WolfeNotes.com

DEP Confirms Our Criticism Of Toothless Urban CSO Permits

DEP Spinners And DEP Cheerleaders Just Exposed Themselves

DEP issued a self congratulatory press release this week, ironically praising themselves for issuing the “first” Combined Sewer Overflow (CSO) permit “with schedules” for “projects”:

The draft New Jersey Pollutant Discharge System (NJPDES) renewal permits issued by the Department of Environmental Protection are the first to be issued that lay out schedules for combined sewer overflow reduction projects under long-term plans to reduce or eliminate combined sewer discharges affecting surface water quality in urban parts of the state. […]

The permittees were required to advise the public when combined sewer overflows occur, which is continued in this renewal. The DEP is moving into the next important phase of this effort by issuing these NJPDES permits that will lay out schedules for a variety of projects to address combined sewer overflows identified in long-term control plans.

The LaTourette DEP was so eager to praise themselves that they didn’t realize that they were admitting that their prior CSO permits were toothless; that DEP intentionally misled the public about those permits; and that DEP’s environmental group cheerleaders also misled the public about those permits.

Specifically, the DEP press release now confirms our criticism at the time, where we explicly critiqued these toothless DEP permits for failure to include enforceable requirements, including implementation schedules and milestones.

Back on January 8, 2015, we wrote:

• New DEP CSO Permits Lack Teeth

The DEP’s new “Combined Sewer Overflow” (CSO) permits are getting lots of media play today, and lots of very basic misconceptions, like this in the Bergen Record story:

“It’s great news – exactly what we’ve been asking for,” said Bill Sheehan, the Hackensack Riverkeeper. “It sets New Jersey on course to do real work to fix this problem once and for all. The cities and towns will now actually have to do stuff. And if they don’t, the permits are enforceable.“

Yes, the DEP permits do require that cities “do stuff” – lots of “stuff”.

“Stuff” like numerous studies and plans, the “stuff” they’ve been doing for decades that gets the big engineering and water resource consulting firms huge contracts but does nothing to improve water quality or stop the discharge of raw sewage from CSO’s when it rains.

But no, Captain Bill, the permits are not “enforceable” and they are intentionally written to be not enforceable.

So, just to be clear, below are the actual provisions of the DEP permit regarding implementation of CSO controls, i.e. actually constructing solutions to the problem within a specified and enforceable deadline. […]

You will note several glaring gaps and loopholes that make these permits unenforceable:

1. There are no mandatory deadlines to implement CSO controls. The only actual deadlines pertain to submission of plans and Reports.

2. The construction and financing schedule that must be submitted may be “phased” (an undefined and unbounded term that makes implementation unenforceable) and may consider the “permittee’s financial capability” (that too is an undefined term which will allow poor cities to escape costly CSO controls). […]

3. Note that implementation of the LTCP is to begin after DEP approval, “in accordance with the schedule contained therein”.

The important point to take away is that the DEP regulations and the DEP permits do not have schedules. Schedules are to be developed at some future time in the LTCP process. No mandatory schedule means no teeth.

No money and no mandates means that this round of DEP CSO permits is more of the same status quo study and delay.

Wow! There’s some accountability that needs to happen because:

• The DEP’s own press release this week specifically validates our criticism.

• The DEP’s own press releases exposes prior DEP efforts to spin the press and mislead the public about these toothless CSO permits.

• The DEP’s press release exposes the fact that the NJ press corps uncritically printed the DEP’s spin at the time.

• The DEP’s press release exposes the rank cheerleading by environmental groups, who praised these toothless permits.

Finally, the DEP press release includes praise from a DEP cheerleader, the corporate dominated group NJ Future. They too expose the fact that they have also been misleading the public for years by praising the prior toothless DEP permits:

New Jersey Future appreciates NJDEP’s efforts on this issue and welcomes the release of the first of many CSO permits. Implementing these permits will allow communities to incorporate green infrastructure and climate change preparation to reduce overflows, flooding, and hazards using funds from the Bipartisan Infrastructure Law and funding allocated by the Governor and Legislature from the American Rescue Plan Act.”

We are truly in the Twilight Zone when DEP can mislead the public about toothless CSO permits, get praised by so called environmental groups (NJ Future was not lone in praising those prior toothless CSO permits), and then years later openly admit that the prior CSO permits were toothless, and get praise again!

Is there no memory?

Maybe some intrepid reporter will ask DEP some tough questions, like:

1) when will all those other toothless urban CSO permits be modified to include enforceable schedules and milestones?

2) Whether and how urban communities will invoke the current permit provision to consider a “permittee’s financial capability”?

3) Whether and how the urban CSO communities will be eligible to invoke DEP’s new “variance” loophole, which provides relief based on “widespread social and economic impacts”, particularly on low income communities?

For the “variance” loophole story, see:

• Murphy DEP Proposed Huge Loophole In Clean Water Standards

ps – this is only happening because of federal money will pay for it.

Vague Platitudes, No Priorities, No Specifics, and No Tough Choices

9 Months Of Deliberation Delivered This Pap?

Part one set the context, basically so people could get a feel for how broken and biased the current DEP forestry policies, plans and programs are (and it’s been that way for a long time, cheerled by many conservationists, like entrepreneurial Mike Catania, see this.)

Part Two today highlights excerpts of the recommendations of the Legislative Forestry Task Force, each followed by my brief criticism (in red). This is off the top of my head and a first cut (I walked out of the Task Force after the first meeting, when they issued a gag order  and rejected a Resolution I proposed without discussion, designed merely to stop the damage, set priorities, and endorse proforestation:

• Forestry Task Force Urged To Support a Moratorium On Logging Pending Climate Reforms

In the full Task Force document the below excerpts are followed by a short paragraph of text. Readers should read the whole document. I only provided the boldfaced headlines from the document (the Task Force provided those boldface headlines, not me).

The Task Force process was initiated by Senator Smith purportedly to significantly reform those DEP policies in light on the climate and ecological emergencies, se:

• NJ Senate Environment Chair To Form “Forestry Task Force” To Develop A “New Paradigm”

Let me begin by noting that document does not discuss or critique the current conditions of the forest or evaluate the current DEP forestry planning and policy. Thus, it is impossible to know what the issues of concern are and the reforms that must be addressed.

Worse, the recommendations do not state clear goals, objectives, priorities, criteria, or standards upon which a Statewide Forestry policy or plan could be founded. Where goals are mentioned, they are limited to the DEP’s “80X50” Report and the Global Warming Response Act. Both those documents are already obsolete in terms of climate science and with respect to the goals and timetables. Plus, the GWRA goals are purely aspirational and not enforceable. And they do not even reflect the goals and timetables of Gov. Murphy’s Executive Orders. That’s truly pathetic and unacceptable.

There are no recommendations that forestry be subject to the full suite of NJ DEP environmental laws and regulations, that standards be strengthened, and that loopholes be closed, like wetlands, stream encroachment, stormwater, water quality standards, Highlands, Pinelands, CAFRA, soil erosion, and steep slopes.

The recommendation do not begin to address climate and proforestation policies and include recommendations that would allow expansion of logging in NJ’s vanishing forests. They apply only to public forests, which are only half of NJ’s forested lands, the other half are privately owned. Most logging occurs on private land, according to DEP FAP: (p. 84)

And they do not recommend that numerous loopholes be repealed, BMP documents be revoked, and do not include any explicit new enforceable regulatory standards. Thus are a complete sellout.

Finally, the entire approach is overly technocratic, anti-democratic, and reliant on “expertise”. This approach is an assault on the public’s control of public lands and the future of all forests, public and private. Forests are a public good, not a commodity. The private property interests in ownership of forested lands must be subordinated to public objectives and public controls.

Recommendation 1:

The NJDEP should be directed to initiate and conduct a statewide planning and mapping process for forested public land

The recommended planning process is just that, a process. No goals, priorities, objectives, standards, criteria or timetables are specified. The plan is not tied to funding or regulations. The DEP is given control of this process, with unfettered discretion. That is a prescription for the status quo. The DEP can state that they already adopted a Forest Action Plan. The recommended scientific advisory panel would serve to blunt democratically expressed public preferences and is far too technocratic a body to be controlling the policy agenda (“trust us, we’re experts!”). There is no suggested integration with current plans, like the Highlands or Pinelands plans. The highlighting of protection of indigenous lands is an indentity politics virtue signaling sham. The Gov. and the DEP Commissioner are shielded from any demands for leadership or policy accountability.

Recommendation 2:

The NJDEP should be directed to commence a formal rulemaking process for the development of forest management plans* on public forests

This is a completely empty gesture. What would be in such regulations? They would only be “informed” by the mapping and plan?. And the 3 YEAR timetable is far too long and absurd.

Recommendation 3:

The NJDEP should be directed to initiate and complete rulemaking to provide interim guidelines for forest management plans* on public lands.

This two step interim and final procedure is bureaucracy run riot. All process, no substance.

Recommendation 4:

The NJDEP should be directed to revitalize and implement the existing Natural Areas Program.

I support this recommendation. It specifies a real existing program, the expansion of that program (but not fully clear where) and recommends appointments, funding, and staffing to implement the program (but no staff or revenue targets are provided, so it’s essentially toothless).

Recommendation 5:

The NJDEP should be directed to identify areas where afforestation and reforestation should occur on public lands.

I support the intent of this recommendation, but not its limitation to public lands, which ignore private lands. There also needs to be a formal and enforceable linkage to the carbon storage/sequestration related goals of the Global Warming Response Act. Also, there needs to be some linkage to a “no net loss” or “mitigation” scheme such that there would be an enforceable mechanism to assure implementation. Finally, there needs to be acreage, biomass, carbon or some other standards and objectives specified, or else this is merely a platitude.

Recommendation 6: 

The NJDEP should be directed to establish a new program within the agency to designate carbon reserves, as identified through the planning process, with a primary goal of protecting mature forests and providing for future old growth forests (as defined by the science advisory panel*) for their carbon benefit.

Bad idea. “Carbon reserves” should not be designated and isolated little ghettos. The carbon imperative must be statewide, as should be the goal of promoting and protecting mature forests – and it needs to be accompanied by a repudiation of DEP’s current politics of promotion of “young forests”. Finally, this recommendation includes an “oversight council”, while no public members are specified, it does include “private interests representing appropriate expertise.” That’s another bad idea – both the restrictions to private and experts.

Recommendation 7:

The NJDEP should be directed to identify areas where active management is needed to promote future carbon sequestration, maintain biodiversity, and to address current and future threats to ecological health

VERY Bad idea. Active management is a sham. This is the program DEP is now implementing.

DEP’s interpretation of “active management” and the forestry programs they implement under that slogan are NOT consistent – as claimed – with the goals of the GWRA or DEP’s “80X50” Report.

Recommendation 8:

The NJDEP must recognize the importance of adaptive management during the inventory and planning process, whereby planning, inventory, and management approaches are adjusted over time based upon new data and changing circumstances in our forests.

This is a formula for backsliding, ad hoc and site specific compromised decisions, and infinite revisions. We need reliable clarification goals and objectives, not a slippery slope.

Recommendation 9:

The NJDEP must recognize the significant variation in our forests, both on a macro (landscape) level and micro level as a guiding principle of the planning and rule-making process. 

So what?

Recommendation 10:

NJDEP must protect and manage NJ’s public forestlands to maintain and enhance carbon sequestration and storage as necessary to advance state climate goals* while advancing equally important goals of ecological health, biological diversity, climate resiliency, and protection of water and soil resources while providing low-intensity, safe public recreation opportunities.**

DEP has already estimated carbon sequestration and storage in their GHG inventory and “80X50” Report. Are these goals adequate? No.

The carbon goals are to be measured in the aggregate, which allows all sorts of averaging and off-site trading schemes to avoid compliance. Think wetlands mitigation banking. Bad idea.

Hunting is stealthed into this climate goal – in the fine print of an asterisk no less, which is a despicable practice – as “safe recreation”. DEP already manages forests for hunting, which provides a disguised motive for logging and the creation of edge habitat to benefit a small minority of hunters, contrary to healthy forests and the public interest.

The term “sound science” is an industry slogan that should never be used in a public document.

Recommendation 11:

NJDEP forest management plans on public land must be developed in accordance with the process established through rulemaking noted in the previous section (Recommendations 2 and 3).

Another all process, no substance.

Recommendation 12:

The NJDEP should continue to use fire as an important management tool based upon sound science.

Sound science. Sounds like science to me.

The Task Force failed to address major flaws in current laws and regulations, including failure to consider air pollution and health effect of prescribed burns, carbon implications, the flaws and limits in current prescribed burn models that have been shown not to consider climate change driven conditions, and the liability relief for damages of a prescribed burn that gets out of control (think USFS prescribed burn in New Mexico this summer. At least the USFS admitted that their models failed and conducted a review and made reforms).

The TF went in the opposite direction with this off the wall recommendation for MORE deregulation:

“The legislature and NJDEP should identify and address any legal barriers that hinder the use of prescribed fire by trained land managers.”

Recommendation 13:

The NJDEP should be directed to amplify efforts to address the impacts of invasive non-native species, including insects, animals, plants, pathogens, and microorganisms.

Sounds like an excuse for abusive active management to me.

Recommendation 14:

The NJDEP should be directed to measure and reduce deer densities in our public forestlands to ecologically sustainable levels, with guidance from the Science Advisory Panel.*

This is a bone to the hunters. Unacceptable. DEP is already mismanaging forests to promote hunting as well as mismanaging the deer population.

Recommendation 15:

The NJDEP should not include commercial profit as a goal in any forest management plan* on public land.

Do they think we’re stupid? Commercial profit can’t be a goal, but DEP can still sell the timber and other wood products! Look at this absurd loophole!

“Wood products can be sold in instances where cutting and removal of wood is a necessary part of an approved plan with ecological health, climate, or other non-commercial goals. 

DEP currently masks and defrays the costs of their forests program off budget by giving away the wood in “stumpage contracts” to contractors. If DEP foresters support active management, take the money out of their budget, so their salaries are on the line.

Recommendation 16:

The legislature and others must identify and implement funding mechanisms to ensure success of the recommendations in this report.

Just as I predicted, they’re going after Biden Inflation Act money (but they forgot the infrastructure bill money!) And they even threw a bone to Senator Smith by dreadging up his very old and failed water tax bill.

And they are promoting “tapping carbon markets”. JUST SAY NO TO THAT!

How much money are we talking about?

How about if we take some of the Green Acres, “stewardship”, and watershed planning money that now goes to the non-profits?

Why not set a revenue target?

Like the rest of the recommendations, that’s Lame.

Follow The Money

The Biggest Green Grift Ever

Consider:

• 

  Carleton Montgomery, Director Pinelands Preservation Alliance (Source: PPA)

  Why would so called “preservation” and “conservation” groups PPA (and NJCF?) meet quietly behind closed doors to negotiate an unprecedented, un-necessary, and destructive DEP logging project in the ecologically precious Pinelands, a world recognized Biosphere Reserve? (The DEP’s plan was so bad, the Pinelands Commission refused to approve this plan for 15 years!)

• When the DEP plan was exposed publicly, why would they immediately close ranks, aggressively support and defend the plan, and attack critics? And why would they make such dubious arguments to do so?

• Why would the DEP launch an unprecedented public relations campaign in support of the plan, in coordination with PPA and NJCF  – which included “alarming” legislative testimony, field events, press releases, and press Zoom briefings – and even threats by the DEP Commissioner of an unprecedented lawsuit to get the plan approved by the Pinelands Commission?

A NJ political veteran once advised me that if a policy dispute didn’t make any sense, then there were two possible explanations: 1) incompetence; or 2) corruption.

He suggested that I always assume the latter.

Well, this headline pretty much sums up what the absurd “debate” in the Pinelands is really all about:

• Fight over strategy intensifies as wildfire funding grows

As the Biden administration doles out historic levels of wildfire mitigation funding, fights are breaking out on Capitol Hill about how to spend the money.

Lawmakers from both parties are backing measures that would speed up forest management projects that cut down on wildfire fuels, like brush and small trees, which they say leads to “megafires.” But environmentalists argue that the proposals would bypass environmental analysis and community input under the guise of wildfire mitigation and potentially open the door to excessive logging.

But NJ environmentalists are not OPPOSING these logging plans, they are SUPPORTING them.

They are Green Grifters. Mike Catania’s business model rules. (I try to explain how it devolved to this point  in this post).

This federal forestry funding – plus tens of millions of dollars of NJ State funding under the Regional Greenhouse Gas Initiative (RGGI) for carbon sequestration and the prospect of hundreds of millions of dollars in additional funding from carbon credit trading schemes currently under development by DEP  – will be the largest green grift ever.

DEP bureaucrats and their corrupt conservation cheerleaders are obviously salivating over all this money.

Already, the Pinelands Preservation Alliance just received a huge grant from DEP. The money is for work outside the boundaries of the Pinelands – in the Highlands – and for a water quality restoration project that is way beyond the scope of PPA’s historical program focus and staff experience and capabilities. (NJ DEP Press release:

Pinelands Preservation Alliance: $581,500
The project calls for installing 80 green stormwater infrastructure projects surrounding 10 public lakes, five in the Highlands and five in the Pinelands. Converting 130,000 square feet of drainage area to green stormwater infrastructure will improve the functionality of the lakes, which suffer from pollutant overloading and limit recreational uses.

PPA is not going to bite the DEP hand that already feeds it and is dangling considerably more future funding.

Carleton is building his little Empire. He’s using Mike Catania’s entrepreneurial model. This is obvious.

Already, according to an 12/5/22 email from Emile DeVito that defended the DEP logging plan, the NJ Conservation Foundation “partners” with the DEP Forest Fire Service, who conduct controlled burns (we already knew that) and logging (we didn’t know that!) on NJCF lands:

Hi Bill. I have enclosed an aerial photo of the firebreak “thinning from the ground up” that NJFFS did for NJCF at the Franklin Parker Preserve.

Already, the NJCF “partners” with the Pentagon to manage wildfire risks in the Pinelands:

• NJ DEP & NJ Conservation Foundation Partner With Military To Burn NJ Forests – No Consideration of Climate Impacts

NJCF is not going to oppose logging practices they already engage in and get funded for.

The NJCF military partnership raises a whole other layer of corruption – recently confirmed by the Mayor of Bass River Township in a very detailed story written by veteran reporter Bill Bonvie in the Pine Barrens Tribune:

When Bass River Township Mayor Deborah Buzby-Cope was asked at a Dec. 5 township commission meeting about the tree-thinning plan, she responded there had been a lot of fires by the [US Air Force Warren Grove] bombing range and it was her understanding that “they want to have an area that is cleared out so they can stop it from coming this way.”

But when the mayor was then asked whether she was “OK with it,” she replied, “It’s not that we’re OK with it – they’re going to do it.”

So much for respecting local concerns.

I wrote about that possible military role recently, see:

• Is Military Money And Protection Of Warren Grove US Air Force Range Driving Insane DEP Pinelands Logging Plan?

Both PPA and NJCF have gross conflicts of interest and gross scientific bias in this debate and both organizations are corrupt. Their credibility is now shot. I hope it was worth it to them.

So, when things don’t make sense, as my friend said: assume graft and follow the money.

DEP Forestry Practices Poison The Well For Any Climate & Ecological Reforms

For years, environmentalists and local activists have strongly opposed DEP logging of Highlands forests under various pretexts, slogans, flawed science, and narrow objectives, particularly “active management” “Stewardship”, “young forests”, “thinning” and all sorts of “treatments”.

While former Murphy DEP Commissioner McCabe imposed a temporary “pause” to review those forestry policies and practices, the current Commissioner has ignored critics, abandoned that review, and expanded DEP’s misguided forestry approach.

Current DEP Commissioner LaTourette has expanded DEP’s controversial misguided and aggressive forestry practices geographically into the Pinelands. Programmatically, he has expanded the scope of DEP’s forestry program to include seriously flawed “carbon defense” and climate justifications.

With little public knowledge and legislative authorization, in defiance of critics, he has adopted a Statewide Forest Action Plan and developed a Working Public Lands program to further promote logging and misguided forestry practices.

DEP even recently floated an incredibly bad trial ballon to expand development, commercialization, and privatization of all Green Acres and State lands, including State Parks and Forests.

Arrogantly sticking his finger in the eye of critics, in a revolving door move he appointed ethically challenged John Cecil, the champion of the Highlands logging program – who spun the press and misled the public about the extent of logging – as Assistant Commissioner overseeing logging in State Parks and Forests.

These unilateral, arrogant, scientifically flawed and poor public policy decisions have deeply polarized the forestry and climate related forestry issues.

DEP’s recent arm twisting at the Pinelands Commission to secure approval of the wildfire forestry plan has shed public light on the controversies. It is also the straw that broke the camels back.

If Commissioner LaTourette proceeds with that plan, he makes necessary climate and ecological reforms under Senator Smith’s Forestry Task Force impossible.

Given DEP’s flawed and arrogant policies, which have destroyed any trust in DEP, any legislation would need to be extremely prescriptive and include many specific numeric standards, mandates and prohibitions. Such a bill is unlikely to secure passage, thus killing Smith’s reforms.

One way to avoid this train wreck would be for Commissioner LaTourette to make a good faith gesture to try to begin to restore trust and reduce the polarization – that’s why I wrote him to urge that he withdraw the Pinelands plan:

Dear Commissioner LaTourette:

I am writing to request that you voluntarily withdrawn the NJ Forest Service’s Forestry Plan recently approved by the Pinelands Commission.

As you know, after the Pinelands Commission’s approval became known, the plan has generated significant public concerns, media attention, and valid scientific and policy criticism.

As you also know, the plan was not subject to meaningful public or scientific peer review before it was approved by the Pinelands Commission.

Of equal concern, Pinelands Commission lead staff Chuck Horner publicly acknowledged that the Commission staff lacked expertise in forestry, wildfire, and climate science and deferred to DEP’s expertise. That deference is reflected in the text of the Commission’s approval document, which repeatedly states that scientific and factual findings are based on the Department’s representations, not the Commission staff’s independent findings.

As you also know, Senator Smith’s Forestry Task Force is currently deliberating on legislative and regulatory policy matters specifically of direct and significant relevance to the Department’s plan, which was approved prior to the release of the Task Force’s recommendations.

Finally, the Department’s plan asserts positions on and implements fundamental and controversial scientific and policy matters, including reliance on the (draft) Forest Action Plan’s “carbon defense” policy of significance to the carbon storage and sequestration strategies required to meet the goals of the Global Warming Response Act, as discussed in the Department’s “80X50 Climate Report“.

[Note: Carbon storage and sequestration are funded under the RGGI program with millions of public dollars. There is huge federal funding for forestry and climate in the pipeline as well, under Biden’s Executive Order and the infrastructure and inflation laws, which appropriated billions to forestry programs. DEP bureaucrats and their corrupt conservation cheerleaders are obviously salivating over this money. ]

Given this context, it is deeply troubling that the Department’s Pinelands Forestry Plan received so little and clearly inadequate public and scientific review and integration with upcoming major policy changes anticipated to be the result of Senator Smith’s Forestry Task Force.

In fact, the Department’s plan has the potential to undermine the public reception of Senator Smith’s Task Force Report and followup reforms based on its recommendations.

In light of these significant procedure, scientific, and policy deficiencies and future implications, I strongly urge you to voluntarily withdrawn the plan. This can only bolster the public’s confidence in the Department’s efforts and lend public support for Senator Smith’s legislative agenda.

If you and the Department’s staff are confident in the quality and scientific basis for the plan, a “do over” should not delay or frustrate legitimate forest management initiatives.

I look forward to your timely and favorable response.

Bill Wolfe

DEP Completely Ignored USGS Finding That Logging Caused “100% Mortality” For Trout

DEP Denial Document Exposes That DEP Clean Water Act Programs Are In Disarray

DEP Says Water Quality Standards Don’t Apply To Major Sources Of Pollution

US EPA Gives NJ DEP A Pass

The Murphy DEP just denied my petition for rulemaking that sought to force DEP to update NJ’s State water quality standards to incorporate US EPA’ 2018 National water quality criteria for toxic aluminum. The DEP denial will be published in the December 19, 2022 NJ Register, see:

• Notice of Action on Petition for Rulemaking; Request for adoption of rules to address acute and chronic effects of aluminum

I was absolutely stunned by what DEP wrote and how they now interpret their clean water regulations.

My petition not only demanded that DEP update water quality standards, but also included targeted amendments in a host of other DEP Clean Water Act planning and permit program rules that implement the water quality standards:

The DEP’s denial document, which set out current interpretations of DEP’s regulations, was stunning and revealed a State Clean Water Act program that has gone backwards in the last 25 years.

I) A Brief History Of DEP Clean Water Rules Is Instructive

Remarkably, today’s DEP clean water programs are actually weaker and narrower in scope than under the Whitman administration. Few people are aware that the Whitman DEP sought a comprehensive regulatory rollback under a proposed package of regulations dubbed the “Mega-Rule”.

That Whitman DEP initiative was defeated by strong environmental group opposition and a series of negative media stories that exposed things like a memo from DEP’s then Director of Water Resources, Dennis Hart (now head of the NJ Chemistry Council) that the proposed changes “would increase the discharge of chemical carcinogens to drinking water supplies’. His current Chemistry Council colleagues I’m sure would be shocked to learn that Dennis actually wrote that!

But, despite the failed Whitman DEP rollbacks, growing out of the battle over stopping the DEP rollbacks, there were policy discussions with DEP about how to expand and strengthen clean water protections.

These discussions specifically included controversial issues like how to apply and enforce the water quality standards on sources of non-point pollution and in the DEP land use program (water quality standards for wetlands), and how to enforce the water quality standards in other programs, specifically including the Water Quality Management Planning (WQMP) rules (designated sewer service areas and sewage treatment plant capacity) and the stormwater management and stream encroachment regulations.

I even recall that at the time, Dan Van Abs, head of the Watershed Planning program, conducted an analysis and wrote a memo to DEP Deputy Commissioner Mark Smith that documented how historic sewage treatment plant planning (capacity and sewer service area) under the EPA Section 201 planning process, failed to consider impacts on water quality or conduct what’s known as an “antidegradation reviews”. (Dan is now at Rutgers and can confirm this).

As a result, the DEP approved sewage treatment plant capacity (in WQMP plans and facility NJPDES permits) was way too large and the pollution assimilative capacity in NJ’s rivers and stream was over-allocated. New development and growth and use of this capacity would violate water quality standards. Many of these over-capacity sewage treatment plants were located in rural and environmentally sensitive regions of the State, where the State Plan was discouraging sprawl growth.

The thinking at the time was to invoke DEP’s authority under NJ’s water quality standards and WQMP planning rules to require that the sewer authorities conduct an “anti-degradation review” for this over-capacity, which would provide an opportunity for the DEP to claw back this over-capacity.

Unfortunately, that never happened. As a result, sprawl has proliferated and water quality has declined. The builders love it.

(Note: instead of clawing back this excess capacity, the WQMP rules were amended to stop this and grandfather all this excess capacity. Note how the WQMP rules only apply to “new or expanded” capacity:

7:15-4.5 Wastewater capacity analyses 

[…]

8. For each proposed new or expanded domestic or industrial treatment works with discharge to surface water, the permit applicant shall perform an antidegradation analysis in accordance with the antidegradation policies in the Surface Water Quality Standards at N.J.A.C. 7:9B-1.5(d). The applicant shall evaluate a wastewater treatment and disposal alternative consistent with the following hierarchy: ~~ end Note)

But those policy discussions did subsequently lead to a series of major positive water quality reforms during the McGreevey and Corzine DEP’s, including regulations to:

1) upgrade the “antidegradation designations” to Category One along over 2,500 stream miles under the water quality standards rules;

2) establish 300 foot buffers along C1 streams as a “Best Management Practice” (BMP) under the stormwater management rules (We were forced to codify the buffers as BMPs in stormwater rules because DEP was not willing to legally conclude that non-point source pollution was regulated and subject to the water quality standards);

3) rely on the Clean Water Act’s “antidegradation” policy framework as the basis for the Highlands Act and DEP Highlands regulations;

4) strengthen water quality standards and ratchet down on NJPDES permit discharge requirements for the nutrient phosphorus; and

5) limit the expansion of sewer service areas and infrastructure to environmentally sensitive lands under the WQMP rules.

All that momentum and activism for reforms is gone now.

Not only are these issues no longer on the table for discussion and reform, but the DEP has actually reinterpreted existing regulations and made the flaws even WORSE!

II) A Brief Summary Of DEP’s Petition Denial Document

DEP’s denial document exposed a series of radically bad interpretations of current clean water laws and regulations. I will excerpt the lowlights below.

But firstly, I must note that DEP ignored the core scientific basis and problem my petition was designed to address: the USGS scientific research finding that logging in the nearby Catskills in New York State caused “100% trout mortality”.

So let me repeat that USGS finding here so it doesn’t get shoved down Orwell’s Memory Hole (emphases mine):

Effects of Forest Harvesting on Ecosystem Health in the Headwaters of the New York City Water Supply, Catskill Mountains, New York

“Clearcutting caused a large release of nitrate (NO3 -) from watershed soils and a concurrent release of inorganic monomeric aluminum (Alim), which is toxic to some aquatic biota. The increased soil NO3 – concentrations measured after the harvest could be completely accounted for by the decrease in nitrogen (N) uptake by watershed trees, rather than an increase in N mineralization and nitrification. The large increase in stream water NO3 – and Al concentrations caused 100-percent mortality of caged brook trout (Salvelinus fontinalis) during the first year after the clearcut and adversely affected macroinvertebrate communities for 2 years after the harvest.”

Remarkably, DEP simply flat out ignored that USGS science. Read the DEP denial. It is not even mentioned.

Worse, DEP defends a series of regulatory loopholes that ignore those problems. Lets excerpt some of the worst:

1. DEP openly admits that they have failed to update State water quality standards to incorporate the 4 year old EPA 2018 national criteria:

The existing SWQS do not include a numeric aquatic life criterion for aluminum.

2. DEP claims that the water quality management planning rules (WQMP) “do not implement” the water quality standards! Holy moly, the whole point of the WQMP planning process is to protect water quality and attain the water quality standards!!!!

The WQMP rules do not implement the SWQS and as currently written obviate the petitioner’s request to mandate their compliance with the EPA’s Final Criteria.

3. The DEP admits that the stormwater management rules do not regulate pollutants.  No wonder over 90% of NJ waters are impaired!

DEP then goes even further to assert an absurd distinction between the designated uses of a waterbody (e.g. “aquatic life protection”) and the numeric pollutant standards and antidegradation policies for those same waterbodies. Basically, DEP says they numeric water quality standards and antidegradation policies do not apply to stormwater. DEP then spouts non-sense about “the allowable amount of disturbance” and the use designations:

The Stormwater Management rules do not contain standards specific to any individual pollutant. Rather, the rules utilize the designations in the Surface Water Quality Standards at N.J.A.C. 7:9B to determine the allowable amount of disturbance in regulated areas based on the SWQS designation.

4. DEP admits that there are massive loopholes in the DEP forestry rules and the DEP BMP wetlands manual for forestry:

The Forestry rules do not contain monitoring and compliance requirements for specific substances, nor do they refer to such requirements.

5. Then DEP makes those loopholes more specific:

Forestry activities in wetlands, transition areas, and State open waters are generally exempt for the Freshwater Wetlands Protection Act Rules if they follow the BMP manual.Forestry activities in riparian zones usually qualify for a permit-by-rule under the Flood Hazard Control Act Rules.Neither the rules nor the BMP manual contains monitoring and compliance requirements for specific substances.

These are just some of the loopholes and flaws and absurd legal and regulatory interpretations DEP made.

Despite admitting all these flaws and loopholes, DEP does not see a need to close the loopholes and actually protect water quality and aquatic life, including trout.

Read the complete DEP denial document for yourself.

The DEP is in denial.

And US EPA and environmental groups are letting them get away with all this. More to follow on these issues.