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DEP Failing to Implement & Enforce Clean Water Programs Design To Protect Lakes

DEP grants buy watershed group support

Color coded tiered scheme masks rollback of standards

Source: NJ DEP (June 2020)

Just as critics predicted during last summer’s statewide proliferation of toxic Harmful Algae Blooms (HABs) that closed numerous lakes across the state, including NJ’s largest recreation lake, Lake Hopatcong, HAB’s are becoming a chronic problem.

They’re already back again this year.

But instead of developing a stronger and aggressive new program over the winter to better protect NJ’s lakes from the combined impacts of climate change and excessive nutrient pollution, remarkably, the Murphy DEP actually weakened the HAB standard by 400%.

(See new DEP science and strategy – It’s complex. Let’s just say I’ve never seen DEP adopt this kind of probability based health standard before, and it’s not really even a standard, it’ a statistical exceedence of an indicator of a Guidance value. The multi-step DEP screening process is familiar, though. It serves as a multi-step way to delay, reduce, or avoid controversial or costly responses (like recreational lake closures) and provides loopholes and safe “exit ramps” along the way. DEP does something similar in the TMDL program and the NJPDES phosphorus WQBEL Guidance with chlorophyll a. In addition to the complexity and multiple steps, vague bureaucratic euphemisms and admissions like this are all you need to know (@p.21):

DEP will make every effort to respond to reported suspected HABs as soon as possible. In the event that resources are limited, the response actions will be prioritized based on potential risk to public health.[…

Situational awareness in accordance with established internal DEP protocols will be initiated.

An agreed upon surveillance frequency which will consider recreational use, HAB extent, and other factors will be employed. ….

These advisories may be modified on a site-specific basis as appropriate to reflect the nature and extent of a specific HAB occurrence.

Last year, DEP issued public health warnings that resulted in closure of lakes to direct contact recreational uses (swimming, wind surfing, etc) when bacterial levels exceeded 20,000 cells/ml.

[Update: Here is DEP HAB monitoring data from 2019 for Lake Hopatcong -note that the NJ Health Advisory Guidance Level is 20,000 cells/ml. Note that DEP applied a 2 color scheme, based on that 20,000 cells/ml Guidance Level:

Source: NJ DEP Report, July 2019 (see link to Report above)

Another smoking gun regarding the rollback of the 2019 20,000 cell/ml Health Advisory is this bullet item from the minutes of DEP’s Water Monitoring Council January 2020 meeting on HAB’s:

But buried in the fine print of DEP’s new “color coded” scheme, that warning and closure level was increased fourfold (400%), to 80,000 cells/ml.

Surprisingly, only former Star Ledger outdoors reporter Fred Aun caught that massive rollback.

In an online publication, Fred wrote:

The state was criticized by many last summer for warning people to stay out of the water if cell counts of cyanobacteria – the microorganisms in HABs – reached 20,000 cells/ml. Many said the level was too low to warrant concern. […]

“Based on data collected over the past three years, in particular last year, DEP scientists determined that harmful algal blooms become statistically more likely to produce toxins when cell counts exceed 80,000 per milliliter,” said the state. “Consequently, the DEP has developed this cell count level as the benchmark for posting recreational alerts where all primary recreation including swimming is not recommended and local health authorities close beaches.”

DEP caved in to the local political pressure and rolled back the standard from 20,000 to 80,000. That is outrageous.

Other press reports on the Murphy DEP’s Harmful Algae Bloom (HAB) program not only failed to note that massive weakening of public health protections (cynically masked under the guise of a new color coded warning scheme), but actually quoted Bill Kibler, a NJ environmentalists, who instead of slamming DEP for this massive political concession and standards rollback, shifted the focus away from DEP and to new local “stormwater utilities”.

I reached out to NJ Spotlight Reporter Jon Hurdle and Bill, advised them both of the rollback, and asked them why that was not reported by NJ Spotlight. 

Normally, a 400% rollback in a health based water quality standard would trigger severe criticism from NJ environmental groups and garner press attention.

At least Jon Hurdle responded and said I raised a good point. Bill Kibler didn’t even respond. That ought to tell you something.

Which is why I’m not surprised that yesterday – likely in an effort to again dodge accountability for the huge rollback of the 20,000 cells/ml standard – DEP issued a press release on their new and improved HAB program. In that press release, DEP again trotted out their sycophantic fake green cheerleaders (but not Bill Kibler, who is now wise to their BS), to praise the initiative. DEP wrote:

“The Watershed Institute applauds the DEP for creating the new interactive mapping tool, and we look forward to using it in our efforts to keep water clean, safe, and healthy,” said Jim Waltman, the Watershed Institute’s Executive Director. “The DEP is taking an important step to raise awareness of the health of our waterways by making information about water pollution more accessible to the public. We hope through this tool, the public can better protect themselves and start to understand the impacts pollution has on all of us.”

But why would a watershed advocate praise a four fold rollback in a health based standard?

Here’s why so called environmentalists are praising DEP – they are being paid to do so by DEP:

Using a $240,000 [DEP] Community Water Monitoring grant, the nonprofit Watershed Institute is also training community water monitoring groups to assist with surveillance and sampling of lakes with suspected HABs.

What corrupt bastards. Have they no shame? Did they ever hear of a conflict of interest?

But in addition to weakening the bacterial standard, there are many other things DEP could be but is NOT DOING TO BETTER PROTECT LAKES UNDER CURRENT REGULATIONS AND DEP PROGRAMS.

If DEP were serious, here is a list of some of the things DEP would do under existing regulations and programs to create a new comprehensive statewide program to better protect lakes from climate and excessive nutrient loads (instead of what they are doing, which ignores prevention and is limited to response to problems, and amounts to 1) abdicating clean water and land use statutory obligations and regulatory authority; 2) outsourcing to DEP funded watershed groups; 3) delegating to local governments; 4) pointing the finger at local governments; 5) diverting attention to “stormwater utilities”; and 6) relying on NJ Department of Health and local health officials who are already over-burdened by COVID.)

DEP could and should:

1. Beef up the Clean Water Act based DEP Lakes Management Program (over the years, it has been neglected, defunded, or abandoned, e.g. see: Christie Whitman’s Executive Order #115:

WHEREAS, a large number of these lakes are exhibiting indications of stresses to water quality, including sedimentation, excess growth of nuisance and exotic plant and algal species, and other symptoms of eutrophication;

2. Strengthen the DEP “Total Maximum Daily Loads” (TMDLs) for lake nutrients. The TMDL’s are flawed and there is no implementation of enforcement.

3. DEP could adopt regulations to mandate local septic management programs in the DEP “water quality management planning” program and regulations – including more stringent siting, design, replacement, maintenance, pumpout, & pollution tracking requirements.

4. DEP Watershed Management Program – this program was supposed to address non-point pollution on a regional scale. It could become the umbrella under which DEP addressed the HAB problem.

5. DEP stormwater management program (weak technical standards and no enforcement)

6. DEP surface water quality standards (no enforceable numeric standards for eutrophication and no implementation of existing SWQS to protect lakes).

7. DEP septic design and management regulations – and lack of mandatory location, inspection, pompout, and pollutant tracing requirements

8. strengthen DEP’s Highlands Act regulations to limit the use of fertilizers (agricultural and residential), restrict development, restore riparian lands, and track and control nutrient sources.

9. DEP Wetlands Forestry BMP is voluntary and non-enforceable and lacks protections for wetlands and lake/stream vegetated buffers.

10. DEP could use all of the above programs’ science, data, staff, funding, and regulatory authority to design a comprehensive and regulatory  “Lakes Management” Program to address HAB’s. But that would take political will and creativity, things that are sorely lacking a DEP – along with a watershed and environmental community that elevated science, integrity and the public interest above securing grant funds and providing  cover and political loyalty to the Murphy administration.

When you look at all the DEP responsibility and legal authority under these programs and DEP’s failure to implement them, then maybe you can understand my frustration with DEP and sycophantic environmental groups proposing stormwater utilities and local controls as the answer.

And for so called watershed groups – who are taking money from DEP – to ignore all that, including a standards rollback – is totally corrupt.

Opposing Police In Schools Before It Was Cool

My friend Peggy Synder – who died unexpectedly way too young at 54 back in May 2014 – was known locally primarily as a passionate environmental advocate and leader.

I met Peggy shortly after my family moved to Hopewell NJ in 1993.

After a massive sprawl development project was proposed for Hopewell Valley, Peggy – and MaryLou Ferrara and Leslie Kramer – created the citizen group The Coalition to Save Hopewell Valley, which rapidly attracted almost 1,000 members and became  the leading group that successfully fought and killed massive proposed corporate developments.

Peggy, after victories over proposed sewer lines and massive corporate office parks at Merrill Lynch Scotch Road and BMS sprawl expansions, was appointed to the local planning board and later formed her own environmental consulting firm.

(and it absolutely sickens me to now read that NJ Audubon is mentioned in her Obit, because NJ Audubon was NOWHERE to be seen (with the exception of Bill Neil) when Peggy was forming the Coalition to Save Hopewell Valley and leading the way in Hopewell Township in the fights against Merrill Lynch and the proposed Trenton & ELSA sewer lines).

But, the reason I am remembering Peggy right now is because the issue of police in schools is now on the radar and public agenda.

While it is not mentioned in her obit, I can tell you that Peggy was a strong opponent of police in schools.

Peggy’s kids were a few years younger than my kids. I learned from Peggy of the introduction of police in Hopewell schools, after my kids were gone. It was not easy for Peggy to oppose police in schools at that time.

Her opposition had nothing to do with race and everything to do with kids and their education and how a police presence was anathema to the values, culture and educational mission of a school and the healthy development of children.

When I lived there, Hopewell NJ was an overwhelmingly white and wealthy upscale suburban town. It had a conservative cultural orientation, which, despite certain liberal elite environmental inclinations (NIMBY), had authoritarian tendencies, especially in the schools (my kids went K – 12 there).

So, it was not easy to oppose the friendly local police.

Now, 25 years later, it is becoming clear that police have no place in schools.

My friend Peggy knew that long ago.

Bill would grandfather existing pollution sources that cause current injustices

“Co-Opaganda”

[Update – the bill was amended to address renewal of permits for certain existing sources, so not all are grandfathered. Read more recent analysis if the version signed into law.]

I need to respond to Gov. Murphy’s Friday afternoon highly misleading press release touting:

• Governor Murphy Announces Support for Key Environmental Justice Legislation

Before I get to the details, let me begin by noting that the timing of the Gov.’s announcement deepens the cynicism and manipulation of his misleading press release.

Some call similar largely symbolic gestures “virtue signaling”, while some use the older phrase “pandering”.

But there’s much more going on here, perhaps best illustrated by the recent PR stunts where police take a knee with Black Lives Matter protesters and literally minutes later violently assault them.

[Update: 6/27/20 – see even worse cynicism in Rhode Island]

During a recent interview on Chris Hedges’ show “On Contact, I heard Glen Ford, editor of Black Agenda Report, refer to such PR stunts as “Co-Opaganda” – a perfectly apt amalgam of “Co-optation” and “propaganda”. Sickeningly, many NJ environmental groups have been co-opted by the Gov.’s propaganda.

[Note – Reading Maureen Dowd’s column just now, and realize I may have mis-heard Mr. Ford. Apparently, the word is “copaganda” – so, I guess I’ll claim ownership of coining “Co-opaganda!]

Here’s why Gov. Murphy’s press release is misleading and manipulative.

The bill would grandfather existing sources of current pollution levels that are causing disproportionate burdens in NJ’s minority communities.

Could you imagine the response to a politician who supported a “Defund the police” policy, but then defined that to apply ONLY to reducing the rate of increase of future police budgets?

Well, that is what Gov. Murphy is calling for in his “Co-Opaganda” stunt.

The Senate Committee substitute bill (S232[SCS]) grandfathers existing pollution from current polluters and the existing disproportionate burdens on poor and minority communities in a subtle and technical way – of course legislators and the Governor could not just come right out and say this is what they were doing. They have to do it in the fine print (note: the original Senate bill, S-1150, sponsored by Senator Weinberg way back in 2014, applied to DEP “permits” (which include permit renewals), and not limited to “new or expanded” permits. I wrote about that bill in this post.

The media rarely reads the fine print and the Gov. has co-opted the environmental cheerleaders – who have failed for years – so this crap often works.

Here’s how they do it: the bill would limit DEP’s authority to act upon an “environmental justice impact statement”, by denying a permit or imposing additional conditions in a permit only for “new or expanded” facilities. Here’s the text, from Section 3. c. (at page 4-5)

the department may, after review of the environmental justice impact statement prepared pursuant to paragraph (1) of subsection a. of this section and any other relevant information, including testimony and written comments received at the public hearing, deny a permit application for a new or expanded facility located in whole or in part in an overburdened community, upon a finding that approval of the permit application would, together with the cumulative environmental or public health stressors posed by existing conditions located in or affecting the overburdened community, result in a disproportionate impact to the overburdened community when compared to the impact and risk born by other communities in the State.

So there it is.

DEP’s powers are limited to “new or expanded” “facilities”.

That means the renewal of DEP permits for existing polluters are grandfathered. The Newark incinerator – and all the rest of the polluters – can keep on polluting. The bill will not affect their current permit or renewals of them.

This grandfathering also holds for all those toxic sites, whose flawed and weak and privatized “cleanup” plans have already been approved by DEP – which  like all those current air and water pollution and solid waste facility permits – were all approved with no consideration of cumulative impacts or disproportionate burdens (and toxic sites are not even “facilities” as defined in the bill).

This takes us to the definition of “facility”.

The DEP’s ability to consider and reduce unjust “disproportionate impacts” is limited to “certain permits” DEP issues to “certain facilities” (beware weasel words like “certain“).

Here’s how Gov. Murphy’s press release mentions but does not explain that:

TRENTON – Standing alongside Senator Troy Singleton, Assemblyman John McKeon, and environmental advocates Kim Gaddy, Dr. Nicky Sheats, and Dr. Ana Baptiste, Governor Phil Murphy today announced his support for key environmental justice legislation for overburdened communities. The legislation (S232) requires the New Jersey Department of Environmental Protection to evaluate environmental and public health impacts of certain facilities on overburdened communities when reviewing certain permit applications.

This gets us to the question of how DEP is going to regulate impacts from a single facility, in light of the “cumulative impacts” of surrounding facilities, including mobile sources (cars and truck) and toxic sites, all of which are not regulated “facilities” (and there are very, very few “new or expanded” facilities that might even be regulated by the bill).

There are currently no DEP or US EPA approved scientific methods, regulations or enforceable standards for doing this kind of analysis (multiple pollution sources, multiple pollutants, and pre-existing health and socio-economic conditions present in the community).

Even worse, DEP political mangers have actually acted to block the development of cumulative risk science and regulatory methods.

As US District Court Judge Orlofsky wrote, over 18 years ago – and despite Executive Orders, DEP press releases, and hundreds of hours of meetings and discussions with certain environmental justice activist over many years – nothing’s changed since then:

As described in greater detail in this Court’s Findings of Fact and Conclusions of Law set forth below, the NJDEP granted the necessary air permits to SLC to allow its proposed facility to begin operations. In doing so, the NJDEP considered only whether the facility’s emissions would exceed technical emissions standards for specific pollutants, especially dust. Indeed, much of what this case is about is what the NJDEP failed to consider. It did not consider the level of ozone generated by the truck traffic to and from the SLC facility, notwithstanding the fact that the Waterfront South community is not currently in compliance with the National Ambient Air Quality Standard (“NAAQS”) established by the EPA for ozone levels, nor did it consider the presence of many other pollutants in Waterfront South. It did not consider the pre-existing poor health of the residents of Waterfront South, nor did it consider the cumulative environmental burden already borne by this impoverished community. Finally, and perhaps most importantly, the NJDEP failed to consider the racial and ethnic composition of the population of Waterfront South.

Aside from a parenthetical allusion to asthma and elevated blood lead levels, that bill does not authorize DEP to “consider the pre-existing poor health of the residents”.

Obviously, any “new or expanded” facility subject to any new regulations by DEP would strongly oppose them and file lawsuits to block them. Thus, the vague policies in the bill are very unlikely to be translated into the necessary future enforceable standards and regulations by DEP.

It’s been over 18 years since Judge Orlofsky excoriated DEP’s regulatory failures and yet DEP has done nothing to remedy the flaws he found. The bill Gov. Murphy touts directs that DEP “shall” adopt regulations, but provides no deadline to do so. So, we can expect many more years of DEP foot dragging, as they engage corporate “stakeholders” in endless rule development meetings.

Regardless of all these legal and scientific flaws, current asthma and high blood levels in poor and minority communities are caused by current pollution sources and cumulative pollution levels, all of which are grandfathered and not addressed by the bill!

EJ activist (co-opted Murphy cheerleader) and Newark mom Kim Gaddy doesn’t seem to understand this (here’s Gaddy’s quote in Gov. Murphy’s press release):

“As we celebrate Juneteenth today and the freedom of Black people, it is necessary to free residents in front line communities, like mine, from the environmental and related health injustices we suffer each and every day,” stated Kim Gaddy, Newark resident and Environmental Justice Organizer, Clean Water Action. “All three of my children are asthmatic and if S232 becomes law as written, the state will have the power to ‘just say no more’ polluting facilities in my neighborhood. Governor Murphy and Senator Singleton are not just demonstrating their commitment to S232, but building momentum for its passage, bringing us that much closer to having the strongest EJ law in the nation. Environmental justice communities like mine have suffered for far too long because of the zip code we live in.”

Just say “NO”? Or just say “NO MORE”?

Defund the police? Or reduce the rate of increase in future budgets?

Obviously, Ms. Gaddy does not understand the legislation (or is spinning). The pollution that causes or contributes to her kids’ asthma is grandfathered – i.e.not regulated by – the bill.

So, it’s a cruel and dishonest joke to dupe black mothers in Newark into thinking that this legislation would alleviate harms to their children caused by pollution.

And some readers here may recall that last year’s original introduced version of the bill included a local veto of bad projects. That veto has been eliminated. The bill was gutted.

Finally, the bill says and does nothing about climate crisis, energy, or greenhouse gas emissions.

And that adds insult to the injustice.

[End Note: A knowledgeable reader sent me a detailed note, blasting the corruption of the environmental justice advocates (funded by Dodge, Hess, PSE&G, and Covanta (Newark garbage incinerator) and loyal to Cory Booker and Joe D.’s Essex County machine, while slamming Ms. Gaddy as a hypocrite progressive poser who supports charter schools and sends her kids to private schools.

I’ve previously written about most of that (e.g. see: If You Can’t Beat ’em Buy ’em) and don’t go for personal attacks, so in response, here’s a justice oriented view of charter schools for Ms. Gaddy, by Cornell Professor Noliwe Rooks).

Finance Terrorism – Corporate “Homewreckers”

Stay in the Streets and Shut it Down!

As a “homeless” nomad enjoying his 4th year on the road (who lost his house due to an Obama HUD multi-billion dollar bundled mortgage sale to a Hedge Fund for pennies on the dollar), a thought just crossed my mind as I read news reports of the pending “housing apocalypse” and the “tsunami” of evictions and foreclosures are triggered as over 42 million unemployed people go broke, can’t pay the rent or mortgage, and the CARES act protections expire.

Obviously, this will explode the currently totally outrageously large homeless population.

I’ll admit that sometimes I research the real estate and rental markets as I travel.

After more than 3 years on the road, this had led me to consider an affordable home purchase, as a sort of base camp.

Recently, I even attempted a home purchase, but the financing failed due to my credit history (which includes the Obama HUD foreclosure – so much for liberal “hope and change”).

Aside from the lessons I learned about mortgage financing, one thing that struck me in doing real estate market research was conditions that corporate owners of even rental properties place on prospective tenants (you can read about this and many other major housing finance abuses in Aaron Glantz’s excellent book “Homewreckers”).

I got my first taste of the rental market over 40 years ago in college. Basically, you checked the local newspaper want ads, called the landlord, toured the place, and if you liked it, wrote a check (with a month’s deposit) and moved in. No internet search, no realtor, no credit background check, no problem. (I had similar positive results with an individual – not corporate – landlord more recently, in renting a cabin on a farm West Amwell).

But now I note that owners require detailed credit checks for prospective renters and expressly prohibit even application for rentals to people with bad credit.  That’s me. 

I was aware of prohibitions on providing public housing to former convicts (which I obviously strongly oppose and is obviously another example of structural systemic racism), but had no clue that people with bad credit scores were treated the same way with respect to private rental housing.

So, effectively – from a housing standpoint – I am in the same category as a convicted felon who served jail time (and let me be clear, the restrictions on felons are wrong).

Only in Capitalist America.

BLM and other protesters, please stay in the streets and shut this shit down!

In 1492, Columbus sailed the ocean blue.

His statue went down in Minneapolis yesterday.

Listen to interview with spokeswoman for the American Indian Movement on KPFA’s Dennis Bernstein’s show “Flashpoints”, who explains the history and context.

Then Watch the video.

For anyone who has a problem with this “destruction of property” (or history, art, or culture), just recall the cheerleading for the propaganda stunt staged during the US invasion of Iraq, when US national security folks arranged for the takedown of Sadaam’s statue in Baghdad, and the how the US media cheerleaded for that. Then think of US destruction of cultural resources.

Many people of good faith have been Fighting Domestic Terrorism Since 1492: (photo below of testimony at PSE&G Salem nuclear power plant permit hearing (August 2015)