DEP Must Stop Spinning On Barnegat Bay TMDL and Impairment

 Water Quality Standards A State Responsibility Under the Clean Water Act

[Update – here is a very nice DEP chart and powerpoint that proves my point: “state monitoring aligned with state standards”

Source: NJDEP - see above link

Last week, I wrote about DEP’s “Decade of Delay” on pulling the TMDL trigger on Barnegat Bay and our letter demanding US EPA intervention to enforce the Clean Water Act.

Since then, we are pleased that both the Star Ledger (Christie Administration has yet to do enough to stem Barnegat Bay pollution) and the Asbury Park Press (EPA must force the DEP’s hand)  have editorialized in support of that position.

Unforunately, the Asbury Park Press (in both news coverage and editorial) has repeated an error that is based on DEP Press Office mis-statements.

This error is not minor, but goes to the core issue of who is responsible for the flawed water quality standards, monitoring, and assessment methods that have allowed a decade of delay on designating the Bay impaired and adopting  a TMDL cleanup plan.

Specifically, DEP is pointing the finger at EPA, by saying that federal water quality standards are the problem.

Most recently, that DEP lie again is repeated in the APP editorial of August 17 (see: EPA must force the DEP’s hand):

Under Clean Water Act regulations, dissolved oxygen levels above 5 parts per million mean the bay is not impaired. Even the DEP knows that this is not a good measure of the health of the bay. But a DEP spokesman said, essentially, that EPA rules are EPA rules. The state is following the rules. Therefore, the bay is not impaired.

So let me be absolutely clear here – this is all NJ DEP’s responsibility, not the US EPA’s:

1) Under the Clean Water Act, the State DEP has primary responsibility for establishing Surface Water Quality Standards and priorities for the TMDL program.

State standards must assure that all state waters meet the “fishable and swimmable” goals of the Clean Water Act, protect all “existing and designated uses” of those waters, and include “anti degradation” policies to prevent the lowering of water quality in high quality waters.

Those State standards are reviewed and approved by US EPA and become federally enforceable.

The Clean Water Act also requires – every two years – that States (NJ DEP) submit a list of their priorities for TMDL implementation – e.g. which polluted or “impaired” waters are the most important to clean up.

2)  The NJ DEP Surface Water Quality Standards establish the “designated uses” of the Bay

3) The NJ DEP sets the dissolved oxygen, nutrients, and all other standards to assure that they protect the existing and designated uses.

4) The NJ DEP establishes the water quality monitoring network and sampling methods to measure compliance with Surface Water Quality Standards.

5) The NJ DEP establishes the water quality assessment methods to apply monitoring data to determine if a waterbody attains the water quality standards or is “impaired”.

The DEP states all that very clearly on the surface water quality standards page on their website – perhaps the DEP Press Office should read this:

Surface Water Quality Criteria

The surface water quality criteria established for each of the different stream classifications in the SWQS are numerical estimates of constituent concentrations, including toxic pollutants, that are protective of the designated uses of the surface waters of the State. Narrative criteria describe instream conditions to be attained/maintained or avoided. The SWQS also contain technical and general policies, including antidegradation policies and nutrient policies, to ensure that the designated uses are adequately protected.

The Department has recently developed a Nutrient Criteria Enhancement Plan, required under USEPA’s National Nutrient Policy. This document explains the Department’s approach to developing and enhancing the existing SWQS nutrient criteria and policies to protect designated uses of all New Jersey’s surface waters, including saline waters (estuarine and marine). Nutrient criteria development requires an understanding of the causal relationships between nutrient over-enrichment, various response variables, and documented impacts on attainment of designated and existing uses of New Jersey waters. This Plan outlines the steps to support nutrient criteria development, including monitoring and data collection; research of causal relationships; selection of appropriate indicators of use impairment;development of new assessment methodologies;development of new/enhanced criteria; and promulgation of the new criteria through amendments to the SWQS.

Repeat: the “Nutient Criteria Enhancement Plan” was written and adopted by NJ DEP. All flaws in standards, monitoring, and water quality assessment under that plan are the responsibility of the NJ DEP.

The 5 year old  US EPA “Nutrient Policy” makes it very clear that this is a State – not a federal – responsibility:

Today, EPA is encouraging all states, territories, and authorized tribes to accelerate their efforts and give priority to adopting numeric water quality standards for nitrogen and phosphorus pollution or numeric translators for narrative standards for all waters in states and territories that contribute nitrogen and phosphorus loadings to our waterways. Incremental progress can be an effective way to accelerate progress. If a state needs to implement numeric criteria for nitrogen and phosphorus pollution incrementally, EPA strongly recommends that states first adopt numeric water quality standards for priority waters—that is, waters at greatest risk of nitrogen and phosphorus pollution (such as those identified through the EPA-USGS SPARROW modeling effort) or of greatest consequence (such as drinking water sources). States may also choose to prioritize their actions for waters where sufficient information is available to move quickly to adopt numeric criteria in the near-term. The state’s nutrient criteria plan should reflect the state’s approach to setting standards for its waters and include schedules for adopting those standards.

Here are the NJ DEP State Surface Water Quality Standards:

DEP SWQS Dissolved Oxygen and Nutrient criteria “Narrative Standard” (NJAC 7:9B-1.14 (d) – @ p.27 – 28)

Except as due to natural conditions, nutrients shall not be allowed in concentrations that render the waters unsuitable for the existing or designated uses due to objectionable algal densities, nuisance aquatic vegetation, diurnal fluctuations in dissolved oxygen or pH indicative of excessive photosynthetic activity, detrimental changes to the composition of aquatic ecosystems, or other indicators of use impairment caused by nutrients. 

As we have repeatedly written, there are a sequence of steps required before DEP can implement and enforce this “narrative standard” for nutrients.

• The DEP must apply existing monitoring data, in light of known causal mechanisms (called biological stressor-response indicators) and develop what are called “numeric thresholds” for determining exactly what “objectionable algal densities” “nuisance aquatic vegetation“;”excessive photosynthetic activity“; and “detrimental changes to the composition of aquatic ecosystems” are.
• This is not difficult and it doses not require more data – DEP did this in a few months for phosphorus eutrophication in NJ freshwater in 2003.
• DEP must then adopt those numeric thresholds as revisions to the current EPA approved “Water Quality Monitoring and Assessment” document. In the alternate, DEP could promulgate these impairment thresholds as “Technical Manuals” or as regulations.
• DEP must then apply those thresholds in light of current data to make “impairment determination” and submit that determination and the basis for it to EPA for review and approval.
• In addition to the “impairment” determination, DEP must modify its EPA approved “2 Year TMDL Priority Schedule” to include Barnegat Bay

This sequence of steps begins the TMDL process.

It is all under NJ DEP control.

Don’t be fooled by the finger pointing by DEP’s press office.