FORE! The DEP approved building a 1.13 million square foot warehouse on top of this (the 6th green!) (source memo):
Yesterday, I wrote an initial brief post to overview the Murphy DEP’s proposed approval of a new wastewater system to serve a new 1.13 million square foot warehouse.
My objective was to quickly get out the word for today’s virtual DEP public hearing (at noon, see this link for how to comment).
I quickly reviewed the DEP proposal and sent them the below preliminary comments.
My overall sense is that DEP conducted a superficial and flawed environmental review and seems to have expedited the approval process. Once again, the DEP’s actual regulatory actions belie the lofty rhetoric and spin. It’s very hard to justify this kind of massive warehouse project with DEP’s alleged efforts to reduce greenhouse gas emissions, protect water quality, and adapt to the climate emergency (i.e. the project is NOT subject to the DEP’s REAL climate resilience regulations).
I focused on noting regulatory flaws and deficiencies – it’s wonky but may be of use to those opposing the DEP approval and the project. I have worked with DEP (as a DEP staffer and an ENGO leader) to use exactly these water quality regulations to kill many major developments, e.g. Milligan Farms, Windy Acres, Berwind, et al), see:
Dear DEP – please accept the following preliminary public comments on the subject proposal: Old York Country Club Warehouse – Tri- County WQMP Amendment Proposal.
1. Prior to receiving public comment, it is premature and “arbitrary and capricious” for the Department to issue a regulatory determination that “the proposed amendment is compliant with the applicable regulatory criteria at N.J.A.C. 7:15.”
The public has relevant information and expertise to contribute to that determination. Making it prior to the Public hearing renders the public hearing meaningless and violates the public’s due process rights.
2. The proposal failed to conduct an antidegradation review to determine if the project complies with the antidegradation policies in DEP’s surface and groundwater quality standards (cites omitted).
Antidegradation policies specifically apply to “the Water Quality Planning Act, 58:11A-1 et seq.” (NJAC 7:9B-1.1 Scope of subchapter). The proposed WQMP amendment is reviewed pursuant to the WQPA. The Department therefore may not ignore those policies and review requirements.
Antidegradation policies apply “to all surface waters of the State.” (7:9B-1.5(a)1.)
There are regulated “waters of the state” on site (including regulated wetlands) and adjacent to the site that would be adversely impacted by the proposed WQMP amendment and proposed new development.
The proposed development would generate wastewater and non-point source polluted stormwater runoff that would be discharged to and adversely impact and lower water quality of “waters of the state”, including water quality characteristics of wetlands.
The Department failed to conduct an antidegradation review to determine if the proposed development complies with the antiegradation policies.
Antidegradation policies must be applied and interpreted broadly, see: 7:9B-1.2 Construction “This subchapter shall be liberally construed to permit the Department and its various divisions to discharge their statutory functions.”
3. The applicant and the Department failed to conduct a water quality analysis and review to determine if the proposed WQMP amendment and proposed development would comply with the surface water quality standards, including impacts on designated uses, existing uses, and compliance with narrative and numeric water quality standards (for physical, biological, and chemical parameters, including in wetlands).
The Department therefore has no factual or scientific basis to determine if the project is in compliance with all applicable requirements and would attain water quality standards.
The public has had no opportunity to review, understand, comment on, or otherwise participate in the water quality related impacts of the proposed development.
Accordingly, the proposed amendment is “arbitrary and capricious” and “an abuse of discretion” in violation of applicable law, including the NJ Administrative Procedures Act, NJ Water Pollution Control Act, NJ Water Quality Planning Act, and federal Clean Water Act.
4. The Department failed to independently make a determination of whether the WQMP and proposed development are consistent with and in compliance with local master plan and zoning. Instead, the Department deferred to local and County governments. This is a violation of the DEP WQMP rules NJAC 7:15 et seq, which require the Department to find facts, apply the law, and make a regulatory determination about whether the proposed WQMP amendment and development are consistent with local and regional plans and ordinances.
5. There are multiple other significant stormwater, flooding, traffic, air pollution, greenhouse gas emissions, energy, noise, light pollution, and public safety impacts from this massive new development.
The Department failed to review or consider any of these likely significant impacts and determine whether they were in compliance with all applicable regulatory standards.
The Department’s WQMP rules mandate compliance with all other applicable requirements.The Department ignored this provision of its own regulations.
The failure to consider these impacts is a violation of law and further renders the proposal arbitrary and capricious and an abuse of discretion.
6. The Department recently proposed comprehensive REAL regulations regarding both inland and coastal flooding, stormwater management and wetlands protections. It appears that the Department’s approval of this proposed WQMP is an evasion of these new requirements. This is an abuse that suggests bad faith.
7. As I recall, there is a 20,000 gallon per day (GPD) wastewater generation threshold that triggers regulatory requirements. It appears that this 19,985 GPD system is designed to evade those requirements. This is an abuse that suggests bad faith.
Additionally, daily and monthly wastewater generation is highly variable, and there are margins of error in accurate and precise measurement of wastewater generation. The proposed 19,985 GPD is just 15 GPD below the 20,000 GPD threshold for additional regulatory requirements and therefore should trigger those requirements.
8. As I recall, the Department previously had a WQMP and groundwater management policy to highly discourage site specific amendments for discharge to groundwater based WQMP amendments (package plants) to serve new development outside approved sewer service areas, particularly in rural and agricultural areas.
The proposed WQMP amendment would contradict those policies.
9. The Department failed to conduct a full consistency review with all the policies, maps, and standards of the NJ State Development and Redevelopment Plan. Such consistency is required under the Department’s WQMP rules, NJAC 7:15 et seq. Accordingly, the Department lacks a basis to determine full compliance.
10. I saw no attempt made to analyze the impacts of a new groundwater discharge on surface waters and wetlands in terms of water quality or water quantity. This oversight is a fatal flaw.
11. I saw no attempt to analyze whether there is sufficient groundwater capacity to serve this new development and current and projected development in the region. This oversight is a fatal flaw.
12. I saw no attempt to consider cumulative and secondary impacts. This oversight is a fatal flaw.
13. The proposed warehouse development is grossly out of character with Chesterfield, which has a rich tradition of farmland and historic preservation.
It is simply outrageous that the Department has conducted such a cursory review and is expediting this proposed WQMP amendment to enable that development.
I reserve my right to submit additional comments.
Bill Wolfe