Murphy DEP Denies Regulatory Petition To Close Loopholes In Water Quality Standards To Protect Trout and Aquatic Life From Toxic Aluminum

DEP Completely Ignored USGS Finding That Logging Caused “100% Mortality” For Trout

DEP Denial Document Exposes That DEP Clean Water Act Programs Are In Disarray

DEP Says Water Quality Standards Don’t Apply To Major Sources Of Pollution

US EPA Gives NJ DEP A Pass

The Murphy DEP just denied my petition for rulemaking that sought to force DEP to update NJ’s State water quality standards to incorporate US EPA’ 2018 National water quality criteria for toxic aluminum. The DEP denial will be published in the December 19, 2022 NJ Register, see:

• Notice of Action on Petition for Rulemaking; Request for adoption of rules to address acute and chronic effects of aluminum

I was absolutely stunned by what DEP wrote and how they now interpret their clean water regulations.

My petition not only demanded that DEP update water quality standards, but also included targeted amendments in a host of other DEP Clean Water Act planning and permit program rules that implement the water quality standards:

The DEP’s denial document, which set out current interpretations of DEP’s regulations, was stunning and revealed a State Clean Water Act program that has gone backwards in the last 25 years.

I) A Brief History Of DEP Clean Water Rules Is Instructive

Remarkably, today’s DEP clean water programs are actually weaker and narrower in scope than under the Whitman administration. Few people are aware that the Whitman DEP sought a comprehensive regulatory rollback under a proposed package of regulations dubbed the “Mega-Rule”.

That Whitman DEP initiative was defeated by strong environmental group opposition and a series of negative media stories that exposed things like a memo from DEP’s then Director of Water Resources, Dennis Hart (now head of the NJ Chemistry Council) that the proposed changes “would increase the discharge of chemical carcinogens to drinking water supplies’. His current Chemistry Council colleagues I’m sure would be shocked to learn that Dennis actually wrote that!

But, despite the failed Whitman DEP rollbacks, growing out of the battle over stopping the DEP rollbacks, there were policy discussions with DEP about how to expand and strengthen clean water protections.

These discussions specifically included controversial issues like how to apply and enforce the water quality standards on sources of non-point pollution and in the DEP land use program (water quality standards for wetlands), and how to enforce the water quality standards in other programs, specifically including the Water Quality Management Planning (WQMP) rules (designated sewer service areas and sewage treatment plant capacity) and the stormwater management and stream encroachment regulations.

I even recall that at the time, Dan Van Abs, head of the Watershed Planning program, conducted an analysis and wrote a memo to DEP Deputy Commissioner Mark Smith that documented how historic sewage treatment plant planning (capacity and sewer service area) under the EPA Section 201 planning process, failed to consider impacts on water quality or conduct what’s known as an “antidegradation reviews”. (Dan is now at Rutgers and can confirm this).

As a result, the DEP approved sewage treatment plant capacity (in WQMP plans and facility NJPDES permits) was way too large and the pollution assimilative capacity in NJ’s rivers and stream was over-allocated. New development and growth and use of this capacity would violate water quality standards. Many of these over-capacity sewage treatment plants were located in rural and environmentally sensitive regions of the State, where the State Plan was discouraging sprawl growth.

The thinking at the time was to invoke DEP’s authority under NJ’s water quality standards and WQMP planning rules to require that the sewer authorities conduct an “anti-degradation review” for this over-capacity, which would provide an opportunity for the DEP to claw back this over-capacity.

Unfortunately, that never happened. As a result, sprawl has proliferated and water quality has declined. The builders love it.

(Note: instead of clawing back this excess capacity, the WQMP rules were amended to stop this and grandfather all this excess capacity. Note how the WQMP rules only apply to “new or expanded” capacity:

7:15-4.5 Wastewater capacity analyses 

[…]

8. For each proposed new or expanded domestic or industrial treatment works with discharge to surface water, the permit applicant shall perform an antidegradation analysis in accordance with the antidegradation policies in the Surface Water Quality Standards at N.J.A.C. 7:9B-1.5(d). The applicant shall evaluate a wastewater treatment and disposal alternative consistent with the following hierarchy: ~~ end Note)

But those policy discussions did subsequently lead to a series of major positive water quality reforms during the McGreevey and Corzine DEP’s, including regulations to:

1) upgrade the “antidegradation designations” to Category One along over 2,500 stream miles under the water quality standards rules;

2) establish 300 foot buffers along C1 streams as a “Best Management Practice” (BMP) under the stormwater management rules (We were forced to codify the buffers as BMPs in stormwater rules because DEP was not willing to legally conclude that non-point source pollution was regulated and subject to the water quality standards);

3) rely on the Clean Water Act’s “antidegradation” policy framework as the basis for the Highlands Act and DEP Highlands regulations;

4) strengthen water quality standards and ratchet down on NJPDES permit discharge requirements for the nutrient phosphorus; and

5) limit the expansion of sewer service areas and infrastructure to environmentally sensitive lands under the WQMP rules.

All that momentum and activism for reforms is gone now.

Not only are these issues no longer on the table for discussion and reform, but the DEP has actually reinterpreted existing regulations and made the flaws even WORSE!

II) A Brief Summary Of DEP’s Petition Denial Document

DEP’s denial document exposed a series of radically bad interpretations of current clean water laws and regulations. I will excerpt the lowlights below.

But firstly, I must note that DEP ignored the core scientific basis and problem my petition was designed to address: the USGS scientific research finding that logging in the nearby Catskills in New York State caused “100% trout mortality”.

So let me repeat that USGS finding here so it doesn’t get shoved down Orwell’s Memory Hole (emphases mine):

Effects of Forest Harvesting on Ecosystem Health in the Headwaters of the New York City Water Supply, Catskill Mountains, New York

“Clearcutting caused a large release of nitrate (NO3 -) from watershed soils and a concurrent release of inorganic monomeric aluminum (Alim), which is toxic to some aquatic biota. The increased soil NO3 – concentrations measured after the harvest could be completely accounted for by the decrease in nitrogen (N) uptake by watershed trees, rather than an increase in N mineralization and nitrification. The large increase in stream water NO3 – and Al concentrations caused 100-percent mortality of caged brook trout (Salvelinus fontinalis) during the first year after the clearcut and adversely affected macroinvertebrate communities for 2 years after the harvest.”

Remarkably, DEP simply flat out ignored that USGS science. Read the DEP denial. It is not even mentioned.

Worse, DEP defends a series of regulatory loopholes that ignore those problems. Lets excerpt some of the worst:

1. DEP openly admits that they have failed to update State water quality standards to incorporate the 4 year old EPA 2018 national criteria:

The existing SWQS do not include a numeric aquatic life criterion for aluminum.

2. DEP claims that the water quality management planning rules (WQMP) “do not implement” the water quality standards! Holy moly, the whole point of the WQMP planning process is to protect water quality and attain the water quality standards!!!!

The WQMP rules do not implement the SWQS and as currently written obviate the petitioner’s request to mandate their compliance with the EPA’s Final Criteria.

3. The DEP admits that the stormwater management rules do not regulate pollutants.  No wonder over 90% of NJ waters are impaired!

DEP then goes even further to assert an absurd distinction between the designated uses of a waterbody (e.g. “aquatic life protection”) and the numeric pollutant standards and antidegradation policies for those same waterbodies. Basically, DEP says they numeric water quality standards and antidegradation policies do not apply to stormwater. DEP then spouts non-sense about “the allowable amount of disturbance” and the use designations:

The Stormwater Management rules do not contain standards specific to any individual pollutant. Rather, the rules utilize the designations in the Surface Water Quality Standards at N.J.A.C. 7:9B to determine the allowable amount of disturbance in regulated areas based on the SWQS designation.

4. DEP admits that there are massive loopholes in the DEP forestry rules and the DEP BMP wetlands manual for forestry:

The Forestry rules do not contain monitoring and compliance requirements for specific substances, nor do they refer to such requirements.

5. Then DEP makes those loopholes more specific:

Forestry activities in wetlands, transition areas, and State open waters are generally exempt for the Freshwater Wetlands Protection Act Rules if they follow the BMP manual.Forestry activities in riparian zones usually qualify for a permit-by-rule under the Flood Hazard Control Act Rules.Neither the rules nor the BMP manual contains monitoring and compliance requirements for specific substances.

These are just some of the loopholes and flaws and absurd legal and regulatory interpretations DEP made.

Despite admitting all these flaws and loopholes, DEP does not see a need to close the loopholes and actually protect water quality and aquatic life, including trout.

Read the complete DEP denial document for yourself.

The DEP is in denial.

And US EPA and environmental groups are letting them get away with all this. More to follow on these issues.