An Ode On The Paulins Kill – An “Exceptional” Resource

October 13th, 2015 No comments
lower PK, with Kittatiny Ridge peeking through

lower PK, with Kittatiny Ridge peeking through

As doth eternity: Cold Pastoral!
         When old age shall this generation waste,
                Thou shalt remain, in midst of other woe
Than ours, a friend to man, to whom thou say’st,
         “Beauty is truth, truth beauty,—that is all
                Ye know on earth, and all ye need to know.”  ~~~ Ode on a Grecian Urn (Keats)

We respect our readers’ sense of truth and beauty – and strive for both.

After our disappointment at Sidney Brook yesterday, we headed north to the Paulins Kill for salvation.

The DEP designated portions of the Paulins Kill a “Category One” (C1) water on January 6, 2003.

Remarkably, that critical regulatory fact is ignored by the Christie DEP and their friends in Sussex County in the “Paulins Kill Restoration Plan (2012) – a truly remarkable omission given the non-point source pollutant focus of that plan.

C1 waters are those that have “exceptional ecological, water supply, fisheries, recreational or aesthetic characteristics”. ( see NJ Surface Water Quality Standards (SWQS) @: NJAC 7:9B)

More importantly, under the Clean Water Act and NJ’s Surface Water Quality Standards, C1 waters are protected from any “measurable change” to “existing water quality” (EWQ). Keep those two phrases in mind.

EWQ is defined to incude the physical, chemical, and biological integrity.

Look how broadly DEP’s federal EPA approved SWQS regulations define “measurable change” – models, predictions, “might adversely impact”:

“Measurable changes” means changes measured or determined by a biological, chemical, physical, or analytical method, conducted in accordance with USEPA approved methods as identified in 40 C.F.R. 136 or other analytical methods (for example, mathematical models, ecological indices) approved by the Department, that might adversely impact a water use (including, but not limited to, aesthetics).

No measurable change in EWQ would mean that DEP could require that EWQ be characterized PRIOR to any discharge of a pollutant or land disturbance. That would require collection of at least 4 quarters of site specific physical, chemical, and biological data to be statistically and scientifically representative of seasonal fluctuations.

This could authorize DEP to require that a permit applicant develop a site specific calibrated model to assess pollutant runoff from land disturbance and the resulting impact on EWQ.

This also means that based on that baseline characterization of EWQ, DEP could deny permits or approvals for any activity that causes or contributes to things like:

  • erosion or scouring or temperature increase (i.e. a measurable physical change); or
  • increase in suspended or dissolved solids, salts,  or any chemical pollutant (i.e. a measurable chemical change); or
  • harm to any aquatic species or aquatic dependent species (individual or population; plant or animal) that lives in the waterbody or its buffer (i.e. a measurable biological change).

Now how radical is that?


ironwood is my second favorite tree

ironwood is my second favorite tree

To assure that level of protection of existing water quality protection from any activity that generates storm water and creates non-point source pollution, one tool DEP developed is the 300 foot wide buffers along C1 waterbodies as a storm water water quality “best management practice”.

But the 300 foot buffer requirements are just one tool –

DEP has multiple additional tools to enforce the SWQS for C1 waters of no measurable change in EWQ, such as: wetlands permits, water quality certifications, stream encroachment permits, Municipal Stormwater permits, water quality management plans, NJPDES permits, and direct enforcement authority.

For example, how would it be possible fora pipeline contractor to construct access roads, equipment staging areas, and cross C1 streams without creating a measurable change” to EWQ or disturbing vegetation and soils in the 300 foot C1 buffer?

So, here are the critical questions activist must focus on:

1. is DEP requiring the numeric and statistically representative characterization of the physical, chemical and biological parameters of “Existing Water Quality”  BEFORE granting any permit that might impact EWQ?

2. Is DEP enforcing the C1 standard of “no measurable change” to EWQ in issuing planning and permit approvals?

3. Because the C1 policy is a federally approved, federally funded, and federally enforceable State Surface Water Quality Standard standard under the Clean Water Act, is US EPA Region II monitoring and supervising DEP’s planning, permitting, and enforcement of the C1 standard?

The answer to all of the above is a resounding NO.

And now for some more beauty:

ironwood graces the PK

ironwood graces the PK

We conclude with the backstory of Paulins Kill:

In spring & summer of 1994, after I blew the whistle on DEP and Gov. Whitman’s corrupt strategy to cover up mercury contamination of freshwater fish, while DEP managers and the AG’s Office were trumping up their various charges and trying hard to force me out of the Department, DEP Commissioner Bob Shinn did the equivalent of banishing me to Siberia.

I was ordered out of my 7th floor Trenton Office and told to report to Green Acres field office in Hamilton.

When I reported to work, Green Acres Administrator didn’t know what to do with me. I had no knowledge or experience in land acquisition.

So, he gave me a State car and a clip board with various tax maps and forms and told me to drive up to the Paulins Kill every day and inventory properties.

I had no idea what I was doing at the time and enjoyed the daily hikes – but that effort contributed to the Paulins Kill Trail.


Hainesburg Junction telegraph office

Hainesburg Junction telegraph office – a message or Bill Gates and the techno-utopians

shote towns are not the only ones with parking ordinances that restrict public access

NJ shore towns are not the only ones with parking ordinances that restrict public access

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Sidney Brook: NJ’s First Stream Designated “Category One” Based on “Exceptional Ecological Significance”

October 12th, 2015 No comments

And They Put A Gas Pipeline Through It

Sidney Brook Watershed (Source NJ Water SUpply Authority - used this because DEP has taken down all their C1 maps

Sidney Brook Watershed (Source: NJ Water Supply Authority) – I used this because DEP has taken down all their C1 maps

On Sunday night, I decided to write a series of posts this week – with photos – of some of the *original designated “Category One Waters” I worked on at DEP from 2002 – 2004 to illustrate what’s at stake in the upcoming Senate debate on SCR 180, a Resolution that would veto the Christie DEP proposed Flood Hazard rules (aka “stream encroachment”).

[The Resolution either still is not drafted yet or just not posted to the Legislature’s website. That is unusual. News reports were that it was introduced in the Senate more than 2 weeks ago.]

Among other things, that DEP proposal would repeal the Category One buffers (aka “Special Water Resource Protection Areas”) and replace them with “riparian zones” of the same width, but with far less regulatory protections.

There are approximately 2,000 stream miles of Category One Waters, including all major reservoirs – including many in the 400,000 acre Highlands Planning Area – so this repeal would represent a HUGE threat to water quality on a statewide basis.

The DEP explained the basis for the designation: (@ page 60)

The Department applied an integrated ecological assessment and determined that Sidney Brook qualified as a waterbody of “exceptional ecological significance”. Therefore, the application of Category 1 designation to this waterbody is appropriate. The exceptional in-stream habitat, the overall condition of the aquatic community as measured by macroinvertebrates, the presence of fifteen different fish species including adult Brook Trout and the presence of bog and wood turtles were factors in this determination. Another indicator of the stream’s exceptional ecological significance is the presence of stable banks with infrequent erosion, little sediment deposition, no channelization, and healthy riparian corridor including riffles, boulders, runs and pools.

Adding to that history is the fact that the C1 designation was in a response to a petition for rule making, filed by attorney Tom Borden on behalf of concerned citizens in Clinton Township. Wow! Democracy and activism having a direct impact on government regulation – can you even imagine that today?

I had not been to the brook is over a decade, and lost track of the Milligan Farms site and the controversial development and wastewater discharge to the brook that spawned the petition for C1 designation rule making. That C1 designation forced DEP to revoke the NJPDES surface water discharge permit and the developer abandoned the development project.

The Milligan Farms and Windy Acres development project kills are great examples of  what I’ve described as “The Power of a C1 Designation”.

So, on a gorgeous early fall day today, I headed out for Sidney Brook, NJ’s first stream designated Category One based on “exceptional ecological significance”.

The development project was stopped and the lovely rural landscape was preserved:

Sidney Brook2

The stream was flowing reasonably well given the dry weather – and the vegetation was not disturbed:

Sidney Brook4

Sidney Brook3

But as I walked further,  I was aghast at what I saw: the Sidney Brook natural buffer was disturbed by a natural gas pipeline! How’s that for “exceptional ecological significance”?

Sidney Brook5

Elizabethtown Gas "Natural Gas Regulator Station"

Elizabethtown Gas “Natural Gas Regulator Station”

Only in NJ at the DEP.

In a future post, I will explain how loopholes in the C1 regulations allow this abuse to happen.

Really, if this is the way the public and local officials have defended and DEP has implemented the C1 buffer protection program, I almost think maybe the program deserves to be repealed.


* – There were C1 waters designated before 2002, but they were limited to “trout production” (TP) waters with naturally reproducing populations of trout. In 2002, DEP dramatically expanded the regulatory basis for C1 designations to include “exceptional” ecological, water supply, recreational and aesthetic characteristics.

Because the policy of C1 designation is to “maintain existing water quality”, DEP then required 300 foot buffers around C1 waters as an “anti degradation implementation strategy” as a water quality “best management practice” (BMP) in the storm water rules.

I was a prime architect of that regulatory strategy at DEP, building on Tom Borden’s pioneering work with the Sidney Brook petition.

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Pinelands Commission Pressured to Respond To A Growing “Crisis of Confidence”

October 12th, 2015 No comments

Does the Path From The Pope To Paris Pass Through The Pinelands?

Pinelands Commission Breaks Silence and Denial on Climate Change

Activists Press Commission on Climate Policy and Moratorium On Pipelines 

“Joint Base-Gate” Emails Suggest Fraud

Friday’s October meeting of the Pinelands Commission was extraordinary. Shockingly, none of this got reported by the media. Here’s the brief rundown – I urge readers to watch the video to get the full monte.

Climate Change

At the conclusion of the meeting, a Pinelands Commissioner urged the Commission to step up and play a role in climate change and consider the climate implications of fossil infrastructure like pipelines:

I’d like to followup on an issue Mr. Wolfe raised with respect to climate change … I think that there’s nothing more important for us as an agency to do to protect this planet. I agree with Mr. Wolfe. I don’t have a full legal analysis  but I think we have the opportunity and the jurisdiction to do that…. This effort is related to the other discussion we had this morning with respect to pipeline infrastructure. … In my view we shouldn’t be investing in pipelines, we should be investing in renewables.  ~~~~  Commissioner Ed Lloyd (watch at the very end, at time 1:32:30)

Earlier in the hearing, I testified to urge the Commission to consider the Pope’s remarkably popular visit and his urgent climate challenge set forth so beautifully in his encyclical Our Common Home and build a bridge to the upcoming Paris Climate Treaty negotiations:

In the Pope’s wake, the upcoming Paris Climate Treaty is again going to put the climate issue front and center in the public debate. What better time for the Commission to say “we’re going to amend the CMP and incorporate climate policies and energy”?

I previously gave you the scientific rationale for that. I previously pointed to the Adirondack Park Agency who has done something similar with their land use powers to build climate and energy policies into their land use reviews. I’ve pointed to where you have statutory authority under the Pinelands Act to do it. So today, I want to connect the dots on how your existing CMP actually obligates you do do it. …

It is a politically opportune time to make a public statement and get out of all the negativity we’re in and do something positive. Instead of spending staff time working with applicants to build pipelines through the Pinelands, we can do something good.  So, that’s my appeal to reason. ~~~  Wolfe at time 55:10  (wonks can read the end note for connecting the regulatory dots).

For years now, I and many others have urged the Pinelands Commission to address climate change and energy policies in the Comprehensive Management Plan (CMP), most recently, see:

Friday’s open discussion was a very small step, but it could be a key turing point, because over two years ago, my recommendations were rejected by Commission “Special Counsel’ Stacy Roth,  in a behind closed doors meeting that was caught on audio tape, see:

Moratorium on Pipelines Pending Reforms to Planning and Regulatory Review 

We have urged the Commission to impose an administrative moratorium on review of pipelines and energy infrastructure until the Comprehensive Management Plan (CMP) can be amended to provide adequate planning and environmental safeguards.

In support of a moratorium, I reminded the Commission that:1) the nearby DRBC has a moratorium on fracking; 2) the Pinelands Act authorizes the Commission to adopt bylaws and regulations, which is sufficient power to enact a moratorium; 3) that weaknesses and gaps discovered during review of the South jersey Gas pipeline justified the need for additional CMP safeguards; and 4) that the US Supreme Court has upheld administrative moratorium pending adoption of regional plan to protect natural resources in the Lake Tahoe case.

The exploding “Joint Base-Gate” scandal provides additional justification (see below).

I asked the Commission to direct staff to request an Attorney General’s legal opinion – but Special Counsel Roth rejected that saying that the legal issues would be discussed in Executive Session. I objected to that approach for a lack of transparency and accountability.

We may be making progress, because the Commission considered legal issues involving a moratorium in executive session

Growing “Joint Base-Gate” NJ Natural Gas Pipeline scandal 

Doug O’Malley of Environment NJ got it exactly right when he said that recent email disclosures revealing that Pinelands staff may have been involved in what appears to be a scheme by NJ Natural Gas and Joint Base official to concoct a false military purpose to avoid regulatory scrutiny by the Pinelands Commission had created a “crisis of confidence” in the Commission.

There was powerful testimony I urge the public to watch, beginning at time 25:25.

You have black and white emails from company officials that say that they were concocting a military purpose.

A NJNJ official wrote to military officials, in no uncertain terms, that the company was seeking to route the pipeline onto the base not for actual military purpose but for the sole reason to gain the Commission’s deference for projects that have military purposes. …

Providing deceptive information to a public agency or officials was illegal when it happened at the Joint Base and submitting an application to the Pinelands Commission with knowingly false claims for the purpose of obtaining a near total exemption from the CMP, for which an applicant knows it does not truthfully qualify is definitely illegal as well.

In a future post, I will outline why NJNG wanted a military purpose and how the Pinelands Comprehensive Management Plan provides less restrictive standards.

In the meantime, you can watch the testimony and read the WHYY coverage of that issue here.

Food and Water Watch has posted the emails here.

We’ll keep you posted – the Commission needs to feel strong public pressure to do the right thing on all these issues to resolve the current crisis of confidence.

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We Dedicate This Week To Stopping the Christie DEP Rollbacks Of Protections of Category One Streams and Reservoirs

October 11th, 2015 No comments

Senate To Hear Resolution To Veto Christie DEP Flood Hazard Rule Rolbacks

Can Legislative Democrats Block Gov. Christie’s Avowed “Dismantling”?

Headwaters of the Alexauken Creek, a designated Category One Water in West Amwell, NJ

Headwaters of the Alexauken Creek, a designated Category One Water in West Amwell, NJ

The Senate Environment Committee announced that they will conduct a hearing next Monday, October 19, 2015  on SCR 180, the Senate Resolution to veto the Christie DEP’s proposed flood hazard rule as “inconsistent with legislative intent”.

This is a rare exercise of the Legislature’s Constitutional power to veto Executive Branch regulations.

Ironically, newly founded NJ 101.5 talk radio and precursor to Tea Party right wing outrage, the press ginned up public opposition to the Florio administration’s “runny egg rule”, and the NJ Constitution was amended to grant this new legislative power to prevent regulatory over-reach:

6.   No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law.  The Legislature shall provide for the prompt publication of such rules and regulations.  The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.  Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation.  The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  

A simple majority of both Houses of the Legislature is sufficient to block any proposed rule, so there is no need for a “super majority”, like that necessary to over-ride a Gubernatorial Veto of legislation.

Governor Christie has used the veto power to block numerous legislative initiatives – and the Democrats have been unable to muster the super majority required to over-ride. Republicans have remained loyal to the Governor, regardless of the public interest.

The Legislative Veto of the Governor’s regulations changes the politics of all that – The Democrats have majorities in both houses, so Democrats don’t need ANY Republican votes to veto the DEP’s propose rules.

Politically and environmentally, this Resolution is incredibly important.

But the Resolution is even more critical, because the DEP’s proposed rule would repeal that Category One Waters 300 foot buffer established during the McGreevey Administration – and because DEP Commissioner Martin has openly pledged to rollback additional land use and water quality protections – this Resolution is vital to water quality, land use, and ecosystem protections.

I also have a personal dog in this fight, because I was involved and led the DEP team that created the Category One waters program at DEP in 2002 – 2004.

Therefore. this week, in the run-up to Monday’s Senate hearing, we dedicate ourselves to showing readers, the public, and policy makers exactly what is at stake in DEP’s proposed rules to repeal the Category One buffers rules and rollback stream buffer protections.

We will get out in the field to show the beauty of C1 waters that are at stake.

We explain the regulatory nuance in plain language.

We begin on Monday, in Clinton NJ, where the C1 waters designation and buffer program really began.

As DEP noted:

On April 22, 2002, Governor James E. McGreevey announced that the State intended to strengthen water quality protections provided to six streams and nine reservoirs as the start of a broader initiative to provide New Jersey residents with clean and plentiful water. Governor McGreevey’s announcement included the identification of each of the waterbodies to be proposed. These 15 “high quality waters” covered approximately 200 stream and reservoir miles. The Department also indicated its intent to upgrade Sidney Brook and South Branch Rockaway Creek, two of the waterbodies identified by Governor McGreevey, in response to rule petitions for Category 1 upgrades in a notice published in the New Jersey Register on October 21, 2002 (34 N.J.R. 3651). The Governor’s Office issued a press release on October 21, 2002 announcing that Commissioner Campbell had signed the proposed regulation necessary to complete the upgraded antidegradation designation.

In part, is was a response to the controversial battle over a development known as Windy Acres:

COMMENT 110: The commenter believes that the existing categorization of the South Branch Rockaway Creek provides sufficient protection of the wood turtle and re-categorizing the stream is both unwarranted and unnecessary. Proposed amendments to N.J.A.C. 7:9B-1.15(f) would upgrade the surface water classification of the South Branch Rockaway Creek to Category 1(C1) from its headwaters to Cushetunk Lake. This stream runs through proposed Windy Acres Development and is the stream to which the proposed Clinton East advanced wastewater treatment plant will discharge. The reclassification of this stream centers on protecting the State threatened wood turtle, which has been found in the South Branch Rockaway Creek. (634c,3015b)

To frustrate public awareness of all this, the DEP has scrubbed its website of all the links to the C1 history and C1 regulatory documents (e.g. see that DEP killed all the C1 links to Oradell Reservoir et al I posted in response to Senator Cardinale’s attack on C1 streams and all the  C1 links in this post are dead).

But that will not dissuade us, because we’ve written numerous times about C1 buffers and know enough of the history to find the links in the public domain to document the history.

Curiously, DEP forgot to take this DEP Report downAn Evaluation of NJDEP’s Category One Antidegradation Designation Process which traces the C1 program history and shows DEP scientists support for the C1 program and recommendations to designate 121 new stream miles C1:

In 2002, the Department began an intensive effort to identify additional waters that warranted enhanced protections afforded by this designation. The Department adopted new C1 designation categories: Exceptional Ecological Significance, Exceptional Fisheries Resource(s), and Exceptional Water Supply Significance in order to clarify the data requirements necessary for a waterbody to be designated as C1 waters.

Yes, I’m proud to say I did that.

So, stay tuned.

And all hands on deck in Trenton on Monday October 19 for the Senate Environment Committee hearing on SCR 180!

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Storms Had Little Impact on Drought, Reservoirs, & River Flows

October 11th, 2015 No comments

Managing Drought With a Drought Of Management at DEP

Flood of Slogans & Press Releases Mask Mismanagement & Christie’s Policy

Flow on passaic River at Little Falls, since 9/1/15 (Source: USGS)

Flow on Passaic River at Little Falls, since 9/1/15 (Source: USGS)

The Bergen Record reported today that the rainfall from last week’s nor’easter which caused so much coastal erosion had little impact on the drought in northeast NJ, see this:

Once again, the critical river low flow issues are presented as clear as mud, and buried at the very end of the story:

The reservoir was at 47.1 percent on Friday. But it was supplying about 25 million gallons less per day than it was at the beginning of September.

The commission has been pumping millions of gallons from Passaic River tributaries to meet demand. Even though the DEP in 2013 allowed the commission to pump an extra 17 million gallons a day during peak demand periods, a spokesman said even that may not be enough.

“The river flow is decreasing enough that we may have to stop until another rainfall,” Maer said. “We’re pumping when we can to keep the levels as high as possible.”

As you can see from the USGS hydrograph above, river flow rebounded, but is heading down again.

The rainfall made only a slight dent in reservoir levels, and pumping of river water appears to have been halted again as a result of “minimum passing flow” conditions in DEP permits.

We are glad that the Record is staying with this story, but we still wish they would focus on important drought related issues:

1) Human Health Risks

The lack of rainfall and low flows in the rivers result in lower water quality. That increases human health risks. The critical pollutant of concern is the nitrate level: as river concentration approaches the 10 mg/L (ppm) drinking water standard, the river intakes for water supply must be shut down because there is no treatment for nitrate. However, there are many other risks, ranging from trihalomethanes that result from additional treatment to remove a higher percentage of organic content (algae, et al) from river water; to hundreds of unregulated chemicals discharge by sewage treatment plants (Google Tittel’s award winning soundbite about “Viagara Falls”)

2) Ecological Impacts – Whatever happened to the DEP’s “Eco-Flow Goals” Project?

The negative effects of drought are not limited to threats to the water supply for people. The low flows in the river have adverse impacts on aquatic life – I know next to nothing about the aquatic life in the Passaic basin, but I’m sure there are many scientists, fishermen, and watershed advocates who do. That story needs to be told.

3) Infrastructure – From Leaks to Lack of Adequate Storage to Reliance on rivers

Northeast NJ’s water supply infrastructure is in a precarious situation – by design – due to lack of adequate reservoir storage capacity. Aging infrastructure is another problem – the Record recently reported leakage rates for United Water, but in the context of a request rate increase. The larger infrastructure story needs to be told comprehensively.

4) Water Supply Planning – Where’s the Plan?

Governor Christie’s Office has buried the DEP drafted update of the Water Supply Master Plan for political reasons. As a result, the public and water supply managers lack current data and relevant policy framework to make important management decisions.

  • Drought of data – After declaring a drought watch and urging voluntary conservation, DEP has no data on water conservation efforts and is not even asking for that data to be collected.
  • Projected population growth and increasing demand will put additional stress on the system and result in more frequent drought conditions.
  • Climate change is projected to change rainfall patters, resulting in more frequent large rainfall events and more prolonged dry period. At the same time, NJ’s landscape is increasing developed with impervious surfaces as natural vegetation is destroyed. This has huge implications for water supply, because so much water is lost as runoff from larger storms and there is less groundwater recharge and reservoir storage.

There are many other examples of issues that need to be addressed via the Water Supply Plan update.

5) What ever happened to DEP’s Asset Management initiative?

The highly touted DEP “Asset Management” initiative is dead in the water (no pun!).

Asset management will force DEP, private sector, and local water managers to being to develop a systematic approach to assessing and managing infrastructure.

6) Lack of Funding – The Open Space Diversion

The fact that NJ has a massive water infrastructure upgrade financial deficit has been widely reported.

But there’s been no coverage of the fact that the Open Space ballot approval diverted significant funding from water resource management programs, just when more challenges are emerging that require more costly management efforts, from data collection to scientific expertise.

7) Christie DEP Rollbacks of Land Use and Water Resource Protections

Christie DEP Commissioner Bob Martin himself has openly announced plans to rollback existing land use and water resource regulatory protections.

Just at the point in time when climate change impacts are becoming increasingly visible, the DEP is ignoring those issues – both the need to dramatically reduce emissions and to adapt to projected impacts.

Just when structural drought and basic hydrology are becoming part of everyday experience, DEP is rolling back land use and water resource protections that will exacerbate water quality, flooding, and drought issues.

There are several stories waiting to be written about DEP’s Water Management Deficits.

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