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USGS Study Shows Continuing Decline In Groundwater Quality, Contrary to Highlands Act

[IMPORTANT Technical Update below]

About 35 citizens and members and staff of the Highlands Coalition, Sierra Club, Environment NJ, ANJEC, Clean Water Action, NJCF, and *Raritan Headwaters Assc. held a rally on the State House steps in Trenton yesterday to oppose the Christie DEP’s recent  overhaul of the Water Quality Management Planning rules (WQMP).

I am writing a series on this rule, but have not finished my review of the proposal with respect to the Highlands, so will hold off for now and just post photos and links to the news coverage:

• AT STATE HOUSE RALLY, ‘GREENS’ VOW TO FIGHT BACK AGAINST DEP ROLLBACKS

• Highlands backers rally against latest DEP rules, warn of water supply risk

I was troubled by the below DEP press Office statement in the Record story, because it completely misunderstands the policy established by the Highlands Act.

The Act is based on science but is not limited to science. Science can not make normative recommendations about how much we should allow our water quality to decline. So, DEP appears to misunderstand the relationship between science and the policy set by the legislature. The Legislature is not limited to science and can make policy.

The Act seeks to prevent declines of “existing water quality”. It directs DEP to base the groundwater anti-degredation policy on background levels, considering “deep aquifer recharge”.

The Act was written and set that policy with full awareness of the existing DEP science and data, the DEP nitrate dilution models, and DEP regulations on nitrate dilution and anti-degradation regulations (I WAS AT DEP AT THE TIME AND WROTE THE LANGUAGE IN THE ACT).

Based on full awareness of the objectives, limitations and flaws in existing protections, the Act intended to STRENGTHEN then existing requirements to be MORE STRINGENT than the then existing DEP groundwater nitrate dilution model and groundwater quality standards anti-degradation policy.

Fully aware of this legislative mandate and legislative intent, the DEP developed a nitrate dilution model based on this legislative anti-degradation policy (I led the negotiations with DEP on the model as a consultant to the Highlands Coalition).

So, now it appears that DEP is trying to rely on an August 2015 USGS study as a cover for rolling back protections set by the Legislature:

But Larry Hajna, a DEP spokesman, said Tuesday that agency officials are still analyzing the results of a study published over the summer by the U.S. Geological Survey that estimated levels of nitrate in the Preservation Area, one of the key pollutants generated by septic systems.

“We are currently analyzing the results of that study to determine if we need to consider any regulatory changes that reflect this new scientific data,” he said “Until we complete this review, it would not be possible to say if this will result in an increase in septic density in the Highlands.”

Technical Update:

I just scanned the USGS Highlands Nitrate study – the Abstract concludes: (emphasis mine)

… the estimated median nitrate concentration for the entire Highlands Region is about 1.25 mg/L as N, and estimated median concentrations range from about 1.05 to 1.78 mg/L as N among 11 smaller administratively defined areas within the Highlands Region that vary in percentages of urban land use, agricultural land use, and septic-system density.

The current DEP Highlands nitrate model is based on far lower nitrate background levels, which were derived back in 2004-05, based on then existing data:

To apply the model, values for the following model inputs were selected: an annual recharge rate representative of the Highlands region (9.8 inches per year); a number of persons per household unit representative of the region’s population (4 persons per unit); the load of nitrate contributed per system (10 pounds per person per year); and target concentrations of nitrate. Two ambient nitrate concentration standards were selected, 0.21 mg/L for forest land use and 0.76 mg/L for mixed land use.

So, if 10 years later, USGS is now finding HIGHER median background nitrate levels, that shows that existing water quality has continued to decline, contrary to the policy objective set in the Highlands Act to protect existing water quality.

That USGS finding would NOT support a revision of DEP’s nitrate dilution model or any relaxation in the septic density standard – exactly the opposite is the case: even tighter regulations are required to prevent the further degradation of existing water quality.

*corrected eror

Sorry, photos only, no text

Scenes From the State House Today

NJ’s Last Liberal Governor

Florio knew how to Govern and use State planning and regulatory powers in the public interest

Former Governor Florio was in Trenton last week for a press conference, which I wrote about briefly regarding his energy policy legacy (see this).

During Florio’s remarks, he reflected on his own accomplishments – implicitly criticizing the huge failure of Gov. Christie who has done nothing but roll back environmental protections – by mentioning three towering achievements he is generally well know for.

The first was the federal Superfund law, where Florio is well recognized as a key sponsor and champion of toxic site cleanup.

The second was the Pinelands Act, that he is less well known for, while Governor Byrne tends to get the credit.

But Florio sponsored the federal Pinelands National Reserve legislation, which was enacted by Congress before and was the impetus for the NJ Pinelands Act.

Florio connected that past to today’s controversies by recalling that the Pinelands were created in response to the threat of pipelines from proposed off shore oil drilling to Delaware River refineries.

The third was the less well known Clean Water Enforcement Act, which set mandatory penalties for violations of water pollution permits that had gone unenforced by DEP for years.

But Florio had other huge achievements that were national models for environmental policy at the time.

Florio gets virtually no credit for any of them today – so here they are:

Pollution Prevention Act

The Paradigm Never Shifted – Promise of Pollution Prevention Act Betrayed

In 1991 – the NJ Legislature passed the Florio administration’s groundbreaking Pollution Prevention Act (PPA).

The NJ law built on an expanded the federal Emergency and Community Right to Know Act of 1986 (EPCRA).

The NJ law also built on and expanded the federal PPA law. 

The federal Pollution Prevention Act (PPA) of 1990 (42 U.S.C. §13101 et seq. (1990)) was a paradigm shift in the control of pollution (and hazardous waste). Previous environmental laws and regulations emphasized what are known as ““end of the pipe” pollution controls in individual air, water and waste permit programs.

The” PPA concept moved the control of pollution upstream in the manufacturing process to prevent the waste from being generated in the first place. The PPA also created a “Facility-wide” permit process, to avoid the bureaucratic “silos” of individual air, water and waste permits, and the shifting of pollution from one environmental media to another: air to water; water to air; land to water, etc.

The NJ PPA expanded on this federal law. The NJ PPA implemented the concept of “source reduction” in waste production “upstream” by requiring affected companies to develop and submit a 5-year pollution reduction strategy and file a Release and Pollution Prevention Report (RPPR). The NJ Release and Pollution Prevention Report collects data for New Jersey Right to Know Act (NJRTK).

The key policy reform was to require  industry to reduce the use of toxic chemicals.

The Act was supposed to usher in a new era of “toxics use reduction” and force the chemical industry to consider safer alternatives and less hazardous substitute products, processes, and chemicals.

While the law mandated that industry prepare the pollution prevention plans, Section 35 of the Act gave DEP a hammer to mandate implementation of the pollution plans in the various DEP air and water pollution and waste management regulatory program permits.

The industry viewed the act as an existential threat, and lobbied vigorously behind the scenes to kill it in its crib.

Industry won: DEP never adopted regulations to implement this authority to require that pollution prevention plan reductions be enforced via DEP permits.  Thus, the promise of the Act was never realized, as industry went back to business as usual.

Subsequent governor’s – Whitman and now Christie – issued Executive Orders that reverse NJ’s historical leadership and effectively no longer allow NJ DEP to enact more stringent requirements than federal minimums.

Solid Waste Source Reduction – Huge Increase In Recycling Rate – from just 25% to over 65%

As I wrote in the post on Florio’s energy  legacy, he issued Executive Order #8, which did far more that create the Emergency Solid Waste Assessment Task Force. He also issued EO#91 which promoted recycling.

Under the policy and planning process created by Executive Order #8, Florio fundamentally changed NJ’s solid waste policy, including a new emphasis on “source reduction”, materials management, and maximum feasible composting and recycling.

Florio created a Statewide Solid Waste Plan whereby the State DEP would take the lead in policy and planning under a State Plan, a huge reversal from the prior County dominated approach.

That leadership is what designed the successful and popular recycling program we now have – which effects virtually every home and business and institution in NJ’s 566 municipalities.

Unfortunately, however, for similar reasons the Pollution Prevention Act was killed in its crib, the DEP’s spild waste “source reduction” policy was killed by industry opposition.

They industries saw it as a huge expansion of DEP power into their manufacturing operations, akin to the model in Germany, where industries are required to take responsibility for the waste that results from their products and therefore have incentives to design products to reduce waste.

It didn’t happen here. Huge missed opportunity.

Killed Expansion of The Garbage Incineration Industry In NJ

Finally, Florio killed the incineration industry in NJ.

At the time, DEP had approved 21 county incinerator based plans, several had been built or under construction or too far along to be stopped (I’m thinking Essex, Union, Warren, Camden) and several had received DEP permits and sold bonds.

Florio did this via his moratorium in EO #8 and new policies in DEP’s Statewide Solid Waste Plan.

Those new planning policies included considering the incineration technology an “option of last resort” that was required to show consistency with new aggressive source reduction and recycling goals. In addition, any incineration project had to be regionalized.

Florio strategy deployed executive orders, DEP planning and regulatory powers, BPU public utility powers, Department of Community Affairs Local Finance Board powers, and even Department of Treasury State Procurement powers to implement his policies.

Enforce The State Plan In DEP Regulatory Programs

Florio was a champion of land use planning – he issued Executive Order #114, designed to implement the NJ State Plan throughout State government.

That was a particularly bold challenge at DEP, where for the first time a larger planning vision and framework were used to guide DEP planning, regulations, and permit decisions.

That EO led directly to the Watershed Planning program, another progressive innovation that was killed by political opposition and later hijacked by the Whitman Administration, including the CAFRA “reforms”.

Here is the EO:

1. All State Departments and agencies shall:

a. Adopt and incorporate as part of their agency programmatic mission, policies which comport with the State Plan and act in a coordinated fashion in investing resources at the State and local level in implementing the State Plan and achieving their programmatic missions.

b. In their joint endeavors to implement the State Plan together with the State Planning Commission, encourage growth and development and direct infrastructure to locations and in patterns recommended by the strategies and policies contained in the State Plan.

c. Adopt policies which facilitate the establishment of development “centers” and encourage development which is consistent with the policy objectives of “planning areas” which constitute the “resource and management structure” of the State Plan.

d. Participate and cooperate with the Office of State Planning in its review and assessment of the functional plans of the departments or agencies, including, but not limited to water supply, natural resources, air quality, energy, open space and historic conservation, affordable housing, transportation, airport systems and rail systems, and encourage interdepartmental and interagency participation on advisory bodies related to policy and plan development to assure coordination in the implementation of the State Plan.

e. Support the Office of State Planning in the fulfillment of its statutory responsibilities with respect to its planning activities, including but not limited to, the legislatively mandated infrastructure needs assessment, monitoring, and evaluation program.

f. Collaborate in data base development and the exchange of information among departments and agencies, and establish appropriate institutional mechanisms, including data compatibility, to assure that data base development and the exchange of information occurs.

g. Coordinate efforts with the Office of State Planning to assist municipalities in gaining designation of development “centers.”

h. Coordinate efforts with the Office of State Planning to assist distressed cities in developing Strategic Revitalization Plans.

i. Report to the Governor and Office of State Planning on June 1, 1994, and every six months thereafter, on their efforts in furtherance of this Order.

Conclusion

Florio was perhaps NJ’s last Governor that knew how to Govern and used State planning and regulatory powers in the public interest.

That is an essential legacy that no one wants to talk about – sadly, not even Florio himself.

In his remarks, Florio went out of his way to criticize those  who “seek to use old tools to solve new problems”  – thereby rejecting the essence of his own powerful legacy, which is still relevant today.

We Begin Extensive Review of DEP Proposal By Starting Very Small

DEP Eliminates Pump Out Requirement For Septic Systems – And Then Lies About It

A Septic Deception

The lack of proper maintenance, including regular pump outs, is a major cause of septic system failure. Septic system failure not only impairs water quality but also presents a significant health risk as well as a potential major expense to the septic system owner. (DEP – page 129)

This requirement is found in the existing rules at N.J.A.C. 7:15-5.25(e)3 and has been modified to no longer require that periodic pump outs be specified as part of any ordinance (DEP – page 32)

[Important Update Below]

In another deception, the Christie DEP emphasized the importance of current septic pump out requirements in the narrative of the rule proposal, before eliminating them in the rule text. They voted for it before they were against it. But, I’m getting way ahead of myself here.

Last week, the Christie DEP proposed its latest “overhaul” of water resource regulations known as the “Water Quality Management Planning” (WQMP) rules, commonly referred to as the “sewer rules”, a misnomer, because the rules also apply to septic systems.

Those rules have long been controversial because they have huge impacts on water quality, water quantity, habitat, and land use. You can read the full proposal here.

These rules implement key provisions of the federal Clean Water Act, including Section 208 and 303, so they are subject to EPA oversight, review and approval.

I will do a series of in depth posts, similar to the effort on the recent Flood Hazard rule revisions now pending legislative veto, after I can read and analyze the complete proposal. I begin that series today with a very narrow critique of the Septic Management program.

The proposal has already gotten critical press coverage, see: Wastewater rule change would spur development, environmentalists claim, including a story today on the impacts of the rule on the Highlands, see: DEP water management plan would harm Highlands, environmentalists say

Hopefully, our analyses will eliminate the “he said/she said” “environmentalists say” crap out of the headlines, and we will again see opposition from US EPA and NJ legislators.

Beginning of the End of Strict Highlands Protections

Before I get to the Septic Management issue today, I will comment only briefly on that Highlands story by noting that DEP is flat out lying, again – these are both egregious lies:

The 288-page rule, released last Monday, is “consistent with the governor’s goal of reducing unnecessary red tape while maintaining the high standards of environmental protection New Jersey residents expect,” according to DEP Commissioner Bob Martin.

“There is nothing in this proposed rule that changes water standards or affects septic densities,” Hajna said. He added that zoning approvals for building of homes are not granted by DEP.

The DEP is significantly changing its role with respect to the Highlands and how the current rules are implemented and the laws and regulations are applied and interpreted. As I testified last week to the Senate, an environmental standard is far more than a number – it is how and where the standard is applied and how compliance with the standard is demonstrated that are critically important.

DEP is now using the WQMP rules to undermine the DEP Highlands preservation area rules and to trump the Highlands Regional Master Plan (RMP) and the powers of the Highlands Council.

At a minimum, this sets up a direct conflict between DEP WQMP rules and DEP Highlands preservation area rules, as well as between the WQMP rules and the Highlands RMP.

Let me note just one specific and significant regulatory conflict: The Highlands RMP is based on and incorporates the DEP Preservation Area standards.

The Preservation Area standards in the DEP Highlands rules set a septic density standard based on a groundwater standard of 0.21 g/L nitrate for forested areas. That’s what generates the 88 acre density. See DEP’s Nitrate Dilution model for the Highlands:

To apply the model, values for the following model inputs were selected: an annual recharge rate representative of the Highlands region (9.8 inches per year); a number of persons per household unit representative of the region’s population (4 persons per unit); the load of nitrate contributed per system (10 pounds per person per year); and target concentrations of nitrate. Two ambient nitrate concentration standards were selected, 0.21 mg/L for forest land use and 0.76 mg/L for mixed land use.

In contrast, the DEP statewide WQMP rule nitrate dilution model uses a 2.0 mg/L nitrate standard, almost 10 TIMES higher (less stringent) than DEP’s Highlands Preservation Area rules: (page 30 – 31)

In the first step, the applicant must use one of two available models identified in the rule for determining appropriate septic density …

In the second step, the applicant determines the number of undeveloped and underdeveloped acres outside of sewer service areas in the HUC 11 and divides that number of acres by the average number of acres required to dilute the nitrate from a single residential unit as determined in the first step. The result will be the number of additional allowable ISSDSs or equivalent dwelling units that may be constructed in the HUC 11 and still meet the two mg/L nitrate target within the watershed.

The DEP proposal would allow DEP WQMP rules to govern the designation of septic service areas and site specific project approvals based on the 2.0 mg/L standard and thereby trump Highlands RMP.

This blatant regulatory conflict with the RMP and DEP’s own Highlands  rules means that DEP is sure to revise the Highlands rules to delete the septic density model and make it consistent with WQMP nitrate model. As I’v warned, the DEP Highlands rules expire on December 31, 2015.

The Department itself signals rollback of the Highlands rules in the proposal:(page 86)

Pending the rollback of the DEP’s Highland permit rules, it appears that the DEP will allow new site specific amendments to be approved under the new proposed WQMP rules. DEP again misleads the public by creating the appearance that this is no change to existing rules, i.e. “carrying forward” existing rules, but that is false (see boldface – page 87:

At proposed N.J.A.C. 7:15-3.5(i), the Department is carrying forward the requirement in the current rules at N.J.A.C. 7:15-3.4(j) that site specific amendments requiring a HPAA in the Highlands preservation areas must follow the application filing and related procedures in the Highlands rules and such amendments will be processed in accordance with the Department procedures and criteria in this chapter. 

The “procedures and criteria in this chapter” seems to refer to the 2.0 mg/L less restrictive nitrate standard for allowable septic density in the WQMP rules, thereby trumping the 0.21 mg/L standard in DEP’s Highlands rules and the RMP.

[Update: 10/28/15- The text of the rule is ambiguous. It appears to support DEP’s press claims that no changes are made to Highlands Preservation Area rules, but the text can be interpreted to say the WQMP rules will apply to site specific amendments, see boldfaced text:

(i) An application for a site specific amendment located in the Highlands preservation area that requires a Highlands Preservation Area Approval or Approval with Waiver shall be governed by the Highlands Water Protection and Planning Act rules at N.J.A.C. 7:38-9.3, 9.5, 9.6, and 11.6. If the Department determines the application qualifies for an amendment, it shall be processed in accordance with (g)5 through 11 above and reviewed in accordance with the criteria established at N.J.A.C. 7:15-4.4(c).  

But other provisions of the Highlands rules would appear to allow this two step process of weakening the WQMP rules, crewing conflicts between WQMP and Highlands rules, using the WQMP rules to approve a project, and then later weakening the Highlands rules, see: NJAC 7:38-2.4

(g) If the Department determines the proposed activity is a major Highlands development subject to the permitting requirements of the Highlands Act but is inconsistent with the applicable areawide WQMP, the applicant may apply for an HPAA as long as the application also includes an administratively complete request for an amendment to the areawide WQMP pursuant to N.J.A.C. 7:38-9.6(c). ~~ end update]

The DEP proposal also eliminates current requirements that local zoning be changed to reflect allowable septic density based on DEP’s nitrate dilution model – this sets up a conflict with local zoning. Remarkably, DEP admits that this was done to protect speculative real estate value and farmers’ land values:

under the proposed new rules it is not required to align zoning with the septic density determined to be consistent with the outcome of the nitrate dilution model. This will avoid the delay and cost of rezoning as well as the effect on the speculative value of the land relative to development, which in turn affects the ability of agricultural producers to leverage their land value to secure loans for production (page 135)

This provision alone would roll back critical protections and is inconsistent with legislative intent in at least two basic ways:

• The Highlands region has stricter regulations than the rest of the state; and
• The Highlands Act retained DEP jurisdiction because it could not be delegated to the Highlands Council under the Clean Water and reserved DEP authority under WQMP Act/rules ONLY to serve as a check on the possibility that local development interests might capture and dominate the Highlands Council and use the RMP to rollback protections of water resources. DEP was intended to backstop this kind of rollback.

The intent of the Highlands Act was that the stricter rule always applies – DEP’s role not to weaken standards but to stop their rollback.

Tomorrow, Highlands and clean water advocates are holding a noontime event at the State House in Trenton to organize opposition to the proposal.

Now to the Septic Management requirements,  microcosm and perfect illustration of the rollbacks and lies that are pervasive in the proposal.

Septic Management – A small but indicative rollback and lie

Incredibly, DEP’s proposal touts the importance of septic management and states that regular septic pump out requirements are a critical feature of septic management, but then DEP deletes current requirements for septic pump out!

We’ve come to expect deception by the DEP press Office, but such practices have no place in regulatory documents.

Current DEP WQMP rules require pump out mandate as part off local septic management ordinance (see NJAC 7:5.25(e)3  @ page 75):

3. Demonstrate that areas to be served by individual subsurface sewage disposal systems are subject to a mandatory maintenance program, such as an ordinance, which ensures that all individual subsurface sewage disposal systems are functioning properly. This shall include requirements for periodic pump out and maintenance, as needed.

Here’s why the DEP new WQMP proposal says that “regular pump outs” are important:

The proposed new rules require that areas with a wastewater service designation for discharge to ground water of 2,000 gallons per day or less have a septic management program. This requirement may have a perceived adverse social impact for homeowners who do not practice routine maintenance of their systems and may object to this additional measure. However, performing routine maintenance of septic systems should be considered a normal part of operating these types of wastewater treatment systems, as well as an obligation in consideration of the impacts of a failing system with regard to other members of society. The lack of proper maintenance, including regular pump outs, is a major cause of septic system failure. Septic system failure not only impairs water quality but also presents a significant health risk as well as a potential major expense to the septic system owner. The requirement for regular inspection and maintenance will have an overall positive social impact by helping to prevent the failure of septic systems, with the corresponding social benefit of protection of public health and the environment. (p. 129 – Social and Environmental impact)….

The lack of proper maintenance, including regular pump outs, is a major reason for septic system failure. Septic system failure not only impairs water quality, but also presents a significant health risk. The requirement for regular maintenance will benefit homeowners by preventing the inconvenience and far greater cost of repair or replacement of a septic system and disposal field that has failed due to lack of maintenance. (p. 138 – Economic impact)

Now heres’ the great septic deception – Here’s where DEP deletes current pump out requirements:

As the sixth step to the nitrate dilution analysis, the Department requires a demonstration that areas to be served by ISSDSs are subject to a mandatory maintenance program, such as an ordinance to ensure that all ISSDSs are inspected regularly. This requirement is found in the existing rules at N.J.A.C. 7:15-5.25(e)3 and has been modified to no longer require that periodic pump outs be specified as part of any ordinance and is now proposed to be codified at N.J.A.C. 7:15-4.5(c)1vi. 

For those who seek to verify that, here is the text of the proposed rule. Here is language @ NJAC 7:15-4.5(c)1vi that eliminates the mandatory pump out requirement in existing rules. The text merely requires “inspection” – the current “pump put” requirements has been deleted – see page 246 (note that pump out not mandatory or even identified as part of a septic management plan)

vi. Demonstrate that areas to be served by individual subsurface sewage disposal systems are subject to a mandatory maintenance program, such as an ordinance, which ensures that all individual subsurface sewage disposal systems are inspected at a frequency to adequately determine if they are functioning properly; 

For DEP to emphasize the importance of septic pump out and then delete current requirements for septic pump out is outrageously deceptive – as well as poor water resource policy.

The Christie DEP’s credibility is completely shot.

EPA Calls Out DEP False Testimony to Senate About EPA Concerns on Water Rule

NJ Spotlight reported this story last week and I discussed it in a wide ranging post yesterday, but the issue is so grave it deserves a stand alone post.

In testimony to the Senate Environment Committee, Ray Cantor, “Chief Advisor” to Christie DEP Commissioner Bob Martin claimed – falsely – that EPA had backed off their opposition to the DEP’s proposal.

NJ Spotlight reporting revealed that Cantor’s claim was false, based on EPA’s explicit written rejection of Cantor’s statements.

Tom Johnson wrote:

At the hearing earlier this week, Raymond Cantor, chief advisor to the commissioner, said after meeting with DEP on the proposal, the state had essentially resolved those concerns.

But a letter from the Region II EPA office yesterday suggested otherwise. “The proposed regulations have not changed,’’ wrote Joan Leary Matthews, director of the Clean Water Division. “EPA continues to have concerns as identified in our previous letter.’’  (read the second EPA letter here)

During that 10/19 Senate hearing, Chairman Smith called Cantor and DEP professionals up and specifically asked them to respond to my testimony about how DEP’s proposal conflicted with federal requirements and triggered EPA objections (you can listen to the full testimony here).

It is simply amazing and totally unacceptable to have high level DEP officials misleading legislators on such huge issues – and equally unusual for EPA to call out the falsehoods and the press to report it!

Yes, spin and obfuscation are routine practice, but flat out false statements and lies are unprecedented in my experience.

It will be interesting to see if DEP provides a repeat performance in the Assembly hearings.