WolfeNotes.com

Not Rockaway Creek, but nearby Stonybrook

[Update: 5/31/19 – DEP just issued the final NJPDES permit, and basically ran roughshod over the opposition of the Highlands Council (establishing a horrible president), rejected public criticism, and narrowed the scope of their NJPDES permit renewal decision to such a degree as to abdicate their responsibility to protect clean water and did so in a way to intentionally frustrate public opposition.

DEP got the relationships between permitting and planning and DEP and the Highlands Council exactly backwards. The applicable law very clearly states that DEP can not issue any permit that is inconsistent with a WQMP plan, and those plans are linked to the Highlands RMP and the Council’s interpretation of same.

DEP also engaged in a totally false history, by stating as a fact that the original 1994NJPDES permit, which preceded the Highlands Act, was the reason for mapping the location of the discharge in the Highlands Planning Area. Where did they get that lie from? I’ll guess Bellemead’s lawyers.

They also got my comment exactly backwards in comment #20, which explicitly criticized DEP’s narrow interpretation of the scope off the NJPDES permit regulations, which explicitly require compliance with the Highlands Act and WQMP Act, and SWQS, among others. Here’s how they misstated the law in basically confirming it in a non-responsive response to my criticism:

the Department’s permitting decisions relating to this NJPDES permit are squarely embodied solely within the NJPDES rules. …. commenters are conflating different sets of rules with each other.

That DEP response missed the point entirely.

I didn’t conflate anything. I wrote the Highlands Act and am intimately familiar with DEP’s WQMP and NJPDES rules. The whole point I made in that comment #20 is that the NJPDES rules require compliance with other laws and regulations and that DEP had failed to assure this compliance as a result of  how they arbitrarily and illegally narrowed the scope of their NJPDES permit review.

And here’s how they vaguely responded to my key specific objections (I am “commenter 21” and this is provided in response to comment #9:

Note that some of documents identified by Commenter 21 are outside the scope of this limited permit action and are more relevant to any renewal NJPDES permit renewal process where the Department will reevaluate all permit conditions.

DEP also mischaracterized my other comments, especially in comment #14. We will post an analysis soon after I read the full final NJPDES permit and the DEP’s response to comments document. ~~~ end update]

[Update: 4/18/19 – DEP just denied a request for a public hearing but reluctantly agreed to extend the public comment period until May 14, 2019, based on “the level of interest in the permit action“. I don’t know who requested a public hearing, but have asked DEP to provide the distribution list of those who commented. We asked for an extension, but not a public hearing.

But DEP permit staff have refused to provide the documents requested below, upon which the permit is based. They are forcing document requests through OPRA, which I’ve objected to. ~~~ end update]

NJ Spotlight ran a good story last week about a proposed new sewage treatment plant in the Highlands, that would discharge downstream of a Category One stretch of the environmentally sensitive North Branch of Rockaway Creek, see:

• DEP PERMIT WOULD LET TREATED SEWAGE BE DUMPED INTO ROCKAWAY CREEK

The state is moving ahead with a much-litigated permit that would let developers discharge treated sewage into Rockaway Creek, a project the New Jersey Highlands Council says is incompatible with its regional master plan. The council oversees development in the region.

The Highlands Council not only “oversees development in the region” – under the Highlands Act, they also protect, among other things, the water resources of the region. (and where is the Wm. Penn Foundation now?)

The Murphy DEP’s decision to issue the draft permit and over-ride the concerns of the Highlands Council violates the Highlands Act and DEP’s own regulations, and would set a terrible precedent on land use, water quality and the relationship between DEP and the Highlands Council, particularly for water quality and land use issues in the Planning Area where the Highlands Regional Master Plan is not mandatory.

The DEP got the relationships between DEP and the Council and between water pollution permitting and Highlands regional planning exactly backwards. (This permit is actually worse than the Christie DEP’s Crosswicks Creek NJPDES permit)

Because the applicable DEP Highlands regulations require that DEP “give great consideration and weight to the RMP.” see: N.J.A.C. 7:38-1.1(g)., frankly, I found it hard to believe that the DEP over-rode the objections of the Highlands Council. So I did a little digging and got a copy of and read the draft NJDPES permit.

I was stunned to find that the DEP not only over-rode the objections of the Highlands Council, they actually failed to engage them at all and simply ignored them by concluding that the Council’s concerns were “outside the scope of the NJPDES permit decision.“

DEP basically said that they could issue water pollution control permits – which would degrade water quality and increase development, in conflict with the Highlands Act – without even engaging the substance of the Highlands Council’s concerns!

The draft permit is blatantly illegal and an attempt to unilaterally control water quality issues in the Highlands.

So I submitted the below comments on it and requested an extension of the public comment period. I hope the legal eagles that represent NJ environmental groups pick up on these challenges and that if DEP issues it, that the permit is litigated:

Susan – thank you for providing the draft NJPDES permit.

Please consider this email a followup public comment on the draft permit, a request for additional documents and a request to extend the public comment period.

The draft permit violates the Highlands Act (and implementing DEP regulations), the Water Quality Planning Act and the NJPDES regulations.

The Highlands Act and DEP Highlands regulations mandate that the Department consult with the Highlands Council and “give great consideration and weight to the RMP.” see: N.J.A.C. 7:38-1.1(g).

Yet the draft permit is is based on the following DEP conclusions:

“(1) the appropriate mechanism to address the concerns raised by the Council is through the established Water Quality Management planning process, and

(2) it is inappropriate to evaluate the NJPDES permit for consistency with the particular RMP goals, policies and objectives identified in the Council’s letter because those goals relate to approvals outside the scope of the NJPDES permit decision.“

First of all, by definition and based on the language cited above, the Department: a) did not give “great weight to the RMP” and b) did not do so during the NJPDES permit process because:

a) the Department failed to substantively respond to but instead re-directed the Council’s concerns through the WQMP planning process, and NOT the DEP’s Highlands regulations and NJPDES regulations as required under both DEP’s Highlands and NJPDES rules; and

b) because the Department determined that the Council’s concerns were “outside the scope of the NJPDES permit decision.“

But, to the contrary, under applicable law and regulations, the Councils concerns clearly are not “outside the scope of the NJPDES permit decision”.

Under the WQMA and NJPDES regulations, the Department may not issue any permit – including a NJPDES permit – that is inconsistent with other DEP regulations (such as the Highlands regulations) or the applicable WQMP.

Because the DEP concluded that the Highlands Council’s concerns were “outside the scope of the NJPDES permit decision” – the DEP therefore did not substantively engage and respond to them and make final determinations with respect to them. Accordingly, the Department failed to comply with applicable law and regulations.

The Administrative record on the permit is deficient because it lacks any factual, scientific, planning or legal findings in this regard in response to the Council’s concerns. Therefore, under longstanding basic principles of administrative law and applicable court decisions, the draft permit lacks an adequate basis and is “arbitrary and capricious” and “an abuse of discretion”.

Finally, it is difficult to understand and meaningfully comment on the draft permit without the following documents, which I hereby request:

1. the Highlands Council’s consistency analysis documents referenced in the draft permit

2. The Department’s full consultation response to Highland Council referenced in the draft permit

3. the Court opinions referenced in the draft permit

4. the anti degradation analysis and DEP review comments as referenced in the draft permit

5. the DEP’s “reasonable potential” determination required under NJPDES rules

6. A clear statement of whether a mixing zone or water quality based end of pipe effluent limits were established in the draft permit.

In conclusion, please extend the public comment period for at least 60 days so that the public can meaningfully comment on these complex issues in light of an available, full, and accurate administrative record of the draft permit.

I appreciate your continued assistance and timely reply.

Wolfe