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Protesters Hold “2012 Fracky Award Ceremony”

Fracky Award Winner, American Petroleum Institute (R) - Jim Walsh, Food & Water Watch (L)

The day before legislation to ban fracking in NJ will be re-heard by the Senate Environment Committee (see S246), a coalition of environmental groups held  a stunt outside the Trenton Marriot  entitled “The 2012 Fracky Awards”.

The anti-fracking Coalition representatives attending the event included Food and Water Watch, Sierra Club, and Delaware Riverkeeper (Dave Pringle of NJEF was on the press release but failed to show up).

The Fracky Awards upstaged a similar stunt held inside a Marriot conference room by the American Petroleum Institute. The API event touted the oil and gas industry’s voluntary “Best Practices” (see below for more).

2012 Fracky Nominees included:

1) NJ Governor Chris Christie, for Conditionally vetoing last year’s fracking ban legislation; across the board support for fracking in the Energy Master Plan, gas pipeline subsidies and regulatory approvals; and support of pro-fracking DRBC regulations (and for telling protesters to frack off!)

2) El Paso Gas Pipeline Company, parent company of Tennessee Gas Pipeline Company for building environmentally destructive and dangerous gas pipelines through NJ’s most environmentally sensitive lands, including the Delaware Water Gap, Walkill National Wildlife Refuge, Pequannock watershed, and drilling under Monksville Reservoir;

3) Cabot Oil & Gas, for polluting water supplies in Dimock Pennsylvania and elsewhere;

4) Congressman Andy Harris for the arrest of noted documentary filmmaker Josh Fox for attempting to film a Congressional hearing on fracking; and

Jim Benton, NJ Petroleum Council state API rep responds to question about DRBC regulations

5) the American Petroleum Institue (API), for all around excellence in propaganda and corrupt lobbying practices.

The 2012 Fracky award went to API.

But API simultaneously was holding their own event inside the Marriot.

API was a graceful host. The event was open and their experts answered a questions I posed regarding the industry’s position with respect to how their voluntary, more costly, and environmentally protective Best Practices applied in cases where state and local regulations were weaker.

Of course, I got an honest – if impolitic – answer: the gas drillers will get away with whatever they can,  meet minimum legal local requirements, and maximize profits, Best Practices Be Damned.

I will write about tomorrow’s fracking ban legislation and the API Best Practices presentations in a separate post – below are photos:

Oil industry is projecting huge growth, in addition to 44% increase in gas production since 2006

Cairn Tree - Cushetunk Mountain - Round Valley

[Update 1/31/12 – Tom Johnson NJ Spotlight writes the story: Trying to Set a Fair Price for Private Use of Public Lands – Conservationists dismiss DEP’s flat fee as far too low

Environmentalists questioned whether the state would still be undervaluing land if the proposed 15 cents per square foot is adopted by the administration.

Bill Wolfe, executive director of Public Employees for Environmental Responsibility, suggested a much higher benchmark of $1.25 per square foot for leasing of open lands. He noted that two utilities trying to expand a high-voltage power line through the Delaware Water National Recreation Area recently offered to spend $30 million to buy up open space around that project. Under his calculations, Wolfe said that comes out to about $13 per square foot. end]

The Senate Environment Committee heard 2 important bills today regarding state lands.

Commercial Logging on State Lands – Forest Stewardship (S1085)

Committee Chairman Bob Smith, sponsor of the hugely controversial commercial logging bill that failed in last session’s lame duck, reintroduced that bill (S1085).

To restart the legislative process this session, today he posed a narrow question to focus testimony:

Smith asked each person testifying to stick to the question: “What is the state of the state’s forests”.

Seeming like he was pissed off by the blindsided criticism he received on his lame duck bill, Smith asked the various conservation groups to get together and provide a unified position in support of the bill, or provide an alternative solution. Revealing his frustration, Smith said:

I’m not meeting with you – meet amongst yourselves.

Smith will move a bill on March 8 – he asked for public comments by March 1.

So, now is the time to provide input:

Contact info:  SenBSmith@NJLeg.org. Be sure to copy Committee aid Kevil Duhon at KDuhon@NJLeg.org

You can listen to the testimony by clicking on this link. (scroll down to Environment Cmte).

I testified that the state of the forests were an integral part of the quality of life of the people of the state. Forests are public resources that provide competing benefits for public use and enjoyment and any attempt to manage them raises conflicting ecological objectives.

Given these competing uses and conflicts, public control is essential.

Legislation must assure that “perverse incentives” are eliminated from driving the forest management program. Those perverse incentives include revenues for commercial foresters and fees for DEP managers, which will lead to economic considerations being elevated above the public interest and forest ecology.

Forests are in decline, threatened, and vulnerable to threats posed by global warming, over-development, fragmentation, the narrow views of scientists and “experts”, and misguided government officials and corporations who views forests as commodities.

Public preferences, including aesthetic enjoyment, must be given equal consideration with science in any forest management initiative.

Economic Value of State lands  – S826

This bill grew out of the debacle over the Tennessee Gas Pipeline lease.

I wrote about this set of issues numerous times:

• DEP Report: Highway Right-of-Way Land 8 Times More Valuable Than State Parks and Forests
• Fair Market Value Leases for Energy Infrastructure Could Fund Parks System
• Christie Cuts Sweetheart Deal with Gas Industry
• NJ Subsidizing Oil and Gas Pipelines That Cross State Lands
• NEW JERSEY PARKS LOSE MILLIONS IN UNCOLLECTED LEASE PAYMENTS — Park Closures Could Be Averted by Reaping Concessionaire and Easement Revenue

According to the bill summary:

The bill is a very good idea to force corporations to pay the taxpayers the full economic value of leasing the public lands.

The bill needs to be amended as follows:

• The bill only applies to new conveyances of lands. The bill must be expanded – as recommended by 3 OLS AUdits – to require that current leases be renegotiated to reflect fair market value
• The bill should set a minimum floor prices far in excess of the DEP’s uniform ceiling price of 15 cents per square foot, which is far too low. The range of market values runs from $1.25.square foot set by the NJ Turnpike Authority for fiber optic cables in the Turnpike ROW to $13 per square foot recently offered as mitigation by PSEG for the powerline through the Delaware Water Gap (S-R line calls for a 50-200 ft ROW expansion, assume 100 ft average width, over 4.3 linear miles)

$ 30 million/(4.3 linear miles) x (5280 ft./mile) x (100 feet ROW) = $13.21/sq. ft

• prohibit Utilities from passing though costs and recovery by ratepayers

Powerline Through the Watergap Would Be an “Obamanation”

“The Judas Kiss” (1866) by Gustave Doré.

Here’s four cogent quotes on the proposed $30 million mitigation proposal by power companies to justify destruction of core values of Delaware Watergap National Recreation Area; the Appalachian National Scenic Trail; and the Wild and Scenic Delaware River:

“It is not the role of the National Park Service to negotiate mitigation at this stage of the process, before any decision is made.” ~~~ John Donahue, NPS, Supervisor of DWGNRA; Pam Underhill, Supervisor, ANST – June 27, 2011 letter to PPL Electric Utility

“Creating jobs is my highest priority as President, and investing in our nation’s infrastructure can help create those jobs and grow our economy” said President Obama. “That’s why I’m asking agencies across the federal government to identify infrastructure projects that will put folks back to work and help make our country stronger, and take immediate steps to push these projects across the finish line.” White House Announces Steps to Expedite High Impact Infrastructure Projects to Create Jobs (8/31/11)

Bill Wolfe of Public Employees for Environmental Responsibility called the utilities’ recently announced offer to buy and preserve $30 million in nearby lands as “mitigation” for the power lines a test of the National Park Service’s integrity. “It’s an offense to the public process,” Wolfe said. ~~~ Pocono Record 1/25/12

To mitigate the loss, the utilities behind the line – PSE&G and PPL – last week announced an offer of land worth $30 million for public preservation. The” thousands of acres of land” has been identified as priorities by conservation groups, according to Karen Johnson, a PSE&G spokeswoman. ~~~ Morris Daily Record 1/26/12

I generally steer well clear of religious matters, having never really shaken off youthful Catholic indoctrination.

But certain projects force gut checks. And this particular set of circumstances rises to and justifiably moves me to invoke religious metaphor.

I listened closely to the testimony at the public hearings on the S-R line through the Watergap.

I was not surprised or bothered when PSE&G’s corporate flacks supported the S-R power line, downplayed the impacts, and claimed that “mitigation” can offset any unavoidable harms.

That is to be expected: PSEG earns a significant share of their profits on transmission investments (a higher ROI that any other investment).

PSE&G is a corporation whose first duty is to maximize profits and shareholder value. Of course they would love to use $30 million of ratepayers’ money to leverage even higher profits – press statements to the contrary, screw the consequences.

And I was not surprised when labor unions and workers supported a power line, because we’re in a deep recession and the unemployment rate is almost at Depression levels. They have families to support, need jobs, and are being duped by their leadership.

And I am not even surprised when government agencies, like the Highlands Council, compromise their mission and integrity and take mitigation bribes in exchange for approvals.

On any economically significant decision, the political pressure is incredible. On these high profile projects, government agencies become mere pawns of political hacks, corporate interests, and the careerists who manage them who will do what they are told.

And of course, I was not surprised by President Obama’s

• support of Fast Tracking approval of the project
• CEQ Program to compromise the nation’s foundational environmental law, the National Environmental Policy Act (NEPA)
• wrongheaded Executive Order 13563 and attacks on government regulation as “red tape” under the Republican slogan “America is Open for Business” (technically, all of them as bad or worse than the Christie policies I routinely criticize here).

Obama never betrayed me – I never trusted him or expected much.

One thing’s for sure: if a Republican President were doing what Obama is, the Beltway ENGO’s would be in a tizzy and activists groups would be in the streets.

But what I am absolutely shocked, disgusted and feel betrayed by is when publicly trusted self described “conservation” advocates – with an economic stake in mitigation projects no less – shamelessly publicly undermine project opponents and support mitigation.

If expert “conservationists” can’t speak truth to power and hold politicians accountable, how is it possible for the public to democratically do so?

Given President Obama’s support for expediting the approval of this project – and political commitments by Secretary of Interior Salazar that preceded Obama’s support – it is obvious that final decisions are being made in Washington DC based on money and politics, not science and the public interest.

With that so obvious right now, the conservation community needs to unify and do the same thing that Bill McKibben did on the Keystone XL Project: take the gloves off , protest, and target and hold the President accountable.

The last thing we need is for so called conservationists to be negotiating insider sweetheart mitigation deals with the power companies and providing cover for this sham deal.

But unity and in your face protest and political opposition won’t happen in this case.

And if it won’t happen on a power line through the Watergap, just when would it happen?

And it won’t happen NOT because of legitimate differences in tactics, style and tone within the conservation community. The conservation community is diverse, which is usually a strength.

(but those mild mannered conservationists somehow can abandon their moderate, reserved stance to exaggerate the impacts of windmills on birds – but ignore or downplay bird mortality caused by power lines. I even heard absurd testimony about opportunities to improve bird habitat in power line ROW. Why is that? Could it have anything to do with financial interests in mitigation and relationships with PSE&G?)

Projects of this magnitude and political profile warrant unity and aggressive political tactics.

But Unity and aggressive oppositional tactics won’t happen because some in the “conservation” community are tacitly supporting the project by corrupt means and for corrupt motives.

The corrupt means are behind the scenes negotiations with PSE&G/PPL on “mitigation” that Karen Johnson confirmed in the above quote (exactly which groups, Karen?).

John Donahue of NPS correctly describes how wrong that is.

And if its wrong for government, it’s absolutely evil for conservationists, who are supposed to be free of the kind of political influence government managers are subject to.

The corrupt motives stem from the fact that those groups will benefit from or even be funded to do some of the mitigation work.

Yet those conflicts of interest go undisclosed, undermining unity, providing political cover, misleading the public, and betraying all norms and expectations regarding integrity.

All that For Thirty Pieces of Silver?

Decade of coverup – Revolving Door at EPA – Local Politics – DEP Ethical lapse

You have my commitment that the Environmental Protection Agency will ensure that Dupont will fulfill its RCRA obligations for this facility. ~~~ Judith Enck, EPA Region 2 Administrator – October 2010 letter

I apologize, but this must be a lengthy post because I must reprint the full text of an important document that I don’t have a link to. Who knows, there may be an intrepid reporter, lawyer, or regulator out there! (HINT!)

So let me just catch up on what’s gone down since last week’s Community rally and EPA public hearing.

First, a few glimmers of hope and good news:

• The NJ field office of the US Fish and Wildlife Service is aware of the issues and EPA will formally consult with them as required under the RCRA regulations.

Let’s hope that they focus on Dupont’s ecological assessment; the scope and extent of the cleanup; and document compensable natural resource damages.

I raised the requirement to consult with USFWS and flagged some ecological issues at the EPA informal October 19, 2010 presentation of the Dupont Acid Brook Delta Plan. So, it really pissed me off that between then and the January 5, 2012 formal public hearing, EPA staff failed to get back to me or to formally consult with US FWS.

The whole purpose of the informal hearings is to flag issues and for staff to respond to them – it simply boggles the mind that EPA staff failed to respond, especially given EPA Region 2 RA Judy Enck’s personal pledge to me and the Pompton Lakes community.

• Senator Menendez weighed in with a letter to EPA Administrator Lisa Jackson.

We tweeted the letter last week, but see the Record’s story: Superfund designation sought for Pompton Lakes pollution sites (gee, do you think they could put polluter Dupont’s name in the headline?)

• Last week, more than 40 residents braved the cold to protest the Dupont plan, present a petition with over 7,000 signatures, and urge EPA to designate the Dupont site a national priority under the Superfund program. Ramped up pressure and protest can only help.

Now for the bad news.

1) Vapor Intrusion coverup: A decade long  failure to warn and take action

At the [Jan 5, 2012] Dupont [RCRA] public hearing, one of the points I made (which I wrote about in F is for Fraud) was to question who knew what when on the chronology of the vapor intrusion issue and ask why residents were not warned about the poisoning and risks in their own homes.

If people knew, they could take action to prevent exposure to chemicals in their home.

I simply find it difficult to believe that one of the most scientifically and legally sophisticated chemical corporations in the world didn’t understand the vapor problem until the 2008 disclosure and that the timing of the 2008 disclosure had nothing to do with a legal liability settlement deal reached to end litigation.

After the public hearing (I assume in response to my testimony on this issue), someone sent me a trove of DEP emails regarding behind the scenes negotiations with Dupont and EPA (more to follow on that), including the below timeline (probably prepared as a CYA by NJ DEP).

This closed door process would never had happened if the Dupont site was cleaned up under Superfund, as should have happened back in 1982, when EPA conducted an HRS scoring and the site qualified based on risks.

Under Superfund, residents would have a seat at the table and be involved in all the back room secret discussions between Dupont, NJ DEP and EPA listed below – which began over 10 years ago!

Additionally, I was not aware that the groundwater plume that is the source of the vapor intrusion was a “CEA” – a loophole in cleanup requirements known as a groundwater “Classification Exception Area” – under NJ DEP cleanup regulations.

Without going into all the technical details here, this raises significant regulatory and legal issues, if for no other reason that federal EPA RCRA regulations do not recognize a NJ State CEA and that Dupont was required to certify the safety of that CEA. How could EPA have signed off on RCRA compliance and certified the Dupont site under RCRA?

As is obvious from this timeline, Dupont, NJ DEP and EPA regulators were in no hurry and failed to notify homeowners about risks.

These failures occurred despite the fact that vapor intrusion is a direct contact exposure and a public health risk that equalifies as an “immediate environmental concern” (IEC) under NJ DEP regulations. How did Dupont certify that the CEA was in compliance? How did DEP accept this certification?

Vapor intrusion also is  of direct relevance to US EPA Assessment of Environmental Indicators – groundwater and human exposure under control – (CA725 and CA750 – see below) EPA must certify to Congress pursuant to the Government Performance and Results Act of 1993 .

Dupont Pompton Lakes Site

TIMELINE

Vapor Intrusion Pathway

Trenton meeting with DuPont officials (mentioned VI pathway must be addressed) 03-30-01

USEPA Assessment of Environmental Indicators (CA725 and CA750) 12-20-01

John Boyer’s review of South Plant Region RIR (requires VI assessment on-site) 03-13-03

Teleconference with DuPont re: meeting next week & EI Determination of VI Pathway 05-23-03

DuPont provides letter “Indoor Air Evaluation for Four DuPont NJ Sites” 05-30-03

Diane Groth’s review of Environmental Indicators Evaluation of Vapor Intrusion 08-27-03

John Boyer’s review of Environmental Indicators Evaluation of Vapor Intrusion 09-11-03

Teleconference with DuPont, consultant, re: Vapor Intrusion assessment 09-17-03

NJDEP Review of  “Initial Indoor Air Assessment”   09-19-03

John Boyer’s review of Proposed GW Sampling in Support of EI Determination 11-07-03

John Boyer’s email to Barry Tornick (USEPA) on GW Investigation for EI  11-14-03

DuPont Progress Update on VI Investigation for EI Determination12-12-03

John Boyer’ss review of  “Update on GW Sampling in Support of EI Determination” 02-03-04

NJDEP’s review of Update on GW Sampling in Support of EI Determination 02-09-04

Diane Groth’s email regarding basis for TCE/PCE screening levels for VI  02-10-04

John Boyer’s review of Update on GW Sampling in Support of EI Determination  05-13-04

John Boyer’s review of Summary of GW/SG Results for RCRA EI Deter (VI) 05-04-05

John Boyer’s review of Response to Comments Letter (VI)  07-11-05

Trenton meeting re: indoor air sampling requirements   02-15-06

John Boyer’s review of Vapor Intrusion Investigation Work Plan   02-21-06

Response of VI Investigation Workplan Response   05-03-06

Trenton meeting with EPA, DuPont re: indoor air sampling  01-31-07

Development of Anticipated VI Screening Levels    02-09-07

John Boyer’s Review of Vapor Intrusion Investigation & Remedial Action Work Plan 07-20-07

DuPont’s 3^rd Quarter 2007 Progress Report (mentions various email correspondence) 11-31-07

Trenton meeting with Barry Tornick (EPA)   12-06-07

DuPont’s Response to NJDEP comments on VI Investigation & RA Work Plan  01-15-08

John Boyer’s review of DuPont’s response to NJDEP comments on VII & RAWP  01-16-08

NJDEP’s Approval of VI Investigation & RA Work Plan  01-16-08

DuPont’s 4th Quarter 2007 Progress Report (mentions various email correspondence) 01-31-08

Teleconference re: vapor intrusion sampling implementation  02-14-08

Teleconference re: vapor intrusion sampling implementation   03-06-08

Site visit re: sub-slab soil gas sampling at residential house  03-20-08

DuPont’s Proposed Sub-Slab Vapor Sample Collection Procedures for Building SSDS04-15-08

This delay is sickening, disgraceful and totally unacceptable.

Barry Tornick – oversaw Dupont site in career w/EPA

2) EPA blocks public participation – revolving door at EPA

The EPA region 2 staff person overseeing this mess was Barry Tornick, head of the EPA Region 2 RCRA program.

After more than 7 years of delay, secrecy, and closed door meetings with DEP and Dupont, when the time finally came for action, Tornick subverted RCRA public participation requirements. Here is his May 14, 2008 email recommending that Dupont and DEP avoid RCRA public participation requirements (an email that could have been written by Dupont’s lawyers):

>>> <Tornick.Barry@epamail.epa.gov> 05/14/2008 12:02 PM >>>
Maybe we should consider this a Interim Remedial Measures Workplan instead of a Remedial Action Workplan since we want to expedite it and to take a less formal public participation approach than for a remedial action?

So EPA bent the RCRA regulations to avoid public participation. Again, that could not happen under Superfund.

Now, in a supreme irony – you can’t make this stuff up – to add insult to injury, we learn that Tornick has just retired from EPA and is now working for a polluter at a NJ Woodbrook Road Dump Superfund site – and the site is located directly adjacent – virtually in the backyard of – the Edison Wetland Association’s land in Edison!

3) Local politics and ethical lapses at DEP

Ms. Kent – DEP employee and local political hack

[Update: I just received email from the DEP Ethics Officer that indicates that Ms. Kent clarified the record by submitting a disclaimer to EPA. I will also note here that I intervened with Commissioner Martin on this very reluctantly. I don’t like to do anything to suppress free speech, especially of DEP employees. But this seemed like an egregious example of politics to me and not a good faith exercise. ]

It is no secret that a local faction in Pompton Lakes – including Mayor Cole – is working with Dupont and opposing the Superfund designation by EPA.

Among other things, this group is exaggerating the so called negative economic and “stigma” impacts of a Superfund designation and spreading false and misleading information about Superfund and how it would work at the Dupont site.

It is also no secret that DEP has little credibility or trust among Pompton Lakes residents, or that EPA has taken over lead control of the site from the DEP due to DEP mismanagement and lack of community support.

So, given the sensitivity of these DEP related issues, I was surprised that during the hearing, a woman named Maria Kent, who identified herself as a Chair of the “Environmental Committee” and a DEP employee, spoke in support of the Dupont plan.

I assume that the “Envrionmental Committee” is NOT an “Environmental Commission” and that Ms. Kent was appointed by Mayor Cole for political reasons. Muddying the political waters further is the fact that Ms. Kent’s husband is a PL Township Committee member.

To establish a real Environmental Commission, the full governing body needs to pass an ordinance pursuant to state enabling legislation at NJSA 40:56A et seq. .

During her remarks, Ms. Kent did not affirmatively state that her views did not represent the views of DEP, as required under DEP Ethics Code.

Worse, in addition to these ethical lapses, Kent mislead the public about threats of Congress not funding Superfund cleanups.

Without any evidence, she claimed that she was aware of a NJ  Superfund site where work had stalled on construction of site infrastructure – and that if Congress didn’t appropriate money, then the Dupont site cleanup could stall if it were in the Superfund program.

The latter claim is false. I wrote the below letter to DEP Commisisoner Martin to respond to this ethical lapse:

Dear Commissioner Martin:

On January 5, 2012, a DEP employee named Maria Kent testified at a controversial EPA public hearing in support of a proposed draft RCRA permit modification for the controversial Dupont Pompton Lakes site.

As you know, pursuant to federal RCRA authority, EPA recently revoked certain aspects of DEP’s lead oversight over certain aspects of the cleanup of that site.

During her testimony, Ms. Kent stated that she was Chair of the Pompton Lakes Environmental Committee and a DEP employee. I also understand that Ms. Kent’s spouse, Lloyd Kent, is a Pompton Lakes Council member.

However, I do not recall hearing any clear statement by Ms. Kent to the effect that her testimony did not represent the views or policies of the DEP.

My understanding of the DEP ethics code is that such a clear disclaimer is required under these conditions.

In fact, when I was a DEP employee and a school board member in North Hanover NJ, the DEP ethics Officer at the time issued a memorandum to me that REQUIRED that I read such a disclaimer into the public record during a school board meeting. This disclaimer was required even for DEP issues before the school board that were unrelated to my DEP job responsibilities.

Accordingly, I urge you to look into this matter and direct Ms. Kent to submit a written disclaimer comment to EPA be made a part of the administrative record on the RCRA permit.

The comment period on the draft permit ends on January 13, 2012.

I also urge you to issue ethics Guidance to all DEP employees regarding similar external activities.

Please confirm that these actions have been taken, or provide a written response should you decline this request.

Sincerely,

Bill Wolfe

(writing here as a citizen – not on behalf of NJ PEER or in my capacity as NJ PEER Director)

Lisa Riggiola (back turned on left, w/microphone) criticized Mayor Cole (R, in red)during comments at Dupont RCRA permit hearing on Acid Brook cleanup plan 

A healthy stream flows – but not in Jersey (Harriman Park, NY)

[Update: 1/16/12 – Here is a link to the Asbury Park Press Series “Tainted Waters” – haven’t read it all yet – more to follow.]

Kirk More and Todd Bates have a major 3 part clean water series running today over at the Courier Post, so I urge you to go on over and read the whole thing, see:

Troubled water – After 40 years, NJ’s waters are far from clean – Almost all waterways in the state are still polluted after 40 years and billions of dollars in cleanup efforts

Since I often write about clean water issues, spoke with Todd on the story, and have done a lot of work over the years on clean water, I thought I’d offer a few of my own thoughts, while providing a respectful critique of Kirk and Todd’s opening salvo.

Plus, I can say some things here as a blogger that Kirk and Todd obviously can not.

The initial thrust of the story is to suggest a shocking across the board major failure in NJ’s clean water program.

While I am deeply disturbed by NJ’s diminishing efforts and the quality of NJ’s water resources – and I think is is very important to warn the public of the serious magnitude and scope of the problem – I don’t think that overall characterization is accurate or fair.

Anyone paying attention is aware of the problems.

As we’ve written here several times, DEP submits a comprehensive statewide Report to EPA and Congress every 2 years under the Clean Water Act that lays them all out (see: DEP’s 2010 Integrated Water Quality Monitoring and Assessment Report

That blunt overall perspective of across the board failure lacks the nuance necessary to distinguish between the clean water tools that we know work, those that truly have failed, and what we need to do in the future.

A conclusion that there has been 40 years of across the board failure also absolves policy makers of any accountability – if everything is broken then basically all DEP Commissioner’s and their policy agenda’s are the same: they all are bad.

But that is not true.

In my interview with Todd, I emphatically distinguished the tools we know work from those that have failed, and I traced the policy history of Administrations and DEP Commissioner’s who had aggressive records from those that failed.

For example, there could be no greater contrast between DEP Commissioner Campbell’s clean water agenda, which included Category One designations, 300 foot buffers, removal of environmentally sensitive land from sewer service areas, and development and enforcement of phosphorus nutrient standards – and the Commissioner Martin across the board rollback agenda.

In general, I noted that progress has resulted from an approach that is based on: 1) huge investments in infrastructure; 2) science based strict regulatory standards; 3) integrated planning and regulation; and 4) strict and sometimes mandatory enforcement.

In contrast, failures have resulted from a hands off approach that relies on voluntary, local, private sector partnership, and market based “incentives”.

This is particularly important because the Christie Administration is dismantling the package of policy tools that we know work and replacing it with what we know doesn’t work.

As the story documented:

The DEP has dissolved its Division of Watershed Management, which was tasked with reducing pollution in watersheds. Several local watershed groups, including one that covered the Manasquan River watershed, also have faded away. A watershed is the land that drains into a stream, lake, bay or the ocean. The federal government says reducing pollution in watersheds is the best way to clean up waterways and has developed a 2011 Healthy Watersheds Initiative. The DEP watershed division’s functions have been transferred to other parts of the agency, which continues to work on watershed issues, according to DEP officials. The DEP plans to use its Barnegat Bay restoration project as a model for protecting other watersheds and improving water quality. […]

DEP Spokesman Ragonese said DEP Commissioner Bob Martin’s goal is to “focus on our core mission (protecting the air, land, water and natural resources), to be more efficient and to jettison things that are less important so we can focus on the core.”

So, the Christie rollback is being portrayed – without criticism – as the model for the future.

The complete failure view also supports and opens the door to a totally wrongheaded and misleading set of conclusions and solutions that are captured in this quote:

Sean T. Dixon, coastal policy lawyer with Clean Ocean Action, a Sandy Hook- based coalition, said the federal Clean Water Act of 1972 “wasn’t designed for a 60-, 70-, 80-year life span. It was designed to address problems 30, 40 years ago, so we need a new set of solutions.”

They include investing in wastewater treatment systems, new pipelines, other infrastructure, water recycling and new technologies, he said.

That’s a crock of shit, my friends – and shocking coming from a so called “coastal policy lawyer” (whatever the hell that is).

So, let’s take those claims one at a time:

1. Contrary to the impression created by that quote, the Clean Water Act is not some “quaint” ancient dinosaur – it has worked and needs to be enforced, not abandoned.

The biggest loopholes in the Act that require closing deal with failure to regulate agriculture and land use and to impose regulatory standards on non-point source pollution.

But they were political concessions made back in 1972 – that still hold today – and have nothing to do with the age of the Act.

If anything, they suggest a need for renewed and aggressive political advocacy by environmentalists – the kind of activist grassroots protest efforts that created the political demands on Congress that led to passage of the Clean Water Act – not new technologies or pipes as Dixon suggests.

Furthermore, the land use driven non-point source pollution control weaknesses of the Act can be addressed by enforcing other provisions of the CWA – directly and indirectly – including the Section 208 “areawide water quality management planning” provisions, and the Section 303 “water quality standards” “anti degradation policy” and “total maximum daily load” (TMDL) programs.

The combined sewer overflow (CSO) problem will need leadership and planning from Trenton, based on an integrated enforcement and financing effort. Perhaps Baykeeper’s lawsuit and petition will spur action on that front.

But all these observations are inconvenient truths to those that support Governor Christie and DEP Commissioner “core mission – Do Less with Less – customer service” Sloganeer- in-Chief Martin.

Governor Christie and his DEP Hatchet Man Bob Martin are dismantling what works:

• Water Quality Standards

Many serious pollutants are not currently regulated and current standards need to be tightened in light of new science and new problems (more to follow on this issue).

But DEP Comisisoner Martin has issued a moratorium on new regulatory standards by DEP. The failure to move forward with nitrogen standards in Barnegat Bay is just one illustration of this Martin policy.

Worse, he has outsourced and privatized the development of standards by delegating those functions to a new industry influenced Science Advisory Board.

• Integrated land Use and water resource planning and regulation

Martin not only dismantled DEP’s watershed planning Division and transferred Director Larry Baier to enforcement.

He has replaced that DEP driven integrated watershed based planning and regulatory model with a voluntary, locally driven, “partnership” model, which is based on the failed local Barnegat Bay Partnership.

Martin also issued an Administrative Order extending the implementation of the DEP’s Clean Water Act Section 208 based Water Quality Management Planning rules.

This Order providing the impetus and green light for the recent legislative attack.

Obviously, governor Christie will not veto THAT bill.

Martin has opposed any efforts to improve DEP’s ability to regulate noin-point source pollution via the multitude of growth management, infrastructure, planning, and regulatory tools in DEP’s arsenal (including CAFRA and the Water Supply Management Act).

This is a formula designed to fail.

• Investment in Infrastructure

NJ has a $28 billion clean water infrastructure deficit.

But Governor Christie is ideoligically opposed to raising the public revenues required to close this deficit and stem the decline and restore water quality.

That is why Christie vetoed a bill that would have allowed few to be imposed on development to fund storm water management, the number one problem in the Barnegat Bay watershed.

• Enforcement

The Christie administration ideologically prefers voluntary and partnership efforts over regulatory mandates and enforcement.

The Christie veto of the Barnegat Bay Clean Water Act “TMDL” legislation is just one illustration of this ideology in operation.

• Independent science

The Clean Water Act implementation has been driven by independent university based and EPA science.

DEP’s Division of Science and Research has been abolished and DEP science capabilities greatly diminished.

Independent and public science has been outsourced to the new DEP Science Advisory Board .

Given the corporate interests on that Board, we can expect gridlock and/or rollbacks.

2. The second major falacy in the above quote relates to the claims regarding the need for new pipelines, water recycling, and new technologies (desalination?).

Pipelines are engineering solutions that merely shift a problem from one place to the other. They create even more “infrastructure capacity” to support even higher levels of unsustainable sprawl development.

In the nation’s most densely populated state, the last thing we need is more technological solutions.

Of all people, a coastal policy expert should understand why regionalizing the coastal sewage treatment plants and huge ocean discharge pipes have destroyed the coastal zone.

Regionalization of huge treatment plants and dumping via ocean outfalls have provided enormous capacity to support explosive levels of growth and development. This has dramatically increased impervious surfaces and non-point pollution.

The demand for drinking water to satisfy over-development – coupled with one way ocean discharge and loss of groundwater recharge from impervious surfaces – has resulted in mining groundwater. This greatly reduces stream base flows, impairs ecological function, and accelerates salt water intrusion.

Wastewater recycling is the next iteration of this engineering insanity.

Pipelines and technologies have been a disaster. We don’t need more of that.

Well, we’ll leave it at that for now – more to follow based on parts 2 and 3 of the series.

We close with this head in the sand idiot of the day quote from DEP, which is shocking in light of the data on how NJ waters have degraded:

Kerry Kirk Pflugh, DEP manager of public participation and stakeholder involvement, said in an email that “as new technologies become available to treat water and restoration efforts get implemented, the waters will continue to improve.”

“Continue to improve”? WTF!