More DEP Deals – By Invitation Only, Behind Closed Doors, No Records Kept

DEP just quietly announced another round of sham “”by invitation only” “stakeholder” meetings. The regulatory meetings will be held behind closed doors. According to DEP, no transcripts or official records will be kept about what is said during the meetings:

Room space is limited and we are asking that only the invitees attend.

This is not a public hearing, so no formal record of this meeting will be generated, beyond a recording of those attending.

Just in time for the holidays, the next set of regulatory rollbacks will focus on:

• the Office of Permit Coordination  (Dec. 9) – responsible for “one stop shopping“, also known as “let’s make a deal”, or “special access for friends of the Governor”
• Category One Waters  (Dec. 10)- these are the controversial 300 foot stream buffer regulations legally challenged unsuccessfully and still hated by the builders
• compliance and enforcement (Dec. 13) – Commissioner Martin directed all DEP staff to treat regulated industry like “customers“. So this policy is likely to weaken enforcement and promote failed voluntary and/or market based compliance strategies.

The policy context for these meetings was established by – all of which have been written about in depth here – the following:

• Governor Christie’s Executive Order #2 “common sense regulatory principles” to “provide immediate regulatory relief”;
• Lt. Governor Guadagno’s “Red Tape Review” process under Executive Order #3
• the DEP Transition Report; and
• DEP Commissioner Martin’s “Vision“, “Transformation Plan” and priority that DEP promote economic development.

Despite this context – which is explicitly extremely hostile to environmental regulations – and the DEP practice of “invitation only” “stakeholder” processes that are closed to observers, critics, and the press, environmentalists again have chosen to participate and thereby legitimize this sham.

As I was involved intimately in developing the Category One program that is under attack, I thought I’d lay out some recommendations of how the C1 program could be improved. (as predicted, DEP took these webpages down – down the memory hole:

While I was with NJ DEP, I ran a program where we sought nominations from citizens to increase protections for their local streams. We were very successful (if you’re interested in this initiative, I suggest you read this DEP webpage now, before the Ministry of Truth over there finds out that it still exists. Even they will figure out that it legitimizes their worst critic and exposes serious program weaknesses – when they do, they will take that page Down Orwell’s Memory Hole):

PUBLICLY IDENTIFIED WATERS FOR CATEGORY ONE

To date, DEP has received over 47 public nominations from individuals, groups and public entities for Category One designations. These public nominations include approximately 337 named rivers and streams equaling 7,655 linear waterbody miles and 23 reservoirs, lakes and ponds representing 6,593 surface acres. A map of the public nominations is available at www.nj.gov/dep/antisprawl/c1map.html.

DEP has not had the opportunity to fully evaluate all the public nominations for Category One but will seriously consider all public nominations over the upcoming months. DEP is continuing to accept public recommendations for Category One water designations. Public recommendations for Category One water designations should be sent at this time to Bill Wolfe.

View Map of PUBLICLY Identified Waters

The 10 recommendations below could be demands by my environmental colleagues to drive the agenda forward, and deflect from further rollbacks.

As some may know, the C1 program was weakened significantly by former DEP Commisioner Lisa Jackson, without criticism by environmentalists – we wrote:

The Facts:

1. Category One program – yes DEP did propose more than 900 miles of C1 upgrades. However, DEP adopted less than 600, eliminating over 300 miles due to opposition from powerful corporate developers.

Worse, DEP revised the C1 methodology, which makes it far more difficult to protect endangered species, water supply, and to list any additional C1’s in the future. This change in methodology was needless, because NJ’s highest court upheld a challenge to the C1 rules by the NJ Builders Association. The needless DEP change resulted in the elimination of over 1,600 backlogged qualified “candidate C1 waters” pending upgrade that were listed in the March 2003 NJ Register. Bottom line: the net effect was a huge setback, which was covered up by greenscam.

This rollback in the C1 program occurred, despite a January 2007 warning letter signed by numerous groups, strongly urging DEP Commissioner NOT to make the regulatory change. That leter read:

Dear Commissioner Jackson:

In a late December meeting attended by many of our groups, the Department outlined its plan for a new process to guide the designation of Category One waterways. The meeting afforded only a cursory overview of what would represent a very fundamental change to clean water protections in New Jersey, but did provide an outline of the narrow set of water quality indicators that might serve as the basis for deciding future C1 upgrades. We have serious objections to the proposed designation process and fear that its implementation would strip New Jersey of the ability to adequately protect and maintain its high quality waterways. If enacted, this method would reverse tremendous advances in clean water protection in the state, contradict the commitments made by Governor Corzine, and leave New Jersey without the ability to adequately protect and maintain many of its most deserving waterways.

Signed: Jeff Tittel, Sierra Club, NJEF, ANJEC, Environment NJ, et al

By setting clear demands up front before going into the process, hopefully we can shape expectations and avoid a repeat of rollbacks, while holding parties accountable.

1) the Fish IBI (Index of Biological Integrity) should be used as one of the datasets in the “weight of evidence” basis for C1 designation.

2) the most recent DEP C1 methodology “improvements” weakend the method – those changes should be rescinded.

3) DEP never acted on upgrading numerous “C1 Candidate Waters” that DEP published in the March 2003 NJ Register.(Notice provided upon request).

4) recent changes to the C1 “Special Water Resource Protection Area Requirements” in the stormwater BMP Technical manual will weaken the implementation of C1 stream protections. They are substantive and should be implemented via rulemaking, with full public notice, public hearing, and written comment.

5) Lisa Jackson’s original 2008 AO should be restored (i.e NOT the 2009 Jackson AO, but the the original “demonstration of equivalent ecological functions” required to reduce buffer width to 150 feet).

[Update – correction – it was a 2007  Lisa Jackson Administrative Order – for analysis, see:

• NEW JERSEY CUTS DEEPLY INTO PROTECTED STREAM BUFFERS – Commissioner Revokes Her Year-Old Order, Leaving Buffers at Mercy of Politics

6) DEP should abandon the piecemeal segment specific C1 stretch designation approach and list entire C1 waters from their headwaters.

7) Current C1 rules (NJAC 7:8-5.5) do NOT include any hardship waiver provisions, yet the recently adopted stream encroachment rule allows them. The hardship provision for C1 buffers in the stream encroachment rules should be withdrawn.

8) under no circumstances should DEP allow buffer averaging.

9) “existing water quality” shall be defined as the ambient WQ that results from actual current discharges, NOT from far larger NJPDES permitted flows and loads. Any increases in discharge from existing discharges to permitted loads shall be subject to antidegradation reviews.

10) DEP should eliminate the grandfathering of existing NJPDES permitted discharges from C1 antidegradation review.

11) DEP should adopt a technical manual to implement protections for existing uses, specifically those uses that are not specifically protected by numeric water quality standards (e.g. the Milligan Farms NJPDES permit protections for bog/wood turtle case).

These are merely suggestions off the top of my head – I have written in depth in prior posts – hit the above links.