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Senate To Hear Resolution To Veto Christie DEP Flood Hazard Rule Rolbacks

Can Legislative Democrats Block Gov. Christie’s Avowed “Dismantling”?

Headwaters of the Alexauken Creek, a designated Category One Water in West Amwell, NJ

The Senate Environment Committee announced that they will conduct a hearing next Monday, October 19, 2015  on SCR 180, the Senate Resolution to veto the Christie DEP’s proposed flood hazard rule as “inconsistent with legislative intent”.

This is a rare exercise of the Legislature’s Constitutional power to veto Executive Branch regulations.

Ironically, newly founded NJ 101.5 talk radio and precursor to Tea Party right wing outrage, the press ginned up public opposition to the Florio administration’s “runny egg rule”, and the NJ Constitution was amended to grant this new legislative power to prevent regulatory over-reach:

6.   No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law.  The Legislature shall provide for the prompt publication of such rules and regulations.  The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.  Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation.  The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  

A simple majority of both Houses of the Legislature is sufficient to block any proposed rule, so there is no need for a “super majority”, like that necessary to over-ride a Gubernatorial Veto of legislation.

Governor Christie has used the veto power to block numerous legislative initiatives – and the Democrats have been unable to muster the super majority required to over-ride. Republicans have remained loyal to the Governor, regardless of the public interest.

The Legislative Veto of the Governor’s regulations changes the politics of all that – The Democrats have majorities in both houses, so Democrats don’t need ANY Republican votes to veto the DEP’s propose rules.

Politically and environmentally, this Resolution is incredibly important.

But the Resolution is even more critical, because the DEP’s proposed rule would repeal that Category One Waters 300 foot buffer established during the McGreevey Administration – and because DEP Commissioner Martin has openly pledged to rollback additional land use and water quality protections – this Resolution is vital to water quality, land use, and ecosystem protections.

I also have a personal dog in this fight, because I was involved and led the DEP team that created the Category One waters program at DEP in 2002 – 2004.

Therefore. this week, in the run-up to Monday’s Senate hearing, we dedicate ourselves to showing readers, the public, and policy makers exactly what is at stake in DEP’s proposed rules to repeal the Category One buffers rules and rollback stream buffer protections.

We will get out in the field to show the beauty of C1 waters that are at stake.

We explain the regulatory nuance in plain language.

We begin on Monday, in Clinton NJ, where the C1 waters designation and buffer program really began.

As DEP noted:

On April 22, 2002, Governor James E. McGreevey announced that the State intended to strengthen water quality protections provided to six streams and nine reservoirs as the start of a broader initiative to provide New Jersey residents with clean and plentiful water. Governor McGreevey’s announcement included the identification of each of the waterbodies to be proposed. These 15 “high quality waters” covered approximately 200 stream and reservoir miles. The Department also indicated its intent to upgrade Sidney Brook and South Branch Rockaway Creek, two of the waterbodies identified by Governor McGreevey, in response to rule petitions for Category 1 upgrades in a notice published in the New Jersey Register on October 21, 2002 (34 N.J.R. 3651). The Governor’s Office issued a press release on October 21, 2002 announcing that Commissioner Campbell had signed the proposed regulation necessary to complete the upgraded antidegradation designation.

In part, is was a response to the controversial battle over a development known as Windy Acres:

COMMENT 110: The commenter believes that the existing categorization of the South Branch Rockaway Creek provides sufficient protection of the wood turtle and re-categorizing the stream is both unwarranted and unnecessary. Proposed amendments to N.J.A.C. 7:9B-1.15(f) would upgrade the surface water classification of the South Branch Rockaway Creek to Category 1(C1) from its headwaters to Cushetunk Lake. This stream runs through proposed Windy Acres Development and is the stream to which the proposed Clinton East advanced wastewater treatment plant will discharge. The reclassification of this stream centers on protecting the State threatened wood turtle, which has been found in the South Branch Rockaway Creek. (634c,3015b)

To frustrate public awareness of all this, the DEP has scrubbed its website of all the links to the C1 history and C1 regulatory documents (e.g. see that DEP killed all the C1 links to Oradell Reservoir et al I posted in response to Senator Cardinale’s attack on C1 streams and all the  C1 links in this post are dead).

But that will not dissuade us, because we’ve written numerous times about C1 buffers and know enough of the history to find the links in the public domain to document the history.

Curiously, DEP forgot to take this DEP Report down, An Evaluation of NJDEP’s Category One Antidegradation Designation Process which traces the C1 program history and shows DEP scientists support for the C1 program and recommendations to designate 121 new stream miles C1:

In 2002, the Department began an intensive effort to identify additional waters that warranted enhanced protections afforded by this designation. The Department adopted new C1 designation categories: Exceptional Ecological Significance, Exceptional Fisheries Resource(s), and Exceptional Water Supply Significance in order to clarify the data requirements necessary for a waterbody to be designated as C1 waters.

Yes, I’m proud to say I did that.

So, stay tuned.

And all hands on deck in Trenton on Monday October 19 for the Senate Environment Committee hearing on SCR 180!

Managing Drought With a Drought Of Management at DEP

Flood of Slogans & Press Releases Mask Mismanagement & Christie’s Policy

Flow on Passaic River at Little Falls, since 9/1/15 (Source: USGS)

The Bergen Record reported today that the rainfall from last week’s nor’easter which caused so much coastal erosion had little impact on the drought in northeast NJ, see this:

Once again, the critical river low flow issues are presented as clear as mud, and buried at the very end of the story:

The reservoir was at 47.1 percent on Friday. But it was supplying about 25 million gallons less per day than it was at the beginning of September.

The commission has been pumping millions of gallons from Passaic River tributaries to meet demand. Even though the DEP in 2013 allowed the commission to pump an extra 17 million gallons a day during peak demand periods, a spokesman said even that may not be enough.

“The river flow is decreasing enough that we may have to stop until another rainfall,” Maer said. “We’re pumping when we can to keep the levels as high as possible.”

As you can see from the USGS hydrograph above, river flow rebounded, but is heading down again.

The rainfall made only a slight dent in reservoir levels, and pumping of river water appears to have been halted again as a result of “minimum passing flow” conditions in DEP permits.

We are glad that the Record is staying with this story, but we still wish they would focus on important drought related issues:

1) Human Health Risks

The lack of rainfall and low flows in the rivers result in lower water quality. That increases human health risks. The critical pollutant of concern is the nitrate level: as river concentration approaches the 10 mg/L (ppm) drinking water standard, the river intakes for water supply must be shut down because there is no treatment for nitrate. However, there are many other risks, ranging from trihalomethanes that result from additional treatment to remove a higher percentage of organic content (algae, et al) from river water; to hundreds of unregulated chemicals discharge by sewage treatment plants (Google Tittel’s award winning soundbite about “Viagara Falls”)

2) Ecological Impacts – Whatever happened to the DEP’s “Eco-Flow Goals” Project?

The negative effects of drought are not limited to threats to the water supply for people. The low flows in the river have adverse impacts on aquatic life – I know next to nothing about the aquatic life in the Passaic basin, but I’m sure there are many scientists, fishermen, and watershed advocates who do. That story needs to be told.

3) Infrastructure – From Leaks to Lack of Adequate Storage to Reliance on rivers

Northeast NJ’s water supply infrastructure is in a precarious situation – by design – due to lack of adequate reservoir storage capacity. Aging infrastructure is another problem – the Record recently reported leakage rates for United Water, but in the context of a request rate increase. The larger infrastructure story needs to be told comprehensively.

4) Water Supply Planning – Where’s the Plan?

Governor Christie’s Office has buried the DEP drafted update of the Water Supply Master Plan for political reasons. As a result, the public and water supply managers lack current data and relevant policy framework to make important management decisions.

• Drought of data – After declaring a drought watch and urging voluntary conservation, DEP has no data on water conservation efforts and is not even asking for that data to be collected.

• Projected population growth and increasing demand will put additional stress on the system and result in more frequent drought conditions.

• Climate change is projected to change rainfall patters, resulting in more frequent large rainfall events and more prolonged dry period. At the same time, NJ’s landscape is increasing developed with impervious surfaces as natural vegetation is destroyed. This has huge implications for water supply, because so much water is lost as runoff from larger storms and there is less groundwater recharge and reservoir storage.

There are many other examples of issues that need to be addressed via the Water Supply Plan update.

5) What ever happened to DEP’s Asset Management initiative?

The highly touted DEP “Asset Management” initiative is dead in the water (no pun!).

Asset management will force DEP, private sector, and local water managers to being to develop a systematic approach to assessing and managing infrastructure.

6) Lack of Funding – The Open Space Diversion

The fact that NJ has a massive water infrastructure upgrade financial deficit has been widely reported.

But there’s been no coverage of the fact that the Open Space ballot approval diverted significant funding from water resource management programs, just when more challenges are emerging that require more costly management efforts, from data collection to scientific expertise.

7) Christie DEP Rollbacks of Land Use and Water Resource Protections

Christie DEP Commissioner Bob Martin himself has openly announced plans to rollback existing land use and water resource regulatory protections.

Just at the point in time when climate change impacts are becoming increasingly visible, the DEP is ignoring those issues – both the need to dramatically reduce emissions and to adapt to projected impacts.

Just when structural drought and basic hydrology are becoming part of everyday experience, DEP is rolling back land use and water resource protections that will exacerbate water quality, flooding, and drought issues.

There are several stories waiting to be written about DEP’s Water Management Deficits.

Commission Meeting Tomorrow Sure to by Controversial

They Think We Are Stupid

“Joint Base-Gate” Scandal Heating Up

It is said that pride comes before a fall.

The Pinelands Commission’s Executive Director Nancy Wittenberg has admitted coaching New Jersey Natural Gas Company on the regulatory implications of alternative pipeline routes, yet finds that to be acceptable routine practice, akin to advising a homeowner not to build a deck in a wetland and instead locate it in an upland portion of the property.

Really – she actually made that analogy.

Wittenberg’s admission came in response to a request I made for the Pinelands Commission to support an independent investigation into whether NJNG and officials of Joint Base concocted a false “pretense of a military purpose ” in order to evade regulatory scrutiny by the Pinelands Commission.

In a terse email, Chairman Lohbauer late today responded to that request, basically dismissing the concern. Lohbauer wrote:

Good afternoon. 

I can appreciate your concern over this allegation; when it was raised, I asked Executive Director Wittenberg to look into the matter and report back to the Commission about it. She was prepared to report to us at our upcoming meeting (tomorrow), but in light of your email request, she has shared her information with me so that I may respond to you now.

Director Wittenberg confirmed that Pinelands staff met with officials of NJ Natural Gas on May 6, 2015 regarding a proposed natural gas pipeline project. She indicated that the applicant had several route alternatives, two of which traveled through the Joint Base. She added that one route passed in small part through a Forest Management Area. She said that they discussed the regulatory constraints of each route and provided guidance on the regulatory requirements. She added that Commission staff did not suggest the route on the Base.

The Director described the discussion this way: “This is common practice for us when we meet with applicants.  We note any potential issues associated with the project and provide information on the available options.   Other examples of such preliminary guidance include explaining the regulatory constraints for building  in wetlands or in an area with there is known threatened/endangered species habitat.”

She went on to note that Pinelands staff did not write any emails that the speaker (and now you) have referenced, and added that these emails “do not characterize what occurred at the meeting.”

You note that you have filed a complaint regarding these allegations, as is your right, and request my support. I accept Director Wittenberg’s representation of the meeting, and I would not seek or endorse an investigation of the matter.

Sincerely,

Mark Lohbauer

Hey Lohbauer – my name in not “Good afternoon”! I wrote the email to you as Chairman and you are responding to me, so basic protocol says you address the reply to me. R-E-S-P-E-C-T.

But in his non-responsive response, Lohbauer actually thinks he’s put this whole matter to bed.

Lohbauer quotes Wittenberg admitting that she coached NJNG:

“This is common practice for us when we meet with applicants.  We note any potential issues associated with the project and provide information on the available options.   Other examples of such preliminary guidance include explaining the regulatory constraints for building  in wetlands or in an area with there is known threatened/endangered species habitat.”

NJNG is a major corporation with sophisticated lawyers and engineers – the last thing they need is advice and coaching form the Pinelands Commission staff.

The role of Commission staff is to protect the Pinelands and the public interest – period – not to serve as a behind the scenes consultant to a private major gas corporation.

We’ll keep you posted for what is shaping up to be a battle tomorrow at the Commission meeting.

We will share  our initial reply to Lohbauer, outlining why this is not over, but just beginning.

We will explain to the Commission why NJNG wanted a military purpose; how a military purpose is subject to weaker Pinelands standards; and why a letter from Joint Base commanders was an important regulatory document and amounts to the smoking gun showing collusion and conspiracy between Pinelands staff and NJNG.

PS – this is not the first time Wittenberg allowed corrupt regulatory review practices to occur with a gas pipeline corporation. We will go into some detail about that “SJG email-gate” too.

Don’t You Let That Deal Go Down (Listen)

Thanks to Laura Lynch of Sierra Club for calling this information to my attention.

The most recent PennEast September status report to FERC (see this) shows an extensive series of closed door meetings and conference calls with the NJ DEP on a host of issues relating to the environmental review of the project (see table below).

Note that the meeting subjects include “wetlands, waterbodies, transition areas, and riparian zones”

The public needs to get involved with these behind the scenes actions by NJ DEP – particularly the water quality certificate, which can be used to kill the project.

These closed door meetings, commonly referred to as “pre-application meetings”, are where all the technical understandings are reached for how PennEast can secure NJ DEP approvals. These understandings are reached LONG before the draft permits are public noticed. So it is critical the the public be closely involved in this now.

I strongly urge you to file OPRA requests to get these documents and to pressure DEP to deny the permits just as hard as PennEast is pushing for approvals:

[PS – just like FERC, the DEP is NOT your friend. Don’t get co-opted.]

Today, we have a guest post by Bill Simmons.

Bill is a retired health inspector blogging about public and environmental health at http://pehealthnj.blogspot.com/ and on Twitter as BillSimmonsNJ.

I asked Bill to Guest post after I heard him raise an interesting set of issues during the public comment period of last week’s monthly meeting of the NJ Water Supply Advisory Council about studies on stream base flow and land use. Base flow is an important aspect of fundamental hydrology and critical to water quality, quantity and the ecological health of our watersheds. Both NJ Acting State Geologist Hoffman and USGS representative on WSAC were aware of the research Bill summarized and interested in conducting watershed scale studies to get a better understanding, but lack funds to conduct that research due to diversion of research funds by the “Keep It Green” open space ballot deception (just one of the many water resource cuts we warned about that have yet to be restored in DEP’s budget).

There is a huge pool of retired environmental professionals out there with deep knowledge that could make an important contribution to public policy debates. We welcome guest posts from these folks – as well as active agency employees – and would be glad to provide anonymity to protect against retaliation. If interested, shoot me an email at bill_wolfe@comcast.net – Now to Bill’s post:

Urbanization Changes Baseflow, But It Doesn’t Lower It – And Stream Gages Alone Can’t Explain Why

Did you know that increasing impervious surface in a watershed is clearly linked with higher storm flow – but not with lower baseflow? And that this was first reported in NJ about ten years ago?

This very counter-intuitive discovery by the USGS appears on page 132 of a 2008 technical report for NJ Highlands Master Plan, Water Resources Volume II, Water Use and Availability:

“There is a strong conceptual case that increased land development should result in decreased stream base flow, but two USGS studies of long-term base flow trends in New Jersey did not find many statistically significant trends in low flows (Brandes and other 2005, Watson and others 2005). … An improved understanding of this issue will allow for a more robust water availability modeling approach in the future.”

Yes it would.

Here’s what the Brandes paper – Base Flow Trends In Urbanizing Watersheds Of The Delaware River Basin – states on pdf-page 15:

“The results of this study suggest that stream base flow has not systematically decreased in urbanizing watersheds of the lower Delaware River basin over the past 60 years. The data do not support the idea that low- to moderate-density land development typically has a negative effect on base flow volumes and low flows at the scale of a 25 to 200 km2 watershed. … one should not expect any single value of percent impervious to emerge as a widely applicable threshold for effects of urbanization on base flow. The implication of this study is that the effect of low density to moderate density urbanization on base flow is typically more subtle and less severe than its impact on stormflow.”

Page 26 of Streamflow Characteristics and Trends in New Jersey, Water Years 1897–2003, by Watson and others: “The overall results of the trends analysis show that high-flow trends for the regulated [developed] and unregulated [undeveloped] gaging stations were upward. … The low-flow trend results for regulated gaging stations indicate that most of the gaging stations had an upward trend … The relation of development to low-flow trends does not appear to be as strong as development to high-flow trends.”

Natural and Artificial Sources of Baseflow

Brandes and Watson were surprised by what the data told them. They took a shot at explaining it. Since then, other states have found this trending in their data as well, and the guesses are stacking up. Here’s the Minnesota Pollution Control Agency in 2009, on page 59:

“… the decrease in natural groundwater recharge in an urban watershed can be unintentionally replaced by artificial recharge, i.e. infiltration of imported water that has leaked from water supply and sewer pipes, applied as excessive lawn irrigation, and infiltrated from septic system drainage.”

In developed watersheds, baseflow isn’t just baseflow anymore. That means baseflow doesn’t predict water levels in the water-table aquifer the stream runs through. You could have adequate baseflow but still have headwater wetlands and shallow wells drying up during a drought.

The most nuanced paper was published last year as part of the Baltimore Ecosystem Study: “Baseflow signatures of Sustainable Water Resources. An Analysis of Maryland Streamflow”. Figure 9 on page 37 compares the traditional model of baseflow – recharge in, baseflow out – with urbanized baseflow derived from multiple processes. Some “artificial” sources of baseflow are essentially interbasin transfers that obscure the volume of baseflow that naturally flows from the water-table aquifer.

Wastewater treatment plants can discharge effluent into a stream that is derived from sources outside the watershed, “bypassing the groundwater system”. Old urban drinking-water pipes can recharge the water-table aquifer with pressurized water that came from sources outside the watershed. To a lesser degree, even watering your lawn can artificially recharge the water-table aquifer, if your well is drilled deeply into a separate, confined aquifer that recharges far from the watershed and the water-table aquifer the well is drilled through.

Storm drains buried in areas with high water tables can accelerate the discharge of groundwater into streams, like a french drain – and increase baseflow. Even impervious surface – roads, buildings, and compacted soils – increases baseflow, because as it replaces woods and fields, less water is lost to evapotranspiration. The USGS estimates about one third of the precipitation that falls in NJ returns to the atmosphere through evapotranspiration (Fig. 4) instead of recharging the aquifer. Impervious surface leaves more net groundwater in the water-table aquifer that can become baseflow because it replaces vegetation(!)

Groundwater can leak into sewer pipes in one watershed (I&I – Infiltration and inflow) but discharge from the treatment plant into another. When a watershed is developed, how can a stream gage tell you if natural baseflow has decreased – with all these artificial sources of baseflow?

“Regulatory Paradoxes”: Now What

Page 73 of the Maryland paper:

“Where baseflow signals reflect wastewater return flows that bypass the subsurface hydrologic system, groundwater appropriations based on … gauged streamflow may over-appropriate the resource and fail to adequately protect the groundwater resource from depletion.”

Agreed.

“To the extent leaking infrastructure truly recharges ground water, the State faces the dilemma of whether or not to explicitly appropriate this unintended interbasin transfer as an exploitable component of regional groundwater system.”

Oh yeah.

“The limitations and potential risks from appropriating groundwater based only on the characteristics of observed streamflow highlight the value of a more process-based understanding of Maryland’s coupled surface water- groundwater resource.”

That answers “where do we go from here” for New Jersey as well. We need to find out the unique combination of natural and artificial baseflow in urbanized watersheds, so we can understand their specific vulnerabilities to drought.

When we can isolate natural baseflow from artificial baseflow, we can make informed regulatory decisions about water allocation. Should the “unintended interbasin transfer” part of baseflow be counted or excluded when deciding how much water can be safely permitted to be withdrawn from a watershed? Imagine a river – that is overly-dependent on treated wastewater for maintaining its baseflow – drying up someday because the municipalities discharging their waste to the treatment plant implemented a successful water conservation program, in another watershed.

Baseflow data measured by a system of stream gages alone has become a black box. We need a “more process-based understanding of [our] coupled surface water- groundwater resource.” Baseflow data needs to be augmented by data from a system of monitoring wells in the watershed that record the levels of the water-table aquifer – especially in the headwaters.

But that’s expensive, and there are less funding sources in NJ for these research programs.

So for now this ends up on the what-if list for climate change, or as another reason for updating the 1996 NJ Water Supply Management Plan, or something, until it gets funded.