Highlands Council Rejects Regulatory Petition To Close Loopholes To Protect Trout And Aquatic Life From Toxic Effects Of Aluminum

Posted on November 16, 2022 by Bill Wolfe

USGS Study Found Logging Caused “100% Trout Mortality” In Nearby Catskills

Council Ignores Science Compiled In US EPA Water Quality Criteria

Council Abdicates Its Legal Authority And Responsibility To Protect Natural Resources

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In record speed (suggesting little if any scientific inquiry, data analysis, or deliberation), the Highlands Council just denied my petition for rulemaking designed to close loopholes in the Highlands Regional Master Plan (RMP) and protect trout from potential toxic effects of logging and the development that disturbs forests and soils. (hit this link to read the Council’s Public Notice and denial document)

I filed the petition after I read a US Geological Survey (USGS) study on the ecological and water quality impacts of logging in the nearby Catskills mountains of New York, to read that study, see:

Curiously, the Council’s document alluded to but did NOT excerpt the text of the core USGS finding I based the petition on regarding the impacts of logging on trout mortality, so here it is:

Clearcutting caused a large release of nitrate (NO -) from watershed soils and a concurrent release of  inorganic monomeric aluminum (Alim), which is toxic to some aquatic biota. The increased soil NO – concentrations measured after the harvest could be completely accounted for by the decrease in nitrogen (N) uptake by watershed trees, rather than an increase in N mineralization and nitrification. The large increase in stream water NO – and Al concentrations caused 100-percent mortality of caged brook trout (Salvelinus fontinalis) during the first year after the clearcut and adversely affected macroinvertebrate communities for 2 years after the harvest.

The Council also alluded to but failed to include the text of a very recent email to me from the USGS lead scientist on that research report regarding whether the USGS Catskills findings are applicable to NJ Highlands forests and streams, so here that is:

“Regarding your question about whether these results from the Catskills would also apply in the NJ Highlands. I have a few thoughts:

It will depend a lot on the stream chemistry. We sampled some streams in the NJ Highlands about 10+ years ago and scanning these data I see that there are some quite acidic streams as well as some well buffered streams. Streams that would be most relevant are those with slightly buffered conditions that could support a brook trout population but that would be sensitive to becoming more acidic after clearcutting. … But we don’t know for sure. So in answer to your question, the same process and risk to brook trout could occur in NJ streams that are weakly or poorly buffered but it depends in part on how much nitrogen is stored in the soils relative to 25-30 years ago.”

The US EPA recently updated federal water quality standards under the Clean Water Act to adopt a new criteria for aluminum, so I also jointly petitioned the NJ DEP to update NJ’s State surface water quality standards to include the EPA criteria. NJ’s current water quality standards do not include an aluminum standard, see:

The DEP issued a public notice in the November 7 NJ Register accepting the petition and it is currently under DEP review.

This is bullet proof work, and the Council did not even attempt to challenge it.

The Highlands Council and the DEP have overlapping legal authority and responsibilities to protect water quality, natural resources, and forests of the Highlands.

Interestingly, the Council’s rejection of the petition did not claim that the USGS science was flawed or that the USGS findings on logging and trout mortality did not apply to the Highlands region or were not appropriate for the region.

The Council also did not claim that the petition was not necessary because the RMP adequately addressed the problem, thereby implicitly admitting a huge loophole in the RMP regarding forestry and water quality impacts.

The Council also did not claim that they lacked legal authority to respond to the petition and amend the RMP accordingly.

Nor did they claim that they could rely on the DEP’s water quality standards, which also fail to regulate forestry practices and aluminum toxicity.

The Council did not claim that they had data on forestry and water quality and ecological impacts and had examined the issues.

The Council’s rejection even agreed with the objectives of the petition.

But they misconstrued my petition – which explicitly was based on the authority delegated to the Council by the Highlands Act and sought amendments regarding land use and forestry practices under the RMP.

The Council falsely implied – but did not claim – that this was a DEP issue. The Council wrote:

The Highlands Council denies this Petition for rulemaking. While the Highlands Council agrees with Petitioner regarding the importance of protecting the ecological health of New Jersey’s water and natural resources, the agency has determined that a rule change is unnecessary. Petitioner has essentially asked the Highlands Council to regulate and amend New Jersey’s surface water quality standards through amendment of the RMP; as a baseline issue, regulation of surface water quality standards falls under the authority of the DEP, not the Highlands Council.

This is completely false and misleading. Again, my petition cited authority under the Highlands Act and the forestry, land use, and other regulated activity under the RMP. The Council does not deny that authority. But note the weasel words “essentially” and “baseline issue” they use to imply that they lack authority to act.

This is flat out false.

Here is specifically how I petitioned the Council to amend the RMP for activities they regulate under the Highlands Act and RMP:

Amend the RMP to require monitoring and compliance with the EPA’s Final aluminum criteria cited above for regulated activities that disturb soils, generate stormwater, and/or result in point and non-point discharge of pollutants to wetlands and surface waters, including development and forest management activities.

Basically, the Council – despite being made aware of USGS science and a federal US EPA water quality standard that showed alarming potential negative impacts to trout fisheries from logging and land development that were not addressed under the RMP – just openly failed to act.

This is an incredible abdication of their legal duty to protect NJ’ Highlands forests, natural resources, and water quality.

We’ll keep you posted on how DEP responds to the petition.

It should be more difficult for DEP to deny it, because it is based on US EPA’s federal aluminum criteria and US EPA funds and legally supervises NJ’s water quality standards program.

[End Note – I could not find assessment of the impacts of forestry on water quality (or rainfall pH, soil chemistry, stream chemistry, aquatic ecosystems, and aluminum toxicity potential) in any of the technical support documents for the RMP. See if you can.

The Highlands Regional Master Plan is accompanied by the following technical reports:

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