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DEP Stonewalls the Water Supply Advisory Council – Again

DEP Managers Chastise Council For Their Public Criticism

New “Asset Management” Program Killed In Its Cradle

The NJ Water Supply Advisory Council (WSAC) held its regular monthly meeting at the DEP building on Friday. Here’s a quick note on what transpired:

Water Supply Plan Update Remains Stalled In Gov.’s Office

The WSAC recently embarrassed DEP Commissioner Martin and Governor Christie, by inadvertently publicly releasing a private letter to DEP Commissioner Martin expressing their frustration with long delays in public release of the Water Supply Master Plan Update and their inability to review the latest draft of the Plan.

That letter generated embarrassing new coverage, see:

• ADVISORY COUNCIL THIRSTY FOR LOOK AT DRAFT WATER-SUPPLY MASTER PLAN

That episode led to a discussion during the May 15, 2015 WSAC meeting, in which DEP Assistant Commissioner Kennedy admonished the WSAC – (following is verbatim from the minutes approved on Friday):

• This letter was meant to be the Commissioner (sic) and never intended to be public… AC Kennedy does not know why the WSP has not come out yet.
• Individual members, or other entities, could write letters to the Governor seeking action on the plan, but this should not come from the Council as a whole.
• AC Kennedy informed the Council that parts of the WSP cannot be released to them at this time.

On Friday, the DEP staff to the WSAC reiterated that the WSP Update was still in the Governor’s Office for review and they were not authorized to talk about it.

Asset Management Initiative Stalled By Industry Opposition To DEP Regulation

With much fanfare, the 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.

In response to a question from the WSAC Chairman, at Friday’s meeting, DEP staffers briefed the WSAC on the current status of the asset management initiative, basically signaling that industry opposition to a regulatory initiative had successfully killed it in its crib.

DEP refused to answer direct questions from industry representatives about whether the initiative – a staff strategy recommendation is now pending before Commissioner Martin – would be regulatory or rely on voluntary industry measures.

With passage of water infrastructure privatization, the last thing the industry wants are mandates from DEP telling them how to manage their “assets”.

“Resilience” Initiative Remains To Be Fleshed Out

The Christie DEP has talked a big game about new “resilience” requirements for water infrastructure, designed to respond to the devastation Sandy wrought on ill prepared water and sewer systems.

But the water supply industry and public utility members of the WSAC seem to be out of the loop of these conversations – either that, or like asset management, the resilience initiative is more hot air than substance.

After an extremely vague “briefing” on ongoing resilience efforts by DEP staff, WSAC members expressed concerns with the costs and feasibility of any new resilience efforts and opposed ant DEP regulatory mandates.

The Chairman concluded that resilience “is not a burning issue right now” (that is a direct quote).

How soon they forget.

Legislation on Gov.’s Desk to Mandate Drinking Water Quality Institute Develop Recommendation for TCP

DEP staffer Steve Doughty – a longtime DEP spinner who knows how to avoid a minefield, keeps his head low, and  stay on script –  briefed the WSAC on the passage of a bill that would require the DWQI to make recommendations on an MCL for 1,2,3 Tri-chlorpropane, a known carcinogen.

Doughty would not respond to my question about whether the Commissioner recommended that the Gov. sign the bill –

Seeming to appease the water purveyors, he highlighted the fact that DEP sought amendments (that gutted the bill) and also sought to downplay the significance of the bill, noting that DEP was still in charge of the MCL process. He also was not aware of the deadline in the bill for DEP action on the DWQI recommendation.

Pinelands Ecological Limits Discussed

During the public comment session, I advised the WSAC about the status of the Pinelands Commission’s regulatory initiative to develop ecologically based thresholds for water withdrawal.

I asked the USGS representative what the Pinelands contract to develop hybrid HUC’s was all about and its scientific rationale. The USGS rep was not familiar with this project and promised to report back next time.

The Pinelands Commission representative at the meeting los was not able to respond.

I asked DEP whether their approach in the WSP Update and the pending water allocation rules would consider ecological thresholds explicitly, as doe in the Pinelands initiative.

DEP staff replied that the DEP’s “Stream Low Flow Margin Method To Assess Water Availability in NJ’s Water-Table-Aquifer Systems” included surrogates for ecological stressor based withdrawal thresholds.

It will be very interesting to see how these technical methods are translated into policy in the WSP Update and the upcoming water allocation regulations.

This is a critical issue to keep on top of.

Dupont and DEP PFOA In National Media Spotlight

I advised the WSAC and DEP that 2 recent national media reports provided a critical focus on NJ DEP:

• A Devastating 3 part series by The Intercept: The Teflon Toxin
• A Report by the Environmental Working Group that cites the work of DEP scientists and the DWQI.

Both are must read stories I will be writing about, having worked on and written about both of them for years now.

[In fact, over 6 years ago, we broke a big part of the NJ PFOA story reported in the Intercept piece by disclosing DEP emails by Commissioner Jackson, see:

• TEFLON COATS PUBLIC AGENCY ENVIRONMENTAL SCIENCE
• Dupont: Doubt (And Intimidation) Are Their Product

Our work was essentially stolen without attribution.

Cannonsville Dam – We Dodged a Bullet

DEP staff briefed the WSAC on the behind the scenes exciting story about the Cannonsville Dam (see NY Times coverage).

One thing I was surpassed by was that the original dam design and contraction did not anchor the dam in bedrock, apparently a mere 30 feet from the current bottom (I’m no engineer, but it sounded like this was a huge design error).

Although this story got virtually no play in NJ, we really dodged a bullet – a dam breach would have caused a massive flood, equivalent to a 500 year storm all the way down the Delaware to Trenton!

Christie Extended DEP Highlands Rules, but Only Until December 31, 2015

[With End Note]

Today’s Bergen Record has an important story, see:

• West Milford representatives agree to file complaint against state’s Highlands Act

The local government is going to attempt to poke some holes in the Highlands Act.

Earlier this month, West Milford’s Township Council initiated an attorney-led examination into the act’s standing as a potential unfunded state mandate. Council members say they are ultimately planning to develop and file a complaint with the state’s Council on Local Mandates. The 20-year-old council is authorized to declare state directives that lack a funding source as optional, enforcing New Jersey’s “state mandate, state pay” amendment to the state constitution.

But the story failed to connect the strategic dots or hold Gov. Christie accountable for his unfunded mandate policy.

The Council on Local Mandates could do a lot more than “poke holes” in the Highlands Act – it could essentially strike it down if it found the Highlands Act imposed unconstitutional unfunded state mandates.

The Highlands Act is implemented and enforced by the mandatory Highlands Regional Master Plan and mandatory DEP regulations. Those planning requirements and DEP regulations impose mandates not just on developers, but on local government too.

Lending support to the unfunded mandate cause, Governor Christie – in the first hour of his first day in office – issued a set of sweeping Executive Orders, including Executive Order #4, which provides:

1. No State agency shall recommend, propose, publish or submit any regulation containing an unfunded mandate, as defined under New Jersey law (N.J. Stat. 52:13H-2), unless expressly authorized in writing by the Governor or the Lieutenant Governor. 

Now here’s where the timing of the West Milford challenge and the DEP Highlands regulations gets interesting – suggesting critical decisions on the Highlands are in the balance.

Gov. Christie extended the DEP Highlands regulations, but only until December 31, 2015:

By the authority vested in him pursuant to N.J.S.A. 52:14B-5.1d(2), Governor Chris Christie, on November 7, 2013, directed that the effectiveness of the Highlands Water Protection and Planning Act Rules be restored as of its expiration date and the expiration date for N.J.A.C. 7:38 be extended from November 2, 2013 to December 31, 2015. 

Even without action by the Council on Unfunded Mandates, the Christie DEP could gut the Highlands Act via regulatory rollbacks – something I fear has already been agreed to to resolve the Farm Bureau’s still pending lawsuit on the septic density standard.

Adding to the timing issue, the Highlands Council is now in the process of reviewing and updating the Highlands Regional Master Plan – another possible unfunded state mandate target.

Interestingly, the entire Council on Unfunded mandates memberships expire in February 2016.

If this Council is going to review the Highlands Act, it needs to happen quickly and right now – and the issue comes before the Council just during the same timeframe that DEP rules expire and the Highlands Master Plan is being updated.

Is all this just a coincidence?

Or is the West Milford attack strategic, signaling the beginning of the end of the Highlands Act as we know it?

Will someone wake up the”advocates” at the NJ Highlands Coalition and ask them?

(or are they too busy filling out Dodge Foundation grant application and organizing pub crawls, micro-brew promotions, and festivals?)

[End note: Think this can’t happen? Well, think again. Follow the numbers:

1. The DEP just proposed to repeal – that’s right, repeal – the Category One (C1) 300 foot stream buffer rules.

[C1 is repealed and replaced by “riparian zone” standards under Flood Hazard Act. As I’ve written several times – and DEP admits in the proposal – a C1 stream and buffer are very different from and have more protection than a FHA regulated water and a  “riparian zone”. While FHA regulates more activities than C1, the net effect is a significant loss of protections. And the linkage to water quality standards and federal Clean Water Act protections are eliminated.]

As a result, thousands of miles of C1 streams will lose protections, including many miles of streams in the Highlands Planning area, where the DEP Highlands rules don’t apply and the RMP is voluntary.

Yet there was not a peep of public opposition to that proposal by conservation groups, the Highlands Coalition or the Keep It Green crowd.

Seems they only want to spend your money to give to their friends to protect their backyards.

They seem to have abandoned the regulatory tools and DEP altogether.

Perhaps they fear that the public will ask why we spend millions of dollars to protect a place like Wichecheokie Creek, when DEP regulations can do most of the same job for nothing.

In contrast, Rich Bizub at PPA recently convinced the Pinelands Commission to raise concerns with DEP about impacts on the Toms River, which flows into the Pines.

2. But that’s not all – DEP issued a draft water pollution discharge permit for a new sewage treatment plant on a low flowing headwater stream (Crosswicks Creek) and Delaware tributary, designed to serve new development on farmland and forested stream buffer in a rural town on the edge of the Pinelands.

If DEP can permit a new sewage treatment plant here, DEP can do it anywhere.

This permit reversed 2 decades of DEP’s statewide water resource protection policy concerning new wastewater infrastructure.

Again, that permit got no public criticism from conservation groups, who recently noted that they are too busy to litigate the final permit expected to be issued by DEP any day now.

3. DEP adopted new coastal rules that not only ignore climate change, they actively promote new development in hazardous and environmentally sensitive coastal locations, including on top of shellfish beds.

Again, no public opposition from the conservation crowd.

4. DEP is flouting the Clean Water Act across the state, most obviously in Barnegat Bay, which is on the verge of ecological collapse.

Yet coastal groups work favorably with DEP, including praising bullshit projects, all while receiving $1 million grants.

5. The State Plan and all forms of water and land planning at DEP have been abandoned or weakened until death.

Silence.

6. But when the Christie DEP issued completely toothless Combined Sewer Overflow (CSO) permits in response to a lawsuit by NY/NJ Baykeeper, the applause by planning and conservation groups was loud and sustained.

Anything can happen folks, particularly with this Governor and DEP Commissioner and the current compromised and cowed conservation group “leadership”.

Time to Go On Offense Instead of Ad Hoc Pipeline Battles

Raise The Bar

Environmental groups today held a noontime press conference in Trenton to announce a new Pinelands campaign to stop the South Jersey Gas pipeline.

Emile DeVito of NJ Conservation Foundation made the most cogent remarks, calling out the pipeline as a “prohibited project” under the CMP and explaining the significance of maintaining the integrity of the CMP to preserve the Pines.

[Doug O’Malley, Environment NJ, had the best “streetfightin’ man” metaphor, calling Wittenberg’s action a “sucker punch”.]

Perhaps that campaign should have been kicked off months ago, to create some public and media pressure to prevent Executive Director Wittenberg from executing her mutiny.

Perhaps a public campaign could have bucked up friendly Pinelands Commissioners to get out in front of Wittenberg’s Machiavellian schemes.

Perhaps an intrepid political reporter could have injected the Pinelands pipeline abuse into Governor Christie’s national ambitions.

But alas, the deed is done – the only thing that can block it at this point is litigation.

So, the cliche’ “too little, too late” comes to mind with respect to today’s campaign kickoff announcement.

BUT, the campaign need not be in vain.

Pinelands activists could use the campaign to begin a grass roots effort to go on offense on the climate front.

As I’ve argued, with Gov. Christie in control of all things Trenton and firmly in denial on the climate front, any progress will need to come from the regional planning entities like the Pinelands Commission, Highlands Council, Meadowlands Commission, and Delaware River Basin Commission.

Such a grassroots supported and regional focused effort could lay the foundation for the next Gubernatorial and Legislative campaigns and begin to cultivate media traction and build local support.

It could also set the stage for the next Administration’s policy agenda and frame the key issues in NJ’s plan to comply with the Obama Clean Energy Plan, implement the Global Warming Response Act, and repeal/revise the Christie Energy Master Plan.

So, here is a talking point level agenda, based on testimony I’ve previously presented to the Pinelands Commission and written about in more detail here:

1) Moratorium on pipeline and fossil infrastructure pending update of  the Pinelands Comprehensive Management Plan  (CMP) regulations to provide adequate safeguards

Models:  Cuomo fracking moratorium and DRBC fracking moratorium

2) Update CMP to address climate change and energy policies

Model: Adirondack Park Agency Plan Energy Policy.

Basis: Pinelands Commission and other studies on climate impacts to pines forest and ecosystems

3) Update CMP to include lifecycle carbon analysis and at least 1/1 mitigation requirements to offset any new carbon emissions from any new development

I’m tired of playing defense – and We gotta start somewhere.

Serious Climate Change, Coastal Issues, & Christie Political Accountability Ignored

The annual summer joint meeting of the Legislature’s Senate and Assembly Environmental Committee’s meets today in Lavallette at 10 am  in the First Aid Building – here is the agenda:

The Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee will meet to hear testimony on the cleanup of the Forsythe National Wildlife Refuge after Superstorm Sandy.  The committees will also hear testimony on the need for soil restoration standards.

Yesterday, I wrote a post about why – with Christie bragging about dismantling NJ environmental programs on a national stage – that hearing amounts to political malpractice.

So today, I thought I’d highlight a few issues that are being ignored – obviously the most impotent (haha! is that a Freudian typo? I meant “important”!) being climate change, especially given that tomorrow is the first public hearing on Christie’s Energy Master Plan.

It’s not hard to build many linkages between climate change and coastal issues.

But the traditional focus of the special joint hearing has been coastal issues, so I thought I’d rehash an excerpt, with good links, to a post I did in August 12, 2012, just weeks before Sandy struck.

Here’s my set up for the context at the time of the August 2012 Hearing – note especially the last paragraph:,

The context for this year’s hearings is framed by another year of stinging jellyfish and growing threats of ecological collapse and harmful algae blooms in Barnegat Bay –

But far more serious problems lay buried beneath the radar.

Every now and then, a crisis provides a glimpse of the scope of those problems, which quickly fade in the 24 hour news cycle.

That is a radical departure from how things worked back in the day – like when rivers caught fire, politicians responded to public demands and passed the Clean Water Act.

For example, the recent Monmouth County water pipeline break was a perfect illustration of NJ’s multiple vulnerabilities to global warming – extreme weather, storm surge, sea level rise, coastal hazards, infrastructure, and climate change adaptation.

Unfortunately, things have not changed much, but actually gotten worse across the board, since then (see this and this and this).

The Legislature is abdicating it’s oversight and legislative roles to set policy that better protects the coast and respond to climate change – an existential threat ignored by Gov. Christie.

The foreground – and the house it was shot from – were wiped out by Sandy. How’s that for a caption?

Staff Signal Reversal of Finding That SJG Pipeline Violates the CMP

BPU Soon To Have Exclusive Control Over Pipeline Approval

“Private Development” and “BPU Pre-emption” cut public out

Executive Director Abuses Delegated Authority To Usurp Commission

mu·ti·ny/ˈmyo͞otnē/ noun – an open rebellion against the proper authorities

Documents show that Pinelands Commission staff, directed by Executive Director Wittenberg, is considering  a reversal of their prior finding that the South Jersey Gas pipeline violated the Comprehensive Management Plan (CMP), paving the way for staff to assume unilateral control over the SJG approval, with no public hearings or role of the Pinelands Commission.

It’s a mutiny (assuming you agree that the Executive Director reports to and serves the Pinelands Commission, and that the Commission is accountable to the public and should make decisions after a public process) – and a conspiracy too. Follow me.

SJG Strategy

It’s been obvious from the start that South Jersey Gas’ (SJG) strategy in the Pinelands is to create a public appearance (AKA a cover story) that “new information” and minor changes in the pipeline route justify reconsideration and reversal of the Pinelands Commission’s prior decision not to approve the project.

To make a long story short, the pipeline failed because the Pinelands Commission staff found the pipeline violated the Comprehensive Management Plan (CMP) because it was inconsistent with the Forest Area standards, which prohibit infrastructure unless it “primarily serves only the needs of the Pinelands”  (see: NJAC 7:50-5.23 (b)12).

So, just what does “primarily serve only the needs of the Pinelands” mean?  Look to the SJG strategy.

The SJG strategy was revealed in the documents SJG filed to amend their original application – much of that submission focused on trying to show that the pipeline served the BL England plant, which served the Pinelands.

SJG even sought to delete the word “only” from the regulation, via a convoluted legal argument, to weaken the standard – serving “only” the needs of the Pinelands is a far more stringent standard than serving “primarily” the needs of the Pinelands.

The SJG strategy was again revealed at the BPU public hearing, where SJG hijacked the hearing and provided 40 minutes of “expert” testimony that highlighted how the project allegedly benefitted the Pinelands.

BPU’ is a co-conspirator

Most recently, the Board of Public Utilities went along with the SJG strategy, by including “findings” in their July 23, 2015 approval order that are specific to the Pinelands, but have absolutely nothing to do with the BPU’s own rationale and legal basis for approving the pipeline.

Briefly, BPU “found” that the BL England plant served 39 of 53 municipalities in the Pinelands. What relevance does that have to BPU’s legal mandate to review pipelines? Nothing.

But, as we shall see, it has plenty to do with the Pinelands review and is obviously intended to promote SJG’s strategy to convince staff to reverse the prior finding.

BPU also “found” that the electric power generated by BL England plant would be distributed directly to the Pinelands via the regional grid:

 [b]ased upon the way that energy flows in the transmission system –to the nearest consumer unless redirected– energy produced by B.l. England would ordinarily go through the grid to customers of ACE.

Again, that BPU finding has absolutely nothing to do with BPU’s role, but it has a lot to do with the Pinelands Commission staff’s finding.

The Horner Letter signals Mutiny and reversal of prior staff finding

Pinelands staff follow the orders of Executive Director Wittenberg.

I begin with that observation because I don’t want to criticize individual staff members who are following Wittenberg’s Ahab-like orders (following Gov. Christie’s Orders).

Recall that Charles Horner, Director of Regulatory Programs at the Commission, had a highly unusual lapse in memory. Amazingly, he said he could not recall if the Pinelands staff determined that the SJG pipeline violated the Forest Area standards of the CMP. (See: The Pinelands Commission’s Immaculate Finding)

Now, in a July 29, 2015 letter to SJG, Horner reveals that the staff are considering reversing that critical finding that he could not recall them even making.

Specifically, Mr. Horner echoed the BPU tactics almost verbatim.

In an unusual and totally inappropriate move, Horner took it upon himself to review various data sources to conduct his own analysis.

Mr. Horner then concluded – and advised SJG – that Atlantic City Electric (via the BL England plant) served 32 Pinelands municipalities (BPU Order said 39) and 69% of Pinelands residents.

Who told Mr. Horner to conduct an analysis to determine what percentage of Pinelands residents are served by Atlantic Electric? Was he trying to correct BPU’s error? Was he correcting SJG’s application?

Horner then asked SJG if SJG would (please, oh pretty please!)

Please indicate whether you concur with this analysis.

Obviously, Mr. Horner should not be conducting this “analysis” and he certainly should not be asking SJG to concur with it.

Further revealing the mutiny, Mr. Horner’s July 29 analysis is very similar to the July 23, 2015 BPU findings and  – just like the BPU “findings” – has absolutely nothing to do with the “reliability” issue Horner chose to engage.

Again, just like the BPU findings, Mr. Horner’s analysis can only be used by SJG to support their argument that the pipeline and BL England “primarily serve only the needs of the Pinelands”

The Wittenberg letter confirms the mutiny

The press has written several stories critical of the fact that the new SJG project was changed to a “private development” project and that under Pinelands rules, such projects do not go before the Commission for a vote or trigger any public hearings at the Commission.

Environmental groups have expressed outrage over this.

The Pinelands Preservation Alliance, as well as myself and others, have written and testified to the Commission, asking that they clarify the process for review of the new SJG application and that they hold public hearings in the event that rules do not require them.

Executive Director Wittenberg just responded to PPA’s letter, and she not only confirms that there will be no public hearings, but seems to relish in that fact as she asserts her own power. In a July 24, 2015 letter, Wittenberg wrote:

With regard to the Commission’s review process for the pending application, Commission staff is reviewing the application in accordance with the standards of the CMP at N.J.A.C. 7:50-4.2 There is no provision for a public hearing or a public comment process for non-public applications, until after issuance of a local approval and then only if the Executive Director determines that such local approval raises substantial issues as to the conformance of the proposed development with the minimum standards of the CMP.

Even worse, Wittenberg, with impunity, states that Pinelands staff would be working with the BPU, the agency that approved 3 Orders in support of the SJG pipeline and has virtually ignored the Pinelands Commission and acted prematurely to issue BPU approvals in advance of the Commission’s review as a way of pressuring the Commission to approve the SJG project:

As you know, a Certificate of Filing is not an approval. Rather, it allows an applicant to proceed to obtain all requisite local and state approvals. See N.J.A.C. 7:50-4.34 and 4.81(b). In this instance the applicant has relied on the provision of the Municipal Land Use Law at N.J.S.A. 40:55D-19. This provision allows a public utility, for a project that extends into more than one municipality, to obtain its development approval from the Board of Public Utilities (BPU) instead of the municipalities. The Commission will work with the BPU to ensure that any order issued by the BPU is consistent with the minimum standards of the CMP. Specifically, the CMP at N.J.A.C. 7:50-4.82 through 4.84 provides a process for Commission input and review of applications submitted to any department, board, bureau, official or other agency of the State of New Jersey.

Let me translate that paragraph.

SJG petition to preempt municipal review seals the deal

SJG petitioned BPU to pre-empt municipal reviews under the land use law. These municipal reviews satisfy compliance with the Pinelands CMP.

In fact, the BPU has not yet approved the SJP preemption petition request, so it is obviously premature for Wittenberg to rely on that as part of the Commission’s review process.

But, even worse, as Wittenberg’s letter notes:

This provision allows a public utility, for a project that extends into more than one municipality, to obtain its development approval from the Board of Public Utilities (BPU) instead of the municipalities.

Follow this closely for what that means, because it is amazing:

That means that BPU is the ONLY entity reviewing and approving the SJG pipeline regarding compliance with Pinelands CMP!

The same BPU that has already issued 3 Orders approving the SJG pipeline project!

The same BPU that has promoted the pipeline and issued approvals PRIOR to the Pinelands Commission’s review that undermine the Pinelands Commission’s review process.

The same BPU that has no staff expertise – they wouldn’t know a tree frog from Kermit the frog.

No one envisioned such an absurd outcome when they wrote the CMP rules on private development.

The interaction of the CMP private development and the BPU preemption provision creates a total vacuum in review.

That can not stand and must be stopped.

(cited documents provided upon request – I have them as PDF’s not links).