Barnegat Bay Update

[Update #2 – 12/7/10 – The Senate Budget and Appropriations Committee released the stormwater and TMDL bills (see below) yesterday. Senator Smith did a fine job sheparding the bills. Smith proposed 5 “technical amendments” to the TMDL bill, which received the support of Chairman Sarlo and members of the Committeee, but because they were not yet in written form and OLS could not finish drafting, the 5 amendments will be done on the Senate floor.

The Senate will hear the 7 bill BBay package later this month. While the Smith amendments do not go as far as recommended below (e.g. 300 foot buffers on tributaries, integration with CAFRA and other DEP permits, et al); or address problems associated with lack of DEP standards, monitoring, assessment and eutrophication stressor thresholds; or provide funding, they do improve the TMDL bill as follows:

1) the TMDL shall not delay implementation of existing BMP’s and DEP shall use all existing authority to the “maximum extent practicable” (this is Tim Dillingham’s amendment. It responds to a straw man argument that a TMDL could delay DEP’s efforts. But DEP has done NOTHING but watch as the Bay dies and DEP opposed the TMDL bill in Committee, so the delay argument is BS. In fact, just the opposite is true: the legislative mandate is the kick in the ass that what will get DEP in the game and moving;

2) the TMDL shall include an implementation plan, schedules for tasks, annual benchmarks to measure progress, etc. to assure the TMDL is implemented in a “timely manner” (I’ll take credit for that one, but I think Senator Beck may own it);

3) DEP shall use existing information and science;

4) redefine “Barnegat Bay” to “Barnegat Bay ecosystem” to assure that tributaries and wetlands are included. This is a good idea, but it skirts the regulatory status of the geographic extent of the bill, i.e. the TMDL will govern the entire watershed; does not resolve BMPs for riparian buffers; does not clarify the regulatory status and requirements for non-point source pollution, like agriculture, golf courses; and does not adddress pollution offsets for future growth adn new development, etc. This ambiguity will not fool or placate the Builders and it could threaten passage of floor amendments, as these issues are policy in nature and not “technical”; and

5) change “nitrates” to “nitrogen”. You can listen to the hearing – stormwater bill starts at time 17 minutes, and the TMDL bill at minute 22.]

Update #1 – 12/4/10 – The fertilizer issue is important, but reducing nitrogen concentration in residential fertilizers can never address a total nitrogen loading problem. Worse, the focus on residential fertilizers is dominating far larger problems, especially over-development (no development, no fertilizer, no septic, no impervious surface, no stormwater, no loss of recharge, and so on ). The result is a severe narrowing of environmentalists’ advocacy for more aggressive and comprehensive enforceable solutions. Those flaws are brought out in Mike Miller, Atlantic City Press story, where environmentalists’ demands are lame:New Jersey may ban winter fertilizing to protect waterways

Exemption of golf courses and farms is a huge loophole – both are major sources of  nutrient pollution to the Bay. No disrespect to Tim Dillingham, but self regulation by landscapers is a joke. And is Assemblyman McKeon engaging in classics, with an allusion to Narcissus, who was led to the reflecting pond by Nemesis, and fell so in love with his reflection that he fell in and drown?

“The Barnegat Bay is well on its way to becoming a giant reflecting pool,” McKeon said.

Note to McKeon: failure to dramatically reduce nutrient loads to the Bay is not an aesthetic or nuisance issue. Ecosystems can crash. A polluted, warm, shallow, coastal lagoon like the Bay is a perfect petrie dish to grow exotic organisms that can create toxic harmful algal blooms (HAB). A toxic HAB would make stinging jellyfish seem like a picnic, and the media circus and panic that would ensue would make medical waste washups seem mild. A HAB would wipe out billions of dollars of property value and economic tourism.  end update]

A brief update on the status of the package of bills to protect Barnegat Bay.

Since the last Senate Environment Committee meeting on November 15, there have been important developments:

• The Asbury Park Press has editorialized in support (“Stop Stalling on Bay Bill)” and rain gardens
• Governor Christie told the Bay to DROP DEAD!
• The TMDL (S 2341) and stormwater utility (S 2275) bills are up in Senate Budget Committee on Monday (12/6/10) at 2 pm. I suspect that opponents will try to use cost arguments to kill both bills
• Save Barnegat Bay is working to get the fertilizer bill (S 1411) posted on the Senate Budget Committee’s agenda for next Monday or Wednesday, while fertilizer industry lobbyists are working hard behind the scenes to kill the bill. Here is SBB alert:

SENATE BUDGET COMMITTEE MUST ACT ON FERTILIZER BILL – A-1411 (sic)

The all-important  lawn fertilizer bill that Save Barnegat Bay has been working on for three years, S-1411, needs to be voted in the Senate Budget Committee this Monday, December 6 or Wednesday, December 8.  If it is not, the bill will be threatened with major delays and possible gutting by Scotts Miracle-Gro’s lobbyists.

In order for the bill to receive timely passage, Senator Paul Sarlo, the Chairman of the Budget Committee must put S-1411 on the Budget Committee schedule for this Monday, December 6th or Wednesday, December 8th.

PLEASE PHONE the office of Senator Sarlo:  201-804-8118 

Please request of Senator Sarlo that he: 

(1) Put S-1411 – the lawn fertilizer bill – on the Budget Committee Agenda for Monday, December 6 or Wednesday December 8  
(2) Support the amendments of the bill’s sponsor (Senator Bob Smith), and
(3) Release the bill for a vote by the full Senate.

• I met yesterday with Senator Beck (R-Monmouth), at her request, to brief her on the TMDL program and my prior recommendations to amend and strengthen S 2341.

Because I am not a lobbyist and work openly, I share my recommendations below. That openess policy is not likely to get me many legislative meetings. But wouldn’t it be nice if all lobbyists were this transparent and accountable? (be the change you want to see!)

December 3, 2010

Dear Senator Beck:

Thank you for taking the time to meet yesterday concerning S 2341, the Barnegat Bay TMDL bill.

I’d like to 1) summarize our discussion; 2) provide examples you requested of EPA programs and other State TMDLs, including TMDLs for coastal lagoons, and 3) put a little more meat on the bones of the 3 basic legislative options I see.

I) Summary

1. I outlined Section 303 of the Clean Water Act TMDL program. DEP TMDL regulations (NJAC 7: 15-1 et seq) incorporate the federal EPA program regulations.

Under EPA regulations (40 CFR 130.7), a TMDL must be submitted to EPA for review and approval. A TMDL must comply with the following requirements:

(1) be designed to attain and maintain the applicable water quality standards, (2) include a total allowable loading and as appropriate, wasteload allocations (WLAs) for point sources and load allocations for nonpoint sources, (3) consider the impacts of background pollutant contributions, (4) take critical stream conditions into account (the conditions when water quality is most likely to be violated), (5) consider seasonal variations, (6) include a margin of safety (which accounts for uncertainties in the relationship between pollutant loads and instream water quality), (7) consider reasonable assurance that the TMDL can be met, and (8) be subject to public participation.

In the Chesapeake TMDL, EPA is also requiring pollutant offsets to address new pollutant loads caused by future growth. This offset policy is a key to controlling new pollutant loads from projected growth in the Barnegat bay watershed. For EPA Chesapeake TMDL information, click to read:

2. I then laid out the strengths of the BBay National Estuary Program (science, management plan, strategy, local support) but outlined the weakness in that management model that have led to failure to achieve management goals and allowed the continuing decline in water quality (partnership approach and lack of regulatory teeth). click link for BB NEP.

3. I outlined DEP’s lack of numeric surface water quality standards for nitrogen, the limitations in DEP’s soon to be adopted “narrative standard”, and the process by which DEP would develop either a numeric water quality standard or numeric thresholds to enforce a narrative standard.  click link for DEP “narrative nutrient criteria” rule proposal pending adoption.

If you’d really like to get far into the weeds on how this process works, here is EPA’s Nutrient Criteria Guidance for estuarine and coastal waters

And here are EPA AMBIENT WATER QUALITY CRITERIA RECOMMENDATIONS for nutrients in NJ’s eco-region – see values for total nitrogen and chlorophyl a

4. I outlined what I see as the flaws in the current DEP TMDL program and the benefits of a legislatively beefed up TMDL program:

The DEP TMDL program is broken due to a multitude of program design, regulatory, resource, bureuacratic silo, scientific unertainty, and management leadership issues.

5. I recommended that – especially given DEP testimony on S2341 that basically opposed the TMDL option – that legislation not only mandate that DEP adopt a TMDL, but specify a timetable and implementation requirements, most importantly with respect to riparian buffers, CAFRA, to clarify the regulatory the status of non-point pollution, and integrate the TMDL with other DEP permit programs. These legislative requirements could apply statewide, and improve the state’s TMDL program, which effects about 70% of NJ’s waters which are impaired and currently not meeting water quality standards.

6. Last, I summarized what I see as the benefits of the TMDL program, including:

• a pollution budget, which sets an enforceable total cap on pollution, mandatory numeric pollution reductions, and allows monitoring and measurement of progress towards water quality goals and thereby promotes accountability
• deadlines and schedules for discrete tasks, which promote efficiency, accountability, and public participation and oversight
• a “margin of safety” to account for scientific uncertainty
• a “reserve” margin to account for future growth, limit additional new pollutant loads, and provide a framework for pollution off-sets and mitigation
• TMDL would triggger 300 foot buffers as water quality BMPs on all tributaries
• TMDL is a tool to enforce the current CAFRA statute, which says DEP may deny a CAFRA permit due to “impairment”. This leverage could reduce development intensity, reduce impervious surfaces, increase preservation of natural vegetation, and strengthen current DEP stormwater maangement at future CAFRA developments.
• provide federal oversight and federal resources
• address all pollution sources, point source and non point source, regardless of ownership. The TMDL approach provides a framework to pursue the most cost effective retrofits and pollution source reductions in a phased manner over time
• TMDL allows for integration with ongoing scientific work, DEP permitting, and the overall BBay NEP management plan – no need to reinvent the wheel
• TMDL provides regulatory teeth.

II) EPA and Other State coastal lagoon and stormwater TMDLs

You asked for example of other state TMDLs. In addition to Chesapeak Bay, see:

Maryland Newport Bay – shallow coastal

Massachusetts TMDL – and Bay programs

Mid atlantic TMDL – stormwater examples

California scope of work – TMDL coastal lagoon

III) Legislative Options moving forward

I see 3 options:

1. Amend the current version of S 2341 to declare the Bay impaired and mandate that DEP adopt a TMDL

2. Draft a new bill to mandate a TMDL and specify implementation requirements and timetables

3. Await DEP’s Plan and draft a new bill to strengthen that DEP plan under a legislative TMDL framework

Option 2 is optimum, but would take work and could be a heavy lift. This option could include a basic variant (i.e. codify current EPA and DEP regualtions in legislation and direct DEP to implement a TMDL) or a stronger version (i.e. specific implementation requirements and schedules).

I am glad to work with you, Senator Smith, and OLS to flesh out this option.

Most of the TMDL progam elements were touched upon in my prior note to Senator Smith and Kevil. Basically, this would involve putting current EPA TMDL regulations in bill form and assigning deadlines to the major tasks involved.

New implementation requirements would need to be included to assure that DEP integrates the TMDL findings in permits and approvals issued in the Barnegat bay watershed.

Implementation in all DEP permit programs is current law. Specifically, under DEP rules, a TMDL amends an areawide water quality management plan. Under the Water Quality Planning Act, all DEP permits must be consistent with the areawide water quality management plan. Legislative provisions in a new TMDL could make this current law requirement more transparent and force DEP to implement current law, which they are not doing now.

Similarly, CAFRA already provides that DEP may deny a CAFRA permit based upon “impairment” of water quality. That provision is ignored, but a TMDL bill could enforce it by requiring DEP to enforce current law and integrate TMDL pollutant load reductions, BMP’s, and offset requirements in new CAFRA permits.

New legislation could strengthen current DEP best management practices.

Here are current EPA TMDL requlations

Under EPA TMDL regulations, a state adopted water quality BMP become enforceable, thus making a non-binding BMP a regulatory requirement.

Under NJ DEP’s stormwater management regulations (NJAC 7:8-5.5), the 300 foot riparian buffers are a state adopted water quality BMP.

Connecting the dots of EPA and DEP regulations, this means that a TMDL would impose 300 foot buffers on all Barnegat Bay watershed tributaries.

Beause this is a new and controversial interpretation of EPA and DEP regulations, this buffer requirement would need to be clartified and specified in legislation.

Please let me know how I can be of further assistance.

Bill Wolfe, Director

NJ PEER www.peer.org

PO Box 112 , Ringoes, NJ

c: Chairman Smith

Kevil Duhon, Senate Majority