WolfeNotes.com

Not Rockaway Creek, but nearby Stonybrook

[Update: 5/31/19 – DEP just issued the final NJPDES permit, and basically ran roughshod over the opposition of the Highlands Council (establishing a horrible president), rejected public criticism, and narrowed the scope of their NJPDES permit renewal decision to such a degree as to abdicate their responsibility to protect clean water and did so in a way to intentionally frustrate public opposition.

DEP got the relationships between permitting and planning and DEP and the Highlands Council exactly backwards. The applicable law very clearly states that DEP can not issue any permit that is inconsistent with a WQMP plan, and those plans are linked to the Highlands RMP and the Council’s interpretation of same.

DEP also engaged in a totally false history, by stating as a fact that the original 1994NJPDES permit, which preceded the Highlands Act, was the reason for mapping the location of the discharge in the Highlands Planning Area. Where did they get that lie from? I’ll guess Bellemead’s lawyers.

They also got my comment exactly backwards in comment #20, which explicitly criticized DEP’s narrow interpretation of the scope off the NJPDES permit regulations, which explicitly require compliance with the Highlands Act and WQMP Act, and SWQS, among others. Here’s how they misstated the law in basically confirming it in a non-responsive response to my criticism:

the Department’s permitting decisions relating to this NJPDES permit are squarely embodied solely within the NJPDES rules. …. commenters are conflating different sets of rules with each other.

That DEP response missed the point entirely.

I didn’t conflate anything. I wrote the Highlands Act and am intimately familiar with DEP’s WQMP and NJPDES rules. The whole point I made in that comment #20 is that the NJPDES rules require compliance with other laws and regulations and that DEP had failed to assure this compliance as a result of  how they arbitrarily and illegally narrowed the scope of their NJPDES permit review.

And here’s how they vaguely responded to my key specific objections (I am “commenter 21″ and this is provided in response to comment #9:

Note that some of documents identified by Commenter 21 are outside the scope of this limited permit action and are more relevant to any renewal NJPDES permit renewal process where the Department will reevaluate all permit conditions.

DEP also mischaracterized my other comments, especially in comment #14. We will post an analysis soon after I read the full final NJPDES permit and the DEP’s response to comments document. ~~~ end update]

[Update: 4/18/19 – DEP just denied a request for a public hearing but reluctantly agreed to extend the public comment period until May 14, 2019, based on “the level of interest in the permit action“. I don’t know who requested a public hearing, but have asked DEP to provide the distribution list of those who commented. We asked for an extension, but not a public hearing.

But DEP permit staff have refused to provide the documents requested below, upon which the permit is based. They are forcing document requests through OPRA, which I’ve objected to. ~~~ end update]

NJ Spotlight ran a good story last week about a proposed new sewage treatment plant in the Highlands, that would discharge downstream of a Category One stretch of the environmentally sensitive North Branch of Rockaway Creek, see:

• DEP PERMIT WOULD LET TREATED SEWAGE BE DUMPED INTO ROCKAWAY CREEK

The state is moving ahead with a much-litigated permit that would let developers discharge treated sewage into Rockaway Creek, a project the New Jersey Highlands Council says is incompatible with its regional master plan. The council oversees development in the region.

The Highlands Council not only “oversees development in the region” – under the Highlands Act, they also protect, among other things, the water resources of the region. (and where is the Wm. Penn Foundation now?)

The Murphy DEP’s decision to issue the draft permit and over-ride the concerns of the Highlands Council violates the Highlands Act and DEP’s own regulations, and would set a terrible precedent on land use, water quality and the relationship between DEP and the Highlands Council, particularly for water quality and land use issues in the Planning Area where the Highlands Regional Master Plan is not mandatory.

The DEP got the relationships between DEP and the Council and between water pollution permitting and Highlands regional planning exactly backwards. (This permit is actually worse than the Christie DEP’s Crosswicks Creek NJPDES permit)

Because the applicable DEP Highlands regulations require that DEP “give great consideration and weight to the RMP.” see: N.J.A.C. 7:38-1.1(g)., frankly, I found it hard to believe that the DEP over-rode the objections of the Highlands Council. So I did a little digging and got a copy of and read the draft NJDPES permit.

I was stunned to find that the DEP not only over-rode the objections of the Highlands Council, they actually failed to engage them at all and simply ignored them by concluding that the Council’s concerns were “outside the scope of the NJPDES permit decision.“

DEP basically said that they could issue water pollution control permits – which would degrade water quality and increase development, in conflict with the Highlands Act – without even engaging the substance of the Highlands Council’s concerns!

The draft permit is blatantly illegal and an attempt to unilaterally control water quality issues in the Highlands.

So I submitted the below comments on it and requested an extension of the public comment period. I hope the legal eagles that represent NJ environmental groups pick up on these challenges and that if DEP issues it, that the permit is litigated:

Susan – thank you for providing the draft NJPDES permit.

Please consider this email a followup public comment on the draft permit, a request for additional documents and a request to extend the public comment period.

The draft permit violates the Highlands Act (and implementing DEP regulations), the Water Quality Planning Act and the NJPDES regulations.

The Highlands Act and DEP Highlands regulations mandate that the Department consult with the Highlands Council and “give great consideration and weight to the RMP.” see: N.J.A.C. 7:38-1.1(g).

Yet the draft permit is is based on the following DEP conclusions:

“(1) the appropriate mechanism to address the concerns raised by the Council is through the established Water Quality Management planning process, and

(2) it is inappropriate to evaluate the NJPDES permit for consistency with the particular RMP goals, policies and objectives identified in the Council’s letter because those goals relate to approvals outside the scope of the NJPDES permit decision.“

First of all, by definition and based on the language cited above, the Department: a) did not give “great weight to the RMP” and b) did not do so during the NJPDES permit process because:

a) the Department failed to substantively respond to but instead re-directed the Council’s concerns through the WQMP planning process, and NOT the DEP’s Highlands regulations and NJPDES regulations as required under both DEP’s Highlands and NJPDES rules; and

b) because the Department determined that the Council’s concerns were “outside the scope of the NJPDES permit decision.“

But, to the contrary, under applicable law and regulations, the Councils concerns clearly are not “outside the scope of the NJPDES permit decision”.

Under the WQMA and NJPDES regulations, the Department may not issue any permit – including a NJPDES permit – that is inconsistent with other DEP regulations (such as the Highlands regulations) or the applicable WQMP.

Because the DEP concluded that the Highlands Council’s concerns were “outside the scope of the NJPDES permit decision” – the DEP therefore did not substantively engage and respond to them and make final determinations with respect to them. Accordingly, the Department failed to comply with applicable law and regulations.

The Administrative record on the permit is deficient because it lacks any factual, scientific, planning or legal findings in this regard in response to the Council’s concerns. Therefore, under longstanding basic principles of administrative law and applicable court decisions, the draft permit lacks an adequate basis and is “arbitrary and capricious” and “an abuse of discretion”.

Finally, it is difficult to understand and meaningfully comment on the draft permit without the following documents, which I hereby request:

1. the Highlands Council’s consistency analysis documents referenced in the draft permit

2. The Department’s full consultation response to Highland Council referenced in the draft permit

3. the Court opinions referenced in the draft permit

4. the anti degradation analysis and DEP review comments as referenced in the draft permit

5. the DEP’s “reasonable potential” determination required under NJPDES rules

6. A clear statement of whether a mixing zone or water quality based end of pipe effluent limits were established in the draft permit.

In conclusion, please extend the public comment period for at least 60 days so that the public can meaningfully comment on these complex issues in light of an available, full, and accurate administrative record of the draft permit.

I appreciate your continued assistance and timely reply.

Wolfe

Just A Climate Migrant

Greetings from Red Rock Country – somewhere outside Sedona, from a US Forest Service Road just past Dead Man’s Pass. (I’ve since learned I’m in Diamondback Gulch and the views are of Bear Mt. and Doe Mt.)

The colors are real, and they change constantly, based on time of day (sunlight) and cloud cover. Incredibly beautiful and the stillness provides a feeling of solidity. Surprised by lack of wildlife – haven’t seen even rabbits.

Nights are cool and silent, but significant nearby ORV use during the day on weekends kept Bouy barking.

Coyotes yip and whine just after sunrise, which sets him off too.

Yesterday it was hot – over 80 I suspect – which made it uncomfortable outside in the sun. Surprisingly, the bus didn’t get that hot inside and it cooled down quickly after sunset.

We’ve been here a week – enjoying finally getting around to read “These Truths” – but are out of beer and water, so we head into town and, because it seems to be getting hot, we move on north towards Flagstaff and Coconino NF and the higher elevation and cooler lovely ponderosa pine forest.

[Update – I hear Flagstaff will get snow and cold for the next week, so we’re staying put here in Sedona.]

Consider me just a climate migrant – yes, “We’re All Okies Now”

Enjoy the views:

Just as Murphy BPU About to Release Its Energy Master Plan, A New “Green Campaign”

Divide, Distract, and Divert

To be clear at the outset to avoid any confusion about the title of this post –  this is NOT a criticism of The Green New Deal.

Just the opposite –  I strongly support a Green New Deal – and urge folks to make it a top priority, get behind that effort and do the work to build the public opinion and political power and support necessary to make it a reality.

In fact, if I could pick just 3 things to focus and work on, they would be: 1) The Sanders campaign; 2) the Green New Deal; and 3) demanding that Gov. Murphy impose a moratorium of new fossil infrastructure and that the Murphy BPU Energy Master Plan provide a technically credible and financed path with regulatory teeth to phase out fossil and mandate 100 renewables by a date certain.

With that in mind, now let me get to the topic of this post.

The Murphy Administration’s Board Of Public Utilities is about to release its draft Energy Master Plan:

The New Jersey Board of Public Utilities (NJBPU) serves as the lead agency and is tasked with the development and oversight of the State’s EMP Committee. To achieve the Governor’s ambitious energy goals, the EMP Committee is organized into five work groups. While the work groups are composed of state agency members, there will be ample public opportunity to comment through a robust stakeholder process. The first opportunity will be a series of stakeholder meetings in September. Following the meetings, the work groups will develop a draft plan and again solicit public feedback in spring 2019, with final presentation of the 2019 Energy Master Plan to Governor Murphy by June 2019.

Yet, despite this critical timing – when activists should be ramping up public engagement to pressure the administration – especially regarding priority #1 which is a demand for Gov. Murphy to impose a moratorium of new fossil infrastructure – the media and “green” activists seem to have gone mute.

No, it’s worse than mute.

Perhaps emulating the national Democrats in declaring another Presidential candidate – the NJ Greens just announced and are working on a new “NJ Green” campaign.

Great fucking timing, eh?

The corporate wing of the national Democratic Party seems to prefer to lose to Trump than to get behind a coalition of left progressives, Democratic Socialists, and the Sanders campaign.

[Update: Jut read this NY Tines story that provides more evidence of that. ~~~ end update]

So, instead of the same cynical corrupt strategy they got caught using in 2016 to sabotage Sanders, this time around they are putting up niche candidates, each seemingly designed to drive a wedge and/or peel off what should be a faction in the Sanders coalition.

That is a losing strategy.

For God’s sake, yesterday I listened to the New Yorker radio hour on NPR interview a Presidential candidate – whose rise none other than Obama had predicted – a young, unknown gay, former military, Harvard educated, charismatic, Mayor from Indiana. This guy’s flavor of the month – I mean top priority – was democratic reform. (Did I say he was young and focused “inter-generational equity”? An obvious move to peel off Sanders’  Sunrise Movement folks, and play to the reactionary resentments of libertarians like the Google Tech heads about their burdens in paying for Social Security and health care).

Today, NPR reported that Ohio Congressman Tim Ryan just announced – are there 17 or 18 now? Does that mean Biden is dropping out of the bid for chasing the so called lost white working man’s vote?

But let’s get back to the topic of this post.

Here’s the email I was just forwarded that prompted the post (not surprisingly, the “greens” who wrote it didn’t send it to me, knowing I’d probably write this harsh criticism):

Do you think it’s time that your rights to clean air, pure water, and a healthy environment are protected in the New Jersey State Constitution?

Join us for an in depth conversation about the proposed New Jersey Green Amendment, how it can help New Jerseyans, and how you can get involved in its passage.

Featured speakers:
Maya van Rossum, the Delaware Riverkeeper
Elliott Ruga, NJ Highlands Coalition
David Pringle, David Pringle Associates
Jeff Tittel, NJ Sierra Club

And they are featuring speakers Eliot Ruga (a know nothing former TV technician) and Dave Pringle (a discredited and unprincipled transactionalist collaborator with Gov. Christie).

Is this new “Green Campaign” the product of a Foundation grant?

If you want context for this campaign and its likely results, look no farther than to Pennsylvania.

There, these same “green” activists won a huge State Supreme Court victory when the Court issued a decision on a constitutional question that effectively empowered local government to use land use controls to ban fracking.

So what did they do with this huge win?

They proceeded to do virtually nothing to organize a real statewide campaign to work with local government to ban fracking! But instead they focused on FERC and federal lawsuits.

Now, they do the top down opposite in NJ, and at exactly the wrong time, and with the wrong people.

How much worse can it get?

Hook In Now!

View looking east from Mingus Mountain, Prescott National Forest

We spent a week in the Prescott National Forest – thankfully outside the “urban interface” – atop Mingus Mountain.

There was still patchy snow and the final stretch of the forest road was closed at the top, so we had to hike in a few miles to get to the “lake” (a 2 acre mud puddle!) and the top to the hang glider launch point. We met a nice woman and her dogs from the lovely Methodist Mountain Retreat.

We particularly enjoyed the view at the hang glider launch point – Hook In Now!

Got bored and ran out of food, so we headed down the mountain and northeast to Jerome, an old mining town.

Several folks suggested we would enjoy and should visit Jerome, but I was not impressed. Lots of good pottery shops, but overall way too touristy for me. Bisby has a more authentic old mining character and a residue of hippies (and nearby national forest and wilderness).

We’re going in from the southwest and are now on the outskirts of Sedona – in contrast, we came in here from the northeast from Flagstaff 2 years ago. The Flagstaff – Sedona route is a more spectacular approach.

An Absolutely awesome place!!! – photos don’t begin to provide a sense of the color, the majesty, the mystery,  and the scale.

NOTE: I had to white out about 4 mansions in the foreground.

Corporate economic interests at least as important as protecting public health & environment

Ask BOEING Where Regulatory “Partnerships”, “Cost-Benefit” & “Efficiency” Lead

[Updates Below]

Gov. Murphy’s EO #63 is getting high praise by environmental groups. (see Part I)

Given the rhetoric and findings of the Order and the 14 serious policy flaws I identify in Part II below, I find that hard to comprehend and seriously doubt they even read it before spouting off in the press.

This is particularly disturbing not only given the effects of the Order on State government and DEP, but by the fact that the Order actually undermines a pending bill to impose mandatory restoration of and a stricter response to block Trump federal rollbacks. (see below)

The Murphy Order is kind of like the Obama “all of the above” energy policy – more or less what one would expect from a former Goldman Sachs Wall Streeter and corporate Democrat Neoliberal (Gov. Murphy and his wife Tammy are illustrations of what Nancy Fraser calls “Progressive Neoliberalism“)..

I) What the Executive Order finds and says about regulatory policy objectives

Let’s start with the troubling title, which has not been reported by the press (from Gov.’s webpage): Establishing new regulatory principles to foster economic growth and government efficiency

Get that? The objectives are to “foster economic growth and government efficiency”.

The Order is equivocal, vague and – while not using right wing red meat rhetoric like “job killing red tape” and “soviet command and control” – it repeats myths about regulations, such as: