Dear Senator Bateman

October 3rd, 2015 No comments

Raising the Bar, Making Real Demands

The Price of Admission to the Press Conference

Dear Senator Bateman:

I noted your appearance in Hopewell this week to support the effort of PennEast pipeline opponents.

It is always good news to see a Republican supporting environmental issues.

In fact, the Democratic website Blue Jersey praises you for that and posted video of your remarks, see:

Knowing of your long standing support for the environment and your willingness to buck the Governor’s Office and Senate Republican leadership and even vote to over-ride the Gov.’s veto’s – and given that you closed your remarks by saying you were going to “send a strong message to FERC and DEP” (emphasis mine) – I was curious:

  • Have you sent a “Dear Colleague” letter and sponsored a Senate Resolution urging your fellow legislators – in both Houses – to sign that same letter to DEP Commissioner Martin and Governor Christie demanding that DEP deny PennEast’s water quality certification pursuant to Section 401 of the Clean Water Act?
  • Have you co-sponsored the Senate Resolution (SCR 180 (Lesniak, Smith) to veto DEP’s recent Flood Hazard Act rule proposal?
  • If not, would you support and sign such a letter and Senate Resolution?

I recall that you supported a similar Senate Resolution opposing off shore LNG

Please advise – and let me know when the Senate Environmental Committee meets to hear your Resolution. I wouldn’t want to miss that.

PS – next time you visit Baldpate, don’t do the event at that faux Gatsby veranda, break a sweat and climb to the top – spectacular view of the river:


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What Is The Meaning of Hurricane Joaquin?

October 1st, 2015 No comments
Mantoloking, NJ

Mantoloking, NJ (1/17/15)

As Hurricane Joaquin approaches, I was getting frustrated by the lack of media’s substantive coverage and all lathered up to write a lengthy and detailed post about all the bad things the Christie Administration had done – climate denial and rebuild madness and all that jive –  but will abandon the wasted words.

NJ Spotlight did it a lot better and simpler in their weekly poll question:

Of course, the right answer is (a response that had 64% when I voted this morning):

Not by any means. We’ve had a hodgepodge of responses to Sandy and are still struggling with basic issues such as home buyouts, moving people away from the coast, and rebuilding with new expectations. Meanwhile, the state has rolled back flood regulations, water-quality rules and climate-change policies. Whatever has been rebuilt has not taken into account future sea-level rise. No one should be surprised if we have another severely damaging storm in the next few years.

Not by any means, indeed!

I’d add that the “hodgepodge of responses” actually makes the underlying problems worse.

Here is the statement I send around yesterday to press corps to avoid a repetition of the Sandy non-coverage and cheerleading:

Gov. Christie has been allowed to play Russian roulette with people’s lives, homes, and BILLIONS of federal taxpayer dollars dedicated to Sandy redevelopment.

Instead of considering climate change, sea level rise and more severe coastal storms and flooding/rain events, he has promoted reconstruction in hazardous locations and rolled back coastal and flood protections.

His dunes are fake and vulnerable to erosion.

His sea walls make the problem worse.

His beach replenishment will be washed away. If not by Joquin, then the next storm.

Mark my words.

over and out.

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DEP (*Permit condition) Ordered Halt to Pumping River Water to Fill Wanaque Reservoir

September 30th, 2015 No comments

Drought Meltdown Scenario Begun in North Jersey 

Critical Low River Flows In Passaic Basin – Declining Reservoirs

September Passaic river flows at Little Falls, where minimum passing flow is set. (Source: USGS)

September Passaic river flows at Little Falls, where minimum passing flow is set. (Source: USGS)

[*Clarification: 10/2/15 – Technically, DEP did not issue an enforcement “order” to stop pumping. A water allocation permit limit was the mechanism, based upon a passing flow requirement in the river. Unclear whether the permit limit was self enforced or DEP permit or enforcement staff conducted oversight and contact NJDWS based on low flows.]

The DEP just ordered a halt to pumping of the north jersey rivers to replenish the Wanaque reservoir. Here’s why that’s important.

As we’ve written, north jersey lacks adequate reservoir storage capacity and therefor must rely on Passaic basin rivers (Passaic, Ramapo, Pompton rivers) to pump water to fill the reservoirs and to take for direct water supply. Some reservoirs lack adequate natural watershed drainage in order to fill and require river pumping to be filled.

There are limits to how much water can be pumped out of rivers, to protect the aquatic life and ecology in the rivers and to protect public health.

Those limits are called “minimum passing flow requirements” that are set by NJ DEP – see this for a good primer on these minimum passing flows set by DEP. This sums things up:

… Modification Of Dilution Passing Flows

Assimilative capacity is the ability of a natural body of water to receive wastewaters or toxic materials without harmful effects. Some passing flows are set based on the need for sufficient assimilative capacity at a downstream point to meet a set standard. If the waste load increases or the water-quality standard becomes stricter, the passing flow may have to be increased. If the waste load decreases, or the water-quality standard is relaxed, the passing flow may be reduced without causing a violation of the standard. This highlights the interdependence of water quantity and quality.

Relaxation of Reservoir Passing Flows During Droughts

A reservoir system’s safe yield is that volume of water it can reliably deliver during a repeat of the most stressful conditions yet experienced. Reservoirs with a minimum-release or minimum-instream passing flow must release water to the stream and this can decrease storage during a drought. As an additional safety factor, some reservoir passing flows are reduced during a drought, providing an additional margin of safety. …

Preservation of Water Quality

Treated wastewater is routinely discharged into the surface waters of New Jersey. This activity is highly regulated by the U. S. Environmental Protection Agency (USEPA) and NJDEP. The discharges may not cause a violation of surface-water-quality standards. The allowable waste loads are calculated as a function of streamflow volumes, quality of the effluent and the receiving water, and the surface-water-quality standards. The allowable load is usually calculated assuming a representative low flow. If flows decline below the design flow then the discharge may cause a violation of water-quality standards.

(note: the “highly regulated activity” does not include EPA and DEP pollution discharge permit limits on all chemicals known to be present in wastewater. These chemicals pass through sewage treatment plants and are discharged to the river. They wreak havoc on aquatic life – e.g. endocrine disrupting compounds cause things like dual sexed fish – and are threats to public health. The wastewater dominated flow of chemical laced water is then taken from the river for water supply. Unless it is highly advanced – and even advanced treatment is not 100% effective in removing all chemicals present – the treatment at the drinking water plant does not remove all these chemicals, many of which are not regulated or even monitored for, and they pass through treatment directly to your tap. These are the issues DEP glosses over and downplays the risks of in the above excerpts.)

The nightmare drought scenario is lack of rainfall takes the rivers off line and the limited fixed capacity reservoirs are depleted. At some point, without rainfall, north jersey could literally run out of water.

As we warned, that nightmare scenario began in September –

Today, the Bergen Record story buries that hugely significant lede, revealing that critical fact towards the end of a story that optimistically suggests the current storms will alleviate the drought:

But because flows in the Pompton, Ramapo and Passaic had become so low in recent days, the commission was forced under state regulations to stop pumping, said commission spokesman William Maer.

The fact that DEP ordered a halt to pumping from the rivers to replenish the Wanaque reservoir is a very big deal, particularly given how low that reservoir is.

Wanaque reservoir (9/24/15)

Wanaque reservoir (9/24/15)

DEP halting of river pumping and the depletion of the Wanaque will force reliance on the Monksville reservoir, then inter basin transfers. We are in an extremely serious situation.

If the storms that are forecasted bring 5 or more inches of rain – which would cause widespread flooding –  we may dodge the huge bullet of the drought meltdown scenario –

Instead of The China Syndrome, let’s call it The Sahara Syndrome.

End note #1: What explains the dramatic increases in river flows around September 9 and September 28?

Are those increases related to the end of pumping? I don’t recall any rainfall during this time.

[End note #2: meanwhile, ignoring the above kind of problems, NJ’s conservation and environmental groups are doing stuff like planning festivals and promoting “sustainable” rain barrels. Their Foundation funded retreat from scientific and regulatory reality on major issues of water, air, land use, waste/materials management, and energy/climate is shameful. ] 

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Christie DEP Covering Up Reasons for Publishing Faulty Drought Data

September 29th, 2015 No comments

DEP denies public records request for explanation DEP provided to Advisory Council

Wanaque Reservoir from Monksville dam (9/24/15)

Wanaque Reservoir from Monksville dam (9/24/15)

[Update #2 – Acting State Geologist Hoffman made a presentation to the Water Supply Advisory Council today about the “mix up” with respect to drought data. It boils down to a complex statistical methods issue involving precipitation data. This led to misleading reporting. No big deal in the sense that is was a legitimate technical error. The briefing expanded upon the memo I filed an OPRA for.]

Update #1: 9/30/15 – Jim O’Neill at the Record finally gets it half right on the flow issue – as I noted, the Passaic basin flows were critically low.

But he continues to ignore the water quality issue – ironically in today’s story about rainfall making everything OK:

The North Jersey District Water Supply Commission, which operates the reservoir, can refill it when levels drop by using pump stations on the Pompton and Ramapo rivers. The state prohibits the commission from pumping water out of the rivers during July and August, because of concern that flows are too low. The commission pumped water out of the Pompton through much of September, and was sending 50 million to 95 million gallons a day of river water into the Wanaque Reservoir.

But because flows in the Pompton, Ramapo and Passaic had become so low in recent days, the commission was forced under state regulations to stop pumping, said commission spokesman William Maer.

Once again, though, O’Neill doest get it quite right. The flows in the Passaic “in recent days” are actually HIGHER that they were on September 6 – 9, when I raised the issue! see:

passaic flow7


My guess is that the cessation of pumping is what explains the increase in flows on 9/23 –

Yes, once again, we are lurching from drought to flood  ~~~ end update]

As the summer’s lack of rainfall persisted into the fall and drought worsened, some private water companies issued water conservation advisories.

So people were scratching their heads asking why DEP refused to declare a drought watch, and the news media began to ask questions and write stories.

I posted criticisms of the Bergen Record’s coverage, noting errors and omissions in river flow and water quality data.

Stephen Stirling of the Star Ledger (NJ Advance media) took that criticism one step further and discovered that DEP had published and relied on faulty data.

On September 11, 2015, he wrote a scathingly critical story:

No drought about it, DEP published faulty rainfall data

Everyone except the New Jersey Department of Environmental Protection seemed to know that mounting precipitation deficits were becoming a problem for New Jersey’s most populous region.

By several measures of the National Weather Service and the New Jersey State Climatologist, precipitation deficits in northeastern New Jersey, prior to Thursday’s rains, were operating between four and six inches below average. The U.S. Drought Monitor, a national collective of academics, placed northeastern New Jersey in a “moderate drought” designation. United Water, which provides water to more than 800,000, called for voluntarily water restrictions after its reservoirs fell to about 45 percent of capacity, following a scorching and dry August.

But visit the DEP’s drought monitoring site, and a different story is being told:

The agency’s drought monitoring site has stated that precipitation, reservoir and ground water levels all remain near or above normal.

But for an undetermined amount of time, an analytical error has led the state agency to use and publish erroneous information about the state’s water situation, a topic that affects virtually every facet of life in New Jersey, from farming to day-to-day residential water usage.  

Obviously, DEP was embarrassed by the error. I imagine Commissioner Martin was very angry too.

At some point, I am not clear how, this news story became a concern of the NJ Water Supply Advisory Council (WSAC). The Council is an advisory body to the DEP Commissioner. It has no formal powers.

The controversy led to the unusual last minute cancellation of the September WSAC meeting.

I attend Water Supply Advisory Council meetings and am on their email distribution list.

Typically, not much of substance is discussed on those emails, except for the scheduling of meetings. So I was stunned to get an email from DEP to WSAC members on 9/17/15 that highlighted an explanation of the technical error in the news story drought data. DEP wrote:

Assistant Commissioner Dan Kennedy expressed his desire to attend this meeting; unfortunately, a schedule conflict precludes his availability tomorrow. His preference is that he and other key staff are available at the meeting to discuss condition status, changing conditions and next steps. DEP anticipates fully explaining at this WSAC meeting its system for monitoring water-supply conditions and deciding on appropriate status in each drought region (in the interim, you should have received an email from Steve Doughty providing a drought condition update and brief explanation of the precipitation indicator mix-up).

That email revelation was like putting a red flag in front of a bull.

Obviously, I was very curious about this DEP “mix up” and immediately filed an OPRA requesting the Steve Doughty DEP email on 9/18/15.


Yesterday (9/28/15) DEP denied my OPRA public records request.

The DEP’s denial has seriously negative implications for transparency at scores of advisory bodies to state government, and sets a very bad precedent under OPRA. It must be challenged.

DEP denied the OPRA request for the following reasons:

The requested September 16, 2015 email from Steve Doughty to the Water Supply Advisory Council members is an intra-agency advisory and deliberative record. This record is being withheld on the basis that the requested record is not considered a government records pursuant to N.J.S.A. 47:1A-1.1.

DEP’s denial is obviously an attempt to cover up their embarrassing “mix up”.

The basis for denial –  intra-agency advisory and deliberative record – is false and blatantly illegal, for the following reasons:

1. The author of the email,  Steve Doughty, is an administrative assistant, not a policymaker. Doughty does not make decisions or participate in management decision-making.

2. The email was factual and explanatory of technical information – facts can not be withheld under OPRA.

3. The email was from the DEP, the decision making body who deliberates on policy, to the WSAC.

It is arguable that a recommendation from the WSAC to the DEP Commission could be considered deliberative, but it is absurd to argue that a technical email from a low level DEP employee to WSAC is deliberative.

4. There was no “deliberation” because there was no decision pending. The DEP email was explanatory of decisions made and actions already taken by DEP

5. The WSAC is not a decision-making body so the DEP memo can not be deliberative. There is nothing to deliberate.

6. There are private sector members of the WSAC. Those private members routinely share WSAC with their corporate colleagues. They are under no confidentiality or secrecy restrictions on material provided to them from DEP.

There also  is a “public” representative on the WSAC that should provide this kind of information to the public (ahem….). I should not have to file an OPRA for it. WSAC is not some top secret entity.

The public deserves the same information that DEP provides to private water companies.

7. The WSAC also has private sector water companies on it, so the DEP memo can not be an intra-governmental record.

This is little more than petty bureaucratic ass covering that can not be allowed to stand.

It sets a horrible precedent under OPRA – we’re looking for lawyers willing to take this case. It is a high probability win and OPRA provides for full reimbursement of attorney’s fees, plus costs.

Wanaque Reservoir (9/24/15)

Wanaque Reservoir (9/24/15)

Wanaque Reservoir (9/24/15)

Wanaque Reservoir (9/24/15)

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An Open Letter to PennEast Pipeline Opponents

September 28th, 2015 No comments

A Note on Strategy

[Update below]

Friends – I previously wrote to suggest that your coalition focus on the only regulatory tool that can effectively win the battle and stop the pipeline.

That tool is the Clean Water Act “water quality certificate” issued by the NJ DEP.

I’ve urged you to focus on researching that tool and preparing a public campaign to pressure Gov. Christie to use his executive branch power to order DEP to deny the WQ certificate.

It is a long shot – and Christie is unlikely to veto the pipeline, but it lays the foundation for a lawsuit and holds the Governor accountable.

I’ve also spoken with many of you to advise that submission of comments to FERC is a waste of time, because FERC is captured by the energy industry and there is virtually no chance of FERC denying an approval of PennEast’s application.

Now that PennEast has formally submitted an application to FERC, the DEP has one year – 365 days – in which to approve or deny the Clean Water Act water quality certificate. The clock is running.

If DEP fails to act, the application is deemed approved.

So, it is critical now to shift to a focus on the WQ certificate – has PennEast submitted a WQ certification application to DEP? Have you filed OPRA’s for it yet?

When is the Trenton press conference to announce the campaign to target DEP, the WQ certificate and the Gov – much like coastal advocates successfully appealed to Christie to veto off shore LNG?

I thought there was some agreement on this strategy.

That’s what the folks in NY are focused on.

So, I am baffled to learn that today, just when the WQ certificate campaign should be kicking off, that NJCF and other groups held a press conference with NJ State legislators

Congresswoman Watson Coleman Joins with Local

Elected Officials to Defeat PennEast Pipeline

Lawmakers are joining the fight against plans to seize private property in order to build a natural gas pipeline through parts of New Jersey and Pennsylvania.

Bonnie Watson Coleman and Senator Christopher “Kip” Bateman will be joined by other state and local elected officials in a bipartisan call for the denial of PennEast’s application to construct a pipeline through 118 miles that include preserved open space and farmland, private properties and 31 of the states cleanest and most ecologically significant streams. The route of the proposed pipeline would take it through the Ted Stiles Preserve at Baldpate Mountain in Hopewell Township.

Coleman and Bateman are fine people, but the NJ Legislature has no effective power to block the pipeline.

What the hell are you doing?

I knew that Tom Gilbert of NJCF was in way over his head, but I know that you have competent scientific and legal advisors, so I’m starting to think you don’t even want to try to win.

To do that wil take a very heavy lift, targeting all you resources on the Gov. and DEP.

Best to start that effort NOW, not a legislative sideshow.

[Update – looks like NJCF and Hopewell friends are not the only ones in need of a targeted focused strategy – this event, held the next day, was in the right place but the message and the targets sound like a Pipeline Piñata (no mention of WQ certificate????)


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