Possible Break in Barnegat Bay Logjam

Clean Water Act Tools and Mandates May Strengthen Bay Response

[Update 2 – 10/8/10: Trenton’s Sultan of the sound bite pans a science based Clean Water Act regulatory tool – Asbury Park Press story:  Bill requires limits on nutrient pollution for Barnegat Bay

In theory, the limits can be a powerful regulatory tool that forces state and local governments to track and clean up heavy nutrient sources in the watershed. Excessive nutrients are fueling algae blooms in the bay and changing its ecosystem at a basic level, according to marine scientists, who think last summer’s outbreak of stinging jellyfish in the bay is linked to those long-term shifts.

But even some environmental activists are skeptical. Establishing load limits is a scientifically complex and expensive process, and good results are not guaranteed, said Jeff Tittel of the Sierra Club.

Clean-water groups filed a lawsuit to get load limits for the Delaware River and Bay, “and the limits they came up with weren’t very good,” Tittel recalled.

Real smart move Tittel, just brilliant.

Update 1: 9/27/10 – excellent Kirk Moore story in today’s Asbury Park Press: Sen. backs daily limits on pollution in the bay. Given that just a few weeks back, Senator Smith was quoted that my recommendations were “wrong”, of course, I liked this line best:

A similar plan is needed for Barnegat Bay, said Bill Wolfe of Public Employees for Environmental Responsibility, a former DEP official. In addition to the Chesapeake model, New Jersey can look to Florida, where EPA administrator Lisa Jackson is seeking to enforce phosphorus limits on Florida to clean up the Everglades, Wolfe wrote on his blog wolfenotes.com.

“I’m not afraid to listen to Bill Wolfe when he has a good idea,” Smith said. Wolfe says he would like the Legislature to take a stronger stance with a bill to require action by the DEP.

Something potentially significant happened today as the Senate Environment Committee heard a new addition to the 4 bill package designed to protect and restore Barnegat Bay.

That package was initially heard on August 12, 2010 (i.e. S 1410 (soil compaction); S 1411 (fertilizer standards); S 1815 (stormwater demonstration project) and S 1856 (stormwater utility).

The package is stalled due to lack of support by Governor Christie and strong opposition by the Ocean County Freeholders and the fertilizer and lawn care industries.

Back in August, in hearing testimony, I criticized the package as technically flawed and called the voluntary approach unworkable due to Ocean County opposition.

I followed that testimony up with an August 17 Asbury Park Press Op-Ed .

To emphasize and elaborate on those flaws, I later wrote:

This [Rutgers Professor Kennish] quote from an August 6 Kirk Moore story from the  Asbury Park Press series on the Bay sums that perspective up:

“We have the data already. We’ve had it for years,” said Michael Kennish, a research professor who heads Rutgers University efforts to study Barnegat Bay’s pollution problems. “We know what the problems are. We need to have big stuff done, mandates and requirements imposed by DEP.”

I outlined some of that “big stuff” and DEP mandates by citing the need to enforce the federal and state Clean Water Act.

Under the Clean Water Act, both the New Jersey DEP and the US EPA have a mandatory duty to assure that water quality standards are met in Barnegat Bay so that the Bay is safe for fishing, swimming, and supports healthy aquatic ecosystems. Currently, the Bay is not meeting any of those fundamental Clean Water Act goals.

But let’s get back to today’s developments.

In keeping with the small bore piecemeal approach of the original package, the new additional bill, S 2275, would direct NJ Department of Transportation to inventory DOT owned stormwater basins in the Bay watershed.

The bill  amounts to a political concession to the Ocean County Freeholders, who complained that DOT failed to maintain DOT owned stormwater basins, in contrast to Ocean County, who allegedly did a fine job maintaining county basins.

The bill’s sponsor and Committee Chairman Bob Smith, introduced the bill to the Committee with an unusual statement. He said that he would hold the bill for testimony only, because he agreed with written comments he had received from myself and Tim Dillingham of the NJ Chapter of American Littoral Society.

I wrote Smith to note that yesterday EPA published a Clean Water Act based draft “Total Maximum Daily Load” (TMDL) for nutrients and sediments into Chesapeake Bay (click here to read EPA’s Federal Register publication).

I reiterated that the Chesapeake Bay TMDL should be the model for Barnegat Bay.

I also warned that if NJ DEP continued to drag its feet on taking necessary steps to protect and restore Barnegat Bay, then NJ was vulnerable to a Clean Water Act lawsuit and the kind of harsh remedy that was imposed in Florida earlier this month via an EPA Order. 

An  EPA issued an Order directed the State of Florida to take specific steps to reduce nutrient pollution loadings to the Everglades to restore that precious ecosystem. According to PEER:

EPA PRESCRIBES FLORIDA TOUGH MEDICINE FOR EVERGLADES — State May Balk at Stringent Federal Water Quality Measures and Timetables

 Tallahassee — Facing a federal contempt citation, the U.S. Environmental Protection Agency has ordered Florida to take immediate and dramatic attempts to reduce water pollution in the Everglades, according to documents posted today by Public Employees for Environmental Responsibility (PEER). If EPA cannot get Florida to accept its conditions, it may lead to a federal takeover of state water pollution controls.

On October 7, 2010, EPA Administrator Lisa Jackson will personally appear before U.S. District Court Judge Alan Gold in a contempt hearing into repeated violations by EPA and Florida of a 2008 ruling to comply with phosphorous limits for sensitive Everglades waters. On the September 3rd deadline set by Judge Gold, EPA announced that it had a plan to comply with the order and avert a contempt finding but the agency did not release any details. This coyness may be explained by the fact that this new set of EPA Everglades dictates, called the “Amended Determination,” go far beyond any previous actions, including –

• Florida is ordered to amend both its controversial Everglades Forever Act and its phosphorus rule to significantly cut pollution flows;
• In order to reduce phosphorus loading into canals, the state must purchase at least 42,000 acres of land as Stormwater Treatment Areas; and
• Existing water pollution permits must be tightened to conform to new limits by December 3, 2010.

The EPA Amended Determination also flatly declares that Florida is violation of the Clean Water Act and can no longer be allowed to ignore nutrient standards for the Everglades Protection Area. It indicates that if Florida does not take the stipulated steps EPA will directly impose these actions under federal law.

Much to my surprise, Senator Smith agreed to support a TMDL and to introduce a Resolution urging EPA and DEP to adopt one for the Bay.

So this is an opportunity to educate the Committeee on the DEP’s TMDL program and force DEP to ramp up efforts and make the Bay a priority.

While I don’t think a simple Resolution is sufficient, we may have a breakthrough in recognizing the TMDL as the proper regulatory vehicle on the Bay.

We will keep you posted and urge you to contact Senator Smith and members of the Committee in support of a TMDL approach.

After all, even the Ocean County Freeholders said that the Bay is a state resource and if it is of such economic importance, then the legislature should mandate a state solution. So I say:

Give them what they asked for!