Governor Christie’s Veto of the Barnegat Bay TMDL Bill – What It Really Means

We look now to EPA Region II to enforce the Clean Water Act in NJ

“We have the data already. We’ve had it for years,” said Michael Kennish, a research professor who heads Rutgers University efforts to study Barnegat Bay’s pollution problems.  “We know what the problems are. We need to have big stuff done, mandates and requirements imposed by DEP.”  [Asbury Park Press. 8/6/2010]

[Update below]

A Tuesday Asbury Park Press editorial:  Christie wishy-washy on bay rules and Mike Catania’s Op-Ed in today’s NJ Spotlight Playing Politics with Barnegat Bay criticize Governor Christie’s conditional veto (CV) of the Barnegat Bay “Total Maximum Daily Load” (TMDL) bill passed by the Legislature.

Here is a flavor of the news coverage that preceded those efforts, from WHYY Science and Health desk: Christie blocks Barnegat Bay pollution limits

New Jersey Gov. Chris Christie Thursday conditionally vetoed a bill to establish limits on chemicals in Barnegat Bay. Calling the time frame set out in the bill unrealistic, he sent a version back to the Legislature asking for five years instead of two to determine if a “total maximum daily load” is necessary. …

A daily load is a pollution budget that sets federally enforceable limits on the amount of chemicals such as nitrogen and phosphorus that can be emitted into the bay.

Bill sponsor Assemblyman John McKeon said he was disappointed with the changes. He said more time for study further endangers the bay and strips the bill of its effectiveness.

“Left to its own designs, 20 years has passed and the DEP hasn’t moved forward in the direction of a (total maximum daily load) for the bay, McKeon said. A  two-year time frame would have created a priority.”

Scientists have linked excessive nitrogen levels to the algae blooms and stinging jellyfish that have overrun the bay.

Bill Wolfe, director of the New Jersey chapter of Public Employees for Environmental Responsibility, considers the vetoed bill as the most important  in the package because it had the most regulatory clout.

“This [the TMDL bill] would change the game completely and make it a mandatory requirement of federal and state entities based upon the best science,” Wolfe said.

Here is Governor Christie’s lame excuse (which – shockingly – was “praised” by some NJ “environmentalists” [Note: “Praise” was offered by Tim Dillingham, ALS; Cindy Zipf,COA; andChristie Ambasador, Dave Pringle, NJEF. (personal communication, Todd Bates)):

While this bill would in some ways complement this comprehensive plan, many of the timeframes and requirements mandated by the bill are not realistic. In addition, adoption of total maximum daily loads requires the adoption of nutrient standards as a prerequisite and there are no State numerical standards yet established for phosphorus, nitrogen or excessive sediments for estuarine waters such as Barnegat Bay. The development of such standards and criteria is extremely complex for these types of waterbodies and requires monitoring data that are not available. While water quality data have been collected for years in Barnegat Bay, there are many gaps in this water quality data that need to be filled in order to use the modeling tools necessary to develop a total maximum daily load.

I’ve been closely following this issue (see this and this and this and this).

In fact, I first raised the need for a TMDL in an August 17, 2010 Asbury Park Press Op-Ed .

As a result, Senator Smith subsequently sponsored the TMDL bill, which was introduced on October 7, 2010. As Kirk Moore of the Asbury Park Press wrote on 9/27/10:

A similar plan is needed for Barnegat Bay, said Bill Wolfe of Public Employees for Environmental Responsibility, a former DEP official. In addition to the Chesapeake model, New Jersey can look to Florida, where EPA administrator Lisa Jackson is seeking to enforce phosphorus limits on Florida to clean up the Everglades, Wolfe wrote on his blog wolfenotes.com.

“I’m not afraid to listen to Bill Wolfe when he has a good idea,” Smith said. Wolfe says he would like the Legislature to take a stronger stance with a bill to require action by the DEP.

But the Governor’s veto is actually FAR WORSE than the Asbury Park Press and Catania note.

The CV is being misperceived as merely an extension of the 3 year timeframe to 5 years. But while the CV mentions the need for DEP to develop nitrogen water quality standards and a TMDL, it does NOT require that DEP do so, i.e. promulgate nutrient standards and adopt a TMDL.

Perversely, the CV would make it HARDER and less likely that DEP takes those steps.

Inaction and delay are bad enough, but they are only a small part of the CV.

The CV would not only allow  Barnegat Bay to deteriorate further – jeopardizing ecological collapse and inviting things like harmful algal blooms – it also would hamper DEP’s statewide water quality standards and TMDL programs.

The real bottom line issue is that Christie and his DEP Commissioner Bob Martin philosophically are: 1) opposed to DEP state regulatory mandates; 2) oppose tougher DEP restrictions on new development in favor of home rule and stimulating economic development; and 3) elevate economic compliance cost considerations above environmental protection.

Instead, Christie/Martin support: 1) a voluntary, local, incentive based approach to restoring the Bay; 2) cost-benefit analysis to curb what they view as over-regulation and 3) promotion of economic development, including new housing. Christie CV reveals that policy here:

Since a total maximum daily load is ultimately an enforcement tool under both state and federal law that compels parties to implement measures to reduce the amounts of pollutants they discharge, which can impact private and public budgets, it must as a matter of good policy be developed on the basis of sound science and not mere directive.

The Christie anti-regulatory mandate approach is the basis for the voluntary and local consensus based National Estuary Program [correction: now the “Barnegat Bay Partnership“] – it has failed miserably for 15 years. That’s why we need to do more and use DEP’s regulatory stick.

Therefore, for the following reasons, the Legislature must not concur with the CV but instead either marshall the votes to over-ride the Governor or let the bill die.

I) Undermine DEP State Water Quality Standards Program

The Governor’s Catch-22 excuse that the TMDL is premature because DEP has not adopted numeric water quality standards for nitrogen, reminds me of the story about the kid who murdered his parents, and then pleaded for leniency in sentencing because he was an orphan.

The CV is NOT site specific and is NOT limited to the Barnegat Bay. It also is NOT limited to DEP’s TMDL program. {The nutrient methods and standards DEP would adopt would be applicable statewide.}

Instead, the CV would apply more broadly by revising DEP procedures and criteria for promulgating statewide surface water quality standards.

The Governor’s CV would create specific new hurdles DEP must overcome before promulgating surface water quality standards (SWQS), as follows:

1) procedurally, before proposing SWQS for nutrients and sediments (TSS, TDS), DEP must prepare a Report to the Legislature. This is a form of politicizing DEP regulations – it almost amounts to asking permission before doing so. This fundamentally alters the balance of power between executive and legislative branches and would undermine clean water;

2) substantively, DEP’s Report must document data gaps and consider the costs of new data collection and modeling. This requirement undermines and/or conflicts with the Clean Water Act, EPA regulations, and EPA State SWQS Handbook (Guidance), all of which prohibit consideration of costs in setting SWQS. SWQS must be exclusively science based – costs to comply with the standards may only be considered later, during the implementation phase.

3) methodology – the CV would allow DEP to perpetuate the current flawed piecemeal approach – based on individual “impaired segments” or portions of the Bay – instead of analyzing and regulating the whole Bay watershed and ecosystem as required by the original legislation.

4) scientific burden of proof – the requirement to collect and consider new data before determining if the Bay is “impaired” and pulling the TMDL trigger conflicts with and undermines the Clean Water Act. The Act requires that regulatory decisions be based on “best available science” – not the best possible science that provides bullet proof cause and effect relationship and causal proofs. {Note: The EPA TMDL regulations require a “margin of safety” to address scientific uncertainty:

 Margin of Safety (MOS) Margin of Safety – A required component of the TMDL that accounts for the uncertainty about the relationship between the pollutant and the quality of the receiving waterbody (CWA section 303(d)(1)(C)). The MOS is normally incorporated into the conservative assumptions used to develop TMDLs (generally within the calculations or models) and approved by EPA either individually or in state/EPA agreements.

Christie’s CV would stand the Clean Water Act framework and the “precautionary principle” on its head.

Even DEP Commisioner Martin’s Science Advisory Board (SAB) Chair correctly clearly distinguished the relationship between science and regulatory policy and highlighted the need for DEP to do its job and make a judgement call. According to the minutes of the SAB Water Quality Subcommittee:

[SAB Chair, Rutgers professor] Judith Weis pointed out that the scientific results of any given approach looking into nutrient impacts on biology would result in a continuum of responses and she felt it is the job of regulators such as DEP to pick a number out of the continuum and it could be difficult to justify that number scientifically.

Last, the Governor’s statements about “unrealistic” timeframes are pure nonsense.

I staffed former DEP Commissioner Campbell’s phosphorus science workgroup in 2002-2003. In about 9 months, that group derived biological stressor/response numeric thresholds required to enforce the narrative prong of the phosphorus SWQS to control eutrophication in freshwater. These science based thresholds were adopted in a legally enforceable Technical Manual. {The Technical Manual was adopted by DEP in March 2003}

DEP could follow the same process for developing enforceable biological thresholds for nitrogen in estuarine waters. We have been asking DEP to do so for several years now.

Additionally, EPA conducted a TMDL on the Chesapeake Bay in LESS time that the 3 year period provided in the original legislation vetoed by the Governor as “unrealistic”. The Chesapeake is a far larger and more complex system than Barnegat Bay. {President Obama issued an Executive Order on May 12, 2009 –  EPA issued the final TMDL about a year later.}

II)  TMDL Was Mandated by the Clean Water Act Since 2002

Under the Clean Water Act, a TMDL is mandatory once a waterbody is determined to be “impaired” (i.e. does not meet water quality standards set to protect the Act’s fishable and swimmable goals). Once a waterway is “impaired”, both EPA and DEP have a “mandatory duty” to enforce the TMDL requirements of the Act (that’s legalese for “they have to do it”).

EPA funds and oversees NJ DEP’s implementation of the Clean Water Act.

Because DEP and EPA were not implementing TMDL requirements, in the 1990’s, environmental groups began filing TMDL lawsuits across the country, including in NJ.

The threat of lawsuits forced EPA to crack down on NJ’s lagging TMDL performance. In early 2002, EPA Region II threatened to withold federal funds to NJ for failure to meet TMDL obligations.

EPA’s vulnerability to a TMDL lawsuit led EPA to convince NJ DEP – using the leverage of federal sanctions – to enter into a September 2002 EPA/NJ DEP TMDL Memorandum of Agreement (MOA). 

The MOA provided a list of waterbodies for which DEP was legally obligated to conduct a TMDL.

Barnegat Bay was listed as “impaired” on the EPA approved 2002 “303(d) list and included in the 2002 EPA/DEP MOA as a “high priroity” for a TMDL.

How did we go from “high priority” for a TMDL in 2002, to “maybe we will consider if we need a TMDL” by 2017?

The MOA provides in pertinent part:

“IV. Schedule for establishment of TMDL’s

“… This schedule …  shall ensure the establishment of all TMDLs on the approved 2002 CWA Section 303(d) list by March 31,  2011.”

Bay impairments included (in 2002) dissolved oxygen, pathogens, fish PCBs, and a suite of toxic heavy metals: arsenic, copper, lead, nickel, and zinc.

Portions of the Bay remains impaired and on the 2010 current 303(d) list. Current impairments include DO, mercury, and PCB, but I am unsure of the status of the other metals (I think they were delisted).

Subsequent to the 2002 MOA, the EPA approved DEP 2004 “303(d) integrated Report“, repeated the 2002 listing and the NJ DEP’s HIGH priority ranking.

A TMDL for the Bay is legally due in 2 months, by March 31, 2011 (a heads up to the legal eagles out there).

We look now to EPA Region II to enforce this commitment in Clean Water Act funding and regulatory oversight of NJ DEP.

[Update – for any regulatory wonks out there, I thought I’d clarify a few things about DEP nutrient “narrative” surface water quality standards, known as the “nutrient policies”.

Below are existing nutrient policies in the surface water quality standards that have been in place for many years and are applicable to ALL waters (fresh and estuarine). These rules have been in effect long prior to the December 2010 adoption of a revised phosphorus standard and recodification of the nutrient policies (hit this link for the rule adoption document) .

DEP always had adequate legal authority to enforce those policies, but avoided making tough regulatory decisions by hiding behind the scientific uncertainty and professional judgement required to implement the “narrative” standards, i.e. what does “render water unsuitable” mean? What is an “objectionable algal density“? What level of plant growth is “nuisance aquatic vegetation“? What is “excessive photosynthetic activity“? What degree or magnitude of change or loss in aquatic life is “detrimental”? How bad must it get before a “use impairment” is triggered?

BTW, the 300 C1 foot buffers are an EPA approved “best management practice” for non-point control of nutrients and sediments (TSS and TDS). A TMDL would trigger 300 buffers on all Bay tributaries – that alone is a huge benefit of a TMDL.

NJAC 7: 9B-1.5(g)

Nutrient policies are as follows:

1. These policies apply to all waters of the State.

2. The Department may develop watershed-specific translators or site-specific criteria through a Total Maximum Daily Load (TMDL). Site specific criteria shall be incorporated at N.J.A.C. 7:9B-1.14(g).

3. The Department shall establish water quality-based effluent limits for nutrients, in addition to or more stringent than the effluent standard in N.J.A.C. 7:14A-12.7, as necessary to meet a wasteload allocation established through a TMDL, or to meet the criteria at N.J.A.C. 7:9B-1.14(d)4.

 4. Activities resulting in the nonpoint discharge of nutrients shall implement the best management practices determined by the Department to be necessary to protect the existing or designated uses.

NJAC 7:9B-1.14(d) Nutrients:

i. Except as due to natural conditions, nutrients shall not be allowed in concentrations that render the waters unsuitable for the existing or designated uses due to objectionable algal densities, nuisance aquatic vegetation, diurnal fluctuations in dissolved oxygen or pH indicative of excessive photosynthetic activity, detrimental changes to the composition of aquatic ecosystems, or other indicators of use impairment caused by nutrients.