EPA Finds NJ Lagging In Submitting TMDLs for “High Priority Waters”
DEP Lacks Scientific Justification for Numerous Delistings
The Clean Water Act requires that State’s assess the quality of all State waterbodies to determine whether they meet water quality standards designed to assure that they are fishable and swimmable and support aquatic life.
Waters that fail to meet standards must be listed as “impaired” and subject to an enforceable regulatory cleanup plan known as a “TMDL”, for Total Maximum Daily Load”, commonly called a “pollution budget”.
State’s must submit this Section 303 (d) impaired waters list for review and approval by the US EPA every two years.
Here’s what we said about the NJ DEP’s most recent 2012 Report to EPA, which attempted to delist the Barnegat Bay:
Trenton — In a regulatory sleight of hand, the Christie Department of Environmental Protection (DEP) has proposed to remove the ailing Barnegat Bay from the official list of water bodies slated for remedial action in the next two years. The New Jersey Department of Environmental Protection (DEP) proposal to remove Barnegat Bay from the 2012 list of impaired waters flies in the face of a recent Rutgers University study that found the Bay on the verge of ecological collapse. If approved by the U.S. Environmental Protection Agency (EPA), the effect will be disastrous for Barnegat Bay’s future viability, according to Public Employees for Environmental Responsibility (PEER). …
All of the ecological trends in Barnegat Bay are pointing downwards and this critical water body may soon reach a tipping point to becoming a dead zone,” stated New Jersey PEER Director Bill Wolfe, noting that Governor Chris Christie vetoed legislation last year requiring a TMDL for Barnegat Bay. “The DEP is defying the science and clearly violating the Clean Water Act by using regulatory powers in a political attempt to echo Governor Christie’s veto of a TMDL for the Bay. This amounts to a death sentence for Barnegat Bay.”
Well, we now know that we were right. And our criticism was valid far beyond DEP’s “regulatory sleight of hand” on Barnegat Bay.
In an August 1, 2012 letter to DEP, recently obtained by a FOIA request, EPA found numerous serious deficiencies in NJ’s Report:
EPA’s objectives for regional review are to make sure that the methods provide scientifically correct ways to determine if the state’s surface water quality standards are attained; the state has used all data which meet its data requirements; the state has made a correct determination for listing, delisting or not listing any water; and the public had adequate opportunity to participate in 303(d) list development.
NJDEP’s submission has significant data gaps, which must be addressed as indicated in the enclosed comments.
The DEP scientists who prepared this flawed 303(d) Report, which EPA found has “significant data gaps“, are the same ones who are “manufacturing uncertainty” to block the release of Rutgers scientist Mike Kennish’s research, ironically on the basis of data gaps!
EPA’s letter to DEP provided a long list of flaws, not limited to Barnegat Bay, but found errors across the State.
In reviewing EPA’s criticisms, a pattern emerges, showing DEP trying to remove many waters without justification in an apparent effort to evade Clean Water Act requirements.
Because I have the letter in a zip file but no link is available, I’ll excerpt the most significant EPA findings (below is verbatim from EPA letter, the boldface text is mine as is boldfaced headers):
Waterbodies that are not proposed for listing with data that may support the listing:
- Please refer to Enclosure 2, Table 1 and Figure 1, which show that Passaic R Lwr (4’h Street Br to Second R) NJ 02030103150040-01 and Passaic R Lwr (Nwk Bay to 4th St Brdg) NJ02030103150050-01 should be listed as impaired for Entero and that these segments are not meeting their designated uses for Secondary Contact Recreation. This data was used in support of the pathogen TMDL efforts. Please provide justification for not listing.
- Please list Hackensack R (Ft Lee Rd to Oradell gage) NJ02030103180030-01 on the 303(d) list for Dissolved Oxygen (DO). Please refer to the New Jersey Harbor Dischargers Group Water Quality Report, (on page 14, Figure 19 titled, “% DO samples below standards – Hackensack and Hudson Rivers ”) (http://www.nj.gov/pvsc/pdf/2008 NJHDG WQ Report.pdf). If NJDEP does not agree with listing this segment, please provide justification for not listing.
TMDL priority waters/2 year TMDL schedule:
For several listing cycles, NJDEP identified a large number of high priority waters on its 2-year schedule for TMDL development. EPA strongly encourages NJDEP to complete these TMDLs and submit them to EPA before the next listing cycle.
NJDEP’s De-listing Justification Document:
NJDEP is proposing to de-list tidal waterbodies that were previously listed as impaired for Total Phosphorus. NJDEP is claiming that the numeric criteria for Total Phosphorus does not apply to tidal river segments, only freshwater segments. This is due to the most recent rulemaking in December of 2010 when NJ DEP adopted revisions to restrict the application of the numeric phosphorus criterion of 0.1 mg/L at N.JAC. 7:9B-1 .14(d)4ii(1) to non-tidal streams. However, EPA did not approve this particular revision (along with other numeric nutrient criteria revisions adopted at that time by NJDEP). Thus, until the WQS revisions are approved by EPA, the numeric nutrient criteria for TP of 0.1 mg/L remains applicable to all streams. The following segments cannot be de-listed for Total Phosphorus based on NJDEP’s justification that the numeric criteria does not apply for saline waters:
- NJ02030104020030-01 Elizabeth R (below Elizabeth CORP BDY)
- NJ02040301170060-01 Mullica River (Rt 563 to Batsto River)
- NJ02040301170080-01 Mullica River (Lower Bank Rd to Rt 563)
- NJ02030105120170-01 Raritan R Lwr (Lawrence Bk to Mile Run)
- NJ02040202080020-01 Rancocas Creek (Martins Beach to NB/SB)
- NJ02040202120090-01 Newton Creek (LDRV-Kaighn Ave to LT Ck)
- Section II. Applicable WQS Attained: According to New Method
Metals Based on NY/NJ Harbor Toxics Modeling
• Please include the below reference to the modeling work that was done, which shows that the assessment units are not exceeding the water quality criteria:
o http://www.harborestuary.org/pdf/HydroQua1 DevelTMDLsHarbor 1995.pdf
o http://www.harborestuary.org/reports/toxics/NY-NJ-1994-Copper eta1 NY-NJ Harbor .pdf
• Please provide the specific documentation that shows that Elizabeth River and Berrys Creek are included within the modeling reports. EPA believes these tributaries were not covered under the 1990’s or 2000’s Metal and toxics work that was done by HydroQual.
Natural Conditions – Arsenic
We understand that natural background levels of arsenic exceed the State’s human health criteria, and this is not only an issue in NJ but also around the country. However, EPA’s national policy (excerpt below) does not allow human health-based criteria to be modified based on natural conditions or human health uses, where the natural background concentration is documented, this new information should result in, at a minimum, a re-evaluation of the human health use designation. Where the new background information documents that the natural background concentration does not support a human health use previously believed attained, it may be prudent for the State or Tribe to change the human health use to one that natural background concentration will support (e.g., from drinking water supply to drinking water supply only after treatment). (http://water.epa.gov/scitech/swguidance/standards/upload/2009 01 29 crite ria naturalba ck.pd f)
Thus, these segments cannot be de-listed until the human health use designation is re-evaluated in New Jersey’s Water Quality Standards.
Natural Conditions – pH
Please document, as required within Section 3.2 of the NJDEP 2012 Methods Document, that there are no anthropogenic sources or causes for pH in any of the following Assessment units:
o Pohatcong Ck (Brass Castle Ck to Rt 31) (NJ02040105140020-01);
o Pohatcong Ck (Edison Rd-Brass Castle Ck) (NJ02040105140030-01); o Pohatcong Ck (Merrill Ck to Edison Rd) (NJ02040105140050-01);
o Indian Branch (Scotland Run) (NJ02040206130030-01);
o Mullica River (Rt 563 to Batsto River) (NJ02040301170060-01); and o Mullica River (Lower Bank Rd to Rt 563) (NJ02040301170080-01).
Natural Conditions – Temperature
Please document, as required within Section 3.2 of the NJDEP 2012 Methods Document, that there are no anthropogenic sources or causes for Temperature in the following Assessment unit:
Raritan R SB (LongValley br to 74d44m15s) (NJ02030105010050-01) .
Section III. WQS Attained; Reason for Recoverv Unspecified
Pollutants
• NJ Surface Water Quality Standards apply to Chromium III and ‘6. Please respond with supporting documentation that justifies the de-listing for Total Chromium for the following 2 segments:
o NJ02030103110020-01 Pompton River- Total Chromium
o NJ02040301080060-01 Toms RLwr (Rt 166 to Oak Ridge Pkwy)- Total Chromium
• The following segment/pollutant combinations are not showing as being removed in the electronic 303(d) assessment database (ADS):
NJ02040202110040-01 Cooper R(Wallworth gage to Evesham Rd) – Turbidity o NJ02040302030040-01 GEHR (Broad Lane road to AC Expressway) – Zinc
- DEP provided only two data samples to support de-listing for Assessment unit NJ02040301170020-01 Hammonton Creek (Columbia Rd to 74d43m) for Copper to EPA, and one sample appears to exceed the SWQS’s. Please provide further de-listing justification or return this segment to the 303(d) list.
- Data for NJ02030104060060-01 Pews Creek to Shrewsbury River show two exceedances of the DO standard in 2010. Please provide further de-listing justification or return this segment to the 303(d) list.
- Data for NJ0203010407011O-01 Navesink R(Below Rt 35)!LowerShrewsbury show two exceedances of the DO standard in 2009 and 2010. Please provide further de-listing justification or return this segment to the 303(d) list.
- Please provide the data justification for the following 3 de-listings:
o NJ02040301030010-01 Metedeconk RSB (above 1-195 exit 21 rd) for Oxygen, Dissolved o NJ0203010S080030-01 Raritan RLwr (Millstone to Rt 206) – Total Suspended Solids
o NJ02040301170020-01 Hammonton Creek (Columbia Rd to 74d43m) for Zinc
• In order to understand the rationale for the proposed de-listing of Barnegat Bay North (Above Rt 37 Bridge) NJ02040301050050-01 Assessment unit for Dissolved Oxygen, please provide all continuous monitoring data taken by NJDEP and all entities, including the Barnegat Bay Partnership and Monmouth University.
Metals Listings Carried over from 1998
- Pages 15-16 does not show Assessment unit NJ0204030203001O-01 being removed from the 303(d) list for Cadmium, Chromium or Lead.
- Assessment unit NJ020403020S0130-01 is being proposed for de-listing in the de-listing justification document. However, the proposed Mercury delisting is not removed from the electronic 303(d) list in the assessment database (ADB).
- Assessment units NJ02040302040080-01 and NJ02040302040090-01 are proposed for de-listing in the de-listing justification document. However, the proposed 6 metals are not removed in the electronic 303(d) list in the assessment database (ADB).
Section IV. WQS Attained – Original Listing Incorrect Dissolved Oxygen (DO)
4) Please provide all DO data at monitoring stations NJHDG-5 and Passaic-8 for the FW2-NT criterion for DO for NJ02030103120090-01Passaic R Lwr (Saddle R to Dundee Dam).
Metals
l) NJDEP report states: “In addition, total chromium attains WQS (see III.D).” Section III.D. does not exist. The correct reference should be section III.B.
7) NJ Surface Water Quality Standards apply to Chromium III and ‘6. Please provide supporting documentation that justifies the de-listing for Total Chromium for NJ02040202100060-01 Pennsauken Ck (below NB.5B) for this segment.
9) Section 11I.c.1 does not provide justification that NJ02040302050060-01 GEHR (Miry Run to Lake Lenape) is not exceeding the WQS for Arsenic. Please provide the supporting data to justify the de-listing of Arsenic for this segment.
Section VI. Delisted Under TMDLs – Still impaired
Pathogens
Please provide supporting documentation which states that the TMDL target of 330 CFu/100ml and Geomean of 70 CFU/100ml for total coliform will assure that the SWQS for SEI waters (the Entero Geomean of 35/100ml or single max of 104/ 100ml) will be met.
In Assessment unit NJ02040202110060-01 Cooper River (below Rt 130) Escherichia coli is not being removed as a cause in ADB. Please update ADB to reflect the de-listing justification document .
Polychlorinated Biphenyls (PCBs)
With regard to proposed delistings to Category 4a for waters identified as covered under the Delaware Estuary PCB TMDLs (Zones 2-5 and 6), only waters where allocations will result in meeting water quality standards for PCBs can be delisted. EPA, NJDEP, and DRBC have had several discussions regarding which waters are covered by the TMDLs, and it has become clear that many of these waters extend beyond the scope of the PCB TMDLs. NJDEP should prepare a TMDL amendment identifying the waters that are covered by the TMDLs and provide the justification that the allocations will result in meeting water quality standards in these waters. The amendment should be prepared in consultation with EPA and Delaware River Basin Commission. NJDEP must provide public notice on the amendment, respond to public comments and then submit it to EPA for review and approval. The public notice can occur in conjunction with the 303(d) list public notice.
end EPA comments
The DEP will propose the draft 2014 Water Quality Assessment Methods Document for pubic comment on July 21, 2014 and the 2014 303(d) list shortly after that. Short comment period.
We’ll keep you posted.
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