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Needless concession to lawsuit by the NJ Farm Bureau

Proposal violates policy, standards and intent of Highlands Act

Sham claim of “new science” is a cover story

DEP’s Ray Cantor (standing) and State Geologist Jeff Hoffman (seated) brief local officials on septic density rollbacks (4/21/16)

Yesterday, as I feared, the Christie DEP proposed a major retreat from the current strong septic density standards in the Highlands, which protect water resources by strictly limiting development to one unit per 88 acres in forested areas and 25 acres on farmlands.

The change was announced by DEP as a fait accompli to municipal and county officials in a morning briefing and to the Highlands Council in the afternoon.

The new DEP septic standards will be lot sizes of 23 acres in forested areas and just 11 and 12 in farmlands –  you can read the DEP proposal here. (I have not read it yet and am working off 2 DEP briefings).

In their orchestrated campaign rollout, the DEP is trying to spin the story and get out in front of the shitstorm that will occur after the public understands the proposal and immediately issued a press release.

The DEP’s cover story is that the proposal is based on “new science” and “new data” – but this is total bullshit.

The so called “new science” is from an August 2015 USGS study (see below), which is flawed, not appropriate for the Highlands, and inconsistent with the Highlands Act.

The DEP sought and sponsored the USGS study, so they invited the “new science” as a planned pretext to provide a basis to rollback the current standards.

The so called “new data” is from the Private Well Testing Act (PWTA). But this also is non-sense, because DEP had a lot of that PWTA data when they proposed the original Highlands rules back in 2005. DEP issued the first PWTA data report in 2004.

DEP had significant concerns with the PWTA data, intentionally chose not to use that data for good reasons, and and specifically rejected it in favor of groundwater data that reflected the standards, policies and intent of the Highlands Act. Read DEP’s rationale.

The unstated DEP motivations for the rollbacks are Gov. Christie’s strong oppostion to the Highlands Act and his inability to convince the Legislature to rollback the Act. The Gov. is doing through DEP regulations what he could not achieve in the Legislature. This alone should be solid grounds for a legislative veto.

The opportunity and means to implement the rollback was Commissioner Martin’s decision – way back in May 2010 – to settle a lawsuit and capitulate to the Farm Bureau. The Courts and 2 Administrative Law Judge’s decisions had upheld the DEP rules, so there was no reason to settle the case and cut a dirty deal with the Farm Bureau.

The DEP simply moved the goalposts from a density standard based on natural background conditions (e.g. “pristine”) to a standard based on groundwater that has already been polluted by septic systems and agricultural chemicals and animals.

Here is the NJ DEP Basis for the current standards:

The context for method selection must be guided by the intent of the legislation, which is to protect and restore ground water and surface water quality.  […]

Two ambient nitrate concentration standards were selected, 0.21 mg/L for forest land use and 0.76 mg/L for mixed land use. 

Here is the basis from the USGS Study (August 2015):

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 change from the original DEP 0.21 mg/L – and 0.76 mg/L natural background concentrations to the USGS median regional anthropogenic impacted values decreases lot sizes tremendously.

This is complex and will take several posts to cover adequately, but to begin the process, I sent the following note to State Geologist Hoffman, with a copy to Legislators.

At this point, the only thing that can derail this train is a legislative veto as “inconsistent with legislative intent”:

Dear State Geologist Hoffman:

I am writing regarding fatal flaws in the purported scientific basis for the Department’s proposed revisions to the septic density standards in the Highlands regulations.

As we discussed yesterday morning at the Department’s municipal/county briefing, the USGS study is not reflective of the Legislative standards in the Highlands Act (i.e. to “prevent degradation” – a non -degradation policy – based on “deep aquifer recharge“) that forms the basis of the current standards.

The septic density standards are authorized by the following provision of the Highlands Act ( C.13:20-32 Rules, regulations, standards.; P.L. 2004, c.120):

e. a septic system density standard established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses from individual, secondary, and cumulative impacts, in consideration of deep aquifer recharge available for dilution;  (emphasis supplied)

The USGS methodology is spatially biased in selection of sampling data locations. It is statistically biased in reliance on a median value. It is not reliable as a result of the treatment of the “non-detect” data, which was a significant 23% portion of the total data, and had a huge MDL value range “which ranged from 0.020 to 10.0 mg/L“. Classifying a data as “non-detect” when the MDL is as high as 10 mg/L is absurd.

The USGS also fails to note significant DEP concerns about data quality and lack of QA/QC expressed in prior DEP Reports on Private Well Testing Act.

The USGS not only fails to note DEP’s prior concerns about data quality and lack of QA/QC, it contradicts those prior DEP findings by claiming that DEP certified private labs conduct rigorous QA/QC.

USGS also notes that PWTA data have significant limitations because they do not provide data on aquifers or depth of wells. This allows PWTA data on shallow residential wells that are heavily impacted by anthropogenic nitrogen loadings to contaminate the dataset.

The USGS study itself even acknowledges a strong spatial bias. This bias directly contradicts the Highlands Act standards and non-degradation policy. USGS wrote:

“There is spatial bias in well locations because many sampled wells are located in urban areas; thus, a bias in median nitrate concentrations was expected. Over-representation of urban and possibly agricultural areas and under- representation of forested areas in the combined NWIS-PWTA database must, therefore, result in higher median nitrate concentrations for all water samples than the actual median concentration for groundwater underlying the entire Highlands Region or any Area, Zone, or Area:Zone combination. “(p.14)

The original DEP density standards were based on background nitrate groundwater quality in “pristine” (i.e. forested) areas and locations that were not impacted by anthropogenic nitrogen loadings.

The original locational data bias reflected the Act’s policy to prevent degradation of groundwater quality – known as a “non-degradation standard” and the Legislature’s finding that existing DEP regulations were not sufficiently protective:

“… The Legislature finds and declares that   …  the existing land use and environmental regulation system cannot protect the water and natural resources of the New Jersey Highlands against the environmental impacts of sprawl development.”

To understand the Legislature’s findings and intent regarding DEP’s current regulatory framework, you need to understand the DEP’s nitrate dilution approach PRIOR to passage of the Act – which the Act sought to strengthen.

The DEP’s nitrate/septic approach prior to the Act that the legislature sought to strengthen included the following significant limitations:

1) the antidegradation policy in the GWQS, which allowed degradation of 50% of the difference between local background and the 10 mg/L GWQS, typically resulting in a nitrate target value of 5.5 mg/L. and lot sizes of 4-6 acres;

2) the nitrate dilution and recharge parameters of NJ GSR 32, which were deemed inappropriate because they did NOT accurately reflect the geology and recharge characteristics of the Highlands region:

3) The GSR 32 method was also rejected by the Legislature because it failed to consider cumulative impacts, allowed too much water quality degradation, did not include a nitrate target based on natural background conditions, and generally produced lot sizes in the range of 6 – 10 acres, which were deemed to be inadequate to protect the water resources and large blocks of forests in the region.

Here is the DEP Guidance for how that model was implemented in the DEP permit program for 50 or more septic units: (note nitrate targets of 5.2 mg/L – to 8 mg/L):