Snookered by the details – again!

Devil in the details shows drinking water protections weakened.
What was sold as stronger protection actually WEAKENS existing policy and perpetuates flaws and loopholes.

The Department of Environmental Protection (DEP) recently has been adept in promoting scientifically complex initiatives to gather the support of environmentalists and the public. However, after the press conference dust settles, close examination of the details often discloses all sorts of loopholes and technical weaknesses that reveal DEP promotion as gross exaggeration.
The most visible examples of this are the Corzine “Regional Greenhouse Gas Initiative”, draft Energy Master Plan, chemical plant safety, and stream buffers. After strong initial praise in the press, environmentalists ended up criticizing each one of them after reading the fine print.
In the latest example, DEP just adopted new regulations regarding groundwater protection, known as the “antidegradation policy“. See last year’s announcement of the proposal just adopted: DEP DELIVERS ON COMMITMENT TO PROTECT NEW JERSEY’S WATER QUALITY http://www.nj.gov/dep/newsrel/2007/07_0023.htm
Groundwater provides drinking water for almost half the residents of NJ.
The purpose of the “antidegradation policy” is to prevent “high quality” water that is cleaner than minimal standards from being degraded by pollution to the standard, particularly from residential septic systems and other land development that discharges pollutants to groundwater. These pollution sources threaten nearby drinking water wells.
In designing the antidegradation policy, it is assumed that the best indicator of drinking water threat is from nitrate, a chemical that is present in human sewage and discharged by septic systems. But, this assumption is flawed and not fully protective, because all the chemicals you dump down the drain threaten drinking water, including pharmaceuticals, household chemicals, etc.
The DEP policy protects groundwater, but it also greatly impacts land use in terms of the amount of new development that can occur on septic systems. In general terms, the lower the nitrate standard and the less “degradation” DEP allows, the less dense the development. For example, in order to protect critical water supply, the DEP Highlands regulations set extremely low septic density standards of one home per 88 acres in forested areas, and one per 25 acres on agricultural lands.
The new DEP groundwater regulations were sold as strengthening protections and fixing flaws in the prior regulations. A prominent selling point was the new “2 mg/L” nitrate target level. This was sold – quite misleadingly – essentially as the new groundwater nitrate standard, which would have been a tremendous reduction of the existing 10 mg/L nitrate standard.
Based on this misunderstanding, the DEP rules were praised by environmentalists as strengthening drinking water protections, and denounced by builders as severely limiting allowable development.
Both praise and criticism were wrong. So, bear with me – this gets a little complicated – as I explain what really went on in the fine print.
Under the old rules, DEP antidegradation policy was implemented in the NJPDES permit program. The relevant NJPDES septic permits only apply to large developments of 50 or more homes.
The policy allowed groundwater to be degraded half way between the existing water quality (EWQ) and the 10 mg/L nitrate groundwater standard. For the typical example: existing groundwater was assumed as 1 mg/L, that left 9 mg/L of total degradation (10 – 1 = 9). DEP policy allowed half of the total (9 mg/L) to be degraded, or 4.5 mg/L ( 9/2 = 4.5). So, the groundwater protection target was 5.5/mg/L:
(EWQ: 1 mg/L) + (Allowble degradation: 4.5 mg/L) = 5.5 mg/L.
A 5.5 mg/L nitrate target typically allowed new homes to be built on from 4 – 6 acres.
Aside from the small minimum 4-6 acre lot size (a prescription for McMansion sprawl), the old rules only applied to large developments of 50 or more housing units. This loophole ignored the cumulative impacts of single family homes and other nearby major nitrate pollution sources, such as farms that pollute groundwater with fertilizer.
Under the new rule, DEP has confused matters by using a new “2 mg/L nitrate target concentration”. This essentially becomes the assumed “existing water quality” for purposes of measuring allowable degradation. The result of this 2 mg target is a 6 mg/L policy, which is slightly HIGHER than the 5.5 mg/L typically allowed under the old policy!
DEP has NOT reduced the current 10 mg/L nitrate groundwater standard. DEP has NOT reduced the 50% allowable degradation between existing water quality and the 10 mg/L standard. DEP has NOT reduced allowable 4-6 acre lot sizes. DEP has NOT closed the NJPDES 50 unit loophole.
What was sold as stronger protection actually WEAKENS existing policy and perpetuates flaws and loopholes.

In DEP’s own words:
“RESPONSE: The GWQS rules as adopted require that new and expanded domestic wastewater treatment facilities that discharge to ground water outside of the Highlands and that require a NJPDES permit must comply with the antidegradation policy by maintaining a concentration of six mg/L nitrate on the property served by the wastewater treatment facility.“ (@ page 10)
“… if a [50 unit] project requires a NJPDES permit…, a… demonstration of compliance will be conducted through the NJPDES permit process. Compliance with the antidegradation policy on a site-specific scale requires that the applicant must demonstrate that there is sufficient property to maintain a nitrate concentration of six mg/L nitrate over the property served by the wastewater treatment facility based on the projected volume of wastewater to be generated and the level of treatment proposed. ” (@ page 23:
http://www.nj.gov/dep/rules/adoptions/adopt_080707b.pdf
[End note: For the policy wonks out there. Anticipating DEP spin to rebut this:
DEP will correctly claim that the new 2 mg/L target is applied in the WQM planning process, which they will say closes the NJPDES 50 unit loophole and considers cumulative impacts from multiple sources.
But, DEP won’t disclose the fact that the simple way around those WQM planning reviews is via a site specific NJPDES permit review, which is allowed and a huge loophole under the WQM planning rules.]