WolfeNotes.com

[Update #2 – 11/11/12: Todd Bates at Asbury Park Press writes the story:  Government rebuilds with little regard for next storm]

Update #1 – 11/7/12: Tom Johnson at NJ Spotlight writes the story:  State Agency Waives Environmental Rules to Speed Rebuilding After Storm.

I found it interesting that Gov. Christie felt the need to issue a press release in response to our criticism (the chronology proves that: Martin quietly signed the Order on 11/3.  After we disclosed and criticized it, just hours later Christie issued his release on 11/6. They were clearly trying to stealth it, just like the sewage treatment plant discharges of raw sewage.

The release quoted DEP Commissioner Martin again flogging the “red tape” slogan (man is that getting old):

“Restoring basic public infrastructure will be a critical first step toward the recovery of our cities and towns. For emergency repairs, we cannot let bureaucracy get in the way. Red tape should not and will not hold up this vital work.

But Tom gave me the money quote that stuck a finger in Martin’s eye:

Those provisions provided little solace to critics of the move.

“The order amounts to a total abdication of DEP’s responsibility to supervise responsible planning and environmentally sound permitting of critical public infrastructure,’’ said Bill Wolfe, director of the New Jersey chapter of Public Employees for Environmental Responsibility, a public watchdog group. – end update]

Again illustrating a remarkably irresponsible anti-regulatory and anti-government zeal, Christie Administration DEP Commissioner Martin issued a unilateral Order waiving DEP coastal zone, wetlands, and flood hazard regulations for rebuilding infrastructure wiped out by “Superstorm Sandy”. (read the Martin Order 2012-13).

Commissioner Martin has learned exactly NOTHING from “Superstorm Sandy”.

The Order amounts to a “right to rebuild” infrastructure, regardless of whether it was located in a vulnerable high flood hazard area and should NOT be rebuilt (or relocated, elevated, or flood proofed).

• Natural gas pipelines on barrier islands that that have caused massive fires?
• Water and sewer pumping stations that have been inundated by flood waters?
• Back up diesel systems at sewage and water treatment plants that failed due to storm surge and caused raw sewage discharge and drinking water emergencies?
• bridges and roadways along rivers and creeks that washed out?
• washed out sewer and water lines in coastal high hazard and inland flood hazard areas?
• washed out stormwater outfalls?
• Highly vulnerable Barrier Island roads, bridges, water and sewer?

DEP won’t get in the way of rebuilding them in the same highly vulnerable locations and at the same elevations!!!

Insane.

The Order amounts to a total abdication of DEP’s responsibility to supervise responsible planning and environmentally sound permitting of critical public infrastructure.

Not suprisingly, the DEP wiaver comes at exactly the moment when a huge debate is about to ensue on the State’s policy on infrastructure rebuilding.

In unusually good reporting, the NY Times has been all over that story, with a focus on NY City issues, see:

• New York Is Lagging as Seas and Risks Rise, Critics Warn
• For Years, Warnings That It Could Happen Here
• After Getting Back to Normal, Big Job Is Facing New Reality
• Protecting the City, Before Next Time 

From the NJ perspective, Tom Johnson at NJ Spotlight wrote a superb piece on that set of issues today. Tom wrote:

One way to address the problem, Grant said, is to determine what parts of the infrastructure can be rehabilitated and what parts need to be replaced. No matter how those decisions play out, because of the sheer magnitude of damage caused by the storm, it is going to take years to address the problems, he said.

How and when New Jersey rebuilds from the storm also is likely to generate a whole lot of debate.

DEP Commissioner Martin has just waived DEP’s regulations that would allow this debate to emerge publicly.

The Order also raises federal issues, because some wetlands permits involve federally delegated authority, so US EPA needs to get involved in reviewing the Martin Order for compliance with the requirements of federal environmental laws.

Martin’s approach reflects Governor Christie’s radical “get government out of the way” ideology.

The Legislature needs to step in and check the Governor’s irresponsible “hand’s off” approach to rebuilding critical public infrastructure.

[End Note: and the sneaky bastards issued the Order the day before a national Presidential election, when they know the media won’t cover it.

And DEP has absolutely confirmed my prior October 26 claim: DEP  Using “Frankenstorm” as Cover for Weakening Regulations.]

wastewater treatment plant - over 30 year old technology in need of upgrades

Higher Water Rates – Bigger Profits – Dirty Water – Less Accountability on The Horizon

Tom Johnson at NJ Spotlight writes today about a Christie Administration proposal to reduce Board of Public Utilities (BPU) regulatory oversight of how private water companies and public authorities recover the costs of investments in infrastructure upgrades (see:

Water Utilities May See Faster ROI for Infrastructure Upgrades -State agency’s proposal would mean speedier recovery of costs and less regulatory oversight

The proposal grew out of the Christie Administration’s “infrastructure asset management and financing” initiative discussed at last October’s Clean Water Council annual public hearing at DEP.  BPU President Lee Solomon spoke at that hearing – see:

Clean Water Council Considering Privatization

At that time, the Gorilla in the Room shining a bright light on NJ’s aging infrastructure was not a huge hurricane and severe flooding, but the emergence from another serious statewide drought (see:

• The ARC is Not Alone: Trenton’s Other Infrastructure Disaster
• Still Lurching From Drought To Flood – And Still In Denial About It

The Christie proposal amounts to another incremental (and stealth) step down the road of privatization and deregulation.

Again, the Christie Administration misdiagnoses public policy problems and diverts the focus, thus frustrating real reform.

This misdiagnosis is the result of pervasive themes in the Christie Administration, including:

• a deep hostility to government, regulation, and independent local public authorities
• a fact free faith in private sector and markets
• ideological opposition to raising public sector revenues (AKA “starve the beast”)

The basic problem is underinvestment, not regulatory oversight.

Slogans like cutting “Red Tape” will not close NJ’s $28 billion water infrastructure deficit.

Drinking water infrastructure deficits exceed $8 billion and waste-water exceeds $20 billion.

So, if, as Tom Johnson reports, the private water companies and the Administration are seeking a “regulatory mechanism” to “minimize impacts on customers”, then I say retain the current traditional rate base rate of return regulatory oversight mechanism.

But, if what they really seek are higher profits while dodging public accountability and avoiding raising the money to finance needed investments, then by all means proceed with the Christie proposal.

That will produce higher profits for private corporations, while consumers will pay higher bills for the status quo.

The policy discussion must include DEP mandates for utilities to conduct infrastructure assessments and then make necessary upgrades.

There must be DEP enforcement driven mandates for investment in infrastructure.

If not, our huge infrastructure deficits will continue to go unaddressed, as the private sector will not make these investments and public authorities will not take on the fight due to local political pressure to control user rates.

But, of course these views were not considered, as I’ve been blackballed from participation in any Christie hand picked “Stakeholder group”.

[Update: 8/17/11 – DEP and TGP did a lousy job in permitting and design. See today’s Record story: Heavy rain force mud into pristine lake

These major water quality violations warrant huge enforcement fines. This is a DEP project with DEP permits, so DEP enforcement is required. DEP must not be allowed to transfer responsibility to the local Soil Conservation District, which lacks effective enforcement powers.

And it wasn’t the heavy rains that caused this problem, which was occuring prior to the recent deluge. This is a chronic problem. On August 5, 2011, the Record reported: Residents of West Milford’s Lake Lookover continue to deal with runoff problem = end update]

“If the Christie managers want to run the state more like a business, they should start by collecting the rents truly owed. Doing this basic job would eliminate the need to panhandle in the parks with chintzy privatization schemes.”

We’ve previously written about the scandalous sweetheart deal that DEP provided for the Tennessee gas pipeline easement across NJ’s most environmentally sensitive public lands.

We also written about how that pipeline will carry fracked gas and why fracking is a serious threat to NJ’s water supply.

But today’s post focuses on a long ignored aspect of the story we have repeatedly been trying to put on the table.

DEP has failed to collect fair market value for energy infrastructure easements across state lands as required by 2008 legislation that specifically mandated the DEP submit a plan by July 1, 2009.

That law mandated that DEP:

conduct a re-appraisal of the rents and fees charged for all residences and other buildings and structures, and for utility easements and right-of-ways, located on State park or forest lands to ensure they reflect current fair market values and will continue to do so;

See below for today’s PEER press release for details and links to the relevant documents.

Fair Market Value Leases Could Fund Jersey Park System

Shale Gas Pipeline Highlights State’s Failure to Collect Full Payments from Utilities 

Trenton – Responding to protests from Public Employees for Environmental Responsibility (PEER) and others, the State of New Jersey has dramatically hiked the lease payment it is demanding for a proposed shale gas pipeline crossing state parklands.  Despite this huge increase, the state is still not collecting fair market value on hundreds of leases, easements and concessions, thus forfeiting millions of dollars.

Tomorrow (Wednesday 8/17/11)), the state Department of Environmental Protection (DEP) is holding a public hearing on its plan to lease up to 30.21 acres of state land in High Point, Long Pond Ironworks and Ringwood State Parks to Tennessee Gas Pipeline Company.  This pipeline is just one segment of the “Northeast Pipeline Project” to import natural gas into the New York City metro area.  The gas is produced by controversial fracking of the Marcellus shale play underlying most of Pennsylvania and New York’s southern tier.

DEP originally proposed a lease payment for an earlier pipeline segment of just $45,000 for a 24-year term.  After protests led by PEER, the state raised that rent to $180,000.  DEP is now proposing for the next pipeline segment a rent of approximately $7.84 million over the same period – a more than 170-fold increase over what DEP proposed for the first segment.  Even with this hefty hike it is not clear that DEP is charging the full market value as it is required to do by law.

“PEER is proud to have won New Jersey taxpayers $8 million in additional revenue but they may be owed even more,” state New Jersey PEER Director Bill Wolfe, who testified against the original lease in July 2010 before the State House Commission which must approve all state land leases. “DEP proposed a lease that was less than pennies on the dollar due to a flawed real estate appraisal but we still do not know at what price a proper appraisal would peg this lease.”

Over the last several years, a series of audits by the Office of Legislative Services found major flaws in the DEP Office of Leases and Concessions, most notably its failure to charge fair market value or collect overdue lease and concession payments.  In response to these audits and PEER advocacy, the Legislature mandated that DEP “conduct a re-appraisal of the rents and fees charged for all residences and other buildings and structures, and for utility easements and right-of-ways, located on State park or forest lands to ensure they reflect current fair market values and will continue to do so” (P.L. 2008, c.31). DEP was then supposed to integrate this with its plan to fund state parks and forests, a plan due on July 1, 2009.

More than two years after this statutory deadline, DEP has done neither mandated task.  Instead the Christie administration has explored a number of small revenue measures to commercialize parks, such as selling corporate naming rights for park facilities and privatizing various park operations.

“As this new lease richly demonstrates, charging fair market value for utility easements from the energy industry, as the state is required to do, would be a major funding source for depleted parks and state lands budgets” Wolfe added.  “If the Christie managers want to run the state more like a business, they should start by collecting the rents truly owed. Doing this basic job would eliminate the need to panhandle in the parks with chintzy privatization schemes.”

###

Look at past audits faulting state land lease collections

http://www.peer.org/news/news_id.php?row_id=1369

View photos of the pipeline construction

http://www.wolfenotes.com/2010/11/tennessee-gas-pipeline-blasts-through-nj-highlands-watershed-lands-will-import-marcellus-frack-gas/

See lowball lease on first pipeline segment

http://www.peer.org/news/news_id.php?row_id=1375

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

existing Tennessee pipeline ROW- looking west from Terrace Pond trail (West Milford, NJ)

[End note: my site data tracker tells me that they’re reading this in Texas, home of “Tennessee Gas Co.!” What’s up TGC guys?

How would Governor Christie look on a national stage when back home, his Capital City had no water?

DEP Commissioner Martin To Address Clean Water Council Tomorrow

[Update 2 – 10/22/10 – National picture is bleak too. File this story under under “C”, for “Collapse of Empire”: Infrastructure projects in N.J., other U.S. states put on hold amid struggling economy, spending slowdown

Update 1: 10/13/10 – Ed Rodgers of NJN TV did a nice job on last night’s news covering the Council’s hearing – watch it at time 13:28 here. I’ll post my take on what transpired later today.]

Governor Christie’s rash and reckless decision to cancel the ARC rail tunnel to Manhattan – followed just days later by reconsideration – prompted widespread media attention.

Ironically, the Governor’s bad decision provoked intense media focus on an important under-reported story: the critical importance of infrastructure investment and the need to finance that deficit.

The Governor’s decision also provided ammunition to advocates and critics, allowing them to effectively focus on how Christie’s anti-government and anti-tax ideology is a disaster for NJ’s economic future, air quality, and transportation mobility.

But, at the same time, there was another equally important infrastructure disaster unfolding in Trenton.

Just as the Statewide drought was abating, the Trenton regional public water supply system collapsed.

As a result, for several days, virtually the entire Trenton Capital Region – including the State House – was without water or under Third World like boil water alerts.

Had there been a fire, there would have been no water to fight it.

Bacterially contaminated water that flowed through the system – for days without warnings to consumers – posed deadly risks for infants and people with immune system disorders.

In contrast with the ARC story, which got national media attention, the Trenton drinking water story was confined to the local Trenton press.

How would Governor Christie look on a national stage when back home, his Capital City had no water?

Shockingly, the Trenton region is not alone – aging and poorly maintained public water supply systems are vulnerable throughout NJ.

Back to the Trenton story –

In a dramatic move, a professional licensed water system operator who worked for the Trenton waterworks for 33 years resigned and blew the whistle. He  marched directly to the Department of Environmental Protection (DEP) building – press in tow (watch the video) – to report what he described as a coverup of the real cause of the collapse.

Few seem to know that DEP is deeply involved in this situation:

• 1) DEP issued boil water alerts;
• 2) the whistleblower reported to DEP because DEP regulates the operation & management and controls fundingof the Trenton system; and
• 3) after the crisis past, DEP issued a diversionary and self serving press release that downplayed risks and pointed the finger at Trenton’s Mayor.

Yet despite this comprehensive DEP role, all local press reports of the episode failed to connect the dots to broader State infrastructure investment and DEP regulatory policies.

Tomorrow’s Clean Water Advisory Council’s annual public hearing at the DEP Building provides an opportunity to explore these kind of water supply infrastrucure deficit and management issues in detail.

On Tuesday, October 12, 2010, the New Jersey Clean Water Council will seek public testimony on its Draft Recommendations for Water Infrastructure Management and Financing. New Jersey’s water infrastructure – water supply, wastewater, stormwater – is aging, with failures being common news. In response, the Council has released a white paper for public consideration and comment.

We provided a heads up and outlined some of the issues in last week’s set up post: “Clean Water Council Considering Privatization”

According to a late Friday afternoon press release, DEP Commissioner Martin will speak to the Council. I am eager to hear Martin talk about the Christie Administration’s commitments and detailed plans to:

• provide a stable source of funding to meet the $24+ billion infrastructure deficit;
• promulgate regulations to assure that infrastructure is properly maintained to avoid catastrophic failures;
• break the cycle of recurrent drought;
• explain the new science, policies, and programs to update the 15 year old Water Supply Master Plan;
• adopt new regulations to control emergent and unregulated contaminants that pose health risks;
• plans to adopt Drinking Water Quality Institute recommendations for new MCL’s for perchlorate and more stringent MCLs for several other toxic chemicals; and
• defend his recommendations to Governor Christie to consolidate the New Jersey Water Supply Authority with the North Jersey Duistrict Water Supply Commission.

I’m signed up to testify and urge readers to attend and speak (there is no requirement to pre-register).

We’ll keep you posted about what goes down at the hearing.

DEP Is Effectively Engaged In Deregulation, But Without Revising Regulations

DEP Is Violating NJ Supreme Court Doctrine On Rulemaking

Bear with me for a moment as I try to establish the context to illustrate the insidious and lawless behavior of the Murphy DEP.

This is a legally complex situation, but it can be summed up with basic common sense:

requirements to adopt regulations that have substantive impacts apply the same way to the repeal or revision of regulations that have similar substantive impacts. Regulation and deregulation must follow the same rules.

Administrative agencies can only act according to authorizing laws passed by the legislature. Laws require that administrative agencies adopt regulations in order to implement and enforce laws enacted by the legislature.

Adoption of regulations requires public notice, public hearings, an opportunity for public comment, and agency response to public comments. All of this constitutes what is called “the administrative record” and provides the basis for legislative oversight and judicial review.

This procedure allows the regulated community and the public to be aware of and participate in policy decisions that impact their lives. It also holds the executive branch accountable to the public, to science, and to law. It satisfies the “due process” requirements of the US and NJ Constitutions and the procedural requirements of the Administrative Procedure Act.

The NJ Supreme Court has stipulated six (6) factors that determine when an agency’s actions constitute rulemaking that triggers the formal procedures for adopting a rule (i.e. public notice, public hearings, an opportunity for public comment, and agency response to public comments.)

In the leading case known as Metromedia, Inc. v. Director, Div. of Taxation, the Supreme Court ruled (emphasis mine):

We can synthesize from this authority that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

These factors apply to both when an agency is adopting a rule and when it is repealing a rule (or revising a longstanding regulatory policy or interpretation of the authorizing statute or the rule).

Which takes us to what the Murphy DEP is doing: they are revising statutory and regulatory interpretations and longstanding regulatory policies. And they are doing that without going through the formal rulemaking process.

Essentially, they are scaling back regulatory protections, which is a form a deregulation. This triggers the 5th and 6th factors, among others, in the Supreme Court’s Metromedia decision.

My letter to NJ Senators on the Senate Environment Committee outlines this abuse.

This abuse is particularly egregious because DEP Commissioner LaTourette is a former corporate lawyer and no way would his former corporate clients tolerate the DEP’s regulatory policy revisions if they applied to them and were more stringent.

So why are environmental groups tolerating it?

Dear Senators –

The DEP is interpreting the Water Quality Planning Act extremely narrowly and reversing historic policy and regulatory interpretations to approve wastewater treatment plants and extensions of sewer lines into rural, agricultural, forested, and environmentally sensitive lands. (see this analysis).

This new narrow statutory interpretation appears to contradict the legislative intent of the WQPA, as evidenced by longtime legislative support for prior DEP regulatory policy, which highly discouraged and strictly reviewed extension of wastewater infrastructure to support new development on environmentally sensitive lands.

DEP is revising regulatory policy and adopting new policies in the absence of formal notice and comment rule making. The new DEP regulatory interpretations are highly substantive. These new interpretations meet the criteria that trigger rule making, according to the NJ Supreme Court’s decision in Metromedia, Inc. v. Director, Div. of Taxation

https://law.justia.com/cases/new-jersey/supreme-court/1984/97-n-j-313-0.html

Accordingly, I urge you to conduct legislative oversight and restore protections for water resources under the WQPA.