.J.S.A. 58:1A-15f and consistent with N.J.A.C. 7:19-6.4, 6.5, and 8.3, require systems that exhibit significant water loss to take actions to reduce such loss. Examples of actions that the Department would take to compel systems to reduce losses include: a denial of increases to water allocation, leak detection surveys, submittal of a water main replacement schedule, or a meter replacement program. Each of these follow-up actions is consistent with existing regulatory requirements

DEP is falsely implying that a lack of data is why standards are not enforced, (“as quality improves”) and signaling that any implementation is many years in the future.

Once again, another example of where DEP injects discretion into what should be a mandatory standard:

The Department is proposing that, where a public community water system is in the bottom 35th percentile of comparable systems per the findings of submitted water loss audits, or reports greater than 15 percent UFW or non-revenue water, the Department may take several actions to compel a public community water system to reduce water losses.

So, under the guise of ratcheting down and imposing mandatory Asset Management Plan implementation requirements, the Murphy DEP has done exactly the opposite and preserved the status quo voluntary program.

Accordingly, our drinking water assets will continue to deteriorate and investment upgrade decisions will continue to be made primarily by private corporate water purveyors in order to maximize profits, not protect public health and the environment.

Harris/Walz Democrats Have An Opportunity To Follow FDR’s Lead

President Biden delivers the keynote address tonight to start the Democratic Party’s convention in Chicago.

The ghosts and many echoes of Chicago ’68 (see:The Ghost of Hubert Humphrey Is Stalking Kamala Harris have gotten the attention of even The NY Times (see: When Chaos Came To Chicago”).

Since unfortunately I can’t be out in the streets with the protesters, I thought I’d offer moderate thoughts on a far different history, a timely focus on what FDR once described as “The Choice before Us” in his famous 1938 “Message To Congress On Curbing Monopolies”:

Examination of methods of conducting and controlling private enterprise which keep it from furnishing jobs or income or opportunity for one-third of the population is long overdue on the part of those who sincerely want to preserve the system of private enterprise for profit.

No people, least of all a democratic people, will be content to go without work or to accept some standard of living which obviously and woefully falls short of their capacity to produce. No people, least of all a people with our traditions of personal liberty, will endure the slow erosion of opportunity for the common man, the oppressive sense of helplessness under the domination of a few, which are overshadowing our whole economic life. …

The power of a few to manage the economic life of the nation must be diffused among the many or be transferred to the public and its democratically responsible government. If prices are to be managed and administered, if the nation’s business is to be allotted by plan and not by competition, that power should not be vested in any private group or cartel, however benevolent its professions profess to be.

FDR was no Socialist – he was seeking modest reforms to preserve capitalism and to derail political revolution.

Although today’s economic conditions and abuses of power of corporations and monopoly are as bad and in many ways worse than those FDR faced in 1938,  I strongly doubt we’ll hear anything like that from Biden tonight.

FDR framed the issue and source of the problem in his first paragraph: the threat of fascism:

The first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in its essence, is Fascism—ownership of Government by an individual, by a group, or by any other controlling private power.

Today, we face not only the economic power of corporations FDR described.

Today, corporate power has expanded to entrench an Oligarchy that has bought Congress and the Supreme Court, controls the media and cultural institutions – who distribute propaganda – and are financing and stoking culture wars and Christian Nationalists with strong fascistic cultural and political tendencies.

They form the Trump base. They are not right wing Populists. They are fascists.

I urge folks to read the entirety of FDR’s message to Congress and consider the policy and program he set forth: (topical bullets from the address):

• THE GROWING CONCENTRATION OF ECONOMIC POWER.
• FINANCIAL CONTROL OVER INDUSTRY
• THE DECLINE OF COMPETITION AND ITS EFFECTS ON EMPLOYMENT
• COMPETITION DOES NOT MEAN EXPLOITATION
• A PROGRAM

FDR tied his program reforms not to a European Socialists program, but to American traditions:

No man of good faith will misinterpret these proposals. They derive from the oldest American traditions. Concentration of economic power in the few and the resulting unemployment of labor and capital are inescapable problems for a modern “private enterprise” democracy. I do not believe that we are so lacking in stability that we shall lose faith in our own way of living just because we seek to find out how to make that way of living work more effectively. …

It is a program whose basic purpose is to stop the progress of collectivism in business and turn business back to the democratic competitive order.

And that sure sounds like an effective rebuttal to Trump’s delusional attacks on the Democrats as “Communists” and “Socialists”.

Critics Are Downplaying The History And The Implications For Fascist Consolidation

Project 2025 Is A Radical Break With The Traditional Corporate Agenda

The first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in its essence, is Fascism—ownership of Government by an individual, by a group, or by any other controlling private power. ~~~ FDR Message to Congress (1938)

[Update below]

I’ve long been calling for writers, government officials, and political activists to engage and educate the public about Project 2025, see:

• The Right Wing’s New Long Game Plan – “Project 2025″

• What “Project 2025″ Would Do To US EPA, Climate, And Environmental Protection Programs

• Trump’s Project 2025 Attack On The Department Of Interior Might Be Worse Than EPA Dismantling

So I am extremely pleased by the dramatic increase in criticism and media coverage.

But I am frustrated that the critics are overplaying the culture war and identity issues and downplaying the ideological significance and policy implications, particularly given the current cultural, political and legal context.

The primary criticism basically argues the Project 2025 is a rehash of the longstanding Chamber of Commerce Neoliberal pro-business and anti-regulatory agenda, coupled with a misogynistic attack on women. I note but do not discuss today the Christian Nationalist influences.

But while there are policy overlaps with that traditional Chamber of Commerce program, critics are missing the ideological roots of the foundational fascist history and are ignoring the radical nature of Project 2025, particularly in light of the US Supreme Court’s efforts to “dismantle the administrative state”.

The roots of Project 2025 are in an ideological and fascist attack on FDR and the New Deal by a corporate group called The American Liberty League. This group was not only fascist, but plotted a coup on FDR, see:

• Wealthy bankers and businessmen plotted to overthrow FDR. A retired general foiled it.

Ignoring or downplaying this history, ideology, and fascist politics generates a “politic as usual” cynical stance that risks consolidation of fascism in a Trump second term.

The most recent criticism of Project 2025 I read along these lines is this otherwise superb piece at CounterPunch:

• Blueprint for Dystopia: Project 2025

Here is my note to the author that tries to express my concerns:

Thanks for writing that – a couple of thoughts for what I hope is a followup piece:

1) the Trump loyalty test is not limited to defense and intel – but across federal government (Schedule F). That means scientists too. Estimates are over 100,000. Total destruction of the civil service and with it any notion of the public interest, science, and public policy.

2) You missed the Department of Interior recommendations, which are a s bad or worse than the EPA stuff. Please do a followup on Dept. Of Interior – Americans love federal lands!

3) You missed the climate and energy recommendations, which are simply suicidal.

4) You missed the “Unitary Executive”, which, in context of the Supreme Court decision on immunity, and Trump and his base’s fascist and cultural tendencies, must be exposed.

5) I terms of history, I think you downplayed the significance, both of the current and historical context. This is not the same old Chamber of Commerce anti-regulatory agenda. And historically, the roots are best traced to the Liberty League (1934), who supported Nazi’s and plotted a coup of FDR. There is also deep ideological attacks on the New Deal that can be understood as the current reaction against the Green New Deal.

6) Finally, beyond the scope of your piece but intimately related to Project 2025, is the ideological attack by the Supreme Court seeking to “dismantle the administrative state” via invocation of the 19th Century non-delegation doctrine and a new “major questions” doctrine to emasculate government agencies by requiring Congressional delegation of explicit authority.

[Update: this website is unable to accept reader comments – as a result of prior bot attacks – but I thought I’d post this good question I just got on my Substack page and my reply:

Q: what is the traditional corporate agenda? how come there’s a ‘radical break’ in the first sentence and ‘there are policy overlaps’ later on?

A:  Good question. Let me try to explain and illustrate.

The traditional Chamber agenda called for “less government” and opposed “costly regulatory mandates” and “red tape”. These slogans were operationalized in specific policy recommendations for “reform”. An example would be for EPA to set more “flexible” standards, for example, by allowing corporations to average emissions over time (this would allow for a violation of the standard for some period of time) or to monitor on a monthly basis, instead of daily. Or corporations would demand that EPA “streamline” regulatory reviews and provide “certainty”. EPA would then find various ways to do this within existing laws.

These are all basically “reform” initiatives. They accept the legitimacy of government intervention and support the role of science and professionalism and “balance”.

In contrast, the Project 2025 agenda is not reform. It is radical.

It does not accept government intervention as legitimate (i.e. “dismantle the administrative state”). It does not accept government employees and the civil service as legitimate (e.g. they are “deep state actors” with a “Leftist agenda” that need to be replaced by Schedule F Trump loyalists and cronies). It does not accept the role of science or believe in objectivity – they are merely cover for the economic self interests of the bureaucrats (Google “public choice theory” to understand this concept). Project 2025 views protective regulations and taking private property (e.g. agricultural nutrient control programs are really ways to confiscate farmland. Climate just ways to ban cows and eating meat or taking your pickup truck). Project 2025 seeks to replace civil service with Trump loyalists. It seeks to eliminate science and replace them with political and industry advisers. It seeks to privatize and make voluntary the current regulatory apparatus. It does not accept regulation as legitimate and legally authorized by Congress (Google the “major questions” doctrine). It views the President as a dictator of all executive branch policy, e.g. Trump could call the EPA administrator and tell him what to do, regardless of science and fact. This is no exaggeration: remember when trump drew a line on a hurricane weather map? Google the “unitary executive” and read Chapter 1. Trump says climate emergency is a hoax and Project 2025 calls for the elimination of most all climate programs.

The traditional Chamber of Commerce didn’t go anywhere near any of this.

I could provide many more examples. ~~~ end update

DEP Denies Public Records Request For List Of Exempt “Legacy” Projects

Developer Gold Rush Underway To Submit Permit Applications To Exploit Exemptions

Largest Loophole In DEP History

I)  In The Beginning

In the beginning, there was the [DEP] word – dripping with patronizing arrogance:

To understand the discussion regarding the science of climate change and the related policy decisions that follow, it is helpful to have an understanding of the current underlying principles of climate science.

So, if you oppose this proposal, you are either ignorant of or deny the “current underlying principles of climate science”.

I can not imagine a worse way to begin a regulatory tome of 1,044 pages of sesquipedalian regulatory jargon – whose scope harkens back to and is likely headed down the same road as the failed McGreevey DEP “Big Map” – and one that the Murphy DEP has delayed for almost 7 years.

Yeah, smart move: condescend to and insult the reader right out of the gate.

II)  Gaping “Legacy” Loopholes

But if you can get that far, you’ll find buried on page 214 of the DEP’s 1044 page proposal, the largest loophole in DEP history – for so called “legacy projects”:

complete applications submitted before new requirements become effective are subject to the standards in place before those amendments are adopted. (N.J.A.C. 7:8-1.6 Applicability to Major Development)

[Note: Even larger than prior loopholes.]

Translation: if you submit permit applications before the effective date of the rule – which could be sometime in early 2026 – then you are exempt from the new requirements. A get out of jail free card – and advertised prominently by DEP.

Here’s how one of NJ’s most politically powerful law firms is marketing this loophole to its developer clients:

“Legacy (previously, grandfathering) provisions remain consistent with current NJDEP rules and depend largely on securing relevant approvals or the filing of a complete application before the rules become effective. Applications submitted before the effective date and declared technically complete will qualify for legacy status.”

What the hell is “legacy status”? It’s code for loophole.

Obviously, this is a major concession to the development community and an invitation to “come on in” abuse. It will stimulate a new gold rush, as lawyers and developer’s engineers submit permit applications to evade the new requirements. That volume of permit applications will overwhelm DEP staff resources and result in even more cursory rubber stamp certifications of “complete” “legacy” permit applications (DEP must issue a decision in less than 90 days).

Accordingly, those “legacy loopholes” will lead to an acceleration and increase in new development in hazardous and environmentally sensitive locations, which is exactly the opposite of DEP’s purported goals of reducing climate vulnerability and protecting the environment. 

When I served in DEP, we KNEW how the effective date of regulatory requirements impacted the incentives for new development, so we put controls in place, e.g.: In the Highlands Act, the legislature made the effective date of the law retroactive to the date the bill was introduced in the legislature. In the DEP Category One stream buffer rules, we provided “transition rules” to prevent abuse.

The DEP also limited grandfathering in a prior adoption of flood hazard rules to similarly limit abuse.

But reliable DEP sources tell me that the Commissioner did NOT support staff proposed limits on grandfathering.

Even worse, the Commissioner also opposed staff recommended “no build zones”, which I will discuss in a future post.

III)  DEP Abuses OPRA To Conceal The Extent Of Loophole Abuse

Given the significance of this “legacy loophole”, I filed an OPRA public records request for development permit applications that had been filed to date to claim “legacy status”.

In my experience, DEP tracks this information as part of their permit database, which they are required by law (“Doria” or “EMAP”) to maintain and publicly Report annually.

DEP has been in violation of the Doria legal reporting mandate for years, and the legislature and media and environmental groups have all given them a pass for a blatant legal violation.

The DEP denied my OPRA request on the following sham basis:

The NJDEP has denied the aspect of reviewing every application received since the “Real Rule” was published to determine if any applicant has mistakenly requested “legacy status” on the basis that it requires the NJDEP to conduct research & correlate data, which is not required pursuant to N.J.S.A. 47:1A-9 & Mag Entertainment v. Div. of Alcoholic Beverage Control 375 N.J. Super 537 (App. Div. 3/05). – 08/14/2024

The DEP does NOT have to conduct “research” to obtain this information.

The DEP maintains and tracks this information in permit databases.

And if they don’t, they are not only violating the Doria law, they are flying blind and proposing grandfathering legacy loopholes with no clue of the impacts – which is gross mismanagement as well.

The Murphy DEP delayed proposing these rules for almost 7 years after they promised to do so.

IV)  Over A Decade Of Delay

The DEP cites scientific and policy recommendations that are more than a decade old (Rutgers study):

In response to a stakeholder engagement process between 2012 and 2014, Rutgers University, on behalf of the NJ Climate Adaptation Alliance (NJCAA), convened a Science and Technical Advisory Panel (STAP) to help identify planning options for practitioners to enhance the resilience of New Jersey’s people, places, and assets to regional sea-level rise (SLR), coastal storms, and the resulting flood risk.

The Murphy administration repeatedly signaled that these rules were coming, in press releases and Governor Murphy’s Executive Orders, for over 5 years.

The DEP proposal itself acknowledges decades of disaster and delays:

In New Jersey, major flood events were observed in 2000, 2004, 2005, 2006, 2007, 2010, 2011, 2012, 2016 (NJDEP, 2020), and most recently in 2021, associated with the remnants of Tropical Storm Ida. According to the 2019 State Hazard Mitigation Plan, NOAA’s National Climatic Data Center (NCDC) database reported that New Jersey experienced 1,582 flood events in a 63-year period beginning in 1950 and ending in 2012 (NJ Office of Emergency Management, 2019).

So the private sector (banking, insurance) and the development community had years to prepare and design and finance projects and submit permit applications to DEP to exploit “legacy loopholes”.

In addition to the huge delays in proposing regulations, the DEP provided a 90 day comment period. Given the intense opposition to this rule from developers, DEP is likely to take months preparing responses to comments.

I was told that it took over 3 months for the Office of Administrative Law (OAL) – who reports to Governor Murphy – to publish the DEP proposal in the NJ Register. This typically takes a few weeks. So, that delay is unacceptable and suggests that the Gov. Office is either opposed or has not made this a priority.

DEP, OAL and Gov. Office similar delays will likely take the effective date of these rules – if the Legislature doesn’t veto them or Courts invalidate them – into early 2026.

V)  Big Map 2.0?

Finally, DEP proposed a massive omnibus comprehensive set of rule amendments, instead of taking smaller permit program specific bites incrementally over the 7 year term.

Strategically, DEP made the same error on “The Big Map” – and we know how that turned out.

(subsequent posts will focus on the merits, particularly the NJ BIA Big Lie that this proposal represents “strategic retreat” from the coast.

We’ve long advocated “strategic retreat”, and DEP’s Coastal Zone Management Plan once even stated that as a policy that needed to be fleshed out. That CZMP text was deleted by the Christie DEP. So, we know that – just like “Senator, you’re no Jack Kennedy” – that this proposal is not strategic retreat, but affirmatively designed to promote development.)