Murphy DEP Failed To Update NJ Water Quality Standards To Include US EPA’s Criteria For Toxic Aluminum

September 23rd, 2022 No comments

Petition For Rulemaking Demands DEP, Highlands Council And Pinelands Commission Protect Fish And Water Quality From Known Toxic Effects Of Aluminum

USGS Study Found That Logging Forests In NY’s Catskills Caused “100% Trout Mortality”

This is a complex science and regulatory post, but the essence is simple:

The metal aluminum is highly toxic to aquatic life, especially pollution sensitive fish like trout.

For example, a USGS study in the nearby NY Catskills found that logging caused runoff to streams that killed 100% of trout, see:

This scientific paper overviews the science on aluminum aquatic toxicity:

Investigating the biological effects of aluminum has become a major focus of aquatic research. Much of this interest stems from work on the biological effects of acidic precipitation, because Al becomes more soluble and, hence, potentially more toxic to aquatic biota at acidic pH. Starting around 1980, it became widely accepted that Al was a major factor affecting the success of aquatic organisms and communities in acidic habitats (Cronan and Schofield, 1979; Drablos and Tollan, 1980; Muniz and Levistad, 1980). Since then, research on the biological effects of acidification often has supported the contention that Al can be a major factor responsible for the demise of biotic communities.

The Clean Water Act requires that all surface waters be fishable and swimmable and mandates that US EPA adopt protective water quality standards (called “criteria”) for State’s to incorporate as regulatory standards.

EPA originally adopted an aluminum toxicity criteria in 1988, and recently updated it in 2018, see:

The NJ DEP currently has no surface water quality standards for aluminum, despite the fact that EPA adopted an aluminum criteria in 1988 and recently updated the criteria in 2018.

The DEP failed to adopt the original 1988 EPA aluminum criteria or the 2018 Update and is again flouting the Clean Water Act, ignoring the best available science, and failing to protect the ecological health of NJ waters and natural resources.

The DEP is also logging Highlands and Pinelands forests without consideration of potential toxic effects of aluminum, despite science and EPA aluminum criteria.

While DEP has failed to update NJ’s water quality standards to protect the ecological health of NJ’s streams and rivers, they did recently propose a broad “variance” loophole from those water quality standards, thereby protecting polluters not clean water, see:

So, we submitted a “petition for rulemaking” to force DEP’s hand and hold them accountable to law and science:

Subject: Joint Petition for rulemaking

Dear DEP Commissioner LaTourette; Pinelands Commission; and Highlands Council:

This letter petition is filed via email pursuant to N.J.S.A. 52:14B-4 (NJ APA), which provides that:

“(f) An interested person may petition an agency to adopt a new rule, or amend or repeal any existing rule. Each agency shall prescribe by rule the form for the petition and the procedure for the submission, consideration and disposition of the petition. The petition shall state clearly and concisely:

(1) The substance or nature of the rule-making which is requested; 

(2) The reasons for the request and the petitioner’s interest in the request;

(3) References to the authority of the agency to take the requested action.”

This petition for rulemaking is submitted in accordance with the NJ APA and in substantial compliance with NJAC 7:1D-1 PETITIONS FOR RULES, and applicable Pinelands NJAC 7:50-7.3 Proposed amendments; petitions for amendment.

I hereby jointly petition the Department, the Pinelands Commission, and the Highlands Council for rulemaking as follows:.

(1) The substance or nature of the rule-making which is requested

New Jersey’s ecosystems, water resources, and natural resources are particularly vulnerable to the toxic effects of aluminum.

USGS research has documented 100% mortality of trout from aluminum, caused by forestry (logging).

Regarding NJ’s particular vulnerability, according to US EPA:

“In the early 1980s the impacts of acid rain and aluminum toxicity were observed in aquatic and terrestrial environments in specific regions of the U.S., most notably in the northeastern part of the country where aquatic systems had limited buffering capacity to prevent pH changes. Researchers observed that aluminum can be a major factor responsible for the demise of biotic communities since the toxicant becomes more soluble and potentially more toxic to aquatic biota at acidic pH (Gensemer and Playle 1999).” (Source: EPA, at page 10. LINK

https://www.epa.gov/sites/default/files/2018-12/documents/aluminum-final-national-recommended-awqc.pdf

EPA identified anthropogenic activities as important sources of aluminum to surface waters, including soil disturbance, erosion, and runoff.

Forest management activities, including logging, create soil disturbance that causes, among other things, liberation of inorganic monomeric aluminum via stormwater runoff, sediment transport, and erosion.

According to a United State Geologic Survey (USGS) scientific study in the nearby NY Catskills, logging activities adversely impact ecosystem health and water resources, including the toxic effects of aluminum, see:

  • Effects of Forest Harvesting on Ecosystem Health in the Headwaters of the New York City Water Supply, Catskill Mountains, New Yor

https://pubs.usgs.gov/sir/2008/5057/SIR2008-5057.pdf

This USGS study found serious adverse impacts on water resources, aquatic life, and fisheries, including 100% mortality of Brook trout and adverse impacts on macro invertebrate communities : (emphases mine)

“Clearcutting caused a large release of nitrate (NO3 -) from watershed soils and a concurrent release of inorganic monomeric aluminum (Alim), which is toxic to some aquatic biota. The increased soil NO3 – 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 NO3 – 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 geology, forests, soils, atmospheric deposition, and water chemistry of the Catskills are similar to the NJ Highlands. (I hereby incorporate by reference NJ DEP NJGS research on Highlands geology and soils, US Forest Service studies on forests, soils, and water resources, and NJ DEP 305 (b) water quality inventory and assessment data, particularly the macro invertebrate impairment data and chemistry data on surface waters, including pH, total hardness, and DOC.).

I recently posed this question to USGS scientists.

According to Doug Burns of USGS, an author of that study: (personal communication, 9/22/22):

“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. The extent to which the streams would be sensitive to harvesting is a function of how much nitrogen is stored in the soils and a critical ratio of carbon to nitrogen in those soils. The Catskill streams were poised to release a large amount of dilute nitric acid from the soils to the stream after harvesting. One factor that has changed since the 1990s is that atmospheric nitrogen deposition has declined markedly and it is likely that the stores of nitrogen in the soils have declined as well. Therefore, the release of dilute nitric acid today will likely be less severe than back in the 1990s. 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.”

In addition to USGS research, the US EPA comprehensively assessed the best available science on aluminum aquatic toxicity in their 2018 update of the 1988 EPA aluminum criteria, see:

FINAL AQUATIC LIFE AMBIENT WATER QUALITY CRITERIA FOR ALUMINUM

https://www.epa.gov/sites/default/files/2018-12/documents/aluminum-final-national-recommended-awqc.pdf

I hereby incorporate by reference the data, findings, and criteria recommendation from that EPA document in:

  • AQUATIC LIFE AMBIENT WATER QUALITY CRITERIA FOR ALUMINUM (2018)”

See especially the following sections of the EPA Technical Support Document:

  • Section 1: Adopting the 2018 Recommended Aquatic Life Water Quality Criteria for Aluminum into State or Tribal Water Quality Standards
  • Section 5: Implementing the Recommended Aluminum Criteria in National Pollutant Discharge Elimination System (NPDES) Permitting
  • Section 6: Implementing the Recommended Aluminum Criteria in Assessments, Listings, and Total Maximum Daily Loads (TMDLs)

The EPA fact sheet on the aluminum criteria states:

“Aluminum is found in most soils and rocks. It is the third most abundant element and the most common metal in the earth’s crust. Aluminum can enter the water via natural processes, like weathering of rocks. Aluminum is also released to water by mining, industrial processes using aluminum, and in waste water and drinking water treated with alum, an aluminum compound. …

Aluminum is considered a non-essential metal because fish and other aquatic life do not need it to function. Elevated levels of aluminum can affect some species’ ability to regulate ions, like salts, and inhibit respiratory functions, like breathing. Aluminum can accumulate on the surface of a fish’s gill, leading to respiratory dysfunction, and possibly death.”

https://www.epa.gov/sites/default/files/2018-12/documents/aluminum-criteria-final-factsheet.pdf

I hereby incorporate by reference the USGS and EPA science, data, and EPA recommendations from the above referenced documents.

The above represents the best available science and they serve as an adequate scientific and regulatory basis in support of the petition.

(2) The reasons for the request and the petitioner’s interest in the request

The reasons for the request are as follows:

First of all, the NJ DEP currently has no surface water quality standards for aluminum, despite the fact that EPA adopted an aluminum criteria in 1988 and recently updated the criteria in 2018.

The DEP does not monitor or assess water quality or aquatic ecosystem health for the well known adverse ecological and water quality impacts of aluminum.

The DEP does not regulate the water quality and ecosystem impacts of forestry – or other development activities that generate non-point source pollution or point source wastewater discharges – including for the known toxic impacts of aluminum.

The DEP does not in any way regulate the presence of or discharge of aluminum to the environment: to soils, surface waters, wetlands, groundwaters or biota, despite the fact that there are known industrial point source wastewater discharges to surface waters and non-point pollutant discharges from development and stormwater runoff, including from forestry.

The same regulatory loopholes are present in the Pinelands CMP and Highlands RMP.

The reasons for the petition are to close these regulatory loopholes in order to:

  • to assure protection of the ecological health of NJ’s water and natural resources, based upon the best available science
  • to assure that forest management activities do not impair or adversely impact the water quality and/or aquatic life of NJ’s surface waters and wetlands
  • to assure that NJ’s waters are fishable and swimmable, as required by the federal Clean Water Act and the NJ Water Pollution Control Act
  • to assure that NJ DEP’s water quality standards, Highlands, freshwater wetlands, stormwater, and forest management policies and regulations are current, reflect the best available science, and conform to minimum federal standards, criteria, and guidance
  • to assure protection of the Pinelands water and natural resources
  • to assure protection of the Highlands water and natural resources
  • to assure that the NJ DEP surface water quality standards’ anti-degradation policies are implemented, particularly for Category One Waters (C1), trout production (TP), and trout maintenance (TM) waters (see: NJAC 7:9B-1 et seq)

The petitioner’s interests are:

a) to promote the public trust doctrine,

b) to promote the public interest,

c) to preserve and protect ecosystems,

d) to assure compliance with law, and

e) to hold regulatory officials accountable to the best available science and applicable law.

The petitioner earned a Bachelor’s degree in environmental science and public policy (SUNY Binghamton, 1982) and satisfied the coursework requirements fo a Masters of Regional Planning degree from Cornell (1983-85). He served as an environmental planner and policy analysis for 13 years at NJ DEP (1985-1995; 2002 – 2004) and in various non-governmental environmental advocacy organizations for 15 years.

The petition is consistent with petitioner’s 35 year career interests.

(3) References to the authority of the agency to take the requested action

This joint petition if filed pursuant to the Department’s, Pinelands Commission’s, and Highlands Council’s various legal authorities and police powers, including but not limited to:

  • The Highlands Act
  • The Pinelands Act
  • The DEP’s Organic Act (NJSA 13:1D-1 et seq.
  • CAFRA
  • Freshwater Wetlands Act
  • NJ Water Pollution Control Act and delegated federal Clean Water Act
  • NJ Water Quality Management Act
  • Endangered Species Act

(4) Existing Federal or State statutes and rules which the petitioner believes may be pertinent to the request.

See above pertinent federal and State legislative authorities.

Pertinent regulations include those rules adopted to implement these authorities, including the Pinelands CMP and the Highlands RMP.

Pertinent federal and State DEP regulations include, but are not limited to:

  • US EPA – Adopting the 2018 Recommended Aquatic Life Water Quality Criteria for Aluminum into State or Tribal Water Quality Standards
  • US EPA – Implementing the Recommended Aluminum Criteria in National Pollutant Discharge Elimination System (NPDES) Permitting
  • US EPA – Implementing the Recommended Aluminum Criteria in Assessments, Listings, and Total Maximum Daily Loads (TMDLs)
  • NJ DEP Surface Water Quality Standards (NJAC 7:9B)
  • NJ DEP Freshwater Wetlands Regulations (NJAC 7:7A)
  • NJ DEP Stormwater Management Regulations (NJAC 7:8)
  • NJ DEP NJPDES Regulations (NJAC 7:14, NJAC 7:14A)
  • NJ DEP Water Quality Management Regulation (NJC 7:15)
  • NJ DEP Highlands Regulations (NJAC 7:38)
  • CAFRA (NJAC 7:7)
  • NJ DEP Forestry Wetlands BMP Manual
  • NJ DEP Forestry Regulations (NJAC 7:3)
  • NJ DEP Water Quality Monitoring And Assessment Clean Water Act Section 303(d) and 305(b) programs
  • Recent pertinent federal regulations and science include, but are not limited to the US EPA “Final AQUATIC LIFE AMBIENT WATER QUALITY CRITERIA FOR ALUMINUM (2018)”.

(5) The wording of any proposed amendment of the text of this Plan and a map depicting any proposed change to the Pinelands Land Capability Map;

This Pinelands CMP requirement is not applicable, because the petition involves surface water quality standards, not land use mapping.

The specific text of the surface water quality standards that would serve as an amendment to the CMP is found in the US EPA’s “Final AQUATIC LIFE AMBIENT WATER QUALITY CRITERIA FOR ALUMINUM (2018)”

(6) A statement of the need and justification for the proposed amendment, including the reason(s) why the goals which the proposed amendment is intended to achieve cannot be accomplished through adherence to the standards of this Plan or compliance with the procedures set forth in N.J.A.C. 7:50-4, Part V;

The text above provides the scientific and regulatory basis (i.e. “justification”)  for the proposed CMP amendment.

The reason why the goals can not be achieved via adherence to the CMP is because the CMP and the the DEP water quality standards and Water quality monitoring and assessment programs do not include aluminum criteria or aluminum toxicity monitoring and assessment.

(7) A statement as to the conformity of the proposed amendment to the goals and objectives of this Plan and the intent of the Pinelands Protection Act and the Federal Act;

The petition is consistent with and advanced the following goals, objectives, standards and programs of the Pinelands Protection Act and the federal Act (my emphases):

“The Legislature hereby finds and declares that the pinelands area comprises pine-oak forests, cedar swamps, and extensive surface and ground water resources of high quality which provide a unique habitat for a wide diversity of rare, threatened and endangered plant and animal species and contains many other significant and unique natural, ecological, agricultural, scenic, cultural and recreational resources; that the continued viability of such area and resources is threatened by pressures for residential, commercial and industrial development; that the protection of such area and resources is in the interests of the people of this State and of the Nation; that such protection will require the coordinated efforts of all relevant municipal, county, State and Federal agencies; that the Congress and President of the United States have demonstrated a recognition of these facts through the enactment of section 502 of the “National Parks and Recreation Act of 1978” (PL 95-625); and, that it is now necessary to implement the afore-cited Federal Act and insure the realization of pinelands protection through the establishment of a regional planning and management commission empowered to prepare and oversee the implementation of a comprehensive management plan for the pinelands area.

The Legislature further finds and declares that a certain portion of the pinelands area is especially vulnerable to the environmental degradation of surface and ground waters which would be occasioned by the improper development or use thereof; that the degradation of such waters would result in a severe adverse impact upon the entire pinelands area;”

The petition seeks to protect ecological integrity, preserve water quality, and prevent degradation of water quality by development activities that disturb soils and result in toxic pollution of the Pinelands.

The petition is consistent with and advances the same goals, objectives, purposes and standards of the CMP, including:

  • PART I-TITLE. AUTHORITY, PURPOSE
  • PART II-DUTIES AND POWERS OF THE COMMISSION
  • PART III-DUTIES AND POWERS OF THE EXECUTIVE DIRECTOR
  • PART I-WETLANDS
  • PART III-FISH AND WILDLIFE
  • PART IV-FORESTRY
  • PART VIII-WATER QUALITY
  • PART XIV-RECREATION
  • SUBCHAPTER 8. ENFORCEMENT

(8) If the proposed amendment would change the minimum standards for land use and intensities contained in N.J.A.C. 7:50-5 or the management programs and minimum standards contained in N.J.A.C. 7:50-6, an evaluation of the environmental consequences of the proposed change;

This provision of the CMP amendment rules is not applicable. The petition does not involve land use intensities or minimum standards.

The environmental consequences of the petition would be improved water quality, ecosystem health, and forest management practices.

(9) If the proposed amendment involves the redesignation of Pinelands management areas for a particular parcel, documentation as to how the affected parcel meets the criteria established in this Plan for the management area to which it is proposed to be redesignated. Unless the Commission determines that it is unnecessary, any such amendment shall include a proposal for an offsetting management area change and documentation as to how all of the lands affected by the offset proposal meet the criteria established in this Plan for the management area to which they are proposed to be redesignated.

This provision of the CMP rules is not applicable because the petition does not predesignate parcels of land or management areas.

(10) Any other information necessary or appropriate for full and proper consideration of the proposed amendment.

The recently released Pinelands research on ecological impacts of endocrine disruptors is relevant because is documents the impacts of land disturbance and land use on the toxic ecological and water quality impacts of chemicals.

Similar to endocrine disruptors, aluminum is liberated and released into ecosystems and water resources by land disturbance, including regulated development and forest management.

(11) Specific regulatory actions requested

I request the following specific regulatory amendments:

A) NJ DEP

1.  Amend the NJ Surface Water Quality Standards, NJAC 7:9B – 1 et seq., to adopt an aquatic protection criteria for acute and chronic effects of aluminum, at least as stringent as, and consistent with, the US EPA Final Criteria (2018) cited above.

2. Amend the Highlands, NJPDES, WQMP, TMDL, and Stormwater management regulations to mandate compliance with the aluminum criteria (water quality standards)

3. Revise the Forestry Wetlands BMP to mandate monitoring and compliance with the proposed aluminum criteria.

4. Revise the DEP’s Water Quality Monitoring And Assessment Program under Clean Water Act Section 303(d) and 305(b) to include aluminum.

5. Revise the forestry regulations to include monitoring and compliance with the aluminum criteria.

6. Revise all the regulations cited above for conformity with the EPA aluminum criteria pending adoption of a NJ DEP State criteria.

B) Pinelands Commission

Amend the CMP 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.

C) Highlands Council

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.

Respectfully submitted:

Bill Wolfe

 

Categories: Uncategorized Tags:

Murphy DEP Issues Another Climate Science Report – And Does Nothing

September 21st, 2022 No comments

No “Climate Emergency” Declaration By Gov. Murphy

No Moratorium On New Fossil Infrastructure

No DEP Regulations To Mandate Consideration Of This Science Or Mitigate Impacts

Screen Shot 2022-09-20 at 5.33.24 PM

(Source: Figure 1. Maps and model estimates for 2051 levels of ozone across New Jersey)

The DEP just issued an “Addendum” to their 2020 Report on Climate Science, see:

As the title suggests, the Report focuses on devastating public health impacts currently occurring and projected to worsen due to the climate emergency.

As I expected, the Report was given glowing superficial news coverage by NJ Spotlight – I have not searched for or read any other NJ media stories.

The science is not new, but some recent data on the increasing rate of adverse NJ health effects is.

The inclusion of the health effects of ultra fine particulates is good, because that is an issue that has long been downplayed or flat out ignored by DEP in their air pollution permitting and regulations.

I have not conducted a close reading of the Report, so for today, I will make a few observations on the policy and regulatory implications of the science, which, as usual, were completely ignored by NJ Spotlight’s story (other than this casual allusion at the end of the story:

The supplement to the 2020 study is expected to better inform the public on the health impacts of climate change and to steer the state’s planning and preparation for a worsening climate crisis. It also is expected to inform the development of the state’s climate change resilience strategy.

“Steer state planning” and “expected to inform”? Are you kidding me?

And, also as usual, NJ climate activists are giving the Gov. and DEP another pass by focusing on the national level and Biden, instead of controversial issues right in their backyard before Gov. Murphy and DEP:

The report was released at the start of Climate Week and coincided with a separate event by New Jersey’s most prominent environmental groups calling on the Biden administration to enact stronger pollution standards to protect public health and to reduce emissions that contribute to climate change.

So, here are some of the NJ based policy implications of the DEP Report that NJ’s “most prominent environmental groups” ignore:

1. Despite Climate Emergency And Increasing Health Impacts, Gov. Murphy Fails To Declare A Climate Emergency Or Impose a Moratorium On New Fossil Infrastructure

For years, climate activists have called on Gov. Murphy to use his Executive powers to declare a climate emergency and impose a moratorium on DEP approvals of new fossil infrastructure.

If not now, when?

2. DEP Proposed Power Plant CO2 and Environmental Justice Rules Do Not Mandate Consideration And Mitigation Of The Health Impacts Documented By DEP Report 

Despite the science documenting devastating health impacts on poor and minority overburdened and highly vulnerable designated “environmental justice communities”, the previously proposed DEP rules on CO2 emissions from certain large fossil power plants and on “EJ permitting” do not mandate consideration of these health effects and do not mandate mitigation of the harms created by regulated activities.

3. DEP Has Not Yet Even Proposed Climate Adaptation Land Use Regulations

No further comment required. All slogans: “resilience”, “adaptation”, “PACT” and “REAL” – it’s all FAKE.

Years of Talking Dangerously.

4. The Science Supports Shut Down Of Garbage, Hospital, And Sludge Incinerators

The findings include this:

The combustion of refuse produces not only the normal pollutants (e.g., CO, SO2, NO2, particulate matter, etc.), but can also release an abundance of toxic chemicals including, polychlorinated dibenzo-p-dioxins, furan, & PCBs.

We say, shut them down:

See Section 3.1-1.1 Air Pollution from Biomass Combustion.

If DEP were serious about negative health impacts of fine particulates from fires, they would ban agricultural burning & prescribed burns; (and repeal immunity for harms), shut down garbage, sludge & medical wast incinerators; & regulate wood stoves (and ban new fossil combustion – gas plants emit ultra-fine particulates – as well as revise numerous air quality program regulations – see below)

5. The Science Supports Bans On “Prescribed Burns” And Logging Of Remaining Forests

The Report walks back prior DEP’s public statements that exaggerated NJ wildfire risks:

While the scale of wildfires in NJ does not compare to regions in the western United States, a significant portion of its homes are adjacent to forested areas, making even the small fires a concern for human health & property.

We called DEP Commissioner LaTourette out on those exaggerations:

The DEP’s “prescribed burn” and “active forest management” policies are making the air pollution impacts worse.

And the Murphy DEP is not serious about reducing the risks of wildfires – they won’t even harvest the low hanging fruit and take action:

6. The Science Supports Bans On New Development In High Hazard Areas, Including Extreme Wildfire And Coastal and Inland Flood Zones

We’ve written many times about the need for a “strategic retreat” policy and plan, DEP bans on new development in high hazard locations, and revocation of NJ’s “right to rebuild” storm damaged properties in NJ CAFRA and Flood Hazard Acts.

Watching DEP do nothing in response is infuriating.

7. The Science Supports Revisions Of Several Key DEP Regulations, Technical Manuals, Guidance Documents, and Risk Management Policies, Standards, And Practices

The findings of this Report demand that everything at DEP, from ambient air monitoring to risk assessment, must change. I’ve outlined and provided details in these posts:

DEP is not only ignoring the need to revise all this, but they are covering it all up by hiding behind their flawed EJ rule proposal.

8. The Science Supports Major Revisions To Put Teeth In NJ’s Global Warming Response Act and State Planning Act

Land use has major climate implications, from transportation emissions, electrification retrofit of existing buildings, and preserving forests and wetlands to maximize carbon sequestration and storage in forests and agricultural lands, to adaptation to extreme events.

But NJ’s land use planning regime under the State Plan is “toothless” and “doomed to fail”, according to Jim Gilbert, the man who wrote the 1986 State Planning Act and sat on the State Planning Commission:

I’ve written so many times about the similarly toothless Global Warming Response Act I won’t even waste your time to provide a link. If you are a new reader out unfamiliar with all this, use the search box in the upper right hand corner.

9. The Science Does Not Support DEP Proposal Of “Emergency Rules”

We have a climate emergency, but – unless Gov. Murphy declares an “emergency” – that does not meet the “emergency” standard in NJ Administrative Procedure Act.

In sum, this DEP Report amounts to more Years of Talking Dangerously.

Categories: Uncategorized Tags:

Is NJ Losing Or Gaining Farmland?

September 20th, 2022 No comments

Rutgers Land Use/Land Cover Data Show Significant Continued Loss Of Farmland

NJ Dept. Of Agriculture Claims NJ Has 40% More Land In Agriculture Than Rutgers

NJ Spotlight Claims NJ Is Gaining Farmland

What Explains This Gross Conflict In Data And Trends?

farm

[Update below]

NJ Spotlight’s often misleading number of the day – 9,900 farms – caught my eye, particularly the counter-intuitive claim that NJ is not losing farmland, but actually gaining it:

Agricultural acreage declined significantly between 1978 and 2012, though the USDA’s 2017 Census of Agriculture noted a surprising increase of almost 3%. Today, there are 9,900 farms in the state, covering more than 750,000 acres.

As is typical, the NJ Spotlight shoddy and misleading reporting was prompted by and is based on unverified claims made in a recent NJ Department of Agriculture press release:

New Jersey’s 9,900 farms cover more than 750,000 acres and generate cash receipts of more than $1.1 billion each year.

That NJ Dept. Of Ag. data is roughly consistent with and likely based on the US Department of Agriculture data NJ Spotlight cited, which shows NJ has 734,084 acres of farmland in the most recent USDA 2017 census.

But in contrast, Rutgers land use/land cover data shows only 543,504 acres in agriculture in 2015:  

(read the whole 2020 Report: Changing landscapes in the Garden State: land use change in New Jersey 1986 through 2015

Screen Shot 2022-09-20 at 11.14.18 AM

This kind of data is never going to be perfectly consistent, particularly land use/land cover data, which is based on different definitions and measurement methods and timeframes than the economic oriented data reported from USDA and NJ Dept. Ag..

But a huge 40% discrepancy between USDA and NJ Department of Agriculture compared to Rutgers is unusual and raises red flags.

This data is particularly important right now given the land use and policy implications (which is likely why the NJ Dept. of Ag. issued a spun press release and NJ Spotlight transcribed it).

The recent explosion of warehouses, rural development, and solar arrays are consuming the last remaining NJ forests and farmland and the voluntary NJ State Land Use Plan is shown to be “toothless” and “doomed to failure” in preserving what remains of NJ’s vanishing farms and forests.

The same problems emerge when USDA data suggests farmland is not only 40% larger but is increasing in acreage, when Rutgers data show continuing loss of farmland.

Again, here is Rutgers data, which shows that although the rate of loss has declined, in absolute term, NJ is still losing about 700 acres of farmland per year and this data is 7 years old, before the current explosion of warehouses, solar arrays and rural sprawl development, so both the net rate of loss and the gross amount of lost farmland is significantly greater:

The net rate of agricultural land conversion has consistently declined from an annualized rate of 10,277 acres per year in T1 (1986‐ 1995) to the most recent 696 acres per year in T5 (2012‐2015). This trend is closely related to the declining amount of farmland consumed by urbanization with 6,114 acres per year in T1, 5,149 in T2, 5,124 acres per year in T3 vs. 1,444 acres per year in T4 to 875 acres per year in T5 (2012‐2015). In addition to conversion of agricultural land to urban land uses, agricultural land continues to be abandoned and allowed to regenerate to forest, a process that has been going on in New Jersey since the peak of agricultural expansion in the mid to late 1800’s. However, this rate continues to decline, with only 341 acres per year in T5 as compared to 1,986 acres per year in T4 vs. 2,435 acres per year in T3.

(Rutgers also reports important data on the declining rate of abandonment of farmland and regeneration of forest, which has serious climate implications as the rate of carbon sequestration and the storage of carbon both decline.)

So, what’s going on? What explains such huge inconsistencies?

I have some suspicions:

1. All this data is far too old to be reliable or to capture the current land development explosion.

Rutgers’s 2020 Report is based on 2015 data. The USDA/NJ Dept. of Ag data is more recent (2017) but also old. USDA updates their data every 5 years. Why can’t Rutgers update their 2020 Report with current data?

2. The USDA census data is based primarily on economic data, not actual land use/land cover data that Rutgers uses.

The economic framework opens up all sorts of misleading data (e.g. the USDA threshold for defining a “farm” is just $1,000 per year in sales) and potential abuses by fake farmers that exploit NJ’s property tax loopholes. 

For example, the USDA/Spotlight claim that acreage of farmland increased in 2017 is dubious. This is strong suggested by the fact that 90% of the increase in the # of farms from 2012 – 2017 was farms just 1-9 acre size. I suspect that this data is tainted by “fake farmers” exploiting NJ property tax loophole.

Additionally, USDA data shows that 81% of NJ farms are family/individually owned for tax purposes and 45% of farm sales were less than $2,500/year. This also suggests “fake farmers”.

Accordingly, Rutgers data is more reliable in terms of what’s actually going on on the ground and the USDA/NJDA data reported by NJ Spotlight is highly misleading in terms of the actual acreage in farmland and the rate and amount of farmland lost to development.

Regardless, reform actions must be taken:

  • the Rutgers data must be updated,
  • the State Planning Act must be amended to put teeth in it
  • DEP must act to put teeth in DEP land use regulations,
  • environmental groups have to get active
  • the media needs to get educated and report reliable data
  • Rutgers academics need to speak out publicly

Will someone call Prof. Lathrop at Rutgers and Senator Smith and light a fire under their asses?

[End Note: At least I just tried – see note to Prof. Lathrop and Sen. Smith:

Professor Lathrop – would you care to comment on or explain a 40% discrepancy between USDA Census Of Agriculture and NJ Dept. of Ag. data on NJ farmland versus Rutgers land use/land cover 2020 Report data?

USDA data suggest far larger acreage and a net increase in acreage.

I’d be glad to update my column and print your response – I think this clarification is particularly important in light of current warehouse, solar array and rural developments and recent  criticism of the State Plan as “toothless” and “doomed to failure” by former State Plan Commissioner Jim Gilbert (an author of the 1986 State Planning Act).

I wrote about that today, based on what I thought was a misleading blurb by NJ Spotlight, see:

Is NJ Losing Or Gaining Farmland?

http://www.wolfenotes.com/2022/09/is-nj-losing-or-gaining-farmland/

[Update: Prof. Lathrop kindly replied. Here’s his explanation. Not surprisingly, he didn’t bite on the controversial State Plan and land use policy questions I framed, or the need for an update of his 2020 Report:

Hi Bill: the LULC mapping captures areas that are in agricultural land cover/use (i.e., cultivated, orchard, hay or pasture land) or other categories of Ag use like confined feedlots.   The USDA and NJDAG is likely including all land area within a farm property/parcel (i.e., under farmland assessment) and that might include woodlots (which wouldn’t be mapped as Ag land in the LULC) or other possible uses.  As you point out there is a discrepancy in definitions.  I suppose that if more people are enrolling land under farmland assessment, than the Farm area amount might increase somewhat.

Rick Lathrop

Categories: Uncategorized Tags:

Olympic Peninsula

September 18th, 2022 No comments

8H1A2582

(also see photos of prior posts for Cape Flattery, Hoh rainforest, Salish Sea, Olympic Smokeout, and Port Townsend)

After another wonderful summer on the Olympic Peninsula – weather was spectacular and we only got smoke last weekend – we’re back on the road for the long trek back to the desert for winter.

Not sure yet if we go coastal route south, or through the mountains, which I prefer. But, we hear there’s a lot of wildfire and smoke, particularly in Idaho and northern California, so we’re leaning towards the coast.

Here’s some photo highlights:

Lake Crescent

8H1A2560

8H1A2564

La Push 

8H1A2594

8H1A2590

8H1A2591

8H1A2619

Ruby Beach

8H1A2621

8H1A2640

8H1A2632

OMG! Dog off leash in a National Park!!!!!!

8H1A2673

Categories: Uncategorized Tags:

The Light Of Reality Briefly Emerged, But Foundation Funded Corporate “Greens” Moved Quickly To Shut It Down

September 16th, 2022 No comments

Warehouse Guidance “doomed”

Just another toothless wish list of wonderful things for towns to do”

Truth About The State Plan:Furthering the public good was not enough.”

[Update below]

In a very rare moment of truth-telling, last week, NJ Spotlight reported an extended confessional quote by Jim Gilbert, an author of the 1986 State Planning Act and longtime State Plan Commissioner.

Gilbert not only told the truth about the toothless State Plan and the recently released toothless Warehouse Guidance document, he fingered former Gov. Tom Kean for gutting the State Planning Act, thereby killing the State Plan in its crib (or more accurately, in the womb).

Because it was so rare, let me repeat that truth here (NJ Spotlight, emphases mine):

As an author of the 1986 State Planning Act, Gilbert said he and other drafters were told by the administration at the time to remove language that would dilute home-rule power while building up regional or statewide authority over the planning process.

“The reason given to us for this weakening of the proposed act was that the individual towns, represented by among others the League of Municipalities, would never give up the immense monopoly power they had over growth in the state,” he said. “The governor and legislative leaders knew that to convince the collective towns and cities to give up this power, they would have to offer something in return. Furthering the public good was not enough.”

The latest attempt to establish statewide or regional planning policy is doomed to fail for the same reason, Gilbert argued.

“Hope springs eternal among planners,” he said. “But we don’t seem to be willing to learn from our mistakes. So here we have again another toothless wish list of wonderful things for towns to do.”

One would think such a stunning rare and honest quote that revealed such massive policy failure and political betrayal would set off a firestorm of demands that the Legislature and Gov. Murphy immediately act to put teeth in the State Plan and set right Gov. Kean’s historical wrong.

(I’ve been trying to the expose that truth for many years, most recently see:

So, what did the corporate oriented and Foundation funded land use (e.g. NJ Future) and “green” groups who still do tangential land use work related to the State Plan do in response to Mr. Gilbert’s explosive revelations?

Did they hold a protest or march on Trenton?

A Statehouse press conference?

At least write a scathing Op-Ed?

Nope. They did none of that. They did just the opposite.

They brought in NJ Future to divert attention from Gilbert’s truth telling and quickly circle the wagons and join ranks to shut down any criticism or further truth telling about the State Plan.

Specifically, I just got an email from the Lower Delaware Wild & Scenic River Management Council.

They put the Warehouse Guidance that Jim Gilbert just called a “doomed” “toothless wish list” on their September 29, 2022 meeting agenda. I can assure you, it was not put on the agenda to expose the Guidance and the State Plan as frauds, as Mr. Gilbert had just done.

The Lower Delaware Wild & Scenic River Management Council works with many NJ conservation and land use groups and their major campaigns, like Wm. Penn Foundation’s Delaware Watershed Initiative.

These groups have shared Board members (AKA inter-locking boards). They are funded by the same Foundations and corporate donors. They have revolving and sometimes shared staff. They have personal relationships. And they work on the same issues and feed from the same government troughs.

In other words, they are in bred, self serving, selfish elitists. I’ve called them NJ’s “Green Mafia”.

So, exactly what did the Lower Delaware Wild & Scenic River Management Council do that gives the game away and sparked my hostile criticism?

Did they bring in Jim Gilbert himself or some other expert critic to discuss the Warehouse Guidance?

Did they even solicit critical viewports, in light of Gilbert’s explosive revelations and criticisms?

Nope.

Here’s what they did: they provided a platform for the Office of State Planning Advocacy “(i.e  home of the Business Action Center) to spin the Warehouse Guidance to well meaning but poorly informed citizens.

Worse, they quoted, linked to, and repeated the position of the corporate planning group NJ Future, NOT THE REVEALING NJ SPOTLIGHT ARTICLE!

NJ Future has long misled the public about exactly the fatal flaws Mr. Gilbert just exposed!

Here is the Lower Delaware W&S Management Council’s meeting announcement:

Our guest speaker is Matthew Blake, PP, AICP, Senior Planner at NJ’s Office of Planning Advocacy.  He will speak about the recently published NJ warehouse guidance.  The guidance can be found on the Office of Planning Advocacy’s website (under the Reference Materials section).
“In recent years, New Jersey has seen an increase in warehouse development. This increase is putting pressure on communities that are already overburdened with pollution, communities soon to be negatively affected by new truck traffic that did not exist before, and on our state’s remaining open spaces. It is critical that the state plan for this new demand in its logistics sector. Critical to this planning is the inclusion of community voices from our urban communities that have been fighting for better air quality and less truck traffic for years.” (Peter KasabachJune 10, 2022, New Jersey, https://www.njfuture.org/2022/06/10/state-guidance-for-locating-warehouses-is-here/)

They take care of their own. They don’t bite the hands that feed them or jeopardize any future funding.

Truth be damned.

I sent their new Director this email:

Hi Cindy – please see below. Please distribute it to your members, who deserve competing viewpoints.

Folks – I thought you might be interested in a very different view than from NJ Future – from Jim Gilbert, one of the authors of the the State Planning Act and a former longtime State Planning Commissioner member about the warehouse Guidance, as reported by NJ Spotlight news on September 12, 2022:

I doubt I’ll get a reply.

It’s virtually impossible to penetrate the Foundation funded “Green Mafia” bubble, even when the truth emerges from the most credible sources.

[End Note: In the interests of fairness and accuracy, its not just foundation and corporate money that corrupts here on the State Plan.

Because to adopt and advocate Mr. Gilbert’s critique of the State Plan as toothless and doomed to failure would completely destroy their entire ideology and approach to policy, across the spectrum. That approach relies on voluntary local initiative, not State leadership and regulatory mandates.

Additionally, it would also greatly besmirch the legacy of their leaders and the credibility of their organizations, including an entire crowd of longtime State Plan supporters, powerful people like Candy Ashmum, Sally Dudley, Mike Catania, Dave Moore, Chris Daggett, Michele Byers, Ted Stiles, Jim Shissias, and Joe Maraziti and an inter-locking set of organizations like ANJEC, NJCF, NJ Future, NJ LCV, PPA, Sustainable NJ, all the local watershed groups and Land Trusts, and elite Foundations (Dodge, Duke, et al). – all of whom have misled the public about the State Plan for decades.

For example, recently, these groups used their friends Gov’s. Kean and Whitman in a video on the Pinelands. Both of them deceived the people of NJ about the State Plan.

Gov. Florio appears in that same video, but Florio attacked “home rule”, he openly acknowledged the voluntary flaw in the State Plan, and he issued an Executive Order to out DEP regulatory teeth in the Plan.

The Green Mafia’s use of Kean and Whitman (she was horrible on Pinelands) as conservation leaders on Pinelands and land use issues is a big fat lie, and ignoring Florio and equating their records compounds that lie.

The deception continues and Jim Gilbert’s confession will quickly go down the Memory Hole.

[Update: 9/18/22 – Two longtime State Plan experts sent me email comments I thought worth posting (names withheld):

First, on the history of the Plan, with additional fingerprints to Gov. Kean:

Excellent Good article- one issue on the state plan history- Kean killed the 1973 state plan because the courts were enforcing it – there were a series of cases were the courts used the state plan to stop development or builder remedy lawsuits – Countryside vs Ringwood where the court rule Ringwood was exempt from regional share of Mt Laurel Housing because it was a conservation area in the 73 plan – Newark Dev Corp vs West Milford were Newark challenged West Milford 5 acre zoning -The corrupt Newark watershed corp wanted to build thousands of luxury townhouses and golf course on watershed land  – Court sided with West Milford because of state plan – WM zoned private land 5 acre too including land owned buy Kean Family-there were 3 others one in Morris Co I don’t remember the others.

So Kean killed the 73 plan on behalf of the builders and the  public outrage lead to the toothless state planing act – also Kean the green mafia foundation board members own a lot of land  especially in highlands and Morris / Somerset county.

And this on the lack of protections in the Plan and local zoning:

It’s amazing that this debate has gone down hill from where I left it … on the 10th anniversary of the state plan, which was not effective in controlling development then, and surely is not now.  Unless some miracle has happened that I am unaware of, there is still not protective zoning in Plng Areas 4 and 5, much less the contested area 3, so unless the target protection area lies in an area of state special jurisdiction, it’s the local’s desires for growth, not a state plan vision which carries the day.  And the broader national mood on land-use hasn’t changed since the 1990’s: anti-federal, anti-regulatory…despite all the evidence that nature itself is going downhill. And the “fraud” … is this: that the values of the plan are in the rhetorical realm not actuality on the ground, and the 10th anniv. “celebration” was the time to announce that the voluntary experiment was over, the municipal “confederation” government had failed according to the formal values, always being doctored as in Merrill Lynch-Hopewell to bend it towards what the corporate powers want, and it was time to enforce protective standards and clearing up the ambiguity in Plng area 3.

You are right, its a self-fulfilling game for the groups you named who  continue the false advertising that it is working…

 

Categories: Uncategorized Tags: