WolfeNotes.com

A Matter of Aspirational Goals and Rhetoric Vesus Regulatory Standards

In this post, I hope to explain, in some detail, why the “Forest Stewardship” bill lacks adequate safeguards and public oversight.

In order to do so, it is very important that people keep in mind a basic distinction between a regulatory protection and a rhetorical protection – and focus on exactly what a regulatory protection provides, compared with a rhetorical protection.

It would also help if readers actually read the bill (please feel free to pose questions and comments on the text – I will gladly respond. I also invite and challenge bill supporters to defend their claims.)

[and take your own look at FSC , who they are, and what they’re about – looks like the objectives and personnel are as much about marketing and market development for forest products, as ecosystem integrity – keeping in mind that FSC, by design, is voluntary]

The press seems incapable of making that basic distinction, as do the bill’s supporters. *(see this Press of Atlantic City editorial as a good example – Logging in State Forests/Reasonable Approach)

The bill does NOT provide regulatory protections for state owned forests that govern damaging forestry activities, like road building, equipment storage, or logging practices – Period – even when these damaging activities destroy wetlands, C1 stream buffers, erosive soils or steep slopes, and water quality.

Existing environmental laws provide huge loopholes for forestry – here is DEP’s own explanation to illustrate the point:

• Regulations and Procedures for Wetlands and Buffers

In order to protect the integrity of our water resources, the Freshwater Wetlands Protection Act (FWPA) regulates many activities including forestry conducted within forested wetlands and transitional areas. Specific forestry activities have been granted a conditional exemption of the requirement of needing a wetlands permit.

The bill perpetuates and expands these loopholes, and in some ways makes them worse.

For example, current laws and regulations allow the DEP forester to exercise discretion on how to protect regulated natural features, like wetlands and stream buffers. The Forester can relax regulatory requirements to provide “flexibility”.

The DEP Commissioner can tell the state Forester what to do, and she can be influenced by political or economic considerations that trump science and sound policy. That happens now.

But the bill would make the current situation worse in important ways. First, by providing an incentive to DEP to bend the rules to promote commercial logging because DEP is the recipient of the revenue from timber sales. This is what economists call a perverse incentive. There is a built in incentive to promote logging. I likened it to funding Alcoholic’s Anonymous with liquor taxes.

Second, the bill explicitly provides that it is the “state forester” who makes the discretionary and unchallengeable decisions about how to implement the program.

Third, this is all given the veneer of scientific legitimacy by 3rd party certification by the private FSC, who will have far more influence over a forest plan in your backyard than you will. FSC will certify what you will be shut out of, and you will have to live with the consequences. That is a form of privatization, not public governance.

The State Forester is provided total discretion, not subject to any regulatory standard (with the exception of Pinelands forests) or public review process. This is wrong – it provides vague discretionary power that is prone to abuse, given the economic values of timber harvests and the conflicts of interest created by perverse incentives to fund DEP programs.

In terms of providing standardless discretion to DEP (as in meaningful standards, not rhetoric like “sustainable” and “forest health” and “net environmental benefits” and other vague provisions in  the bill), the bill is no different legally than the controversial DEP waiver rule (pending Supreme Court challenge by environmental groups).

Actually, the waiver rule has far more safeguards than the so called “standards” in the bill, because at least the waiver rule was justified and openly proposed for public comment as a rule, and was able to be challenged in court, all of which the forestry program created under bill does not have to do and can not be so challenged. So, any environmental supporters of the bill are hypocritically endorsing the same standard that they are challenging before the Supreme Court.)

On top of these flaws, there are no procedural protections to allow public oversight.

There are no requirements in the bill that the DEP Forester provide an opportunity for the public to review and comment on the “active forests stewardship program” DEP is required to develop under Section 3, including priority criteria by which to target individual forests for logging, the procedures for public and DEP review, and the design and application of the various environmental “standards” that are described as “safeguards”, including those of the Forestry Stewardship Council (FSC), who is given a quasi regulatory role in the program.

DEP must provide ample opportunities for public comment in virtually all major environmental planning programs, including the State Implementation Plan under the Clean Air Act, the Water Quality Plan under the Clean Water Act, the Coastal Policy and Plan under CAFRA, the Solid Waste Management Plan, and the Water Supply Master Plan.

In addition to public involvement and oversight, those plans are all backed by regulatory protections.

Our forests deserve no less.

DEP planning for managing our State forests should be given the same public participation process and be backed by regulatory protections, as all other major environmental planning and management programs. PERIOD. But they are not.

In contrast to enforceable, transparent, and publicly accountable regulatory protections, the Forest Stewardship” bill is loaded with rhetorical protections.

But, with the exception of forests in the federally protected Pinelands, the bill’s rhetorical protections are ephemeral, aspirational, and legally not enforceable. In other words, virtually meaningless and subject ONLY to the whim of the State Forester in DEP – with no review or recourse to challenge by the public.

But, there is one important exception that proves my point: the bill does give Pinelands forests regulatory protections and any forestry activities must comply with the Pinelands Act and the Comprehensive Management Plan, and are subject to the review and approval by the Pinelands Commission, following a public process.

However, logging equally ecologically sensitive and far more significant and economically valuable Highlands hardwood forests are not given those same protections.

You don’t have to be a lawyer to understand that – here is the language of the bill itself. Compare the Pinelands language to the Highlands language in Section 4:

Pinelands forests:

6) ensure that in the pinelands area as defined in section 10 of P..1979, c.111 (C.13:18A-11), all activities conducted pursuant to a forest stewardship plan on State-owned lands comply with all provisions of the “Pinelands Protection Act,” P.L.1979, c.111 (C.13:18A-1 et seq.) and the comprehensive management plan  adopted pursuant thereto.

Highlands forests:

(5) ensure that the implementation of forest stewardship plans on State-owned lands located in the Highlands Region is consistent with the provisions of the “Highlands Water Protection and Planning Act,” P.L.2004, c.120 (C.13:20-1 et al.);

There is no mandate that logging comply with the Highlands Act, the Highlands Regional Master Plan, or the standards in the DEP Highlands regulations (the term “consistent with” is not legally the same as “comply with”). There also is no requirement in the bill for review and approval by the Highlands Council (and thus no public oversight provided by Highlands Council review either).

The bill would compound a loophole in the Highlands Act with respect to forestry activity on privately owned lands. That loophole would be perpetuated and expanded by the bill to include public lands, when the bill should be closing that kind of loophole and mandating the highest standards for publicly owned forested lands.

On top of that, the bill lacks any mandates for public involvement in DEP’s development of the “Stewardship” program, including developing priorities and criteria for defining forest management objectives and drafting individual forest management plans.

Let me explain and back these claims up.

Regulatory protections are binding and they are enforceable. Regulatory protections provide the public an opportunity to participate in the development of the regulations themselves, via what is called “public notice and comment rule making” under the NJ Adminsitrative Procedure Act.

Rulemaking provides what lawyers call “due process”. The public proposal and adoption of rules is an important safeguard to assure that the public is involved in the design of the forestry program and also assures that the program is based on transparent standards and science, not economic or political factors.

The bill does NOT require DEP to promulgate rules to adopt the forest management safeguards.

The bill does NOT require that the Forest Stewardship Council’s standards, which DEP prepared Forest Management Plans must meet, be adopted as rules.

Last year, as part of the pro-business “Red Tape Commission recommendations, the legislature passed a bill, signed into law by the Governor,  that prohibits DEP from enforcing “Guidance documents”, see P.L. 2012, c.215.

“Guidance docuemtents” are technical requirements that have not been formally adopted as regulations through public rule making procedures.

ALL the so called standards and safeguards in the forest stewardship bill – including all of the specific standards in section 3 and the Forest Stewardship Council’s standards too – are legally the equivalent of guidance because they are not adopted procedurally as rules.

That means that they are all unenforceable and that the public will ave no rle in their development.

It also means that Forest Management Plans are not required to received DEP permits – the permit process also provides transparency, public review, and legally binding requirements.

For example, temporary forest access roads and even bridges through wetlands and across sensitive Category One streams and their protected 300 foot buffers do not require permits.

Other examples of rhetorical standards and political manipulation abound.

For example, Section 3.e of the bill appears to prohibit logging in designated “Natural Areas” (a bone thrown to environmental critics). But, the DEP forester can waive this so called ban with a finding of “net environmental benefits”. There is no public process to control or standards that define and govern what “net benefits” are, and that entire “net benefits” concept is vague and prone to abuse, as it was used in the controversial DEP waiver rule.  

Another example is that the bill appears to provide funding to the Hunters and Angelrs Fund and for “biodiverstiy” projects. Sounds good, right?

But those funds are NET revenues – money remaining from timber sales AFTER DEP’s forestry program is funded.

This raises two issues: first, if there are net  proceeds, that suggests a large scale logging operation. Bad.

Second if this is a small scale logging program, as the bill’s backers insist, then there will be no “net revenues” and those provisions are exposed as a sham to induce political support from hunters, anglers, and conservationists. Bad.

Like so much of this rhetorical bill, that exposed as a lose/lost proposition.

 

Cycle of Subsidies For Building In Hazardous Locations Must End

Retreat Just A Question of When, not Whether 

[Updates below]

Back in December, when FEMA released its original “draft Advisory Baseflood  Elevation” (ABFE) maps, quoting FEMA’s own policy, we wrote:

FEMA just released new flood maps in the wake of Sandy (see the AP story:  FEMA – NJ Coastal flood risk worse than thought).

The maps are interactive and you can view them here.

The maps make a mockery of FEMA’s “Climate Change Adaptation Policy Statement” issued on Jan. 23, 2012. That Policy states:

While the scope, severity, and pace of future climate change impacts are difficult to predict, it is clear that potential changes could afffect our Agency’s ability to fulfill its mission. The challenges posed by climate change, such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding, and higer sea levels could significantly alter the types and magnitudes of hazards faced by communities and the emergency management professionals that serve them. […]

The need to address risks associated with future disaster-related events, including those that may be linked to climate change, is inherent to FEMA’s long-term vision of promoting physical and economic loss reduction and life saving measures. Working within existing statutes and authorities, FEMA will strive to be consistent in the Agency’s incorporation of climate change adaptation actions and activities in on-going plans, policies, and procedures.

Well, the final drafts released by FEMA yesterday relax various designations, compounding those original errors.

In shrinking the maps – which should have been expanded to reflect larger and higher flood zones to reflect climate change and sea level rise – FEMA is responding not to the best available science,  as they are legally and morally obligated to do given risks to human life.

Instead, FEMA is responding to bi-partisan and highly irresponsible political pressure by public officials at all levels of government and homeowners who don’t want to pay the true costs of their lifestyles, but instead want continuing federal subsides to live in dangerous locations. These local officials and selfish homeowners were assisted by well organized anti-government yahoos, e..g “Stop FEMA Now!”

And there is little doubt that Gov. Christie led this reckless attack (see: Gov. Christie Is Dead Wrong on FEMA Map Revisions).

FEMA not only caved, they failed to even acknowledge their own Climate Change Adaptation Policy and dodged responsibility by trying to sift their federal responsibility to local government (NJ Spotlight story):

FEMA’s McDonnell responds that storms similar to Sandy were used in the modeling. But he says that while FEMA is considering including climate change in its future maps, that consideration is currently left up to states and local communities. “If they’re looking at our product as a minimum standard, they can always be more restrictive,” he explained. “The higher they go and the safer they are, ultimately, the more resilient they’ll be, and they could be saving money in insurance premiums down the road.”

But that political pressure is no excuse – and addressing these risks are a federal responsibility of FEMA’s.

Shame on all those public officials and shame on FEMA – from the Congressional delegation, NJ legislature, to the Governor, to local Mayors.

Instead of directly calling a spade a spade (i.e. like this: Rutgers Sea Level Rise Maps Being Ignored by DEP)  it does not help when academics – who clearly know better – dodge and evade the real issues with these kind of technical responses, which only confuse the public and fail to  hold decision makers accountable: (NJ Spotlight story)

Lathrop — who runs the Center for Remote Sensing and Spatial Analysis at Rutgers — has helped develop an online, satellite-based flood-mapping tool that shows what areas would flood if you do account for sea level rise.

He says that whether residents and municipalities choose to rely on the FEMA maps or more cautious standards like the ones his department has drafted depends on whether they’re more focused on short-term rebuilding or longer-term planning. “It really is a question of over what time frame people are making their decisions, and what risk they’re willing to accept,” he said.

Of course Lathrop is correct, but he is still evasive.

Here’s how the flood plain management professionals frame the issue –  I urge you to read the statement, which outlines specific needed actions – in its entirely:

Right now is the best window of opportunity to incorporate actions to make those communities impacted by Hurricane Sandy more resilient from future flood events. In the devastating aftermath of a significant event like Sandy, there also exists a window of opportunity for communities to make wise redevelopment choices that will help support the economic and social vitality for generations to come. While such choices can be politically unpopular in the short term when the focus is to get back to normal, choosing a better path now can lead to reduced costs, misery, suffering, and hardship for families and businesses alike. It is much harder during a “sunny day”, or after the event has been forgotten, to make needed changes than it is right now when people are faced with the consequences of the storm and are more receptive to significant – although sometimes disruptive actions – that can result in effective mitigation. There are admirable examples of communities in the nation that chose a more resilient future in their darkest hours after a devastating event.

(technical end note: without understanding the model and looking at site specific applications, we have no way to judge whether some of the shrinkage in the V “wave zones” is justified scientifically. However, if the revised model was revised to account for buildings on the barrier islands that would serve to dissipate wave energy, we see that as providing a perverse incentive to build on barrier islands.  That way, buildings on the islands would increase development potential; behind them  along the bays. That is absurd – and the bay homes got hit with some of the worst flooding, as the storm  surge cut through several points on the island, including 3 in Mantoloking. We are beyond our expertise here.)

[Update 1 – you can view the before and after maps at this link

Sandy surge topped portions of the barrier islands, most famously at 3 points in Mantoloking. It is hard to tell, but it looks like the bayside homes that got hammer with that surge (and waves) from overtopping got eliminated from the V Zones. -end update]

[Update 2 – 6/19/13 – Asbury Park Presseditorial gets it right:  Flood mapping: Be conservative

FEMA maps also fail to take sea-level rise or climate change into account. The Rutgers flood maps do. They suggest how rising seas could make future storms worse. …

The state and municipalities should take the Rutgers maps into account when establishing standards for rebuilding. They show the bigger picture and provide a better, a long-term perspective. Forewarned is to be forearmed.

Did Christie Kill Off Shore LNG?

Or Has He Changed Position?

Let’s just say, paraphrasing Cool Hand Luke – we have a failure to communicate here!

Here’s the headline news from back on Earth Day 2010:

Gov. Christie issues potentially fatal blow to liquified natural gas proposals

Friday, April 23, 2010

BY JAMES M. O’NEILL

The Record

STAFF WRITER

Governor Christie used Earth Day on Thursday to issue a potentially fatal blow to private investors who want to build a $2.2 billion artificial island 20 miles off Sandy Hook for ships to unload liquefied natural gas.

Christie expressed opposition to any facilities for liquefied natural gas off New Jersey’s coast, saying they “are not the answer for New Jersey’s needs.” […]

Asked for clarification of the governor’s comments, deputy Christie spokesman Sean L. Conner said, “We’re against all LNG.”

But, in a direct challenge to the Governor, here’s a June 15, 2013 headline from the Asbury Park Press:

 An approximate, additional 652,800 cubic feet of wood are harvested on state lands annually for a total of approximately 2.1 million cubic feet harvested for commercial forestry annually. This is less than 4% of annual growth. Indicating that NJ’s timber resource is largely underutilized. 

As NJ’s forests mature and smaller trees grow into the larger size classes, the amount of sawtimber available on timberlands statewide is increasing as well.”   ~~~ NJ DEP “Statewide Forest Resource Assessment and Strategies” (2010)

At exactly 6:40 pm, eight hours and 40 minutes after the scheduled 10 am start of the Assembly Budget Committee Marathon Fiasco hearing today – after extended policy debates (that properly belong before the Committee of jurisdiction, not the Budget Committee) on such non-controversial minor issues like genetically modified foods, equal rights for in-state tuition for undocumented residents, immigration, costs of higher education, women’s health care and family planning, gun rights, health care, the date of the 2013 election, urban hospital finance, urban health disparities, and health insurance, among others – we were called to testify on the “Forest Stewardship” bill – A 2837 (ACS) – identical to S 1085 (SCS).

Bottom line – it may have been worth the 9 hour wait to testify – for 3 minutes, after which I got cut off.

The Committee released the bill – but it was badly wounded.

There were several no votes (Republicans Webber and O’Scanlon) and at least 2 Democrats abstained. The Vice Chair said he would oppose the bill without significant amendments. There are additional behind the scenes  maneuvers going on.

I will write more on this tomorrow, too exhausted now.

[Update – similar picture and objectives in Pennsylvania forests:

Monitoring Data Show Groundwater Contaminated by Spill  

DEP Rates Town’s Wells “Highly Susceptible” To Chemical Contamination

Actual Health Risks Unclear Due to Poor News Reporting

Its been six months since the Toxic Train Wreck in Paulsboro NJ spilled 25,000 gallons of vinyl chloride that forced evacuation of the town and sent 100 or more exposed people to the hospital.

One major problem in leading up to the disaster was lax regulatory oversight of chemical safety.

Another major problem in the response to the disaster was very poor communication of data and risks to the public by government officials, the railroad, and the newspapers.

This set of failures ranged from lack of complete disclosure of the health effects of the chemicals, incomplete reporting of the actual monitoring data, failure to communicate risks, and failure to report on regulatory requirements and government’s responsibilities.

Inaccurate, partial, misleading and flat out false information was given to the public.

Lawsuits allege that information intentionally was withheld from emergency responders and the public in order to downplay health and safety risks.

So, one would assume that lessons would be learned – at least by the press – and mistakes would be corrected, particularly in: 1) holding responsible government  regulatory agencies accountable, 2) in skeptically scrutinizing data and statements by polluters about public health risks, and 3) in considering data and safety claims in light of actual regulatory standards and independent science.

Well, sadly, it looks like nothing has changed.

Today, news reports indicate that ongoing monitoring results show groundwater contamination, see : Six months after Paulsboro train derailment, vinyl chloride testing continues.

The Railroad – the responsible polluter with an incentive to misrepresent risks –  is the only source in the story.

Vague statements by the railroad, the absence of government officials, and the news coverage virtually repeat the same mistakes made in reporting the original disaster.

Lets look at a few big problems with todays new report linked above to illustrate the problem.

1. The story reports that drinking water in Paulsboro “is stored in towers”. That makes it sound like the water is completely safe and not impacted by the spill.

But what is the source of the drinking water that is pumped into those towers?

According to DEP Reports,  groundwater is the source.

Paulsboro system has 4 wells, all rated “highly susceptible” to volatile organic compounds (VOC) in DEP “Source Water Assessment Report” (vinyl chloride that has been detected in groundwater is a VOC).

2. The story reports that “ground water has tested positive for vinyl chloride” and that:

“Since February 2013, several test wells have registered very low and generally declining levels of vinyl chloride in groundwater,” said Conrail spokesman Mike Hotra. “Regular testing of the public water supply system has confirmed that the drinking water in the area has not been affected by the derailment.”

There is no government or independent scientific expert to confirm the Conrail statement or interpret the actual data.

The actual data is not provided – what levels were detected?

There is no trend data reported – how do we know that levels are declining? Are we to take Conrail’s statements at face value, with no backup data to support them?

But most importantly, there is no reporting of what the drinking water standard is and how the detected levels compare to the applicable DEP drinking water and groundwater standards (which is 2 parts per billion (ppb) for vinyl chloride in drinking water and even lower – 0.08 ppb for groundwater).

There is no discussion at all of where the sampling was done and whether the elevated levels were detected in the groundwater source, or the raw source water (in the storage tank) , or the drinking water as it comes out of your tap.

Whay are DEP and DEP regulations again invisible? That was a major flaw in the original disaster.

3. The story makes no mention of DEP or DEP regulations and whether DEP mandated this ongoing monitoring as part of the spill response and cleanup.

Is the data reported to the DEP site remediation program or the DEP drinking water program? That is very important in how the data are used.

Instead, the story makes it sound like Conrail is conducting the sampling out of the goodness of the hearts, driven by  scientific curiosity  and a concern for public health and the public interest.

4. The story reports that data will be collected and reported to DEP “until  no longer necessary”.

What the hell does that mean?

I suspect it means that until detected levels are below regulatory levels of concern set by the DEP and the DEP allows monitoring to end.

Conclusion:

None of this is helpful to readers or the general public, whose main concern is whether their water is safe.

All of the above – especially given the prior regulatory and risk communication failures – is inexcusable and lazy reporting.