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DEP Waived Compliance With Stream Buffer, Water Quality, Flood, & Stormwater Regulations

In A Historic First, DEP OK’d A Parking Lot Over Massive Septic System

Project Is By Politically Wired Kushner Companies And Langan Engineering

A massive 71,250 gallon per day novel septic system under a parking lot, along a tributary to a reservoir.

What could go wrong?

The Murphy DEP likes to issue self serving press releases stressing the “Historic” nature of their actions: historic first gay Commissioner; historic environmental justice law; historic off shore wind program et cetera.

But you won’t see any press releases from DEP announcing a truly historically bad approval of a massive housing project – 360 units, with 700 parking spaces – known as Colts Neck Manor.

In order to issue that historic approval, DEP had to waive and bend beyond recognition a series of water resource, wetlands, stormwater, and C1 stream buffer regulations.

Wonks can read the DEP approval document’s response to hundreds of public comments opposing the project for all the gory details.

The project is located along the Category One designated Yellow Brook (“exceptional water supply significance”), a tributary to the Swimming River Reservoir that serves over 350,000 people in Monmouth County. DEP waived the 300 foot buffer protections along the Brook, putting the water supply of 350,000 people at risk. DEP issued: (@ page 5)

a hardship exception for proposed construction activities within the 300-foot riparian zone. … the permit allows for 3.34 acres of riparian zone vegetation to be permanently disturbed

Kushner Companies has a hardship? Are you kidding me?

An opponent of the project explained the implications of that: @ p.28 – 29)

28. COMMENT: New information included in the proposed NJPDES-DGW permit reveals that the “clear” effluent from the Amphidrome Treatment Plant proposed for the Colts Neck Manor site WILL contain Fecal Coliform Bacteria above the DEP compliance threshold. The effluent could additionally contain a variety of toxic and carcinogenic chemicals to be released into disposal fields on-site and allowed to enter the groundwater and the aquifer below. When this material, including Fecal Coliform Bacteria, is intercepted by groundwater layers, which flow toward Yellow Brook, then these toxins will migrate into Yellow Brook and flow directly to the Swimming River Reservoir, along with other stormwater contaminants entering Yellow Brook and the Reservoir.

In the 1970’s and ’80’s, DEP approved a bunch of small on site wastewater management systems. Many of those systems failed to operate properly, were poorly maintained by the developer (who abandoned them and walked away, leaving homeowners holding the bag) and polluted steams and groundwater.

DEP is repeating those errors by approving this novel and massive underground septic scheme.

There are regulated freshwater wetlands on site and adjacent to the Brook. DEP rules prohibit approval of a sewer service area that includes wetlands. But, DEP issued another historic bending of the wetlands and WQMP rules to approve the project. Check this out:

The Department determined that there are wetlands located on the proposed project site based on the “Wetlands 2012” GIS data layer, in accordance with N.J.A.C. 7:15-4.4(e)4; however, pursuant to N.J.A.C. 7:15-4.4(j)3, the applicant provided a Freshwater Wetlands Letter of Interpretation (LOI)/ Line Verification (File #1309-02-0008.1/FWW140001) confirming that there are no wetlands within the sewer service area.

The DEP issued another historic approval of a novel septic system. The 71,250 gallon per day septic system is 3 times larger than only 3 other systems built nationally and the largest I am aware of in New Jersey.

In another historic first, the novel septic system will be buried underneath a parking lot.

An opponent of the project put it succinctly:

8. COMMENT: Putting a waste management system under blacktop is insane, especially since I’m not sure if it has ever been done before or on such a large scale. The site also contains clay soil which doesn’t percolate well.

The DEP did not apply the recently updated more stringent inland flood hazard and stormwater regulations.

Again, DEP had to invent an historic interpretation to certify the permit application as “technically complete” to waive the new regulations.

An opponent summed that up:

44. COMMENT: The Stormwater Management system for this site is not in compliance with NJDEP or the town’s Stormwater Regulations. The steep slopes, wetlands, and stream corridor all lie in a buffer that is not to be disturbed. The added impervious surface must comply with current Best Management Practices. The site engineers are trying to avoid complying with Best Management practices through complicated engineering devices requiring rigorous and meticulous maintenance. Is this what we want to allow in a critical and degraded stream corridor that is one of the most important ones to serve our already degraded and threatened Swimming River Reservoir?

The DEP also completely ignored the State Plan, which maps the land as Planning Area 4 (agriculture) and Planning Area 5 (environmentally sensitive), where this kind of sprawl development is strongly discouraged.

Yes, this was truly an historic DEP approval.

And a truly historic failure to hold DEP accountable by NJ environmental groups.

A massive 71,250 gallon per day septic system under a parking lot, along a tributary to a reservoir.

What could go wrong?

DEP Provides A Non Responsive Response To Public Comments

(Caption – Source: US EPA)

I just received DEP’s response to the comments I submitted on the proposed corporate sweetheart deal they cut with American Cyanamid at the Superfund site along the Raritan River (for comments, see:

• The Murphy DEP Cuts Another Corporate Sweetheart Settlement With American Cyanamid At Superfund Site On The Raritan River

The key criticism of the deal was the total lack of a factual basis to justify the deal:

“There is no document published by DEP that provides a science based assessment of natural resource damages or the economic value of these damaged resources or the nexus between the NRD damages and the restoration plan or how the public will be compensated fully for those damages.”

Ironically, the DEP response suffers exactly the same flaws as the Settlement itself: DEP spouts slogans and broad conclusions that are not supported by any science, facts, data, or other evidence.

DEP arrogantly dismissed my criticism with these broad and unsupported conclusions:

Thank you for your comments on the above-referenced proposed Consent Decree. After reviewing your comments, the Department has concluded that they did not present any information that would indicate that the proposed Consent Decree is inappropriate, improper, or inadequate. The commitments of Wyeth set forth in the proposed Consent Decree satisfactorily address the injury to, loss of, or damage to the floodplain, riparian, upland, and wetland natural resources of the American Cyanamid Superfund Site. Furthermore, the location of the Duke Farms Forested Floodplain Restoration Project, only 2.2 miles from the American Cyanamid Superfund Site, creates a strong ecological and economic nexus between the restoration work and the injury to natural resources

and further supports the Department’s conclusion that the proposed Consent Decree is fair, reasonable, and consistent with the Spill Act.

I fail to understand how DEP can continue to get away with this.

The DEP claims that the restoration project is 2.2 miles from the site, and that location “creates a strong ecological and economic nexus between the restoration work and the injury to natural resources.”

But they fail to note the restoration location is UPRIVER from the Cyanamid Superfund site. Most of the off site damage from Cyanamid occurred DOWNRIVER, as contamination from the site flowed down river.

Could you imagine EPA letting Hudson River PCB polluter General Electric off the hook for a tiny restoration project (112 acre wetlands and $78,000) along the Hudson River in the Adirondacks?

No other program in DEP operates this way.

DEP is supposed to be a regulatory agency who makes science and law based decisions in a transparent and accountable fashion.

How can the Department negotiate and execute an agreement without identification and quantification of the ecological and economic damages?

Given that there are no DEP documents or even facts provided, how is the public to assess whether this agreement fully restores and fully compensates the public for NR injuries?

How can a court determine whether it is in the public interest?

I fail to understand how DEP can implement such an important environmental program in the absence of science, economics, and transparency.

The US Air Force Starts One Pinelands Fire Every 10 – 14 Days

DEP Misled The Pinelands Commission About The Military Objectives Of Logging Plan

There is so much propaganda being distributed by the Murphy DEP and printed as fact by NJ media that I find it difficult to keep up.

So, I apologize that I’m a little behind in getting out the real story behind this recent garbage journalism, fed by the most manipulative gaslighting DEP Commissioner ever, Shawn LaTourette: (NJ Spotlight)

• Military program funds wildfire protections in the Pinelands

That story celebrates military funding and portrays DEP in a very favorable light in terms of protecting Pinelands communities from wildfires. That story misleadingly creates the impression that DEP’s military funded wildfire management “fire breaks” (33 miles of them) were designed to protect adjacent communities.

But it gets the reality badly wrong and turns what should be a scandal at DEP into praise.

First of all, there is no mention of the fact that the most recent, largest, and controversial DEP wildfire management project, funded by the military, involved 1,400 acres of logging and 13 miles of “firebreak” roads. (that single project is 40% of all the total 33 miles of “firebreaks” and far more land destroyed than the other 20 miles of firebreak).

The 1,400 acres and 13 miles of firebreak roads are located no where near any community or human development! The remotely located logging and the firebreak do NOT protect any community, as DEP and NJ Spotlight would have you believe.

This remote location led to a Pinelands Commisioner openly questioning the rationale for the project. Pinelands Commissioner Doug Wallner, a retired National Park Service expert on wildfire, noted that the DEP plan failed to provide a justification and failed to consider the “no alternative” option. Wallner noted that he had reviewed the maps and that there was little or no people or property at risk or benefit from the logging and firebreak plan.

Here’s what Commissioner Wallner said, verbatim: (watch and listen to the YouTube, Wallner’s remarks begin at time 40 minutes, 20 seconds)

I guess the biggest comment I have is that it seems like it’s a given in the amendment that wildfire is of consequence. So I’d like to see some fleshing out of why, other than just reducing fire hazard, what is the consequence of wildfire? 

I didn’t see any communities nearby or things that are significantly threatened from extreme wildfire.

I did read that it was dense and that it was high fuel loading and everything. But still, I would like some kind of indication of what’s threatened by an extreme wildfire that might happen there.

That project (1,400 acres of logging and 13 miles of roads clearing) was designed to protect the Air Force training mission and Warren Grove US Air Force base.

• Is Military Money And Protection Of Warren Grove US Air Force Range Driving Insane DEP Pinelands Logging Plan?

Worse, the DEP failed to disclose the military funding and military objectives of this project to the Pinelands Commission, the public, and the media during the Pinelands Commission’s review. That is an outright deception by DEP that we called out at the time, see:

• Murphy DEP Concealed Efforts To Secure A $1 Million Pentagon Grant And Flat Out Lied About The Reason For Pinelands Wildfire Logging Plan

• Latest Pinelands Wildfire Raises Serious Questions About DEP Forest Management

DEP Commissioner LaTourette is now trying to turn that totally unacceptable deception and forest mismanagement into a favorable press story.

• DEP’s Own Analysis Of The Dynamics Of The Wharton State Forest Wildfire Illustrates Why Their “Forest Thinning” And “Firebreak” Logging Plan Won’t Work

The DEP also grossly exaggerates wildfire risks. Of the over 1,000 wildfires in NJ, over 90% of them are two acres or less in size. These are basically dumpster fires or roadside grass fires that pose NO risk, see:

• Murphy DEP Caught Blowing Smoke On Wildfires

If the DEP were serious about reducing wildfire risk and protecting communities (instead of their funding and jobs), they would limit new development in DEP mapped high wildfire risk locations and mandate safety measures at existing development., see:

• Murphy DEP, Pinelands Commission, and Highlands Council Urged To Restrict New Development In Areas Of “Extreme” Wildfire Risk

Yet DEP recently denied this petition for rulemaking to force those protections, see DEP denial document:

There were NO press reports on any of that.

Finally, the DEP fails to disclose and the media fail to report that the US Air Force starts more Pinelands fires than any arsonist.

According to the US Air Force’s  own REPI program fact sheet:

“Every year training activities ignite one fire every 10-14 days, which are suppressed on-site….

So, the US Air Force is funding DEP to reduce the risks to the US Air Force training mission and facilities, not Pinelands Communities.

The US Air Force training missions are creating wildfire risks, not reducing them.

DEP is intentionally misleading the public about all of this.

And the press is reporting lies and has no integrity to report the facts.

In Response To My Ethics Complaint, Assistant Commissioner Cecil Finally Filed A Recusal Memo

Amazingly, Cecil Tried To Keep It Secret As A “Privileged And Confidential” Memo

Cecil’s Long Delayed Recusal Is Limited In Scope To Sparta Mountain

(Caption: “Forest Stewardship” in the Pinelands – DEP & NJ Audubon support these clearcuts)

Based upon learning that DEP Division of Fish and Wildlife recently hired a former NJ Audubon staffer (another high handed move and at best a crony hire, to be discussed in a subsequent post), I thought I’d check in on the status of the ethics complaint I filed against DEP Assistant Commissioner John Cecil for conflicts of interest arising from his prior work at NJ Audubon.

The multiple connections and revolving doors between Murphy Governor’s Office and DEP and NJ Audubon raise red flags and really warrant a close look. (also forthcoming)

By way of some background and context, Cecil is a strong advocate of the scientifically dubious “Young Forest” “active management” policy that promotes logging of intact mature forests, as is the DEP’s new crony hire.

Cecil presented these twisted scientific and active management views to Senator Smith’s Forestry Task Force and he implements these flawed policies in DEP forest and natural resource management programs he supervises.

The members of Senator Smith’s Task Force should have been made aware of Cecil’s conflicts and been able to understand both his strong scientific bias and conflicts of interest, which totally undermine any expectation of independence, scientific objectivity, and service to the public interest.

So I filed an OPRA request to learn if Cecil had been sanctioned by the State Ethics Commission and determine if he filed the necessary recusal documents to avoid gross conflicts of interest he has.

I got a highly unusual rapid response from DEP that provided Cecil’s recusal memo.

So we must declare victory in the filing of the ethics complaint.

But upon review of that recusal memo, we find that Cecil went from the frying pan to the fire! (see letter and chronology below).

We also learned that DEP violated OPRA by denying my initial request for Cecil’s ethics disclosure documents, on the stated basis that such records were “”confidential personnel” records that were exempt from OPRA. That was a lie, which DEP now exposes by providing exactly those ethics documents.

Amazingly, I caught DEP Commissioner LaTourette in exactly this same unethical game when I filed an ethics complaint that forced him to file and amend his recusal documents.

Ignoring these ethical lapses, both LaTourette and Cecil long delayed recusal and when Cecil did he tried to keep it secret by classifying the memo as “Privileged And Confidential” – which obviously is false because DEP just gave the memo to me in response to my OPRA request for it.

And the memo is so narrow in scope that it amounts to more unethical behavior, so I let him know exactly how I feel, see:

———- Original Message ———-

From: Bill WOLFE <b>

To: “john.cecil@dep.nj.gov” <john.cecil@dep.nj.gov>

Cc: “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, “senmckeon@njleg.org” <senmckeon@njleg.org>, “Keys, Mary Ann [ETHICS]” <Maryann.Keys@ethics.nj.gov>

Date: 04/03/2024 8:57 AM EDT

Subject: Recusal Memo

Dear DEP Assistant Commissioner Cecil:

I am in receipt of your October 21, 2022 recusal memo to Commissioner LaTourette, which I received today via OPRA discovery.

At the outset, I must note that you classified this memo as “Privileged and Confidential”. It is neither. I must object to your attempt to keep this memo secret. I find this particularly ironic as your stated intent in recusal was to “avoid an appearance” of a conflict of interest.

How would the public appearance of a conflict be remedied or mitigated via a secret “Privileged and Confidential” recusal memo?

I also must note that you filed the subject recusal memo after over 18 months serving at DEP in a management capacity.

The chronology is troubling.

On August 24, 2022, the Department denied my OPRA request for your ethics disclosure and recusal documents on the basis that such records were “confidential personnel records” exempt from OPRA.

On August 25, 2022, I filed a complaint against you to the State Ethics Commission, see:

http://www.wolfenotes.com/2022/08/ethics-complaint-filed-against-murphy-dep-assistant-commissioner-john-cecil/

On September 19 and October 14, 2022, I supplemented that complaint via emails.

Given this chronology, I must infer that you filed the subject recusal only in response to the State Ethics Commission’s review (or perhaps upon direct Order from the Ethics Commission. I request your clarification on the events that triggered your filing. I will file another OPRA today to determine if the Ethics Commission issued direction.)

You did not self initiate this recusal upon hiring at DEP or in response to Commissioner LaTourette’s direction or the DEP Ethics Officer’s guidance, because both were copied on and fully aware of the ethics complaints cited above.

Again, I find this ironic, because I previously forced Commissioner LaTourette to file an ethics recusal document, again via OPRA, see

https://www.njspotlightnews.org/2021/02/shawn-latourette-acting-nj-dep-commissioner-recuses-lng-controversial-plan-former-client-gibbstown-enviros-raises-questions/

One would think DEP managers would learn from their mistakes.

In addition to the extraordinary delays and intransigence in your response to this matter, I also must strenuously object to the legal basis and substantive scope of the recusal.

The legal basis of your recusal is limited to the “appearance” standard, when in fact you had direct and actual conflicts (plural), given your prior work at NJ Audubon and your work at DEP, as I documented in my August 25, 2022 ethics complaint.

The substantive scope of your recusal is limited to the Sparta Mountain Forest Stewardship Plan. However, as I documented in my August 25, 2022 ethics complaint, you have the appearance of and potential conflicts in many regulatory decisions, personnel decisions, and policy matters under your management control at DEP.

Regarding personal matters, I also must now note, having learned of it yesterday, that the DEP Division of Fish and Game recently hired Kristen Meistrell, a former NJ Audubon staffer who I believe worked under your direction at NJ Audubon. That is cronyism, if not another ethical lapse.

So once again, given the above flaws, you (and DEP Commissioner LaTourette) have failed to meet your ethical obligations and basic principles of public service.

Do better.

Bill Wolfe

cc: Legislative leaders copied on original ethics complaint

State Ethics Commission

This “Lord Of The Manor” Attitude At DEP Must End

DEP’s Lack Of Regulations To Govern Forest Management Violates Supreme Court Ruling

Last week I wrote about emails from DEP managers that revealed an incredible bureaucratic arrogance and lawlessness, see:

• Murphy DEP Claims That DEP Is Above The Law

Today I want focus on DEP emails that reveal gross violations of NJ laws that require that State agencies are accountable to the public through the rulemaking process established by the NJ Administrative Procedure Act (APA).

While the details are wonky and legalistic, the essential concept is simple: State agencies can’t do just whatever they want to do without justification and involvement of the public in their decisions and review by Courts and the Legislature. 

State agencies first must explain and document the factual, scientific and legal basis for their decisions. They must provide public notice and opportunity for the public to review and comment on their decisions. They must respond to public comments. And all of this is subject to legal challenge in the Courts via administrative review (Office of Administrative Law) and judicial review by the NJ Courts, as well as the ability to review and exercise a veto by the Legislature.

Legally, this is known as “due process” and “notice and comment rulemaking”.

The leading NJ Supreme Court decision on what this means is known as “MetroMedia” see: Metro media Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331 (1984).
https://law.justia.com/cases/new-jersey/supreme-court/1984/97-n-j-313-0.html

These legal concepts are highly relevant to the DEP’s policies and practices to manage State lands, particularly NJ’s forests.

Simply put:

1) there is no specific State law that authorizes DEP to manage forests and sets policies, standards, and safeguards to prevent abuse. The failure of Senator Smith’s Forestry Task Force to produce legislation to govern DEP “forest management” shines a very bright light on the lack of Legislative authorization and policy direction.

2) If you ask DEP the question of where they find a legal basis to “manage” State forests, they will tell you that this power is derived from their ownership of the land – this is the “Lord Of The Manor” attitude.

3) Regardless of the DEP’s legal authority to manage state forests, how they actually do so blatantly violates the NJ Supreme Court’s MetroMedia doctrine.

DEP relies on what they call an informal internal “14 step process” for the planning and management of State forests. It is virtually the only DEP program and planning process that is not governed by DEP regulations. And it can not withstand scientific scrutiny.

This “14 step” process not only shuts the public out of the key decisions, but it lacks all the safeguards, transparency, and accountability provided by the NJ Administrative Procedures Act.

This is no small matter of details – it is a blatant and intolerable violation of fundamentals that can not stand and will not withstand legal challenge.

See my letter below to DEP Commissioner LaTourette putting him on notice.

I doubt DEP will reform its own abuse, which will require litigation to terminate.

Where are the NJ conservation and environmental groups, particularly those backing a “Green Amendment”? Do these people not see that DEP is violating its duty as Natural Resource Trustee?

Where is the Legislative oversight?

Where is the media?

DEP could never get away with this brazen lawlessness if the “14 step process” applied to private corporate property and development.

The people are citizens with rights, not serfs. DEP must manage land and natural resources in Trust for the people.

Bring lawyers guns and money!

———- Original Message ———-

From: Bill WOLFE <b>

To: “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “Sean.Moriarty@dep.nj.gov” <Sean.Moriarty@dep.nj.gov>, “john.cecil@dep.nj.gov” <john.cecil@dep.nj.gov>

Cc: sengreenstein <sengreenstein@njleg.org>, senbsmith <SenBSmith@njleg.org>, “senmckeon@njleg.org” <senmckeon@njleg.org>, “asmScharfenberger@njleg.org” <asmScharfenberger@njleg.org>

Date: 03/30/2024 1:20 PM EDT

Subject: DEP obligations under Supreme Court MetroMedia decision

Dear Commissioner LaTourette:

The Department current implements a “14 step process” for preparing and adopting Forest Management Plans, (e.g. see Section 1.3, page 5):

https://www.nj.gov/dep/fgw/sparta/smwma_approved_forest_stewardship_plan.pdf

This “14 step process” governs the substantive content, DEP review and approval, and public participation in the DEP’s plan development and implementation process.

The Department’s Forest Management Plans have significant impacts on NJ’s forests, wildlife, natural resources, climate, water resources and the public’s access to and use and enjoyment of natural resources and public lands.

The “14 step process” is an informal DEP review practice. It was not adopted in accordance with rulemaking procedures of the NJ Administrative Procedure Act.

The NJ Supreme Court specified the principles, factors, and conditions upon which agency action constitutes “rulemaking” that must follow APA formal notice and comment procedures, see: Metromedia Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331 (1984).

https://law.justia.com/cases/new-jersey/supreme-court/1984/97-n-j-313-0.html

Because the DEP’s “14 step process” was not adopted in accordance with rulemaking procedures and because it meets the criteria for agency action that constitutes “rulemaking” as articulated by the NJ Supreme Court in the Metromedia decision, it is illegal and must be withdrawn.

All further Forest Management Plan development and implementation of plans that were adopted pursuant to this 14 step process must be withdrawn as well.

You have been advised of this violation of law and I expect that you will act immediately to remedy that violation and act in accordance with law.

I look forward to your timely and favorable reply.

Bill Wolfe