WolfeNotes.com

Corporate & Political Power Twist CMP & Commission Into A Pretzel

Regulatory Gymnastics of Executive Director Are Obscene and Legally Absurd

“It’s in the rules,” Ms. Wittenberg said. “I can’t change it.” ~~~ Wall Street Journal (Aug. 20, 2015)

[Update: 10/20/15 – Kirk Moore writes at NJ Spotlight on BPU Public hearing

Under Pinelands rules, private developments should be reviewed by local municipal land-use boards, under ordinances that incorporate the Pinelands standards, said environmental activist Bill Wolfe of Bordentown.

But the regulators’ recent moves on the gas line have led to the “absurd outcome” of the BPU having a final say without local reviews, Wolfe said.  ~~~ end update]

What is going on in the Pinelands with respect to proposed gas pipelines is patently illegal and absurd.

Today, we take on the absurdity of the South Jersey Gas pipeline review and leave the lawlessness for a future post.

Conclusions

In a nutshell, we conclude that it is a legally and logically absurd outcome for the Board of Public Utilities (BPU) to be the agency that reviews the South Jersey Gas company (SJG) pipeline for compliance with the Pinelands Comprehensive Management Plan (CMP).

That outcome is absurd because:

1) the BPU previously acted on behalf of the SJG pipeline by entering into a Memorandum of Agreement (MOA) with the Pinelands Commission. The MOA was the mechanism to bring the pipeline into compliance with the CMP. The purpose of the MOA was to secure Pinelands Commission approval of the SJG pipeline.

2) The outcome also is absurd because the BPU has issued 3 prior Orders approving the route, safety, and contracts for the SJG pipeline.

3) The BPU, in addition to the prior regulatory actions supporting and approving the SJG pipeline, will review and decide on a petition filed by SJG to pre-empt municipal review of the SJG pipeline. If BPU were to approve the SJG petition, BPU would become the review agency. This adds a whole new layer of absurdity.

4) The BPU lacks the expertise and institutional mission to conduct an adequate land use review and protect Pinelands resources as required by the Pinelands Act and CMP.

5) The Pinelands Act is silent on and provides no legislative authority or legal standards for the designation of the SJG project as a “private development application”; the issuance of a “Certificate of Filing” for the SJG project; the elimination of Pinelands Commission’s review powers; and the elimination of public hearings before the Commission.

6) The unique interaction of the Executive Director’s interpretation of the CMP and the SJG pre-emption petition results in an absurd outcome that could not have been anticipated by, considered by, or authorized by the Legislature or the CMP.

Accordingly, the Executive Director of the Pinelands Commission created an absurd outcome.

The BPU has gross conflicts of interest and can not be an impartial and objective review agency as required by law, thus an absurd outcome.

Argument

In law, there is a doctrine of “absurd outcomes“:

The absurdity doctrine, also known as the “scrivener’s error” exception, is a legal theory under which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions.^[14][15][16] It is contrasted with ^[17]

“The common sense of man approves the judgment mentioned by Pufendorf [sic. Puffendorf], that the Bolognian law which enacted ‘that whoever drew blood in the streets should be punished with the utmost severity’, did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of a felony, does not extend to a prisoner who breaks out when the prison is on fire – ‘for he is not to be hanged because he would not stay to be burnt‘.”^[18]

The leading 1868 US Supreme Court case involves the prosecution of a sheriff who arrested a mailman (footnotes deleted):

An early Supreme Court decision, Kirby v. United States provides a good example both in historical terms and in terms of the principle’s present application.” Kirby involved a statute that  prohibited a person from “knowingly and willfully obstruct[ing] or retard[ing] the passage of the mail, or of any driver or carrier.” Defendant Kirby was a county sheriff who had a bench warrant commanding him to arrest a man named Farris, who, in addition to having been indicted for murder, also happened to be a mail carrier. Kirby and his posse arrested Farris while he was carrying the mail, and were indicted for violating the statute. The Court ruled that the statute did not apply to the situation before it. …

… the Court set up a presumption with regard to legislative intent. It began by saying that no legislative intention to exempt mail carriers from such an arrest “should be attributed to Congress unless clearly manifested by its language,”and then continued:

“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character The reason of the law in such cases should prevail over its letter.”

Ironically, legal scholar and former Obama regulatory Czar Cass Sunstein has written about the absurdity doctrine in the context of environmental regulatory decisions.

Sunstein’s argument is that environmental agencies should have the legal flexibility to avoid absurd outcomes that could result from a literal reading of the statute passed by a legislature. Agencies have expertise and – as an institution –  should be afforded latitude, not handcuffed by inflexible legalistic formalism.

Sunstein’s summarizes this new principle:

In the last two decades, federal courts have been developing a new and thus far unacknowledged canon of regulatory law: As a general rule, administrative agencies will be taken to have the authority to interpret statutes so as to avoid absurd or patently unreasonable results, even if the interpretation is hard to square with the literal language of the statute. This canon authorizes agencies, and in particular agencies that regulate the environment, far more flexibility in the interpretation of literal language than courts are now permitted to have. My narrow goal in this Essay is to describe and to defend this canon. My broader goal is to use the canon as a basis for urging that contemporary theories about interpretation go wrong by emphasizing large claims about democracy and legitimacy at the expense of an inquiry into the real-world capacities of our various institutions, including the U.S. Environmental Protection Agency (EPA) and the federal courts.

The Suntein argument is ironic in the Pinelands case, because the absurd outcome was produced by the regulatory agency itself!

The absurdity was created by Executive Director Wittenberg’s regulatory gymnastics:

First, Wittenberg unilaterally reversed a prior regulatory finding that the SJG pipeline violated the forest standards of the CMP because it did not “primarily serve only the Pinelands“, as required by the CMP;

Second, Wittenberg shoehorned a project – defined under Pinelands CMP regulations as “Public services” and “Public service infrastructure” by SJG, a corporate entity regulated under NJ law as a “public utility” – into a section of the CMP designed for the review of local governments (NJAC 7: 50-4.34 – certificate of filing) , as a “private development application”.

Third, because the SJG petition to BPU to preempt local review under the NJ Municipal Land Use Law was pending at the time her decision was made, Wittenberg knowingly created the absurd outcome whereby BPU becomes the agency to review the SJG project for compliance with the CMP.

We will make this and other arguments at the BPU’s October 19, 2015 public hearing on the SJG preemption petition.

But the real action will occur 2 days later at the BPU’s evidentiary hearing, which will determine the outcome.

That’s where these kind of arguments must be made – and we are pleased to note that the attorneys for the Pinelands Preservation Alliance have petitioned BPU to intervene in that hearing.

We’ll keep you posted.

Does the Path From The Pope To Paris Pass Through The Pinelands?

Pinelands Commission Breaks Silence and Denial on Climate Change

Activists Press Commission on Climate Policy and Moratorium On Pipelines 

“Joint Base-Gate” Emails Suggest Fraud

[Update: 10/21/15 – Did I sniff this one out or what?

Upon first hearing of the NJ Natural Gas pipeline, back on February 16, 2015 I wrote: (emphasis in original]

4) Military Madness loophole?

The new issue of the New Jersey Natural Gas proposed pipeline was discussed on Friday.

There were suggestions that the location on Dix/McGuire Joint Base could be used to dodge CMP restrictions.

Do I smell a military loophole being manufactured?  ~~~~~ end update]

Friday’s October meeting of the Pinelands Commission was extraordinary. Shockingly, none of this got reported by the media. Here’s the brief rundown – I urge readers to watch the video to get the full monte.

Climate Change

At the conclusion of the meeting, a Pinelands Commissioner urged the Commission to step up and play a role in climate change and consider the climate implications of fossil infrastructure like pipelines:

I’d like to followup on an issue Mr. Wolfe raised with respect to climate change … I think that there’s nothing more important for us as an agency to do to protect this planet. I agree with Mr. Wolfe. I don’t have a full legal analysis  but I think we have the opportunity and the jurisdiction to do that…. This effort is related to the other discussion we had this morning with respect to pipeline infrastructure. … In my view we shouldn’t be investing in pipelines, we should be investing in renewables.  ~~~~  Commissioner Ed Lloyd (watch at the very end, at time 1:32:30)

Earlier in the hearing, I testified to urge the Commission to consider the Pope’s remarkably popular visit and his urgent climate challenge set forth so beautifully in his encyclical Our Common Home and build a bridge to the upcoming Paris Climate Treaty negotiations:

In the Pope’s wake, the upcoming Paris Climate Treaty is again going to put the climate issue front and center in the public debate. What better time for the Commission to say “we’re going to amend the CMP and incorporate climate policies and energy”?

I previously gave you the scientific rationale for that. I previously pointed to the Adirondack Park Agency who has done something similar with their land use powers to build climate and energy policies into their land use reviews. I’ve pointed to where you have statutory authority under the Pinelands Act to do it. So today, I want to connect the dots on how your existing CMP actually obligates you do do it. …

It is a politically opportune time to make a public statement and get out of all the negativity we’re in and do something positive. Instead of spending staff time working with applicants to build pipelines through the Pinelands, we can do something good.  So, that’s my appeal to reason. ~~~  Wolfe at time 55:10  (wonks can read the end note for connecting the regulatory dots).

For years now, I and many others have urged the Pinelands Commission to address climate change and energy policies in the Comprehensive Management Plan (CMP), most recently, see:

• Pinelands Commission Urged To Address Climate Change Impacts on Pinelands Resources

Friday’s open discussion was a very small step, but it could be a key turing point, because over two years ago, my recommendations were rejected by Commission “Special Counsel’ Stacy Roth,  in a behind closed doors meeting that was caught on audio tape, see:

• Pinelands Commission Lawyer Claims Agency Lacks Power To Consider Climate Change In Review of $500 Million Fossil Infrastructure Project

Moratorium on Pipelines Pending Reforms to Planning and Regulatory Review 

We have urged the Commission to impose an administrative moratorium on review of pipelines and energy infrastructure until the Comprehensive Management Plan (CMP) can be amended to provide adequate planning and environmental safeguards.

In support of a moratorium, I reminded the Commission that:1) the nearby DRBC has a moratorium on fracking; 2) the Pinelands Act authorizes the Commission to adopt bylaws and regulations, which is sufficient power to enact a moratorium; 3) that weaknesses and gaps discovered during review of the South jersey Gas pipeline justified the need for additional CMP safeguards; and 4) that the US Supreme Court has upheld administrative moratorium pending adoption of regional plan to protect natural resources in the Lake Tahoe case.

The exploding “Joint Base-Gate” scandal provides additional justification (see below).

I asked the Commission to direct staff to request an Attorney General’s legal opinion – but Special Counsel Roth rejected that saying that the legal issues would be discussed in Executive Session. I objected to that approach for a lack of transparency and accountability.

We may be making progress, because the Commission considered legal issues involving a moratorium in executive session

Growing “Joint Base-Gate” NJ Natural Gas Pipeline scandal 

Doug O’Malley of Environment NJ got it exactly right when he said that recent email disclosures revealing that Pinelands staff may have been involved in what appears to be a scheme by NJ Natural Gas and Joint Base official to concoct a false military purpose to avoid regulatory scrutiny by the Pinelands Commission had created a “crisis of confidence” in the Commission.

There was powerful testimony I urge the public to watch, beginning at time 25:25.

You have black and white emails from company officials that say that they were concocting a military purpose.

A NJNJ official wrote to military officials, in no uncertain terms, that the company was seeking to route the pipeline onto the base not for actual military purpose but for the sole reason to gain the Commission’s deference for projects that have military purposes. …

Providing deceptive information to a public agency or officials was illegal when it happened at the Joint Base and submitting an application to the Pinelands Commission with knowingly false claims for the purpose of obtaining a near total exemption from the CMP, for which an applicant knows it does not truthfully qualify is definitely illegal as well.

In a future post, I will outline why NJNG wanted a military purpose and how the Pinelands Comprehensive Management Plan provides less restrictive standards.

In the meantime, you can watch the testimony and read the WHYY coverage of that issue here.

Food and Water Watch has posted the emails here.

We’ll keep you posted – the Commission needs to feel strong public pressure to do the right thing on all these issues to resolve the current crisis of confidence.

Managing Drought With a Drought Of Management at DEP

Flood of Slogans & Press Releases Mask Mismanagement & Christie’s Policy

The Bergen Record reported today that the rainfall from last week’s nor’easter which caused so much coastal erosion had little impact on the drought in northeast NJ, see this:

Once again, the critical river low flow issues are presented as clear as mud, and buried at the very end of the story:

The reservoir was at 47.1 percent on Friday. But it was supplying about 25 million gallons less per day than it was at the beginning of September.

The commission has been pumping millions of gallons from Passaic River tributaries to meet demand. Even though the DEP in 2013 allowed the commission to pump an extra 17 million gallons a day during peak demand periods, a spokesman said even that may not be enough.

“The river flow is decreasing enough that we may have to stop until another rainfall,” Maer said. “We’re pumping when we can to keep the levels as high as possible.”

As you can see from the USGS hydrograph above, river flow rebounded, but is heading down again.

The rainfall made only a slight dent in reservoir levels, and pumping of river water appears to have been halted again as a result of “minimum passing flow” conditions in DEP permits.

We are glad that the Record is staying with this story, but we still wish they would focus on important drought related issues:

1) Human Health Risks

The lack of rainfall and low flows in the rivers result in lower water quality. That increases human health risks. The critical pollutant of concern is the nitrate level: as river concentration approaches the 10 mg/L (ppm) drinking water standard, the river intakes for water supply must be shut down because there is no treatment for nitrate. However, there are many other risks, ranging from trihalomethanes that result from additional treatment to remove a higher percentage of organic content (algae, et al) from river water; to hundreds of unregulated chemicals discharge by sewage treatment plants (Google Tittel’s award winning soundbite about “Viagara Falls”)

2) Ecological Impacts – Whatever happened to the DEP’s “Eco-Flow Goals” Project?

The negative effects of drought are not limited to threats to the water supply for people. The low flows in the river have adverse impacts on aquatic life – I know next to nothing about the aquatic life in the Passaic basin, but I’m sure there are many scientists, fishermen, and watershed advocates who do. That story needs to be told.

3) Infrastructure – From Leaks to Lack of Adequate Storage to Reliance on rivers

Northeast NJ’s water supply infrastructure is in a precarious situation – by design – due to lack of adequate reservoir storage capacity. Aging infrastructure is another problem – the Record recently reported leakage rates for United Water, but in the context of a request rate increase. The larger infrastructure story needs to be told comprehensively.

4) Water Supply Planning – Where’s the Plan?

Governor Christie’s Office has buried the DEP drafted update of the Water Supply Master Plan for political reasons. As a result, the public and water supply managers lack current data and relevant policy framework to make important management decisions.

• Drought of data – After declaring a drought watch and urging voluntary conservation, DEP has no data on water conservation efforts and is not even asking for that data to be collected.

• Projected population growth and increasing demand will put additional stress on the system and result in more frequent drought conditions.

• Climate change is projected to change rainfall patters, resulting in more frequent large rainfall events and more prolonged dry period. At the same time, NJ’s landscape is increasing developed with impervious surfaces as natural vegetation is destroyed. This has huge implications for water supply, because so much water is lost as runoff from larger storms and there is less groundwater recharge and reservoir storage.

There are many other examples of issues that need to be addressed via the Water Supply Plan update.

5) What ever happened to DEP’s Asset Management initiative?

The highly touted DEP “Asset Management” initiative is dead in the water (no pun!).

Asset management will force DEP, private sector, and local water managers to being to develop a systematic approach to assessing and managing infrastructure.

6) Lack of Funding – The Open Space Diversion

The fact that NJ has a massive water infrastructure upgrade financial deficit has been widely reported.

But there’s been no coverage of the fact that the Open Space ballot approval diverted significant funding from water resource management programs, just when more challenges are emerging that require more costly management efforts, from data collection to scientific expertise.

7) Christie DEP Rollbacks of Land Use and Water Resource Protections

Christie DEP Commissioner Bob Martin himself has openly announced plans to rollback existing land use and water resource regulatory protections.

Just at the point in time when climate change impacts are becoming increasingly visible, the DEP is ignoring those issues – both the need to dramatically reduce emissions and to adapt to projected impacts.

Just when structural drought and basic hydrology are becoming part of everyday experience, DEP is rolling back land use and water resource protections that will exacerbate water quality, flooding, and drought issues.

There are several stories waiting to be written about DEP’s Water Management Deficits.

Today, we have a guest post by Bill Simmons.

Bill is a retired health inspector blogging about public and environmental health at http://pehealthnj.blogspot.com/ and on Twitter as BillSimmonsNJ.

I asked Bill to Guest post after I heard him raise an interesting set of issues during the public comment period of last week’s monthly meeting of the NJ Water Supply Advisory Council about studies on stream base flow and land use. Base flow is an important aspect of fundamental hydrology and critical to water quality, quantity and the ecological health of our watersheds. Both NJ Acting State Geologist Hoffman and USGS representative on WSAC were aware of the research Bill summarized and interested in conducting watershed scale studies to get a better understanding, but lack funds to conduct that research due to diversion of research funds by the “Keep It Green” open space ballot deception (just one of the many water resource cuts we warned about that have yet to be restored in DEP’s budget).

There is a huge pool of retired environmental professionals out there with deep knowledge that could make an important contribution to public policy debates. We welcome guest posts from these folks – as well as active agency employees – and would be glad to provide anonymity to protect against retaliation. If interested, shoot me an email at bill_wolfe@comcast.net – Now to Bill’s post:

Urbanization Changes Baseflow, But It Doesn’t Lower It – And Stream Gages Alone Can’t Explain Why

Did you know that increasing impervious surface in a watershed is clearly linked with higher storm flow – but not with lower baseflow? And that this was first reported in NJ about ten years ago?

This very counter-intuitive discovery by the USGS appears on page 132 of a 2008 technical report for NJ Highlands Master Plan, Water Resources Volume II, Water Use and Availability:

“There is a strong conceptual case that increased land development should result in decreased stream base flow, but two USGS studies of long-term base flow trends in New Jersey did not find many statistically significant trends in low flows (Brandes and other 2005, Watson and others 2005). … An improved understanding of this issue will allow for a more robust water availability modeling approach in the future.”

Yes it would.

Here’s what the Brandes paper – Base Flow Trends In Urbanizing Watersheds Of The Delaware River Basin – states on pdf-page 15:

“The results of this study suggest that stream base flow has not systematically decreased in urbanizing watersheds of the lower Delaware River basin over the past 60 years. The data do not support the idea that low- to moderate-density land development typically has a negative effect on base flow volumes and low flows at the scale of a 25 to 200 km2 watershed. … one should not expect any single value of percent impervious to emerge as a widely applicable threshold for effects of urbanization on base flow. The implication of this study is that the effect of low density to moderate density urbanization on base flow is typically more subtle and less severe than its impact on stormflow.”

Page 26 of Streamflow Characteristics and Trends in New Jersey, Water Years 1897–2003, by Watson and others: “The overall results of the trends analysis show that high-flow trends for the regulated [developed] and unregulated [undeveloped] gaging stations were upward. … The low-flow trend results for regulated gaging stations indicate that most of the gaging stations had an upward trend … The relation of development to low-flow trends does not appear to be as strong as development to high-flow trends.”

Natural and Artificial Sources of Baseflow

Brandes and Watson were surprised by what the data told them. They took a shot at explaining it. Since then, other states have found this trending in their data as well, and the guesses are stacking up. Here’s the Minnesota Pollution Control Agency in 2009, on page 59:

“… the decrease in natural groundwater recharge in an urban watershed can be unintentionally replaced by artificial recharge, i.e. infiltration of imported water that has leaked from water supply and sewer pipes, applied as excessive lawn irrigation, and infiltrated from septic system drainage.”

In developed watersheds, baseflow isn’t just baseflow anymore. That means baseflow doesn’t predict water levels in the water-table aquifer the stream runs through. You could have adequate baseflow but still have headwater wetlands and shallow wells drying up during a drought.

The most nuanced paper was published last year as part of the Baltimore Ecosystem Study: “Baseflow signatures of Sustainable Water Resources. An Analysis of Maryland Streamflow”. Figure 9 on page 37 compares the traditional model of baseflow – recharge in, baseflow out – with urbanized baseflow derived from multiple processes. Some “artificial” sources of baseflow are essentially interbasin transfers that obscure the volume of baseflow that naturally flows from the water-table aquifer.

Wastewater treatment plants can discharge effluent into a stream that is derived from sources outside the watershed, “bypassing the groundwater system”. Old urban drinking-water pipes can recharge the water-table aquifer with pressurized water that came from sources outside the watershed. To a lesser degree, even watering your lawn can artificially recharge the water-table aquifer, if your well is drilled deeply into a separate, confined aquifer that recharges far from the watershed and the water-table aquifer the well is drilled through.

Storm drains buried in areas with high water tables can accelerate the discharge of groundwater into streams, like a french drain – and increase baseflow. Even impervious surface – roads, buildings, and compacted soils – increases baseflow, because as it replaces woods and fields, less water is lost to evapotranspiration. The USGS estimates about one third of the precipitation that falls in NJ returns to the atmosphere through evapotranspiration (Fig. 4) instead of recharging the aquifer. Impervious surface leaves more net groundwater in the water-table aquifer that can become baseflow because it replaces vegetation(!)

Groundwater can leak into sewer pipes in one watershed (I&I – Infiltration and inflow) but discharge from the treatment plant into another. When a watershed is developed, how can a stream gage tell you if natural baseflow has decreased – with all these artificial sources of baseflow?

“Regulatory Paradoxes”: Now What

Page 73 of the Maryland paper:

“Where baseflow signals reflect wastewater return flows that bypass the subsurface hydrologic system, groundwater appropriations based on … gauged streamflow may over-appropriate the resource and fail to adequately protect the groundwater resource from depletion.”

Agreed.

“To the extent leaking infrastructure truly recharges ground water, the State faces the dilemma of whether or not to explicitly appropriate this unintended interbasin transfer as an exploitable component of regional groundwater system.”

Oh yeah.

“The limitations and potential risks from appropriating groundwater based only on the characteristics of observed streamflow highlight the value of a more process-based understanding of Maryland’s coupled surface water- groundwater resource.”

That answers “where do we go from here” for New Jersey as well. We need to find out the unique combination of natural and artificial baseflow in urbanized watersheds, so we can understand their specific vulnerabilities to drought.

When we can isolate natural baseflow from artificial baseflow, we can make informed regulatory decisions about water allocation. Should the “unintended interbasin transfer” part of baseflow be counted or excluded when deciding how much water can be safely permitted to be withdrawn from a watershed? Imagine a river – that is overly-dependent on treated wastewater for maintaining its baseflow – drying up someday because the municipalities discharging their waste to the treatment plant implemented a successful water conservation program, in another watershed.

Baseflow data measured by a system of stream gages alone has become a black box. We need a “more process-based understanding of [our] coupled surface water- groundwater resource.” Baseflow data needs to be augmented by data from a system of monitoring wells in the watershed that record the levels of the water-table aquifer – especially in the headwaters.

But that’s expensive, and there are less funding sources in NJ for these research programs.

So for now this ends up on the what-if list for climate change, or as another reason for updating the 1996 NJ Water Supply Management Plan, or something, until it gets funded.

 

Senate Resolution Declares Rules “Inconsistent with Legislative Intent”

A Long List Of Regulatory Rollbacks 

We await text of SCR 180 and Senate Committee oversight hearings

This necessarily will be a long post – it analyzes DEP’s 900+ page rule proposal – so please, grab a cup of coffee and hit the head now. As usual, I left the best for last.

Back in June, upon initial review of the DEP rule proposal,  we requested a legislative veto in an email to legislators. We concluded:

Among many other things, the proposal would

1) repeal and eliminate the “Category 1″ 300 foot stream buffer program incorporated in the DEP storm water management rules that were adopted during the McGreevey Administration;

2) systematically roll back regulatory protections enacted during the Corzine Administration, which incorporated and expanded the scope of the Category One stream buffers in the DEP Flood Hazard Act stream encroachment permit program;

3) create a radically new stream mitigation program and mitigation bank that would provide relief from current stream buffer protections.

The mitigation scheme lacks legislative authorization and is inconsistent with legislative intent under the Flood Hazard Act;

4) propose numerous new technical loopholes that would promote new development in flood hazard areas; reduce or eliminate current protections for stream buffer and riparian vegetation; reduce water quality; put more people and property in harms way; and reduce or eliminate DEP and/or public reviews; and

5) ignore climate change impacts and risks, which include increased frequency and severity of extreme weather,including rainfall and flooding events. Climate impacts magnify flood risks caused by hydrological changes caused by NJ’s high degree of development and imperious surfaces. The rule also ignores prior FEMA objections to DEP’s Emergency Flood Rule enacted in the wake of Sandy.

Since then, NJ legislators introduced a Senate Resolution (SCR 180 – Lesniak, Smith) that would veto DEP’s proposed rollbacks of Flood Hazard, Coastal Zone Management, and Stormwater rules, see NJ Spotlight story:

• PROPOSED DEP RULE CHANGES STILL CATCHING FLAK, THIS TIME FROM LAWMAKERS

Although announced as introduced in the Senate over a week ago, the Resolution appears to not have been drafted yet. A copy is not available yet on the Legislature’s website.

The DEP rule proposal is complex and comprises more than 900 pages, so it is a technically difficult Legislative resolution to draft. Adding to the challenge is the fact that legislators and OLS professionals are better versed in the broad brush language of legislation than the fine print of regulatory proposals.

How the resolution is drafted, e.g. what DEP provisions are targeted by Legislators, raises important political and policy concerns.

So we thought we’d draft an outline of the major provisions of the DEP rule we see as “inconsistent with legislative intent”. This is just an outline – we omit the specific regulatory citations, although these can readily be determined by reviewing the Table of Citations on page 27 and in Table 11.2 on page 690.

It will be very interesting to see how many of what we see as major flaws are targeted by the Resolution.

I)   Clean Water – Water Pollution Control Act

The most significant controversy will be over proposed changes to various stream buffer rules that would allow more disturbance to those buffers by development, which would generate additional non-point source pollution and negatively impact water quality.

A. Legislative  intent

The fundamental goals and policy of the federal Clean Water Act, upon which NJ is delegated authority and State law is based, are:

The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. 

With respect to the subject DEP rules, it is important to note that one of the original fundamental goals of the Clean Water Act included control of non-point source pollution:

(7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution.

It is also important to note that although Congress recognized State interests, that those State interests were: a) subordinate to national policy, b) that State’s were expected to consult closely with US EPA, and that c) the linkage between land use – exclusively a state prerogative and limited federal role – and water resources was specifically identified:

It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.

B. How DEP rule is inconsistent with legislative intent

The proposal has numerous weakenings of existing rules that would exacerbate current poor water quality.

1. The proposal would repeal the current 300 foot “Special Water Resource Protection Areas” (SWRPA) C1 buffers in the storm water rules (@ NJAC 7:8), including their regulatory prohibitions and strict restrictions on disturbance, and replace them with “riparian zones”.

The proposal would then weaken the current standards for allowable disturbance in “riparian zones”.

Here is how DEP justifies that (@ page 9-10)

DEP admits that the rule will weaken buffer protections and make it easier to develop closer to streams. As far as I’m concerned, that’s enough. Case closed. There is no legislative intent to promote development closer to streams. Period.

But it’s even worse: under the waiver and mitigation scheme, in effect, there would no longer be enforceable restrictions on buffer disturbance. A waiver and mitigation scheme would replace the current prohibitions in the stormwater rule C1 SWRPA buffers and weaken the current riparian zone limits set out in current Table C.

This would be a radical regulatory policy shift and it works only to increase buffer disturbance and further reduce water quality.

2. The proposal would make a series of smaller technical changes to current rules whose cumulative impacts will reduce already poor water quality, including:

3) New Mitigation scheme and creation of mitigation bank

The proposal includes a new SUBCHAPTER 13. RIPARIAN ZONE MITIGATION, which is sweepingly broad in scope and hugely significant in substance, both economically and environmentally.

A change in regulatory policy of this magnitude requires express statutory authorization by the Legislature.

The Flood Hazard Act (Act) does not authorize the Department to enact regulations that would create a mitigation scheme or a mitigation bank.

The Act lacks any provision for “mitigation” or a “mitigation bank”.

In contrast, the Act clearly establishes standards and authorizes the Department to enact regulations to enforce these legislative standards via a traditional regulatory permit program.

The Act does not specifically – or implicitly – authorize a mitigation program and mitigation bank – nor does any other authority the Department relies on as the legal basis for the proposal.

Because such a program is a radical departure from many years of DEP regulatory policy and practice, the Department’s proposal is ultra vires, not legislatively authorized, and contrary to law and the express framework and provisions of the Act.

The mitigation scheme and mitigation bank are also inconsistent with legislative intent.

II)  Flood risk – Flood Hazard Control Act

The most significant controversy will be focused on proposed changes that would allow more development in flood hazard areas.

A. Legislative  intent

The legislative intent of the Flood Hazard Area Control Act is to prevent and reduce risks to people and property from flooding by regulating development. The Legislature declared:

B. How DEP rule is inconsistent with legislative intent

The proposal is inconsistent with legislative intent because several provisions would allow more people and property to be placed in flood hazard zones, thereby increasing flood risk.

For the general thrust of that, we’ll keep things brief and note Jon Miller, head on the Association of NJ Flood Plain Managers, comments from the prior round of rule changes, which are still apt (actually, any Senate Resolution SCR 180 should include these prior rules as well)

Sea level rise, driven by global climate change and by geological, climatic, and human factors particular to our region, poses a growing risk to New Jersey, threatening property, infrastructure, ecosystems, and livelihoods. Intensifying development in increasingly vulnerable coastal areas will magnify this risk. The proposed rules do not consider the effects of sea level rise; incorporating sea level rise into the permitting process is critical if it is to meet its goal of not putting the inhabitants of the New Jersey shore at risk. The Department should address this issue when revising the rules. …

The consolidation and simplification of the rules is supported; however, there is concern with respect to increased development in high risk areas. Public safety, property protection, and reducing risk which strengthens local and State economies are paramount. This position is also supported by the New Jersey Legislature through the enactment of CAFRA, at N.J.A.C. 13:19-2, and the Wetlands Act of 1970 at N.J.S.A. 13:9A-1 and 2. The legislative intent of these laws is violated by intensifying density and uses in coastal high hazard areas. The proposed rules do not consider increased risk in coastal development in the impact assessment, whether to the financial interests of local, State, or Federal taxpayers and to the NFIP and other disaster assistance programs well utilized after Superstorm Sandy.

III)  Stormwater Management

The most significant controversy is likely to focus on proposed repeal of what are known as “Special Water Resource Protection Areas”, commonly known as the 300 foot wide buffers, along Category One Waters (C1), first adopted by DEP in 2003/04 as water quality “best management practices”.

A. Legislative  intent

Stormwater has water quality, flooding, and habitat impacts.

The DEP storm water management rules are designed to prevent, reduce and mitigate those impacts. DEP adopted these rules pursuant to the authority of

Statutory Authority: N.J.S.A. 12:5-3, 13:1D-1 et seq., 13:9A-1 et seq., 13:19-1 et seq., 40:55D-93 to 99, 58:4-1 et seq., 58:10A-1 et seq., 58:11A-1 et seq. and 58:16A-50 et seq.

The legal eagles at OLS can read all that statutory law – but I suggest a shortcut would be to read the DEP rule proposal basis and background document. DEP website has rule adoption archives.

B. How DEP rule is inconsistent with legislative intent

Back in 2003, the DEP adopted major upgrades to storm water management rules. One of the most significant provisions of these new rules were new water quality requirements: a 300 foot buffer along designated Category One (C1) “exceptional value” waters (see NJAC 7:8-5.5(h))

The objective of these rules was to strictly limit disturbance by “major development” in order to preserve stream vegetation, which provides the following benefits, according to both the US Army Corps of Engineers and the DEP: (@ page 1-5)

The SWRPA buffers were designated a “best management practice” (BMP) for water quality protection.

Under the Clean Water Act and various EPA implementing regulations, states are required to adopt anti-degradation policies, implementation procedures and “best management practices”.

The Clean Water Act does not mandate 300 foot buffers. Nor does it mandate 300 foot buffers in EPA’s water quality standards, municipal storm water, or “TMDL” programs.

EPA did not put a gun to NJ DEP’s head and require that they adopt 300 foot buffers. Traditionally, most BMP’s and non-point source pollution controls are not mandatory at the State level and are not federally enforceable.

Instead, NJ DEP chose to adopt 300 foot buffers as mandatory water quality BMPs in NJ’s state storm water management regulations.

Then, DEP chose to justify these BMPs as federally mandated State anti-degadation implementation procedures.

Finally, DEP chose to demonstrate compliance with federally mandated municipal storm water permit rules by including a link in State municipal storm water permit rules to these mandatory storm water water quality BMPs.

For all these reasons, the 300 foot buffer water quality BMPs are federally enforceable. The State of NJ has used them to demonstrate compliance with federal Clean Water Act requirements.

The selection of all these are under the control of the States – but once designated by regulation, become federally enforceable. Even DEP agrees with this interoperation (see page 58 which responded to my comment):

According to Section 4.5 (“Protection of Water Quality in High- Quality Waters”) of the Environmental Protection Agency’s Water Quality Standards Handbook, which is available at http://www.epa.gov/waterscience/standards/handbook/, the Federal Water Quality Standards do “not mandate that States establish controls on nonpoint sources” but requires the implementation of best management practices where established. The adopted riparian zone requirements are considered a best management practice that is designed to address nonpoint source pollution and their implementation is, consistent with Federal regulation.

The C1 buffers are BMPs are “established” and they are State SWQS implementation procedures for attaining the anti-degradation policy for C1 waters. They may not be repealed without EPA prior approval.

Additionally, C1 buffers are linked to and satisfy State compliance obligations of EPA’s municipal stormwater permit program.

Specifically, the NJDEP municipal storm water permit requirements specifically mandate compliance with the storm water management water quality rules.

Accordingly, the C1 buffers are federally enforceable and may not be eliminated without EPA prior approval.

Unfortunately, EPA folded and did not assert these federal regulatory oversight powers in their letter to DEP, which was more saber rattling than serious federal oversight.

Therefore, it becomes even more important for the NJ Legislature to step up where EPA failed and strike these rules down.

IV)  Coastal protections – Coastal Area Facilities Review Act (CAFRA)

The most significant controversy is likely to focus on proposed changes to allow more development in previously prohibited areas (like shellfish growing waters) and promoting development in designated flood hazard areas (like on piers over the Hudson river)..

A. Legislative  intent

The primary objective of CAFRA is to protect coastal resources by regulating development in the coastal zone. The Legislature declared:

B. How DEP rule is inconsistent with legislative intent

(see Jon Miller’s comments above)

V)  Federal Flood Insurance Program Compliance and Eligibility

The issue here is that the proposal does not meet minimum National Flood Insurance Program (NFIP) requirements and thereby jeopardizes eligibility for NFIP and federal funds.

A. Legislative  intent

The Flood Hazard Area and CAFRA would establish an overall intent, but I could not find a State law that was specific to the federal Flood Insurance Program (NFIP).

However, especially given NJ’s status as a coastal state and national leader in flood damage and repeat flood damage claims, particularly after the devastation wrought by Sandy, it would seem obvious that the Legislature intends to meet the minimum requirements of the NFIP and maintain municipal eligibility for participation in the NFIP.

B. How DEP rule is inconsistent with legislative intent

The rule does not meet minimum NFIP requirements and FEMA and the League of Municipalities have objected to the proposal on that basis (see this for details).

The most egregious provision is to allow new development on piers over the Hudson River in mapping high hazard areas.

It will be interesting to see if the Legislature finds that DEP’s failure to include more conservative flood elevation requirements, above and beyond the 1 foot of “freeboard” adopted during the Corzine administration, is inconsistent with Legislative intent because it would allow development at hazardous elevations and put people and property at risk, especially given projected sea level rise and storm surge.

VI) Failure to consider risks and impacts of climate change and sea level rise

This is a key issue that will test whether the Legislature is serious in reforming policy or is more interested in politically embarrassing the Governor

The DEP’s proposed rule does not consider climate change, projected sea level rise, and more severe storms and storm surge.

There is no specific law that mandates that DEP consider climate change and base flooding and coastal management regulations on climate change.

The Legislature recognized the reality of climate change in the Global Warming Response Act and funded various related climate mitigation programs in the RGGI law.

DEP has already adopted climate change related permit requirements that would require that 500 year flood elevations be considered in CSO planning and engineering.

It would be scientifically justified to consider more conservative rainfall events and flood elevations in flood hazard and coastal rules.

President Obama issued an Executive Order on Climate Adaptation in federal programs and most all coastal states have adopted climate adaptation plans.

Back in 2004, DEP regulated greenhouse gases as “air pollutants” – more than a decade before EPA.

NJ’s 2014 Hazard Mitigation Plan recognizes climate change risks – but that plan lacks enforceable implementation requirements.

DEP clearly has the authority to consider climate change –

Will the legislature find their failure to do so inconsistent with legislate intent?

The whole world’s watching.