More Clean Water Rollbacks on the Horizon at DEP

We wrote about yesterday’s NJ Business and Industry Association (NJBIA) panel discussion here. Among many other problems illustrated by this event, I was especially disturbed by DEP Commissioner Mauriello’s remarks about the new Science Advisory Board (SAB), the DEP’s proposed rollback of phosphorus standards, and implementation of major federal Clean Water Act cleanup requirements know as the “Total Maximum Daily Load” or TMDL program.

Mauriello managed to link both SAB and TMDL issues, and he did so in a troubling way that has raised major new concerns. We have been following these issues closely.

By way of background, TMDLs are mandated by Section 303 of the federal Clean Water Act when pollution exceeds standards set to protect a waterbody for specific uses, such as: drinking water; supporting healthy aquatic life; fishing; swimming; etc. When waters exceed pollution limits, they are classified as “impaired”. TMDLs set legally enforceable caps on allowable pollution and mandate specific pollution reductions (from all point and non-point sources) to comply with the pollution limits. Virtually every river and lake, and many streams in New Jersey are “impaired” and legally must adopt TMDLs. Almost half of the TMDL pollution problems are caused by phosphorus, which drives eutrophication that kills aquatic life. The additional algae caused by excessive phosphorus also requires additional treatment to meet drinking water standards, which increases costs and health risks associated with disinfection byproducts like trihalomethane in treated tap water.  So TMDLs and a strong phosphorus standard are critical tools in restoring clean water (for background on TMDL, see this).

On the SAB issue, at the NJBIA event, Mauriello took strong exception to statements made in the “blogs” – he was referring to this post, and to this one and to this one. Mauriello said that contrary to what the blogs say, the SAB would be limited in focus to science. He then pledged that the SAB would not be involved in regulatory standards and would not drive policy at DEP.

But just moments later, Mauriello flat out contradicted himself and violated his own pledge to keep the SAB out of controversial regulatory policy and standards issues. And he did so in a way that suggests he does  not understand DEP’s legal obligations to implement the TMDL program.

Specifically, Mauriello questioned the efficiency and effectiveness of the TMDL program and how it is implemented in water pollution permits (NJPDES). Basically, polluters challenge strict permit limits set by TMDLs. Mauriello then stated that his first assignment to the new SAB would be to evaluate the performance of the TMDL program. Obviously, this is a flat out contradiction of his pledge to limit the SAB to  science and not allow the SAB to stray into standards and policy issues.

On the TMDL issue, Mauriello’s comments suggested either complete ignorance of DEP’s scientific and regulatory basis for a controversial new proposed rollback of the phosphorus water quality standards, or he tipped his hand and signaled another major rollback, not only to the phosphorus water quality standards but also to the TMDL program.

Specifically, Mauriello was asked by a water quality consultant to explain why DEP proposed a weaker new narrative standard for phosphorus, why DEP repealed the current strict numeric water quality standard for phosphorus, and, if the proposal is adopted, what impact this would have on the TMDL program. In response, Mariello did not answer this question but instead questioned the effectivness of the TMDL program in general, including suggesting that maybe DEP is rethinking how it implements TMDLs in the NJPDES permit program. (see this for implications)

Both positions presented by Mauriello would be significant setbacks to restoring and protecting water quality in NJ.

To try to get some clarity about what’s going on at DEP on phosphorus, TMDL and SAB,  I wrote the Commissioner the below letter. We’ll keep you posted as this develops, but don’t hold your breath waiting for a reply by Mauriello. 

Commissioner:

I want to follow-up on your remarks on the new Science Advisory Board (SAB) at yesterday’s NJBIA panel discussion. This is especially important because you referred several times to my blogging on that issue and stated that my criticisms were off base.

First, you stated that the NJ DEP SAB was modeled on the EPA SAB. This may be the case. However, you failed to mention a few important facts that are relevant to that modeling exercise:

          1. The EPA SAB is subject to the Federal Advisory Committee Act (FACA). In contrast, your Administrative Order guides DEP SAB. There are significantly different and stronger legally enforceable technical standards under FACA that are not in your AO, particularly with respect to composition, balance, ethics, transparency, and public involvement. Here is a link to FACA so you can do a side-by-side comparison. I would support State counterpart legislation to replace your AO, if you’d like to pursue that option.

          2. The EPA SAB does not replace or displace EPA science. EPA science resources and capacity are increasing. As you know, DEP eliminated the Division of Science and Research and resources and capacity are sharply decreasing. As such, in essence, DEP SAB is both displacing and replacing DEP science.

Second, you stated that the DEP SAB focus will be limited to science and pledged that the SAB will not be involved with regulatory standards or drive policy.

However, your response to the questions by Tavit Najarian was deeply troubling and directly contradicted this statement and pledge.

Najarian asked about the basis for the proposed repeal of the current phosphorus numeric water quality standard and its replacement with a proposed new narrative standard. Najarian then asked what impact the proposed new standard would have on previously adopted and/or currently ongoing TMDLs. 

As you know, the federal Clean Water Act mandates TMDLs for impaired waters.

You replied that you were examining the entire TMDL program to assess its effectiveness and efficiency in attaining surface water quality standards and governing NJPDES discharge permits. This is a laudable and significant regulatory policy and standards evaluation. Such an evaluation could drive policy and improve implementation.

But you then went on and stated that this TMDL assessment would be the first charge to the new SAB!

Obviously, tasking the new SAB with such a TMDL evaluation would allow the SAB to stray far afield of science and bring the SAB directly into controversial water quality standards and regulatory policy issues.

Given the above troubling issues, I urge you to abandon any ongoing effort to task the SAB with the TMDL evaluation you described.

Furthermore, I urge you to abandon the entire current SAB framework, repeal your Administrative Order, and approach the legislature to seek State counterpart law to FACA.

Sincerely,

Bill Wolfe, Director

NJ PEER