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“Redundancy” is deemed a military function

In his classic novel of military madness, Joseph Heller’s Catch 22 posed the absurd contradiction: (Wiki)

According to the novel, people who were crazy were not obliged to fly missions; but anyone who applied to stop flying was showing a rational concern for their safety, and was sane. … 

“The case against Clevinger was open and shut. The only thing missing was something to charge him with.”

The NJ Pinelands Commission has created its own absurd Catch 22-like logic. I’ve written about the first 5, but #6 is entirely new and exciting (post forthcoming) and #7 is darkly subversive.

Catch 22 – #1

The Pinelands Commission reviews and approves all development in accordance with the standards of the Comprehensive Management Plan (CM) – unless the Executive Director decides to do so herself.

Once again, just like the South Jersey Gas pipeline, Executive Director Wittenberg usurped the Commission’s powers via issuance of a staff Certificate of Filing. The Commission will have no role in the NJ Natural Gas pipeline approval and will not vote on it.

Catch 22 – #2

The Pinelands Act requires public participation involving a public hearing and opportunity for the public to review and comment on draft approvals before they are issued by the Commission – except when the Executive Director says no.

Repeat #1.

Catch 22 – #3

Under the Pinelands Act, the Pinelands Commission sets policy and makes decisions, and the Executive Director serves at the pleasure of the Commission – except when Governor Christie tells her what to do and assures her job.

Commissioners Jackson and Fagalia found out what happens when you defy Governor Christie – you are summarily terminated and replaced.

Catch 22 – #4

Local governments issue land use approvals under the Municipal Land Use law in accordance with the standards of the CMP – except when BPU preempts them.

This is absurd by definition. The idea that BPU can play the same role and protect the same interests as a local government is absurd, particularly in assuming the independent, objective and qualified regulatory review role of protecting Pinelands resources and enforcing the CMP is absurd.

Catch 22 – #5

The Pinelands Commission is an independent regulatory agency that makes decisions in accordance with the standards in the CMP – except when Governor Christie decides otherwise.

Repeat the logic of #3.

Catch 22 – #6

The Pineland Act makes no distinction and provides no authority for the Commission or the CMP to distinguish between “public” and “private” development and to conduct fundamentally different review procedures for each – unless the Exectuive Director says so.

This is a new one that deserves its own post – coming soon.

*Catch 22 – #7

Under the Pinelands CMP regulations, a proposed pipeline across a military base must demonstrate that is it “associated with a military function”.

But just what is a military function? What kind of “association” is required?

noun an activity or purpose natural to or intended for a person or thing.

* Corollary 7A – Large high quality forests in the Pines are protected by strict Preservation Area standards of the CMP and any pipelines running through them must meet Forest Area standards, including the requirement to serve “only the pinelands” – except if they are located on a military base, then see rule #7

The Pinelands Commission staff just found that the NJ Natural Gas pipeline across the Joint Base “served a military function” because it created a redundancy (left unsaid: redundant to current exclusive gas franchise service to the Joint Base by Public Service Electric and Gas).

Also left unsaid was that:1) the NJNG pipeline capacity was under contract and/or dedicated to future growth in demand and would not serve the Joint Base; 2) that the NJNG pipeline did not physically connect with existing Joint Base gas infrastructure; and 3) that Joint base did not identify any specific current or future plans to use NJNG pipeline gas.

By definition, this now means that the standard requiring “association with a military function” literally has no real concrete meaning at all.

Under this standard, literally anything could be approved.

Here’s my testimony on Friday about that absurdity (watch, my testimony starts at time 38 minutes):

I often reach to literature to find meaning in the regulatory deliberations of various governmental entities and I typically point to Orwell.

Today, we’ve cut a new literary path.

Today we will focus on Joseph Heller, because only someone with a dark sardonic sensibility and writing skill could use the Pinelands Commission standard – which is, in your regulations, the standard for approval of this pipeline on a military installation is “association with a military function” – as the basis to determine consistency with the CMP.

The Catch-22 here is the “association with a military function” is a redundancy, for a project with no current, projected, or planned need, that is paid for by the public ratepayer, that is globally destructive and is killing people.

There is your “associated with a military function” finding.

And it is done buried in the penultimate fact finding in the Certificate of Filing talks about the decision you made.

That finding was made at a time where it was accepted at face value – the finding said “the applicant represents” – in other words there was no inquiry which says “the Commission finds” …

The Certificate was based merely on the assertion of the applicant  – that’s bad enough.

But you had testimony here – with emails – credible testimony by multiple people, on the record, urging an Attorney General investigation, urging fact finding by the Commission, and I filed a complaint to the Pentagon Inspector General for the military aspects of this and fabricating a military need.

There is all this testimony on the record and people raising hell about it and your staff relies up a a representation of the applicant.

And the applicant is under a cloud – people claiming that he fabricated his application.

This is twisted.

Even If we didn’t have Paris and climate – if this were just a little housing development – this would be ludicrous.

The fact that is is a regional pipeline, with no need, across a military base, with these kind of questions pending: Joseph Heller, Catch 22.

Yossarian, where are you buddy?

Staff again unilaterally usurp the Commission’s powers & betray the public interest

I just learned that yesterday, the NJ Pinelands Commission staff, just 2 days prior to tomorrow’s Commission meeting, issued a Certificate of Filing to the NJ Natural Gas “Southern Reliability Link” gas pipeline, paving the way for approval by Gov. Christie’s pro-gas BPU.

Once again, staff bypassed the Commission, completely ignored public comments and strong and well informed opposition, failed to consider climate change, and bent the CMP regulations to favor a corporate fossil energy project.

But this time, given credible allegations of fraud by NJ Natural Gas in fabricating a false military need – credible allegations that have yet to be investigated, while a formal complaint remains pending before the US Pentagon Inspector General – staff have corrupted the review process even further. (see emails)

The Pinelands Commission staff is now complicit in fabrication of what appears to be a fraudulent military purpose: that’s a conspiracy if the applicant “knowingly” misrepresented facts on the application.

Here is the relevant finding from the Certificate of Filing (no link yet, PDF provided upon request):

Public service infrastructure is a permitted land use in a Military and Federal Installation Area provided it will be associated with the function of the Federal installation (N.J.A.C. 7:50-5.29(a)) and certain conditions are met. The applicant has represented that New Jersey Natural Gas currently maintains a natural gas distribution system throughout the Lakehurst portion of Joint Base McGuire-Dix-Lakehurst (JB MDL). The applicant has further represented that the proposed natural gas main will be associated with the function of JB MDL by providing energy redundancy to the Lakehurst portion of JB MDL. 

NJNG can’t waive a magic wand after the fact, after they are publicly accused of fraud, and merely “represent” that “energy redundancy” somehow complies with CMP regulations.

And the Pinelands Commission staff has accepted NJ Natural Gas’ representations at face value, despite credible evidence to the contrary, and without independently investigating the facts and making independent findings and conclusions.

That alone is outrageous.

This is another stain on the integrity of Executive Director Wittenberg, the Pinelands Commission and the Comprehensive Management Plan – more to follow, as the Commission meets tomorrow.

The Yes Men Visit the Pinelands

The Yes Men are one of my favorite outfits – their stunts are almost always perfectly conceived and executed.

So, with the above headline and lead, I’m really blowing a real Yes Man-like stunt.

What the hell, here goes:

Pinelands Commission Launches New Climate Initiative

 

New Lisbon, N.J., – December 10, 2015 – The Pinelands Commission is proud to announce the launch of a significant new climate initiative to protect the precious Pinelands from current and projected impacts of climate change.

Using the best available current science, the Commission today begins a planning process to amend the Pinelands Comprehensive Management Plan (CMP).

The overall goals of the climate initiative will be to assure that the Pinelands region achieves the statewide greenhouse gas emissions reductions goals set by the NJ Legislature in the Global Warming Response Act and promote a rapid transition to renewable energy, while preparing to adapt to unavoidable warming.

Elements of of the climate initiative include:

• baseline scientific characterization of ecosystems and resources most vulnerable to climate impacts
• promotion of maximum feasible energy efficiency for projects subject to CMP review
• developing a supportive regulatory framework for renewable energy development
• zero carbon planning, design, and build standards and retrofit requirements
• discouragement and phase out of fossil fueled infrastructure

Chairman Lohbauer issued the following statement:

The recent release of Pope Francis’ encyclical “Care for Our Common Home” followed by his US visit, brought home the moral imperative to act to respond to the climate crisis.

The ongoing Paris COP21 climate treaty negotiations has focused the world’s attention on the climate crisis.

The Pinelands Commission, as an institution of the world with a public mission, understands the scientific and moral imperatives to act.

The Pinelands are already suffering the effects of climate change – the southern pine beetle is just one visible example of that. Scientists warn that the entire forest ecosystem – and all the majestic plants and animals in it – are threatened by climate change, which will bring earlier springs, later winters, more frequent and intense heat waves, droughts, and storms and alter rainfall patterns. These changes will disrupt the water cycle, habitat, and ecosystem functions – from migration and mating to flowering of plants and pollination. Even the productivity and viability of the cranberry industry, the region’s legacy industry, is at risk.

We must respond aggressively to this growing crisis and become part of the collective solution.

Therefore, I am extremely pleased to announce the launch – however belated – of the Commission’s climate initiative. 

In light of the recent scientific presentation by State Climatologist Robinson and a review by Commission staff of the best available science with respect to current and projected impacts on Pinelands resources the Commission has a duty to protect pursuant to the Pinelands Protection Act and by the CMP, the Commission is convinced of the reality and urgency of the climate crisis.

Therefore, the Commission has decided to do its part to contribute towards NJ’s greenhouse gas emission reduction goals established by the Legislature in the Global Warming Response Act.

Accordingly, today we will adopt a Resolution that directs staff to initiate an open, participatory and transparent public planning process to develop necessary amendments to the CMP to address energy, climate and infrastructure policies to protect Pinelands resources, in light of the best available climate science.

We expect that the scientific development and planning phase to take no longer than 180 days before we initiate the formal CMP regulatory phase.

Pending formal adoption of these CMP amendments pursuant to the Administrative Procedures Act, the Commission will suspend technical review of all pending applications regarding large scale greenhouse gas emitting energy infrastructure.

We welcome your support and participation in our endeavor.”

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DEP Proposal Would Roll Back Clean Water Protections

Another example of abuse of Christie’s “regulatory relief” policy

Incredibly, DEP is proposing a rule that they KNOW will increase the probability of NJPDES permit violations at sewage treatment plants and that the KNOW will reduce the number of plans required to correct deficiencies and better protect water quality.

One of Governor Christie’s most notorious self serving quips was that he liked to “squeeze all the juice out of the orange“ – which was slammed as an example of his “shameless love of freeloading”.

Following the Governor’s maxim, the Christie DEP just proposed a rule designed to “squeeze the juice” out of sewage treatment plant capacity, a move that would rollback existing protections and result in more permit violations and more pollution discharged to the State’s already impaired rivers and streams.

The DEP is proposing to gut the longstanding “Capacity Assurance Program” (CAP), which mandates that sewage treatment plants conduct a study, prepare a “Capacity Assurance Plan” (CAP), and implement corrective measures to reduce the flows of wastewater when the sewage treatment plant exceeds 80% of permitted capacity.

The objective of the CAP program is to take steps in advance to avoid permit violations and water pollution.

The CAP program requires planning for infrastructure investments and system and treatment upgrades to protect clean water, as the treatment plant’s capacity is maxed out, and assure that the facility complies with its permit limits.

Key elements of a CAP program include enforceable regulatory requirements like water conservation measures and a sewer connection ban for new developments until capacity problems are addressed.

The DEP is proposing to increase the current 80% regulatory trigger to submit a CAP to 100% of plant permitted capacity. The proposal also would eliminate key CAP implementation requirements, particularly water conservation and flow reduction measures that could be implemented by local governments. I wrote previously about the CAP program, see:

• Christie DEP’s Proposed Weakening of Sewer “Capacity Assurance” Program Jeopardizes Water Quality & Increases Risks To Drinking Water

Today, DEP held a public hearing on the proposal. The turnout was light: Sierra Club, retired professional Bill Simmons, myself and a consultant for the sewer plants.

An engineering consultant representing 4 regional sewage authorities raised a concern that flagged a fatal flaw:

“It’s too late to plan once a plant reaches 100% capacity.”

When even the experts that consult for the sewage treatment plants raise concerns about DEP water quality rollbacks, you know you’ve got a problem.

I questioned why the Christie DEP was rolling back basic water quality protections that had bipartisan support for 30 years.

I had to admit that the Christie “regulatory relief” DEP made the Whitman “open for business” DEP look good. I pointed to Whitman’s Executive Order #109: (get a load of this):

WHEREAS, there is an immediate need to take strong, decisive action to conduct water resource planning on a watershed basis to promote smart growth in a manner that accounts for further secondary and cumulative impacts of such growth.

NOW, THEREFORE, I CHRISTINE TODD WHITMAN, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and statutes of this State, do hereby ORDER and DIRECT:

1. Until such time that the Water Quality Management Planning rules, currently set forth at N.J.A.C. 7:15, are repealed and replaced, the Department of Environmental Protection shall determine, consistent with its existing authority, including N.J.A.C. 7:15-5.18, what, if any, alternatives analyses must be conducted prior to the Department’s making a final decision on an application for approval of a wastewater management plan or amendment thereto and, where applicable and consistent with its existing authority, an application for approval of a water quality management plan or amendment thereto, including, but not limited to, an evaluation of depletive and consumptive water use, detailed land use, environmental build-out and pollutant loading.

I testified to raise the following objections and questions:

1. Billions in unmet water infrastructure needs, while Asset Management initiative is stalled

In 2008, DEP submitted a Clean Water Needs Assessments to US EPA that identified $16.9 billion in wastewater infrastructure needs, a 54% increase from 2004. That estimate did not include huge additional needs associated with adaptation to climate change.

To address these unmet infrastructure needs, with munch fanfare, the Christie BPU and DEP jointly DEP rolled out its new “asset management” initiative way back in 2010:

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

Since then, it’s been nothing but talk – and pushback by the private water companies and public water authorities who strongly oppose new DEP regulations mandating costly asset management requirements.

The CAP program triggers a review of the condition and capacity of wastewater infrastructure to meet current and future needs while protecting clean water – this can only further the objectives of planning, asset management, and investments in wastewater systems.

Given the unmet infrastructure needs and stated objectives of the Asset Management initiative, why would DEP essentially gut the CAP program?

2. DEP Proposal Fails To Present the Benefits of the CAP program or quantify increases in NJPDES violations

The proposal notes that the increase in the regulatory trigger from 80% to 100% of permitted flows will result in a significant reduction in the number of facilities that will be required to submit CAP plans.

What will the water quality impact be of this reduction in CAP plans?

The proposal fails to present or consider or quantify the historical benefits of the CAP program – just what has it achieved? What water quality benefits will be lost by the major changes proposed?

3. The DEP’s “Flow Study” is flawed, has not been peer reviewed or disclosed to the public

As the technical basis to justify the proposed increase of the regulatory trigger from 80 – 100% of permitted flow, the proposal presents an “analysis” of a statistical correlation between the 80% trigger and subsequent violations of NJPDES permit effluent and loading limits for a limited set of parameters.

First, the parameters selected are not appropriate for discharges above water supply intakes, where concern for nitrates and low level toxic pollutants are key public health considerations.

Second, while the correlations are low, the proposal fails to disclose the fact that there would be an increase in NJPDES permit violations or to quantify these increases in violations or reveal which specific plants would be more likely to violate their NJPDES permits.

The public must be provided with this information and the DEP must consider that information in analyzing whether to adopt the proposal. The DEP should not be proposing relaxing regulatory requirements that they KNOW will statistically increase the probability of NJPDES permit violations.

Given these serious question about the DEP’s methodology for this study and the conclusions its supports, the study must be released to the public and subject to peer review before it can be relied upon for regulatory purposes.

4. The use of averaging ignores critical high wastewater and low stream flows

The proposal would extend the current 3 month averaging period used to determine existing wastewater flows to a 12 month period.

There are two problems with this approach and they lead to the same water quality problem:

First, the use of an average dampens high flows that cause NJPDES violations. Many water quality standards are designed to protect against impacts from “critical conditions”, e.g. water exceeds a temperature that kills fish. The DEP proposed CAP approach ignores critical conditions from high flow discharges (or low flow streams); and

Second, the extension of the timeframe to 12 months also masks single or multiple high flow NJPDES violations that could be significant.

In addition to these problems, it appears that the DEP ignored stream flows – there may be interaction between low stream flows and violations of permitted flows that must be considered, particularly in ecologically significant receiving waters or for discharges upstream on water supply intakes.

DEP and EPA NPDES regulations express concerns for these sensitive locations:

The DEP has not considered these site specific concerns regarding sensitive areas in the proposal, which is a fatal flaw that must be resolved prior to adoption of the proposal.

5. The proposal skirts the issue of whether flow is an enforceable permit condition

The proposal concedes the fact that there are now – and will continue to be in the future – many known exceedences of NJPDES permitted wastewater flows at sewage treatment plants.

We believe that flow is an enforceable permit condition.

We urge the Department to enforce exceedence of NJPDES permitted flows and to abandon this proposal which would lead to an increase in violation of permitted flows.

If DEP is looking the other way by drafting NJPDES permits that specify wastewater flows as a “monitor only” permit condition, that is an abuse and potential violation of the Clean Water Act.

We will take this issue up with EPA to assure that DEP is enforcing wastewater flows in EPA approved NJPDES permit conditions.

Perhaps even more important, in the WQMP proposal DEP seems to be grandfathering current permitted flows and treating these flows in the CAP proposal as a done deal.

However, many NJPDES permitted flows were issued without conducting a federally mandated antidegradation review or consideration of cumulative impacts on assimilative capacity.

In some cases, assimilative capacity (i.e. the maximum amount of pollution a river can handle without violating water quality standards) has been over allocated and permits issued with flows and loads that would violate SWQS.  Therefore, these flows have no valid scientific or regulatory basis and expansion in current discharges to the permitted capacity is NOT a sure thing or a “done deal”.

While this is more of a WQMP issue than a CAP issue, they are inter-related because both rules apply to permitted flows.

6. The proposal is inconsistent with the proposed revisions to the Water Quality Management Planning rules

The proposal discuses one technical inconsistency with the WQMP rules and how that inconsistency will be addressed.

But the proposal ignores at least two significant policy inconsistencies:

First, the proposed WQMP overall would eliminate the current requirements to remedy any inconsistencies between a proposed WQMP and a NJPDES permit, particularly with respect to conflicting flows. The DEP would now approve WQMP plans that project wastewater flows that conflict with permitted flows and/or can not be handled by the receiving water.

The WQMP proposal creates conflicts and unrealistic development expectations that will result in future NJPDES permitting issues, as well as jeopardizes future water quality.

The proposal also ignores future regulatory constraints on wastewater flows and/or pollutant loadings that may be imposed under the antidegradation review requirements or imposed under the TMDL program.

The proposed CAP changes exacerbate those WQMP problems with respect to exactly what constitutes wastewater flows and loads, by extending the day of reckoning of necessary planning for reaching permitted capacity.

Second, in general, the WQMP proposal relies more heavily on local governments.

The proposed CAP revisions would conflict with that overall approach be eliminating local governments from the requirements to submit CAP plans. Current CAP requirements include the joint participation of both the wastewater plant and local governments.

The proposed CAP revisions are not only inconsistent with the proposed WQMP rules in this regard, but they undermine effective CAP planning.

For example, wastewater authorities lack the mission, jurisdiction, authority, legal control, and expertise to address and manage flow related issues – such as water conservation measures and other land use planning/zoning, infrastructure and physical sewer connections – that impact flows to a treatment plant.

The proposed elimination of local government from the CAP program is ill advised.

We will raise these policy and regulatory corners with US EPA.

We’ll keep you posted on this as events develop.

Environmental Community unified in opposition

Christie DEP proposes a radical departure from 30 years of watershed planning

The DEP held the third and final public hearing today at their Trenton HQ on a proposed “overhaul” of the Water Quality Management Planning rules. The public comment period expires on December 28.

[Update 12/1/15 – NJ Spotlight “explainer” presents an overview and the perspectives of the various groups who testified at the hearing. It is far too “balanced” to meet Spotlight’s asserted mission to look out for the public interest. The proposal is a radical departure from a 30 year consensus and evolution in water quality and land use planning. One example of just how radical Christie DEP is the fact that even Governor Christie “Open For Business” Whitman went to Princeton University to make a speech about “Sewers, the Last Frontier in Sprawl“.   Christie Whitman issued an Executive Order # 109 that involved septic and enhanced environmental reviews 15 years ago~~~ end update]

The DEP essentially is proposing to decouple water quality planning and various limiting environmental analyses from any enforceable regulatory standards or permit requirements. This is a result of longstanding opposition to these DEP regulatory requirements by the politically powerful development community.

At the same time, DEP would defer critical land use and water quality decisions to local governments, while simultaneously eliminating current safeguards that local governments must adopt via ordinance. This deference to “home rule” land use powers also reflects longstanding local resentment of DEP requirements that local land use decisions must meet state water quality standards and protect natural resources.

My apologies for failure to prepare a detailed summary of the complex DEP proposal. (see Part 1 of a promised series I never finished Here are my initial set up story and thoughts on the first hearing in Morris County).

For a Cliff Notes summary of what this WQMP proposal would do, see the DEP’s “Stakeholder” powerpoint summary (reader warning: accurate, but the justifications for the proposal and conclusions are highly spun).

Aside from the elimination of current municipal ordinance requirements under the cover of “streamlining nitrate dilution analysis” and “elimination of non-point source pollution program requirements” (see below), perhaps the 3 most extreme rollbacks in that proposal are:

1) elimination of current “consistency” requirements that projected wastewater flows from a sewer service area are consistent with the sewage treatment plant’s permitted flow. For example, if the local sewage treatment plant has 5 MGD available capacity, DEP would not approve a water quality management plan that would create 15 MGD in additional wastewater flows from new development. The current requirements are a fundamental of NJ’s long time “capacity based infrastructure planning” required by the 1972 federal Clean Water Act and championed by the 1985 NJ State Planning Act;

2) elimination of current requirements to demonstrate adequate water supply to serve new development in the wastewater plan. Again, this is a fundamental element of capacity based infrastructure planning and it is highly irresponsible to eliminate these requirements. Repeal will only create unrealistic development expectations and huge conflicts between wastewater and water supply for future individual DEP permits to resolve. This is particularly ill advised when DEP has failed to update the Water Supply Master Plan for 20 years and adopt enforceable water budgets, particularly in many deficit watersheds and critical groundwater regions;

3) elimination of  the current formal consistency review process, which requires permit compliance with sewer service area designations, assignments to treatment facilities, identification of adequate water supply capacity, and NPS standards. The Water Quality Planning Act prohibits DEP from issuing any permit that is inconsistent with an areawide water quality management plan. In 2008, DEP adopted a specific list of permits that they would not issue until all WQMP requirements were met.

The Christie DEP’s proposed elimination of this requirement is a flat out violation of statute, obviously inconsistent with legislaive intent, and a likely violation of federal requirements as well.

Business group supporters of the DEP proposal have sat on the sidelines during the two prior hearings, but lobbyists finally turned out today to praise DEP for providing  regulatory”flexibility” and encouraging economic growth. The fact that lobbyists who know nothing at WQMP planning were following DEP talking points was revealed when Sarah Blum of NJ BIA said that the rules would create better “synergy” in DEP permit programs (she obviously got that from DEP’s Stakeholder briefing – see link above).

The League of Municipalities and Association of Environmental Authorities also supported aspects of the proposal, while a consultant for a handful of sewer authorities both praised and raised concerns about how the rule might eliminate groundwater and stream buffer protections at developments of less than 50 units.

DEP is proposing a massive deregulation of groundwater and development. For example, towns that should have 6 -8 acre minimum zoned lot sizes based on septic density nitrate dilution to protect groundwater will be allowed to develop on currently zoned 1 acre lots.

Not surprisingly, the League of Municipalities particularly supported DEP’s deference to municipal land use planning and the elimination of current requirements that Towns adopt: 1) stream buffer, 2) steep slope, 3) storm water management and 4) zoning ordinances to protect groundwater, based on a nitrate dilution model.

I have called DEP’s elimination of these local ordinance requirements a completely irresponsible abdication of the State’s responsibility under cleans water laws to assure that local land use decisions protect water resources.

Because DEP relied on these local ordinances to demonstrate compliance with federal EPA approved requirements, particularly the municipal storm water permit program (MS4), this deletion is a likely violation of federal EPA delegated Clean Water Act requirements. DEP flags this issue in their own Municipal Stormwater Permit (MS4) Tier A Guidance document:

The requirement that the applicant preserve and maintain 300-foot “special water resource protection areas” along all waters designated “Category One” in the Department’s Surface Water Quality Standards at N.J.A.C. 7:9B, and along perennial or intermittent streams that drain into or upstream of the Category One waters as shown on the U.S. Geological Survey (USGS) Quadrangle Maps or in the County Soil Surveys, within the associated hydrologic unit code 14 (HUC14) drainage.

The requirement in the Tier A Permit for “compliance with the applicable design and performance standards established under N.J.A.C. 7:8” pertains to all applicable design and performance standards established under the Stormwater Management rules, not just to the “Stormwater runoff quality standards” in N.J.A.C. 7:8-5.5.

The WQMP proposal’s deletion of current municipal stream buffer ordinance requirements and elimination of the Environmentally Sensitive Area and non-point source pollution control local ordinance requirements is the same issue as the prior Flood Hazard proposal’s deletion of the SWRPA and NJAC 7:85.5(h) anti-degradation policy in the storm water management rules.

The local buffer and stormwater ordinances and DEP SWRPA regulations function as EPA approved water quality measure and a the DEP’s EPA approved MS4 NPDES permit requirement.

EPA raised exactly this objection in DEP’s proposed Flood Hazard Act rules that would eliminate municipal “SWRPA” buffer ordinances and protections in the storm water management rules. In a July 30, 2015 letter, EPA warned:

Section 402 of the Clean Water Act established the National Pollutant Discharge Elimination System (NPDES) program and allows EP A to authorize states to implement NPDES permit programs. On April 13,1982, EPA authorized New Jersey to implement such a program. EPA’s NPDES permitting regulations at 122.44(1), which are applicable to state NPDES programs, require permits, when renewed or reissued, to include interim effluent limitations, standards or conditions at least as stringent as the final effluent limitations, standards or conditions in the previous permit. New Jersey’s Municipal Separate Storm Sewer System (MS4) permits cross-reference the state’s SWM rules and require compliance with those rules. If changes to the Storm water Management rules result in a less stringent permit condition, this would constitute backsliding in violation of EP A’s permit regulations. EPA recommends that fact sheets for the NJPDES MS4 permits affected by these changes clearly detail how these rule revisions maintain the same level of stringency and do not result in backsliding.

There are addition federal Clean Water Act compliance issues that we will raise with US EPA – more on that in a future post.

The Association of Environmental Authorities (AEA) supported DEP’s policy that the WQMP rules will no longer authorize DEP to withdraw wastewater service area designations if the WMP agency fails to submit a timely WMP. The DEP relied on recent NJ legislation to justify this policy. More on that in a future post.

AEA also supported DEP’s decoupling of water quality planning from DEP permit program requirements (known as mandatory “consistency review”); repeal of current prohibition on extending sewers into environmentally sensitive areas; and the elimination of current requirements to conduct what are known as “antidegradation reviews” in the planning process. This may violate EPA anti degradation requirements because this DEP rule change would effectively grandfather current DEP permitted flows. Sewage treatment plants historically were issued permits with these flows without conducting anti degradation of water quality studies to justify them. As a result, the DEP permits over allocate “assimilative capacity” of the receiving rivers and streams, especially when considering cumulative point source pollutant loadings and non-point source pollution from intensive land development and agricultural sources.

I was pleased to see ANJEC, American Littoral Society (ALS), Environment NJ, Stonybrook Watershed and Clean Water Action (formerly NJEF) testify in opposition today after missing the prior north and south jersey hearings.

They joined Sierra Club, NJ Conservation Foundation and the Highlands Coalition in opposing the DEP’s proposal.

Emile DeVito of NJCF was particularly effective and highly critical of the threatened and endangered species habitat provisions of the proposal, regarding the Habitat Suitability Determination and Habitat Impact Assessment.

DeVito blasted those changes as “amorphous promises masquerading as science”, “marketing having nothing to do with science”, and nothing more than the “unscientific, speculative guesswork” of consultants for developers that would cause irreparable harm that can not be mitigated.

Devito criticized the fact that independent scientific experts on the Endangered NonGame Species Advisory Committee had been bypassed and cut out of the policy process.

Doug O’Malley of Environment NJ did a good job in linking the rollbacks to the policies and statements of Governor Christie.

In addition, I noted that the proposal failed to consider impacts on the pending ecological collapse of Barnegat Bay, suggesting that Gov. Christie’s 10 Point Management Plan was a sham.

I challenged DEP’s false statements about an inclusive robust stakeholder process and about so called deference to the Highlands Council.

I questioned whether the 180,000 acres of environmentally sensitive lands previously removed from sewer service areas under the prior 2008 rules can be brought back in as a result of “streamlining” the planning process (via site specific amendment, etc).

I noted that the septic density modeling to protect groundwater was very limited.

Residential wastewater discharged to septic systems contains numerous toxic household chemicals, as well as biologically active compounds like pharmaceuticals. DEP does not monitor and set groundwater standards for these chemicals, but instead relies on nitrate as an “indictor” parameter of overall groundwater pollution from septic systems. Additionally, the nitrate standards are based on a 10 mg/L drinking water standard that is not fully protective of sensitive populations, like infants, and do not consider ecological effects.

So, DEP’s proposal to relax an already limited groundwater nitrate approach was particularly ill advised.

Unfortunately, I forgot to mention the new 13,000 acres in sewer service area in Pinelands Villages.

More to follow on this – in the meantime, please get your comments in to DEP by 12/28, see:

Written comments may be submitted electronically by December 28, 2015 at http://www.nj.gov/dep/rules/comments; or
In hard copy to:

Gary Brower
ATTN: DEP Docket No.10-15-09
NJ Department of Environmental Protection
Office of Legal Affairs
Mail Code 401-04L; PO Box 402
401 East State Street, 7th Floor
Trenton, NJ 08625-0402