WolfeNotes.com

Public Duped (Again) About Combined Sewer Overflow (CSO) Permits

DEP’s False Narrative Of “First Ever” Uncritically Parroted And Transcribed

“In an effort to prevent raw sewage from spilling into New Jersey’s waterways, the state is beginning to require sewer plants to plan for 500-year storms and to prepare for extended outages of up to 14 days.” (NJ Spotlight, 9/17/14)

DEP is actually going backwards on climate adaptation and protection of water resources.

As just one example, see the above quote, which illustrates that DEP was incorporating the 500 year climate driven storm and flood in permits almost a decade ago. Yet current DEP proposed inland flood rules and draft CSO permits do not mandate the 500 year storm.

Do NJ Spotlight reporters and editors read their own reporting?

Ignoring all that, NJ Spotlight today published another puff piece by Jon Hurdle on the public hearing for DEP’s recently proposed combined sewer overflow permits, see:

• Public welcomes plan to stop mixing sewage with stormwater

Of course the public welcomes that, but the public doesn’t know how to read draft DEP permits and regulations, so they are unaware that they have been duped, again.

They have not only been duped, they are parroting DEP talking points:

“It was so gross. I am so grateful that we have been granted the first opportunity … to fix our destitute sewer systems.”

This nonsense about “the first” is a false narrative manufactured by DEP to create the false appearance of leadership and it comes directly from DEP’s December 13, 2022 press release. I exposed that sham in this post:

• The Murphy DEP Just Inadvertently Admitted That DEP Urban CSO Permits Have No Teeth

And once again, NJ Future actively misleads the public (or they haven’t read or understood the draft permits, especially in light of DEP’s recent “variance” loophole proposal and the fatal flaws in DEP’s inland flood rule proposal: (NJ Spotlight)

“We are happy to see that the facility floodproofing plan is based on sea-level rise data,” said Patricia Dunkak of the nonprofit New Jersey Future, in one of a series of five-minute speeches.

But she asked: “How will DEP incorporate NJ PACT rules into this permit and future permits? Will future hydrologic modeling be updated based on precipitation data and modeling?”

By law, everything DEP does must be “based on data”. The critical issue is WHAT DATA?  And to meet WHAT STANDARD?

DEP did not use current rainfall data (or “design storm” statistics) or climate science based projected sea level rise, rainfall, or flooding data – not even the 500 year storm, which already has been exceeded multiple times.

How could Ms. Dunkak not know the answer to her question? Did she read the draft permit? Did she read the DEP’s proposed inland flood rules?

And once again, environmental groups – and NRDC does read permits and regulations, or at least they used to – pull punches and provide cover:

For low-income communities served by utilities that are facing the major costs of upgrading their infrastructure, the Environmental Protection Agency provides affordability guidelines that propose more time for those utilities to meet permit requirements. But it is unclear for now whether New Jersey will follow the federal guidelines, argued Larry Levine, Director of Urban Water Infrastructure at the Natural Resources Defense Council.

Note the mention of the US EPA and not NJ DEP – this is done for a dishonest reason.

It masks DEP’s recently proposed “variance” loophole. NRDC knows this and so does Jon Hurdle.

It is correct that the EPA Clean Water Act rules provide a “variance”, but this permit is issued by the NJDEP under State water pollution control rules, which historically have been far more stringent than federal minimums.

The Murphy DEP just weakened that historic policy in their “variance” loophole – this is the same as Christie Whitman’s “federal consistency” rollback policy initially adopted in Executive Order #27.

That Order not only sought to roll back more stringent NJ State environmental regulations to federal minimums, it also for the first time mandated “cost-benefit analysis” in rulemaking.

The DEP “variance” loophole implements both Whitman rollback policies: federal consistency and cost based considerations. The CSO permits combine and expose those rollback policies.

Here is how NRDC misleads the public about that:

“As these draft permits start to come out, we are going to see how the state is responding — whether they are going to propose permits that give these cities as long as they want, or whether the state says you can’t have 20 or 30 years,” Levine said. “You have got to do this faster, and we are putting the onus on you to figure that out. “

The DEP will have to balance its responsibility for ensuring sewage-free streets with an assessment of the ability of a community to pay within a certain time, Levine said.

What absolute bullshit.

Did Mr. Levine read the draft permit and the DEP’s proposed “variance” rule? Why is he asking questions instead of making fact based criticisms?

And I won’t even bother with the spin about environmental justice.

I sent reporter Jon Hurdle this note to expose this misleading reporting:

Jon – 4 points:

1. What’s going on here? Did you read prior NJ Spotlight stories, include one you recently wrote?

If you OPPOSE DEP, you get 2 minutes to comment:

“You can’t have any grandfathering, you can’t have any compromises with the fossil-fuel and transportation industries,” Riss said, in one of a series of two-minute speeches. “

https://www.njspotlightnews.org/2023/01/inland-flood-protection-rule-dep-njbia-tropical-storm-ida-richard-onderko-hurricane-floyd/

If you SUPPORT DEP, you get 5 minutes to comment:

“We are happy to see that the facility floodproofing plan is based on sea-level rise data,” said Patricia Dunkak of the nonprofit New Jersey Future, in one of a series of five-minute speeches.

https://www.njspotlightnews.org/2023/01/combined-sewer-overflow-cso-north-bergen-township-hudson-county-woodcliff-sewer-treatment-plant-north-bergen-municipal-utility-authority-nbmua-department-of-environmental-protection-natural-resource/

2. Ask NRDC for comments on DEP’s “variance” proposal and how it would apply to these CSO permits (and the DRBC water quality standards upgrade).

3. Ask NJ Future about the 500 year design storm – Tom Johnson wrote about that:

“In an effort to prevent raw sewage from spilling into New Jersey’s waterways, the state is beginning to require sewer plants to plan for 500-year storms and to prepare for extended outages of up to 14 days.”

https://www.njspotlightnews.org/2014/09/14-09-16-state-wants-sewer-plants-to-plan-for-500-year-storms-extended-outages/

The inland flood rules have the same fatal flaw which will result in under-designed and obsolete infrastructure systems.

The US army Corps of Engineers just admitted that failure and the waste of $14 billion in New Orleans.

4. There was no “first” here. As I wrote just yesterday, that’s a false narrative:

http://www.wolfenotes.com/2023/01/nj-climate-activists-have-zero-credibility-and-no-spine/

“DEP was again touting their program as “the first ever” (remember that CSO press release?), and trying to manufacture a false narrative of leadership and policy innovation.

But what DEP actually did here was to recycle and rebrand a 15 year old law and take credit for it!

There was no “first ever” and policy leadership in DEP’s press release/event in Trenton last week (and it was not a “ceremony”, the ridiculous term used by Jon Hurdle).

DEP merely repackaged and rebranded a carbon sequestration program created way back in 2007, under the Global Warming Solutions Fund Act, see P.L 2007, c.340:

“(4) Ten percent shall be allocated to the department to support programs that enhance the stewardship and restoration of the State’s forests and tidal marshes that provide important opportunities to sequester or reduce greenhouse gases.”

I’ve documented all this multiple times recently.

Do better.

Gov. Murphy’s Green Cheerleaders Predictably Spin His Environmental Record

The “Chat Box” Is A Full Of Crap Box

“The age of Truth shall soon appear, Aquarius arise.

A man’s a man who looks a man right between the eyes.” ~~~ Graham Nash (and RIP David Crosby)

The last time David Cruz’ “Chat Box” at NJ Spotlight TeeVee interviewed 2 guests on the topic of Gov. Murphy’s environmental record, it was a real hoot, with retired Sierra Club veteran Jeff Tittel eviscerating the Gov. and embarrassing an obviously clueless poser, Marcus Sibley, see:

• Environmental Justice Leader Says Gov. Murphy “Doing A Really Good Job” On Climate And The Environment

I guess Cruz got the memo from the Gov.’s Office and PBS owners/managers to tone it down, because his latest show on the Gov.’s environmental record featured a love-fest between two Murphy cheerleaders, Anjuli Ramos, Sierra Club and Doug O’Malley, Environment NJ (critics need not apply).

Watch the show and see for yourself: “Offshore Wind, Whales, And Climate Change” (time 13:15 – 30:15)

Weeks and days after Murphy’s State of the State address (i.e. I am not criticizing his entire 5 year record here, there’s more to come on that), which gave short shrift to climate and environmental issues, and Murphy’s proposed corporate tax cut that would slash $36 million in environmental funding (mostly for Green Acres open space) and Murphy’s U-turn betrayal in support of the controversial bear slaughter and abandonment of DEP’s proposed boiler rules and DEP adoption of a very weak power plant CO2 rule and DEP proposal of a fatally flawed inland flooding rule and a DEP’s settlement and controversial corporate giveaway to chemical giant BASF in Toms River and DEP’s failure to adopt EJ rules and DEP’s Clean Air plan on fine particulates that is obsolete in light of prosed more stringent EPA national standards and DEP’s controversial Pinelands and Highlands logging projects and DEP’s planned proposed rollbacks of Green Acres rules to promote insane development and DEP’s pending adoption of a major “variance”  loophole in clean water standards and the recent gaps and loopholes in chemical safety regulations (RTK, TCPA) exposed by the Passaic City chemical fire and the Bergen Record’s series and DEP rubber stamp regulatory approvals of millions of square feet of warehouses and the toothless State Plan and the upcoming Forestry Task Force recommendations  – oh no, we get no mention of any of that.

The show began with the media topic of the day, the death of whales. Both guests could not find the backbone to state the obvious: the opportunistic political exploitation of whale deaths to attack offshore wind is disgraceful, by both State Senator Polistina and Clean Ocean Action.

The conversation then moved on to the Governor’s environmental record.

Both then gave unqualified support for off shore wind, without noting the fact that the BPU Energy Master Plan integrates wind with continued reliance on fossil natural gas power and that there are no enforceable regulations or contracts that require wind to displace fossil power sources. With a projected more than doubling of demand for electric power, it is likely that wind will serve demand growth, not displace fossil.

After a Cruz intro that specifically asked for the Gov’s “strengths and weaknesses” and a clip from the Gov. that emphasized his “pragmatism”, Sierra did not mention any weaknesses and parroted the Gov.’s “pragmatism” and gave him a pass by mentioning that he has 3 more years to act. Her only demand was the California clean car standards.

O’Malley then falsely claimed that Murphy DEP was playing “catch up” after 8 years of the disastrous Christie DEP policies and regulatory rollbacks. That is factually false.

The Murphy DEP has not even tried to repeal, restore, and strengthen the Christie DEP regulatory rollbacks.

Very few people know this, but the Murphy DEP has re-adopted without change 42 Christie DEP regulations (and denied several important petitions for rulemaking on: 1) climate, 2) wildfire prevention, 3) Green Acres, and 4) water quality).

Despite the green rhetoric, in fact, there has been enormous policy continuity. The Gov. did repeal Christie’s Ex. Order #2 on regulatory policy, but Murphy;s replacement EO is not much better and DEP has done nothing to reduce the undue influence by regulated industry on DEP rulemaking or stakeholder processes or tilt the balance back in favor of protection of public health and the environment over economic considerations.

To his benefit, O’Malley did contrast the Gov. Executive Order with DEP’s failure to follow through and implement them via regulations (only the adaptation regulations, under PACT) and pending fossil infrastructure projects. Doug mentioned failure to deliver on some campaign commitments and diversion of clean energy funds. But Doug failed to mention the DEP’s only rule on emissions reductions, the lame CO2 power plant rule.

Despite discussion of the “don’t take my gas stove” scheme, both failed to criticize the DEP’s recent cave to the fuel merchants association and abandonment of a proposed electric boiler replacement regulations, a minor first step in electrification of buildings.

Neither mentioned DEP Clean Air Act SIP amendments for failure to meet the health based ground level ozone and fine particulate standards (or EPA’s recent proposal of more stringent standard). No mention of air toxics and DEP’s continued issuance of air permits that allow emissions of hazardous air pollutants with no consideration of climate or EJ issues.

I sent the group the following email, to ask them all to do better and hold DEP and the Gov. accountable to their records:

Murphy DEP has not rescinded and restored Christie DEP rollbacks, and they haven’t even tried, so Doug is full of crap. There has been a LOT of policy continuity in almost all DEP programs: air, water, toxics, solid waste, hazardous waste, forestry management (logging), land use, Barnegat Bay, et al. Even some Christie DEP political appointment staff holdovers in Commissioners Office, Press office, NJ Env. Infrastructure Trust, et al. Budget?? Enforcement??? Highlands – nothing but a pro-economic development emphasis. Pinelands – logging plan, incomplete followthrough on appointments, no national search for a qualified Ex. Director.

Gov. Murphy EO did rescind Christie EO 2, but the replacement EO is almost as bad and DEP has not changed to rulemaking or stakeholder processes to curb undue industry influence.

DEP has proposed several regulatory rollbacks, including a “variance” loophole in Clean Water Act standards and permit requirements.

DEP’s CO2 emissions rule for large power plants recently adopted was pathetic.

The RGGI cap is still way too high and carbon allowance auction price way too low.

Flood rules fatally flawed because they continue to rely on 100 year storm event and dod not address paid use planning but instead try to engineer (build on stilts) out of the problem.

No change on CAFRA and coast or ocean policy.

I could go on

And the opportunistic political sham on the whale deaths is disgusting – failure to call that out id pure cowardice.

LaTourette In His Own Words:

How can you give a pass on all this (plus the $36 million cut to Green Acres money the Gov. just announced, a result from his corporate tax cuts)

1. “No immediate end to fossil-fuel use

Department of Environmental Protection Commissioner Shawn LaTourette said he has told advocates pushing to shut down all fossil fuel projects that that is not going to happen anytime soon.

“We need carbon-based fuels to power our economy,’’ LaTourette said. “It is why we don’t see the DEP responding to calls for a fossil fuel moratorium.’’ ~~~ NJ Spotlight

NJ to push for public backing on climate action with new regulations

2. “We’re not at a point, nor do we think it’s our role, to tell people: ‘Don’t build here, you shouldn’t build there, you can’t do that,’” LaTourette said. …

He said the DEP wants to avoid being the “big, bad government” that imposes heavy-handed regulations. officials have continued to gather input via a series of virtual meetings with stakeholders and aim to formally propose new regulations “early next year,” perhaps in the first quarter, LaTourette said. (NJ Spotlight)

https://www.njspotlightnews.org/2020/10/updating-nj-climate-change-regulations-developers-builders-fear-officials-advocates-say-necessary/

3. BASF settlement was was bad as Christie DEP Exxon NRD sellout.

4. LaTourette’s NJ Spotlight TV remarks were outrageously callous in response to Linda Gillick’s childhood cancer cluster interview.

5. Abandoned the boiler rule proposal

6. No action on electrification of buildings

7. Nuke subsidies over $1 billion now.

8. LNG export, pipeline, compressor stations permits still pending

9. LaTourette was a corporate lawyer, not Erin Brockovich like Gov. press release claimed.

I’ve been documenting all this from day one – Do you want more?

Wolfe

The New CCC: Collaboration, Cop-Optation, Corruption

DEP Virtually Abandons Regulatory Enforcement –  Entire Focus Now About Patronage

Gov. Murphy’s Corporate Tax Cuts Would Slash $36 million, More Than Today’s Grants

Phil Murphy spread a lot of money around New Jersey to buy the kind of political support required to become Gov. He spent $16.3 million of his own money in 2017.

Echoing that classic old commercial for EF Hutton, a Wall Street investment firm: He earned the Governor’s seat the old fashioned way: he bought it.

Now, his DEP is doing exactly the same thing with the Faux Green community:

• MURPHY ADMINISTRATION AWARDS $24.3 MILLION THROUGH ITS NATURAL CLIMATE SOLUTIONS GRANT PROGRAM

I’ll make just one point about the merits of these grants.

DEP claims that the grants will sequester “32,710 metric tons of carbon dioxide equivalent (MTCO₂e) by 2050.” (that’s about $733 per ton sequestered while the RGGI carbon price is about $13 per ton emitted. That’s a valid point, because the source of funds for today’s DEP grants  are proceeds from the sale of RGGI allowances. It would be far more cost effective and equitable to simply ratchet down on the RGGI cap to make polluters pay, or to impose regulatory mandates on carbon emissions, or to invest in energy conservation in low income homes or simply stop logging NJ forests.)

But instead of cost considerations, let’s put that carbon sequestration data in climate context: 32,710 metric tons, over 28 years, is just 1,168 tons per year.

NJ emits about 100 million tons of greenhouse gases annually.

So, 28 years of sequestration from these otherwise worthy projects are just 0.001% of ANNUAL emissions.

That’s a JOKE and a CORRUPT PATRONAGE PROGRAM, not a climate program.

DEP supported logging projects in the Pinelands and the Highlands result in new emissions that are FAR more carbon than that and limit future carbon sequestration far more than that.

The same goes for hundreds of air pollution permits, pipeline approvals, and land use development approvals that DEP rubber stamps every year with absolutely no review of the climate impacts or carbon emissions.

And the corruption here is blatantly obvious, as only a handful of recent examples demonstrates by groups that were funded by DEP today (and would never bite/criticize the hand that feeds/grants them):

• Pinelands Preservation Alliance recently aggressively publicly supported a huge 1,400 acre DEP logging plan in the Pinelands. Weeks later, they received a $581,500 DEP grant.

• NJ Conservation Foundation also supported that Pinelands logging plan. NJCF also formed its own astro-turf climate organization, called Rethink NJ. That group has failed to criticize the Gov.’s multiple climate failures and refused to support the work of or join the State’s largest 120 member climate coalition (Empower NJ) who is calling on the Gov. to stop approving fossil infrastructure (Moratorium Mondays) and to act meet the goals of his own Executive Orders on climate. (or to take what I’ve recommended as real actions to put teeth in NJ’s climate laws). Instead, Rethink NJ focuses on the Federal Energy Regulatory Commission (FERC) and fails to pressure DEP to use its regulatory authority to kill pipelines and other fossil infrastructure (power plants, compressor stations). Jay Watson of NJCF is a former DEP Assistant Commissioner, so he has revolving door appearance issues as well.

• American Littoral Society has been virtually silenced on issues they have taken a leadership role on:  they’ve done nothing to challenge the Murphy DEP’s failure to enforce (remember that TMDL bill?) the Clean Water Act to prevent the ecological collapse of and restore Barnegat Bay (this is doubly shameful, because Tim Dillingham, head of ALS, hails from the shores of Chesapeake Bay, where he knows that the US EPA is using a TMDL cleanup plan to restore the Bay); DEP’s failure to enact long delayed numeric water quality standards for nutrients;

“The science is available now” to fix Barnegat Bay by setting firm pollution limits, said Tim Dillingham, executive director of the American Littoral Society, on Sandy Hook. The Christie administration “has to make a decision to use it.” (Asbury Park Press (8/7/14)

As we recently wrote, Barnegat Bay has gone from crisis to crickets – and Dillingham is one of many crickets.

Dillingham also ignores DEP’s proposal of a gaping “variance” loophole in Clean Water Act standards regulations; failure to strengthen CAFRA and limit coastal sprawl development; and failure to reform NJ’s Blue Acres and Coastal Management programs to consider a policy of “strategic retreat” from climate driven coastal flooding, sea level rise and storm surge. ALS is AWOL and crickets on all that and more, all issues they’ve led on in the past. ALS has received millions from prior DEP grants.

• NJ Audubon Society, a founder of the Keep It Green coalition that was created to fund open space purchases said nothing to criticize Gov. Murphy’s proposed corporate tax cuts, which would slash $36 million from open space funding, perhaps NJA’s highest priority issue. They also benefit indirectly from today’s grants as founder of the Partnership for Delaware River and also have revolving door appearance issues because Eileen Murphy, NJA head lobbyist is a retired career former DEP manager.

I could cite many more examples.

And all these groups SUPPORT DEP LOGGING, which is the OPPOSITE OF CARBON SEQUESTRATION.

It’s disgusting.

What’s the Secret “available delegated state authority”?

No immediate end to fossil-fuel use

Department of Environmental Protection Commissioner Shawn LaTourette said he has told advocates pushing to shut down all fossil fuel projects that that is not going to happen anytime soon.

“We need carbon-based fuels to power our economy,’’ LaTourette said. “It is why we don’t see the DEP responding to calls for a fossil fuel moratorium.’’ ~~~ NJ Spotlight

In yesterday’s post, I explained why the NJ Global Warming Response Act (GWRA) is a sham and always was a sham. The goals always were aspirational and unenforceable. (The legal eagles and wonks out there can even see how it was done, see:

• How The Global Warming Response Act Was Stripped

That sham has been defended for 15 years by faux climate activists who refuse to fight for implementing legislation to put teeth in the GWRA. Instead of admitting this, they knowingly misled the public and repeatedly praised a series of sham political efforts that they knew would not produce real greenhouse gas emissions reductions or come anywhere near meeting the goals of the GWRA.

I also linked to a prior post that explained, in contrast to the GWRA, exactly how New York State’s climate law had teeth. I again implored NJ climate activists to campaign to demand that such a law be enacted in NJ.

Almost on cue, NJ Spotlight came along and made my point, in spades.

Today, let me quickly translate NJ’s Spotlight’s story about another FERC pipeline approval and the faux opposition of faux climate activists at Rethink Energy NJ (that’s you Tom Gilbert).

The FERC approval and the arguments of Tom Gilbert’s crew expose the sham of the NJ GWRA, because that law does not apply to and can not be used to stop a major expansion of fossil infrastructure that blatantly contradicts the emissions reductions goal of the Act:

The project will lead to a 16% increase in the state’s emissions of greenhouse gas annually, undermining New Jersey’s goal of slashing such pollution by 50% by 2030, according to Ed Potosnak, executive director of the League of Conservation Voters of New Jersey.  

See how the criticism is to “NJ’s goal” and what follows is the 50% by 2030 goal set by Gov.Murphy’s Executive Order, and not the goals of the Global Warming Response Act? Once again, this coverage obscures a critical fact. As a result, the public and climate activists are misinformed and the Gov. and Legislature get a pass.

Although environmentalists mislead the public about this too, everyone knows that a Gov.’s Executive Order is only binding on the Executive Branch and does not and can not create law. An EO has no binding legal effect on polluters who emit greenhouse gases and can not authorize DEP to regulate GHG emissions. It’s little more than a press release, yet environmental groups mislead the public into believing that it is real and significant. (just one example of many below)

In addition to misleading the public about the GWRA and the effects of a Gov. Executive Order, for years now, I have criticized these groups for a misguided and demonstrably failed strategy that focuses on FERC instead of: 1) the DEP’s powers under the Clean Water Act Section 401 Water Quality Certification; 2) demands for a moratorium on new fossil infrastructure; and 3) efforts to educate the public and expose the fraud of the GWRA – which does not even apply to these pipeline projects – and work on implementing legislation to put teeth in that law.

Once again, we see that all those issues were neglected and NJ Spotlight’s coverage again ignores them too.

But curiously, the last sentence in today’s Spotlight article cryptically refers to unspecified “delegated state authority”:

The coalition of environmental groups plan to file a motion for a rehearing with FERC and are asking the Murphy administration and its Pennsylvania counterparts to do the same. They want both states to use available delegated state authority to deny the project.

What “delegated state authority” might that be? Is it a secret? Talk about burying the lede! In a vague allusion in the last sentence! They can’t even name the authority, lest it expose their sham and vindicate my criticism.

Could it be the Clean Water Act Section 401 Water Quality Certification authority I’ve been criticized them for years for failing to focus on and criticizing NJ Spotlight for failure to cover?

In conclusion, let me again summarize why a focus on FERC is a fools errand and a total waste of time, money, and activists’ efforts, while diverting attention from far more effective strategies and tools:

1. The federal Natural Gas Act was written by the fossil energy companies to promote and expand fossil energy. It is not an environmental law and gives short shrift to environmental considerations.

2. The FERC is captured by fossil energy industry and routinely rubber stamps virtually all pipeline projects seeking their approval.

3. But even if the Natural Gas Act was balanced and considered environmental concerns and even if FERC were a neutral agency devoted to the public interest, the arguments made by NJ Rethink would still be absurd and fail. Here’s why and it doesn’t take a lawyer to understand these obvious arguments:

First, the NGA and FERC are designed and authorized by Congress to consider and advance the NATIONAL interest.

Second, there is also a Constitutional doctrine known as the Commerce Clause that prohibits unreasonable State restrictions on inter-state commerce. This national market based perspective and discouragement of State barriers doctrine influenced the NGA and FERC.

Third, Rethink and the NJ offer up narrow State based economic arguments that focus on the exclusive economic interests of NJ. Their arguments based on need and the energy demand and natural gas capacity are limited to NJ (instead of the region and other states that would be served by the pipeline).

By definition, those NJ based arguments have zero weight before FERC.

Both Rethink NJ and the NJ State government opponents are not serious, because they surely know that the arguments they offer are absurd and violate FERC law and policy.

They only pretend to oppose the pipeline and do so for self interested political reasons. They can tell the public that they’re trying. Arguments opposing the pipeline before FERC by State officials create a false appearance that the Murphy administration is opposing fossil infrastructure and fighting for climate goals, when exactly the opposite is true. (see above quote by DEP Commissioner LaTourette).

Environmental groups can fundraise. They can pay their friends the legal and economic consultants and feel important in “managing” them. They can hold press conferences and meet with the Governor and DEP Commissioner. They can use all this activity as “metrics” in their grant reports to their Foundation funders. They can praise their “grassroots activist” supporters and get emotional support and donations from them. They can protect their backyards and their pastoral private preserved lands. But they are not really trying. They know their arguments to FERC will fail. They are posing and virtue signaling. You can tell this is true because they refuse to make serious arguments and fight for efforts that have won in other states, like New York.

Yet this incompetence is well funded and reported by news media as serious advocacy, while real solutions, used by our neighbor in New York, are completely ignored.

[End Note: We have been vindicated by history –

In an October 7, 2007 Sunday Star Ledger Op-Ed, we warned everyone and explained why the law was designed to fail (for full text, see: No teeth in ‘tough’ pollution law):

The law — contrary to widespread media coverage — does not legally cap greenhouse gas emissions or mandate emissions reductions on any major pollution sources. As a result, the law’s theoretically “mandatory” goals are unenforceable and therefore a fiction. They amount to the same voluntary approach backed by the Bush administration.

Specifically, the law provides no regulatory authority, funding or staff for the DEP to take the necessary steps to implement and enforce the emission reduction goals. Instead, the DEP is kept on a tight leash and merely directed to develop a set of recommendations on how to meet the goals and to submit that proposed plan to the Legislature by June 2008. In passing the law, the Legislature merely kicked the can down the road, postponing hard choices for well over a year.

Perhaps even worse, any DEP powers to implement the goals of the law were explicitly narrowed. DEP’s role is limited to emissions monitoring and reporting progress in achieving the goals.

DEP Holds Public Hearing On Wednesday

Faux Green Cheerleaders And Media Are Not Disclosing Flaws

The DEP is holding a public hearing on proposed new inland flood protection rules Wednesday (1/11/23), so we thought we would post a summary of our initial review comments we posted back on October 30, 2022.

Unfortunately, the environmental groups are supporting and cheerleading for this proposal and ignoring serious flaws, such as:

• the proposal is based on the 100 Year Storm event, despite NJ having suffered several 500 Year Storms
• the proposal is scientifically obsolete before it is adopted 
• DEP ignores land use planning and instead relies on the myth of “Resilience”

Below is an overview. We provided this analysis to environmental leaders and Jon Hurdle at NJ Spotlight, so they are aware of and knowingly downplaying these flaws.

1. Just as we predicted, DEP based the rule on the 100 year storm event, despite the fact that NJ already has experienced several far more severe 500 year storm events.

We predicted DEP would do that back in February, when DEP released their Cornell rainfall study, see:

• Murphy DEP Signals That New Jersey Is About To Repeat The New Orleans Katrina Debacle

I explained the significance of the flawed 100 year storm in this September 4, 2021 post:

• Billions Of Dollars Spent On NJ Infrastructure “Resilience” Is Already Obsolete, As DEP Fails To Update Regulations To Reflect Climate Science

The US Army Corps of Engineers recently were forced to admit a similar huge engineering blunder in New Orleans, due to reliance on flawed design standards, a $14 billion mistake: (Federal Register Notice, 4/2/19)

Even NJ Spotlight understands the 500 year storm see:

• State Wants Sewer Plants to Plan for 500-Year Storms, Extended Outages

DEP’s proposal documents the fact that NJ has suffered 500 year (or more) Storm events and flooding (@ page 10):

Specifically, the remnants of Tropical Storm Ida resulted in flooding significantly more severe than FEMA’s published 100-year flood at various locations in New Jersey:

Raritan River at Bound Brook:

• Flooding during Tropical Storm Ida equaled 1999’s Hurricane Floyd, which was the highest elevation ever recorded at Bound Brook.
• Including Floyd, flooding at this location in the past 23 years has equaled or exceeded FEMA’s 500-year flood elevation three times.
• The Raritan River during Tropical Storm Ida peaked at 42.13 ft NGVD (41.21 ft NAVD) which is 3.01 feet above FEMA’s 100-year elevation (38.2 ft NAVD) and 0.21 ft above FEMA’s 500-year flood elevation (41.0 ft NAVD).

Raritan River at Bridgewater

• Flooding during Tropical Storm Ida peaked at roughly FEMA’s 500-year flood elevation (41.0 ft NAVD) which is 2.8 ft above FEMA’s 100-year flood elevation (38.2 ft NAVD)

Millstone River at Manville:

• Flooding during Tropical Storm Ida peaked at roughly one foot above FEMA’s 500-year flood elevation (43.5 ft NAVD) which is 2.5 ft above FEMA’s 100-year flood elevation (41.0 ft NAVD). Thus, flooding at this location peaked at approximately 3.5 feet above FEMA’s 100-year flood elevation.

DEP then explains the significance of the 500 year flood event: (@page 11)

These examples illustrate not only that Ida was a significant flood event that exceeded the anticipated flooding depicted on available flood mapping products, upon which many roads and buildings were financed, constructed, and insured in the impacted communities, but also that there is an upward trend in the number and severity of flood events in the State. As noted above, flooding in Bound Brook has exceeded FEMA’s 100-year flood elevation four times and FEMA’s 500-year flood elevation three times since 1999, which leads to the conclusion that we are already experiencing increased flooding as compared with past recurrence interval calculations.

Despite the facts that NJ is already experiencing 500 year floods. Now. Today.

Climate science projects that extreme storms will significantly increase in rainfall amount, rainfall intensity (short severe bursts of rainfall that create floods), and extreme rainfall frequency, yet the DEP did not even use the 500 year storm.

Instead, DEP merely added a 25% “safety factor” addition to the current 100 year storm event they’ve been using for decades.

And look how they then falsely stated that it would be adequate – a statement made before the facts on 500 year storms are summarized on page 10-11: (@page 5):

This rulemaking incorporates anticipated greater depths of precipitation for the two, 10, and 100-year storm events for the purposes of stormwater management.These proposed amendments are necessary to ensure that buildings, roads, stormwater management features and other structures are designed and constructed to manage and be protective for today’s flood conditions and precipitation as well as anticipated future conditions and precipitation. […]

Specifically, the flood hazard area design flood elevation is based on a flood that is 25 percent greater than the 100-year peak flow rate in the stream or river being analyzed and mapped.

The technical regulatory fine print for this proposed standard is found on page 102:

6. Table 3.6B below sets forth the change factors to be used in determining the projected 100-year storm event for use in this chapter,

The 100 year storm – even with an additional 25% “safety factor” increment – can not “ensure that buildings, roads, stormwater management features and other structures are designed and constructed to manage and be protective for today’s flood conditions and precipitation as well as anticipated future conditions and precipitation.”

That proposed new standard is already exceeded right now, never mind the larger storms driven by projected climate driven increases.

DEP admits this multiple times in the proposal:

“More than 12 rivers exceeded their 100-year flood levels”

“On August 27 and 28, 2011, Hurricane Irene resulted in record breaking floods on many New Jersey streams, with 33 USGS stream gauges recording peak flows equal to or greater than the 100-year recurrence interval (USGS, 2011).”

DEP itself exposed the inadequacy of the 100 year design storm for the purpose of justifying their new 25% “safety factor”.

But, ironically, in doing so, DEP also exposed the flaws in relying on the 100 year flood.

2. DEP Ignores Land Use Increases In Development. DEP’s proposed new standards are obsolete for the same reasons that DEP correctly rejects current rainfall methods

Just some basic observations make it obvious that, in addition to underestimating extreme rainfall amounts and flood elevations, DEP is failing to consider a basic driver of increased flood impacts.

Flooding is a combination of the amount and timing of rainfall and the ability of the landscape to absorb that rainfall.

NJ is a highly developed state.

Development has destroyed forests, wetlands, and natural landscapes that absorb rainfall and dampen flooding. It also puts people and property at risk when located in areas prone or vulnerable to flooding.

Development also increases impervious surfaces that dramatically increase the generate stormwater runoff volumes.

Yet the DEP proposal ignores the changes in land use and impervious surfaces that generated huge volumes of stormwater that contribute to bad land use decisions that result in devastating deadly flooding.

The proposal ignores existing development, it will influence new development at the margin, and it therefore depends on market forces, not any overarching State Land use and climate plan or infrastructure investment program.

A critical Star ledger editorial got that:

“A lot of New Jersey was developed prior to the stormwater regulations,” Obropta said. “The state needs to require municipalities to begin retrofitting existing development with stormwater management if we have any hope to reduce flooding.”

There is “no hope”. The proposal ignores existing development.

The proposal does very little to cap or reduce impervious surfaces or stop the loss of natural lands like forests, wetlands and stream buffers. It guarantees that the flooding problems will get worse.

3. DEP Rejected A Land Use Planning Approach And Policy Of “Strategic Adjustment” And Relies Primarily On Engineered “Resilience”.

The most cost effective and environmentally sound approach to stormwater management and flooding – particularly in light of projected climate driven more extreme weather events – is land use planning backed by regulation. That approach would include putting teeth in DEP’s current scattershot reactive reliance on voluntary “willing sellers” in the “Blue Acres” land acquisition program and restrictions on NJ’s “right to rebuild” storm damaged properties.

DEP has land use planning and regulatory powers that can be deployed to promote “strategic retreat” from flood prone lands, restrict rebuilding of flooded structures, and stop building in flood prone places or places that destroy forests, stream buffers, and wetlands. see:

• NJ Flood Law Is Flawed And Murphy DEP Is Abdicating Its Regulatory Role In Flood Protection

Any assertion of State and DEP land use planning powers is such a taboo topic, DEP doesn’t even talk about it anymore. Not even in the narrative description, never mind the regulatory text of the proposal. see:

But DEP effectively abandoned land use planning in favor of the slogan “resilience”, and they openly admit it:

As the State repairs the damage from these devastating impacts, it is in the interest of the public’s health and safety that future development of public and private  structures is as resilient as possible to withstand the increasing frequency and intensity of precipitation events, such as Ida.

And even highly technical details – and there are a lot of them that I have not considered today – like the groundwater recharge requirements retain the 2 year storm volume and flawed average annual recharge approach – which are overwhelmed by extreme weather – do little to nothing to reduce flooding.

In addition to getting the science and regulatory details wrong, the entire DEP approach is fatally flawed and based on the myth of “resilience”.

Resilience is much like flawed coastal engineering (sea walls, beach replenishment, etc) and hard engineered flood control projects. They give a false sense of security, cost a ton of money to build and maintain, and don’t work.

We can’t engineer and build our way out of this mess. And it will only get worse.