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DEP Dragging Their Feet In Warning Public About Drought

DEP Scientists Take Steps To Warn Public Despite DEP Managers and Politics

Are Gov. Christie’s Political Ambitions Blocking DEP From Declaring A Drought Watch?

[Updates below]

Something extraordinary and perhaps unprecedented just happened – certainly something I’ve never seen before.

There has been a quiet rebellion by the scientists at the DEP –

The scientists have taken steps to quietly warn the public about drought, without declaring a formal drought watch or warning and without the required approval of the DEP Commissioner.

DEP water resource professions are basically saying their boss is not paying attention or is incompetent or political factors are blocking them from doing their job.

We’ve seen that in how Governor Christie killed the legally mandated update to the 1996 Water Supply Plan.

But I’ve never seen this before – highlighted in a bright yellow background – take a LOOK at the DEP drought indicators website:

Comment on the Drinking Water Supply Indicators: 

Scant rainfall, particularly across New Jersey’s northern tier, is degrading the drinking water supply indicators tracked by the NJDEP. Stream flows are ranked “extremely” dry, the lowest category, in the four most northerly regions, while shallow ground water levels are considered “severely” dry in all but the Coastal South region. Reservoir storage, however, is only marginally below the long-term average, and this helps mitigate the effects of the dry weather.  While there are no adverse impacts on drinking water supplies at this time, the constrained indicators point to potential trouble ahead in terms of a developing water supply drought if dry conditions persist. Accordingly, DEP water professionals are closely monitoring conditions to plan for and recommend administrative actions, should they become necessary.

Perhaps the DEP scientists are concerned that key drought indicators contradict the declared “water supply status”.

Some key drought indicators like precipitation and stream flow and groundwater levels are “Severely dry” and “Extremely dry” – the worst conditions –  yet the “Water Supply Status” is listed as “Normal”.

DEP Commissioner’s approval is required to declare a drought Watch, Warning or Emergency – the steps DEP scientists refer to as “administrative actions”.

DEP drought warnings are politically sensitive and can be controversial. Typically, as a matter of practice, the declaration of a drought Watch by the DEP Commissioner requires at least consultation or in some cases approval by the Governor’s Office, depending on the independence of the Commissioner and the management style of the Gov. In this case, a weak and inexperienced Commissioner reports to a powerful micro-managing Governor, so I am certain the Gov. must sign off before DEP can act.

The science is clearly not reflected by the DEP policy.

(Note: the DEP scientists’  warning was prior to last night’s storm – which is just another example of NJ’s vulnerability and pattern of “Lurching From Drought to Flood“).

I guess it would be politically inconvenient for DEP to declare a “Drought Watch” while environmentalists have launched a campaign and are BLASTING DEP for rolling back water resource protections in the Highlands, which supply drinking water for about 5 million people.

Of course, it is possible that the Governor doesn’t want drought declared in his state at a sensitive time he is seeking a VP or Cabinet slot in the runup to the Republican National Convention on July 18.

Regardless of the motivations, once again, the science contradicts the policy of the Christie administration’s DEP.

Is this the “trouble ahead” and where we’re heading? (and with low stream and river flows come higher concentrations of pollutants, which limit the use of river water for pumping to reservoirs and increases health risks from river driving water intakes.)

[Update #1 – 7/10/16 – This post closed with a photo of a dead fish for a reason: to show that aquatic life depends on stream and river flows. Low flows, combined with warm temperatures, create conditions that deplete oxygen and kill.

DEP is ignoring their responsibility to protect ecological uses of our waters – a responsibility established under both the NJ Water Supply Management Act and the Clean Water Act.

DEP is considering ONLY the reservoir levels and ONLY the drinking water uses of water associated with drought conditions. This DEP statement PROVES that:

Reservoir storage, however, is only marginally below the long-term average, and this helps mitigate the effects of the dry weather.

To make a statement like this show that abdication.  Reservoir storage only mitigates the effects of dry weather on the people drinking reservoir water and the aquatic life that uses the reservoir.  ~~~ end]

[Update #2 – 7/18/16 – NJ Spotlight follows with the story – ignores of downplays the policy, planning and regulatory issues and is a LOT more generous to DEP than I, as usual:

• RAINS EASE DROUGHT WORRIES FOR NOW, BUT OFFICIALS WARN OF POTENTIAL WATER SHORTAGE

Almost 7 years into the CHristie DEP debacle and still we can’t get critical reporting. WTF! – end

Please Steal This Campaign

No more FERC-ing Off

[Update – July 26, 2016 – That didn’t take long – Campaign idea stolen, see Earthworks:

Planning, permitting and safety: the importance of community participation

Join us for a free webinar this Thursday

Will it be real activist training, or more expert manipulation and co-optation? We’ll let you know.  ~~~ end update]

Now that the ice is broken on the Clean Water Act Section 401 Water Quality Certificate (WQC) issue, activists need campaign materials to help inform the public, build awareness, and pressure Governor Christie and DEP to deny Section 401 WQC’s.

Yesterday I posted EPA 401 Guidance, NJ’s regulatory framework, and a model Resolution that could assist in this effort – the EPA Guidance could be readily adapted to the NJ context to create a Citizen’s Guide To Using The Clean Water Act To Kill Piplines.

[additional important info:

• EPA Water Quality Standards for Wetlands
• National Guidance Water Quality Standards for Wetlands
• Wetlands Water Quality Standards for States
• Water Quality Standards Handbook (EPA, plus regulations)

So today we outline briefly what a summer field campaign might look like to support that Resolution and overall campaign.

We pitched this outline to the Dodge Foundation and the William Penn Foundation and did not even get the respect of a reply, so that is evidence that we’re on the right track!

On April 22, 2016 (Earth Day), the New York State DEC denied a Clean Water Act Section 401 Water Quality Certification (WQC) for the proposed Constitution Pipeline.

Like Gov. Cuomo’s fracking moratorium, this decision has national significance and huge precedential value.

(and so did that Pennsylvania Supreme Court decision upholding local land use regulation over fracking that seems to have been ignored by activists. But, I guess I’m “ill informed” about all that because I don’t see any ENGO campaigns focused on local bans. Just the opposite – instead of local bans, it seems that after having won that local power, PA activists seek a State level action like NY and also waste resources FERC-ing off. More poor targeting – more FERC’ed up strategy.)

NY DEC’s WQC denial document provides an activist’s roadmap and a unique opportunity to enhance current organizing and activism in opposition to NJ pipelines, particularly PennEast and the Southern Reliability Line through the Pinelands.

Field campaigns that directly connect local stream impacts to the regulatory context can be very effective in building public awareness and support, particularly for DEP designated “exceptional value” streams.

This work also would generate technical information and a regulatory education to empower citizens to intervene and participate effectively in the DEP permit and 401 WQC processes. 

That campaign would include:

1) Fact sheet – 1 page – widely distributed that educates the public on what the Clean Water Act Section 401 Water Quality Certificate (WQC) is and how NY State used it to kill the Constitution pipeline.

2) Fact sheet – 1 page – explaining what the NJ Surface Water Quality Standards are and how they can be enforced during pipeline permitting.

3) Fact sheet – 1 page – on how NJ DEP implements the CWA Section 401 WQC under NJ’s EPA delegated freshwater wetlands program

4) Prepare up to 6 site specific examples of pipeline C1 stream crossings, including a site specific characterization of the stream, a description of DEP’s scientific rationale for C1 designation; and a summary of why the crossing would violate State Water Quality Standards. (actual permit file reviews not included – this would take far more effort).

5) Organize up to 6 public/media field events at proposed stream crossings where site specific summaries are prepared – this would include a fact sheet, press release, and talking points for activists.

6) draft a letter to targeted local governments asking them to pass Resolutions urging DEP to reject the 401 WQ certification

7) draft a letter from residents to targeted NJ Legislators asking them to conduct hearings to oversee DEP’s implementation of the 401 WQC program and expand public involvement

8) Draft and circulate a petition to DEP Commissioner Martin to deny that WQC. This could be expanded to a formal regulatory petition for rule making, but that could be an additional stand alone project.

9) Work with activists to design signs, possible messages include::

“No pipelines through our streams and wetlands!”

“Gov. Christie: Protect Clean Water! Tell DEP to Deny the Water Quality Permit!”

“Hey Christie: Gov. Cuomo Killed A Pipeline, Why Can’t You?”

“The Clean Water Act Trumps FERC – Deny the 401 Water Quality Certificate!”

10) Organize a protest event at DEP HQ building in Trenton calling on Commissioner Martin to deny WQC

Go for it!

You got the Big Foundation Money. Should have been done years ago.

End Note:

Additional Resources

• US EPA (2006). National Guidance: Water Quality Standards

http://www.epa.gov/owow/wetlands/regs/quality.html

• US EPA (2005). DRAFT – Use of Biological Information to Better Define Designated
• Aquatic Life Uses in States and Tribal Water Quality Standards: Tiered Aquatic Life Uses

http://www.epa.gov/bioiweb1/pdf/EPA-822-R-05-001

• Use of Biological Information to Better Define Designated Aquatic Life Uses
• Tiered Aquatic Life Uses pdf (PDF)
• Environmental Law Institute (2005-2007). State Wetland Program Evaluation

http://www.eli.org

• Tribal Wetland Program Highlights
• US EPA (2004). DRAFT – Water Quality Standards Module
• US EPA (2003). Strategy for Water Quality Standards and Criteria. EPA 823-R-03-010.
• US EPA (1990). Water Quality Standards for Wetlands: National Guidance. EPA 440-S-90-011

www.epa.gov/owow/wetlands/regs/quality.html

 

I see trees of green, red roses too
I see them bloom for me and you
And I think to myself
What a wonderful world. ~~~ Wonderful World (Louis Armstrong, 1967) 

The trumpet vine I planted on the back porch is 4 years old and recently flowered for the first time this year – prolific and incredible!

Do they grow in Baton Rogue Louisiana and Minneapolis Minnesota?

The hummingbirds love it! Bloomed just as the honeysuckle waned – Rose of Sharon blooms soon!

Christie Whitman is a rank opportunist, revisionist, murderous liar, and shill

The end does not justify the means

It sickens me the obscene depths that some will go to spin various stunts to promote their causes.

The latest example is a stunt – and it has to be a stunt, because someone had to cook it up – NJ Spotlight chose to call an effort by three “Heavy Hitters” to join “Green” forces to block one of the Pinelands pipelines, see:

• THREE HEAVY HITTERS WANT TO JOIN PINELANDS PIPELINE SUIT ON THE ‘GREEN’ SIDE

I’m sure the litigation will proceed just fine without the questionable amicus legal contributions of those “Heavy Hitters”. Obviously, this is more public relations than legal strategy. A stunt not a legal brief.

But there is a far more fundamental issue raised here.

A riff on the infamous quote “Have you no sense of Decency, Sir?”

Characterizing Christie Whitman as a “heavy hitter” in the context of the Pinelands along with Governors Byrne and Florio to promote “Green” groups opposition to the Pinelands pipeline is indecent and essentially a lie.

There are lies of omission that are just as false as lies of commission. History whitewashed – down the memory hole.

Whitman is no “heavy hitter” when it comes to the Pinelands.

Just what did Whitman accomplish in the Pines?

I seem to recall a huge controversy over US Fish & Wildlife Service and EPA enforcement actions regarding violations of wetlands laws by a politically connected cranberry grower. See this NY Times story:

• Cranberry Bog Settlement Draws Environmentalists’ Fire

Whitman’s DEP also proposed a controversial cranberry wetlands GP to promote the industry in the Pinelands, see NJ Audubon’s critique of that (scoll down).

That’s no Pines legacy to be proud of – but Whitman’s Pinelands rollbacks pale in comparison to her over-all record.

She rolled back environmental protections as NJ Governor – her motto was “Open For Business” and she began the coordinated rollback of regulations we now see as “regulatory reform” – and continued that attack on the environment as George Bush’s EPA head. In fact, her NJ record of rolling back environmental regulations while wrapped in a mantle of open space preservation green cover is why she was appointed by Bush. See The Nation profile:

• Whitman: A Toxic Choice

Thanks to Whitman’s evisceration of state enviro regs as well as a raft of subsidies and tax cuts to developers, suburban sprawl gobbled up more open space and verdant land during her tenure than at any other period in New Jersey’s history. Moreover, she decapitated the state Department of Environmental Protection staff by 738 employees in her first three years in office, cut the remaining staff’s workweek by five hours, eliminated fines of polluters as a source of DEP revenue and made large cuts in the DEP’s budget. That’s why the New Jersey Sierra Club’s Bill Wolfe has warned that Whitman might “dismantle [federal] EPA and take it out of the enforcement business. I believe that this is precisely the policy Whitman has presided over and legitimized in New Jersey.”

As Bush EPA Administrator, among other things she injected more than 10 years of delay in EPA responding to climate change (see the notorious “Fabricant memo”) and lied to the public about the “safety” of the air in southern Manhattan post 9/11. As a result, thousands of first responders are dead and dying, see:

• Dying Jersey Guy Recalls Whitman 9-11 Remarks – “She’s a Liar”

And all the fracktivists out there need to know about Whitman’s role in a major source of the fracking disaster.

An EPA Report to Congress of fracking and the Safe Drinking Water Act underground injection program green lighted and led to the infamous “Haliburton Loophole” in the 2005 Energy Policy Act.

Thanks to a brave EPA scientists and whistleblower, we know that this corruption of science went down during Whitman’s tenure at EPA:

The EPA completed its study in 2004, finding that fracturing “poses little or no threat” to drinking water. The EPA also concluded that no further study of hydraulic fracturing was necessary. The 2004 EPA study has been called “scientifically unsound” by EPA whistleblower Weston Wilson. In an October 2004 letter to Colorado’s congressional delegation, Wilson recommended that EPA continue investigating hydraulic fracturing and form a new peer review panel that would be less heavily weighted with members of the regulated industry. In March of 2005, EPA Inspector General Nikki Tinsley found enough evidence of potential mishandling of the EPA hydraulic fracturing study to justify a review of Wilson’s complaints.

Whitman also shilled for the nuclear industry, see:

• The Nuclear Industry’s New Shill: Christie Todd Whitman

Even Whitman’s critics applaud the dedicated conservation funding, but there are concerns about the program. Former DEP employee Bill Wolfe — who became a whistleblower during the Whitman administration, leaking studies about mercury pollution in the state — called the Trust Fund’s land purchases “scattershot,” made without reference to land use or conservation plans. The program also lacks regulatory safeguards to ensure that conservation goals are met, he added. “It’s just creating a pot of money to give away to landowners,” Wolfe told PR Watch. …

Moreover, Whitman has worked hard to obscure her spotty environmental record. Even as she was dismantling New Jersey’s Department of Environmental Protection, “She would ride her bicycle, she would horseback ride, and she would do a lot of public events around open space preservation,” Bill Wolfe told PR Watch. “So, the public perception of her was very favorable on the environment.”

For a scathing, comprehensive and detailed assessment of Whitman’s environmental record as NJ Governor, see the testimony to the US Senate Environment Committee on her confirmation as EPA Administrator, by Bill Neil of NJ Audubon and myself.

The fools who craft these stunts will do ANYTHING to push the “bi-partisan” and “Heavy Hitters” memes.

That not only disrespects the work of the bottom up activists, it reflects a complete lack of understanding of the relationship between ends and means.

Christie Whitman should be shamed and shunned by all people of good faith, not used and praised as a “heavy hitter”.

[End note: full disclosure: I obviously have an axe to grind with Whitman, as she had me forced out of DEP as a whistleblower for disclosing her mendacity and efforts to cover up the health risks of mercury in freshwater fish. I have sworn hearing testimony of a Whitman DEP Assistant Commissioner that reveals all that, provided upon request.]

Pipeline Debate Finally Shifts to DEP & Clean Water Act Power

FERC FINGERS THE CHRISTIE DEP

Please Steal This Work

Finally, the pipeline debate is directly focused on where it should have been for a long time, and ironically it was FERC – not NJ activists – who finally broke the ice and brought that focus, see David Levinsky’s story in the Burlington County Times:

Feds deny utility’s request to begin work at Burlington County compressor site

“Once Transco obtains a Clean Water Act Section 401 Water Quality Certificate and Section 404 Permit from the New Jersey Department of Environmental Protection for the proposed electrical substation, valve site, and associated piping at Compressor Station 203 and the Chesterfield Meter Station sites, we will reconsider a construction authorization for these facilities,” Alisa Lykens, a chief with the commission’s Division of Gas-Environmental and Engineering, said in the letter.

Pipeline activists, the media, and NJ policymakers can no longer avoid the issue they long have.

The FERC letter to Transco makes it absolutely clear that the Christie DEP will decide the fate of the pipeline.

So, I again urge activists out there across the state to mount a focused campaign on the DEP Water Quality Certificate power that Connecticut (Islander East) and New York (Constitution) used to kill proposed pipelines.

Here is the EPA Section 401 Water Quality Certificate Guidance document that provides the legal and scientific framework.

Here is the NJ DEP regulatory framework: Connecting the Dots Between Pipelines and Clean Water.

And below is a draft Resolution I wrote that you can urge local governments and State legislators to pass to put some pressure on the Christie DEP. It can readily be reformatted into a press release or activist talking points and action items too!

Go for it! It’s only the bottom of the 9th, 2 out, no one on base, and the count is 0-2. You’re down 6-0. The crowd is in the parking lot on the way home and your 2nd baseman with a .240 average and 2 career homers is batting. 

You’ve spent the first 8 innings bunting to get to first base with FERC. You’ve been playing Small Ball, but now its time to swing for the fences!

Just think, if all that time and money and thousands of activist hours you wasted FERC-ing off had been focused on calling out Governor Christie and DEP on 401, you might have gotten the results the NY activists have.

(but despite this abysmal failed strategy, the high paid head coach and his manipulative megaphone minions won’t get fired by the GM and Board. Why is that?)

So PLEASE steal this work and run to the press and your Foundation and Legislator friends with it!

Just change a few words around, issue a press release, hold a State House event, and say you were keeping your powder dry and just waiting for the right time to deploy it!

WHEREAS, “Section 717(c) of the Natural Gas Act preserves the applicability of the Clean Water Act to projects subject to the Federal Enegy Regulatory Commission’s (FERC) certification authority and does not preempt State authority;

WHEREAS, pursuant to the Clean Water Act, States are responsible for enforcing water quality standards on intrastate waters. 33 U.S.C. § 1319(a);

WHEREAS,  Section 401 of the CWA provides that “[a]ny applicant for a Federal license or permit to conduct any activity including, but not limited to, construction or operation of facilities, which may result in a discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with the provisions of . . . this Act.” 33 U.S.C. § 1341(a)(1)

WHEREAS,  Section 401 of the CWA  provides that “[n]o license or permit shall be granted until the certification required by this section has been obtained or has been waived. . . .”

WHEREAS, the US District Court of Appeals upheld the State of Connecticut’s denial of a water quality certificate to the Islander East pipeline, see: United States Court of Appeals, Second Circuit.·525 F.3d 141 (2d Cir. 2008)

https://casetext.com/case/islander-east-pipeline-v-mccarthy

WHEREAS, on April 22, 2016, the NY State Department of Environmental Conservation denied a Water Quality Certificate to the proposed COnstittuion pipeline, see

http://www.dec.ny.gov/docs/administration_pdf/constitutionwc42016.pdf

WHEREAS, pursuant to the Clean Water Act, the NJ Department of Environmental Protection (DEP) has been delegated authority by US Environmental Protection Agency (EPA) to administer and enforce the Clean Water Act in New Jersey, including EPA approved NJ surface water quality standards (SWQS) NJAC 7:9B-1 et seq. and issue a Section 401 water quality certificate (WQC);

WHEREAS, pursuant to NJ DEP regulations, compliance with NJ SWQS is made explicit in the NJ DEP Freshwater Wetlands permit rules:(NJAC 7:7A-2.1(d))