Murphy DEP Denies Regulatory Petition To Close Loopholes In Water Quality Standards To Protect Trout and Aquatic Life From Toxic Aluminum

December 4th, 2022 No comments

DEP Completely Ignored USGS Finding That Logging Caused “100% Mortality” For Trout

DEP Denial Document Exposes That DEP Clean Water Act Programs Are In Disarray

DEP Says Water Quality Standards Don’t Apply To Major Sources Of Pollution

US EPA Gives NJ DEP A Pass

8H1A2760 (1)

The Murphy DEP just denied my petition for rulemaking that sought to force DEP to update NJ’s State water quality standards to incorporate US EPA’ 2018 National water quality criteria for toxic aluminum. The DEP denial will be published in the December 19, 2022 NJ Register, see:

I was absolutely stunned by what DEP wrote and how they now interpret their clean water regulations.

My petition not only demanded that DEP update water quality standards, but also included targeted amendments in a host of other DEP Clean Water Act planning and permit program rules that implement the water quality standards:

Amend the Highlands Water Protection and Planning Act Rules, N.J.A.C. 7:38; New Jersey Pollutant Discharge Elimination System rules, N.J.A.C. 7:14A, Water Quality Management Planning rules, N.J.A.C. 7:15, Stormwater Management rules, N.J.A.C. 7:8, and regulations governing Total Maximum Daily Load provisions of the Surface Water Quality Standards, N.J.A.C. 7:9B, to mandate compliance with the EPA’s Final Criteria;

The DEP’s denial document, which set out current interpretations of DEP’s regulations, was stunning and revealed a State Clean Water Act program that has gone backwards in the last 25 years.

I) A Brief History Of DEP Clean Water Rules Is Instructive

Remarkably, today’s DEP clean water programs are actually weaker and narrower in scope than under the Whitman administration. Few people are aware that the Whitman DEP sought a comprehensive regulatory rollback under a proposed package of regulations dubbed the “Mega-Rule”.

That Whitman DEP initiative was defeated by strong environmental group opposition and a series of negative media stories that exposed things like a memo from DEP’s then Director of Water Resources, Dennis Hart (now head of the NJ Chemistry Council) that the proposed changes “would increase the discharge of chemical carcinogens to drinking water supplies’. His current Chemistry Council colleagues I’m sure would be shocked to learn that Dennis actually wrote that!

But, despite the failed Whitman DEP rollbacks, growing out of the battle over stopping the DEP rollbacks, there were policy discussions with DEP about how to expand and strengthen clean water protections.

These discussions specifically included controversial issues like how to apply and enforce the water quality standards on sources of non-point pollution and in the DEP land use program (water quality standards for wetlands), and how to enforce the water quality standards in other programs, specifically including the Water Quality Management Planning (WQMP) rules (designated sewer service areas and sewage treatment plant capacity) and the stormwater management and stream encroachment regulations.

I even recall that at the time, Dan Van Abs, head of the Watershed Planning program, conducted an analysis and wrote a memo to DEP Deputy Commissioner Mark Smith that documented how historic sewage treatment plant planning (capacity and sewer service area) under the EPA Section 201 planning process, failed to consider impacts on water quality or conduct what’s known as an “antidegradation reviews”. (Dan is now at Rutgers and can confirm this).

As a result, the DEP approved sewage treatment plant capacity (in WQMP plans and facility NJPDES permits) was way too large and the pollution assimilative capacity in NJ’s rivers and stream was over-allocated. New development and growth and use of this capacity would violate water quality standards. Many of these over-capacity sewage treatment plants were located in rural and environmentally sensitive regions of the State, where the State Plan was discouraging sprawl growth.

The thinking at the time was to invoke DEP’s authority under NJ’s water quality standards and WQMP planning rules to require that the sewer authorities conduct an “anti-degradation review” for this over-capacity, which would provide an opportunity for the DEP to claw back this over-capacity.

Unfortunately, that never happened. As a result, sprawl has proliferated and water quality has declined. The builders love it.

But those policy discussions did subsequently lead to a series of major positive water quality reforms during the McGreevey and Corzine DEP’s, including regulations to:

1) upgrade the “antidegradation designations” to Category One along over 2,500 stream miles under the water quality standards rules;

2) establish 300 foot buffers along C1 streams as a “Best Management Practice” (BMP) under the stormwater management rules (We were forced to codify the buffers as BMPs in stormwater rules because DEP was not willing to legally conclude that non-point source pollution was regulated and subject to the water quality standards);

3) rely on the Clean Water Act’s “antidegradation” policy framework as the basis for the Highlands Act and DEP Highlands regulations;

4) strengthen water quality standards and ratchet down on NJPDES permit discharge requirements for the nutrient phosphorus; and

5) limit the expansion of sewer service areas and infrastructure to environmentally sensitive lands under the WQMP rules.

All that momentum and activism for reforms is gone now.

Not only are these issues no longer on the table for discussion and reform, but the DEP has actually reinterpreted existing regulations and made the flaws even WORSE!

II) A Brief Summary Of DEP’s Petition Denial Document

DEP’s denial document exposed a series of radically bad interpretations of current clean water laws and regulations. I will except the lowlight below.

But firstly, I must note that DEP ignored the core scientific basis and problem my petition was designed to address: the USGS scientific research finding that logging in the nearby Catskills in New York State caused “100% trout mortality”.

So let me repeat that USGS finding here so it doesn’t get shoved down Orwell’s Memory Hole (emphases mine):

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

“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.”

Remarkably, DEP simply flat out ignored that USGS science. Read the DEP denial. It is not even mentioned.

Worse, DEP defends a series of regulatory loopholes that ignore those problems. Lets excerpt some of the worst:

1. DEP openly admits that they have failed to update State water quality standards to incorporate the 4 year old EPA 2018 national criteria:

The existing SWQS do not include a numeric aquatic life criterion for aluminum.

2. DEP claims that the water quality management planning rules (WQMP) “do not implement” the water quality standards! Holy moly, the whole point of the WQMP planning process is to protect water quality and attain the water quality standards!!!!

The WQMP rules do not implement the SWQS and as currently written obviate the petitioner’s request to mandate their compliance with the EPA’s Final Criteria.

3. The DEP admits that the stormwater management rules do not regulate pollutants.  No wonder over 90% of NJ waters are impaired!

DEP then goes even further to assert an absurd distinction between the designated uses of a waterbody (e.g. “aquatic life protection”) and the numeric pollutant standards and antidegradation policies for those same waterbodies. Basically, DEP says they numeric water quality standards and antidegradation policies do not apply to stormwater. DEP then spouts non-sense about “the allowable amount of disturbance” and the use designations:

The Stormwater Management rules do not contain standards specific to any individual pollutant. Rather, the rules utilize the designations in the Surface Water Quality Standards at N.J.A.C. 7:9B to determine the allowable amount of disturbance in regulated areas based on the SWQS designation.

4. DEP admits that there are massive loopholes in the DEP forestry rules and the DEP BMP wetlands manual for forestry:

The Forestry rules do not contain monitoring and compliance requirements for specific substances, nor do they refer to such requirements.

5. Then DEP makes those loopholes more specific:

Forestry activities in wetlands, transition areas, and State open waters are generally exempt for the Freshwater Wetlands Protection Act Rules if they follow the BMP manual.Forestry activities in riparian zones usually qualify for a permit-by-rule under the Flood Hazard Control Act Rules.Neither the rules nor the BMP manual contains monitoring and compliance requirements for specific substances.

These are just some of the loopholes and flaws and absurd legal and regulatory interpretations DEP made.

Despite admitting all these flaws and loopholes, DEP does not see a need to close the loopholes and actually protect water quality and aquatic life, including trout.

the Department has determined that amending the SWQS to include aluminum criteria based on the EPA’s 2018 recommendations at this time, as requested in the petition, is not warranted because: (1) the Department requires additional waterbody-specific data for aluminum, pH, total hardness and DOC across a range of conditions to determine the applicability of the EPA’s recommendations for New Jersey’s waters; (2) if the Department chooses to accept the EPA’s recommendations, the Department requires additional ambient and effluent data from the permittees discharging to the surface waters to evaluate the various options for adopting the recommendations into the SWQS (with corresponding implementation strategies); and (3) the changes the petitioner suggests would benefit from stakeholder engagement attendant to a thorough rulemaking process.

Read the complete DEP denial document for yourself.

The DEP is in denial.

And US EPA and environmental groups are letting them get away with all this. More to follow on these issues.

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Cornell University National Study Examines NJ’s “Blue Acres” Voluntary Flood Buyout Program

December 3rd, 2022 No comments

Managed Retreat Must Be The Priority Policy and Planning Focus

“Equity” is Not An Adequate Land Use Planning Policy

Sibley Hall, Cornell University. Home of the Department of City and Regional Planning

Sibley Hall, Cornell University. Home of the Department of City and Regional Planning

I was just Googling around to check out what was happening at Cornell’s Department of City and Regional Planning (where I studied for the Master’s degree in 1983-85), and came across the following recent interesting Cornell study:

New Jersey’s “Blue Acres” program was one of 5 programs analyzed in the national study.

Climate-exacerbated flooding has renewed interest in home buyouts as a pillar of flood risk reduction and managed retreat from coastal zones and floodplains in the United States. However, floodplain buyout programs, especially the country’s largest one funded by the Federal Emergency Management Agency (FEMA), have drawn widespread criticism for being overly bureaucratic and socio-economically and racially inequitable (Hino et al. 2017; Howell and Elliott 2018; Mach et al. 2019; Peterson et al. 2020; Elliott et al. 2021). A growing body of research examines how to reform federal policies, what policies to replace them with, and what barriers stymie policy implementation (Kraan et al. 2021; Mach and Siders 2021; Hino and Nance 2021). More research on past and existing buyout programs is needed to support policy learning and coordination (Greer and Brokopp Binder 2017).

In this paper, we examine five dedicated subnational (state, county, and local) buyout programs in New Jersey, Washington State, Charlotte-Mecklenburg County (North Carolina), Harris County (Texas), and Austin (Texas) to understand whether regional buyout programs offer alternative approaches that can inform either future federal policy reform or an expansion of subnational buyout and floodplain management programs.

Right off the bat, the narrow focus on equity and criticism of bureaucracy set off alarms bells.

But the Cornell authors did recognize the need for and benefits of buyouts as a part of “managed retreat”:

Conceptually, buyouts are a triple win: vulnerable residents move out of harm’s way, the government reduces its liabilities, and land can be restored and increase the area’s resilience to future floods. Done well, buyout parcels can generate additional social and ecological benefits, from reducing urban heat islands to creating habitat corridors and public green space.

But, as I’ve written many times, voluntary buyouts are just one small part of a “managed retreat” policy, planning, and management framework. And “equity” is just one dimension of a buyout program.

Clearly, NJ’s scattershot reliance on willing sellers can not address the massive magnitude of a managed retreat program.

In addition to voluntary buyouts, a real “managed retreat” program would require regional planning, including restrictions on rebuilding storm damaged properties, revocation of NJ’s “right to rebuild” storm damaged properties, condemnation of property, regulatory mandates, and resettlement land use planning and financial assistance for displaced residents as we retreat from flood prone coastal and inland river locations.

I had hoped the Cornell study would address these larger issues. And push the envelope into more progressive solutions, honoring the intellectually bold planning approach that I learned there 40 years ago.

Sadly, I was disappointed by the narrow focus on traditional voluntary buyout programs:

In this paper, we focus on FEMA’s Hazard Mitigation Grant Program (HMGP), which accounts for 70% of federally funded buyouts and has bought out over 43,000 properties since its inception in 1989 (Mach et al. 2019).Footnote 1 FEMA funding is awarded to state or local governments, who must provide a 25% match, following a presidential disaster declaration (FEMA 2016). The program’s chief goal is to reduce the National Flood Insurance Program’s liabilities for helping insured homes rebuild after repetitive floods.

I was also embarrassed by the “analysis” New Jersey’s “Blue Acres” program, which is not only misleading but riddled with fact errors. Here’s how it was described: (emphasis mine)

New Jersey Blue Acres

New Jersey, the densest state in the country, is also one of the most flood-prone, with heavily developed floodplains near New York City and development along the sandy coastal plain (CDC 2011; U.S. Census Bureau 2021). The combination of increased rainfall and development in the region have contributed to eight federal flood-related disasters in New Jersey since 1962 (FEMA n.d.). Hurricanes and tropical storms are expected to reach New Jersey’s latitude more regularly under climate change, causing heavier rainfall, storm surge, and riverine floods (NJ DEP 2020). In 1961, the state Department of Environmental Protection founded the Green Acres program to acquire and preserve undeveloped land to create a statewide open space network. In 1995, it established Blue Acres as an extension and partner of Green Acres to address flood prone properties. Blue Acres acquires contiguous parcels to maximize ecological benefits and uses voluntary buyouts to return properties to nature and restore them to passive recreational green space.

Established through three bond acts totaling $36 million, Blue Acres was initially entirely state-funded before securing $273 million from FEMA and HUD after Hurricane Sandy in 2012. As of 2020, 6% of New Jersey’s corporate business tax supports the program,which has enabled Blue Acres to do buyouts on a more strategic, longer-term basis (Spidalieri et al. 2020). These funds enable the program to hire a diversified staff of legal, real estate, financial, and policy experts who help homeowners overcome hurdles and relocate faster than through the federal process (Weber and Moore 2019). Blue Acres’ director, Fawn McGee, has led the program since 1995, developing over time a team of “dedicated and passionate staff” who are in “constant communication” with FEMA and New Jersey Office of Emergency Management (FEMA 2021a, b). In total, Blue Acres has secured funding for 1200 properties and demolished 700 properties (ULI 2020), mostly in inland municipalities. It has not adopted explicit social equity goals or social vulnerability metrics.

The people of NJ impacted by Sandy, flooding, and DEP and FEMA might have a very different and critical assessment and description of what went down. Did the authors interview the real people they purport to be concerned about being dealt with equitably?

But this description is not just misleading, incomplete, and factually false. It is a shockingly poor example of academic rigor.

First of all, NJ DEP’s Blue Acres program is not “strategic”. That’s the term DEP uses on the Blue Acres website. It is not reality. There is no strategy and no enforceable land use plan. The DEP Blue Acres program is opportunistic and relies on scattershot individual willing sellers.

[Update: A reader I trust just sent me an email to advise:

Its worse than you think – it was changed under Christie from Neighborhoods – to property by property – so they do not negotiate by blocks even but each house  – it takes 4 times longer that way – also as the state buys out one property- the property next door can get rebuilt. ~~~ end]

The DEP Blue Acres does not “acquires contiguous parcels to maximize ecological benefits”. That’s a slogan, not an achievement in the field.

The “Corporate Business Tax” (CBT) does not provide 6% to Blue Acres, as the study claims:

As of 2020, 6% of New Jersey’s corporate business tax supports the program

The CBT provides 6% to a wide array of DEP and land acquisition programs – just a tiny fraction of the 6% of CBT revenues goes to Blue Acres. It is shocking that an academic paper would not know this. [A reliable reader writes: “Blue acres gets 10% of open space funding or about 7% of CBT funds.”]

In addition to misrepresenting NJ’s Blue Acres program, the study ignored NJ’s statutory “right to rebuild” under the Coastal Area Facilities Act (CAFRA) and Flood Hazard Management Act. That “right’ is a major driver of NJ’s national leading repetitive loss claims.

There is NO MENTION of NJ DEP’s land use planning and regulatory programs, including CAFRA, flood hazard, and stormwater regulations, or the NJ State Development and Redevelopment Plan. And this omission is from an ACADEMIC REGIONAL PLANNING PROGRAM!

The Cornell folks also completely ignored NJ Gov. Christie Christie’s actual post Sandy Rebuild Madness policy, which resulted in BILLIONS of dollars of FEMA and HUD financial aid after Hurricane Sandy driving reconstruction, not buyouts.

And then, after these huge and misleading errors and omissions, the Cornell study goes on to focus primarily on equity and inclusion issues.

I strongly urge readers to read the whole Cornell paper.

But, I also must mention here that the Cornell study not only misrepresented NJ’s Blue Acres and non-existent “managed retreat” programs, it legitimized false premises about “bureaucracy” :

Path forward

President Biden’s Administration has increased disaster funding, reduced their bureaucracy, and prioritized support for disadvantaged groups. Support includes $5 billion for FEMA, doubling the Building Resilient Infrastructure Communities (BRIC) program, requiring 40% of investments to benefit disadvantaged communities, and increasing federal cost share to 90–100% for buildings in socially vulnerable communities under the new Swift Current program (White House 2021; FEMA 2022b). These address many distributive and procedural justice concerns in the literature. However, they do not resolve constraints inhibiting subnational buyout programs from achieving greater equity outcomes, nor do they extend what made subnational programs effective to other geographies. Below, we identify additional ways for federal programs to make buyouts more equitable.

“Bureaucracy” is a very small part of the problem, but a convenient whipping boy and right wing anti-government slogan. It is remarkable that research from an academic planning program echoes that garbage.

Equity is not a land use planning or a policy that can deliver actual “managed retreat”.

Here are some of the headers of the study’s recommendations, which while legitimate, none of which grapple with the primary “managed retreat” policy and planning problems:

  • Increase federal funding for institution building at state and county levels
  • Create multi-sectoral programs at federal, state, and local levels to enable more integrated problem solving
  • Allow local governments to spend federal funds more flexibly, including for pre-disaster mitigation
  • Grow a professional cadre trained in inclusive and anti-racist planning and practice

This study is an embarrassment and a far cry from real regional land use planning we will need to adapt to the climate emergency.

I’m really disappointed by the folks at Cornell allowing this to pass for scholarship.

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Bear Protectors File Legal Brief Seeking Injunction To Stop Trophy Bear Hunt Slaughter

December 3rd, 2022 No comments

Brief Exposes DEP Sham Declaration of “Imminent Peril” To Public Safety

DEP Bear Management Plan Based On Seriously Flawed Data, Projections And Science

Court Likely To Grant temporary Injunction To Stop Hunt

Black bear along High Point Trail

Black bear along High Point Trail

After winning a court order temporarily stopping the Murphy administration’s bear hunt, a group of black bear protectors filed legal briefs last night to the Appellate Division seeking an injunction to stop the Murphy DEP proposed bear hunt, which was scheduled to begin on Monday.

The appellants are the Animal Protection League of NJ, Humane Society of the United States, Friends of Animals, Angela Metler, and Doreen Frega.

They are challenging the NJ Fish and Game Council, DEP, and Gov. Murphy’s emergency rulemaking that seeks to authorize a black bear hunt.

The attorney is Dante DiPirro, of Hopewell, NJ. I worked with Dante in the McGreevey DEP, where I was a policy advisor to and he served as legal Counsel to Commissioner Brad Campbell. Dante later served as Ex. Director of the Highlands Council.

The lawsuit seeks a preliminary injunction to stop the hunt until the legal case can be heard by the Courts.

The bear protectors make compelling arguments that there is no “imminent peril” to public safety; that the FGC and DEP manufactured a fake “imminent peril”; that they based that fake finding on seriously flawed bear population data, population projections, and bear reproductive and behavioral science; and that they failed to consider and implement non-lethal management methods.

In doing all that, the FGC and DEP violated Constitutionally guaranteed “due process” rights of the public to participate in government decisions, as well as the NJ statutory requirement to demonstrate an “imminent peril” to public safety to justify emergency rules.

I outlined these issues in two prior posts, see:

At this stage of the legal process, the arguments before the Court are limited to whether the appellants have met their burden to justify a temporary injunction.

I am not a lawyer, but in reading the powerfully written brief, it seems very obvious that the appellants have met their burden and I therefore predict that the Court will grant the temporary injunction, likely on Tuesday. That injunction likely will include or be followed by a very aggressive schedule to file briefs and litigate the case.

The full legal and scientific merits are not yet under consideration, but the appellants legal brief outlines the nature of those issues that would come before the court should the injunction be issued and the case heard.

It is an incredibly powerful brief, particularly given the expedited process and severely limited time allowed to file what amounts to an emergency a brief that summarized a huge literature on administrative law and bear science.

If I could have added one thing, I would have put more meat on the bones of the judicial standard of review. The Council and DEP deserve no judicial deference. The judges can rely on that and be on solid legal ground, without having to fear being attacked as judicial activists and inappropriately over-ruling the science and policy makers.

So, I’d like to highlight a few devastating points made in the powerful brief.

I) Constitutional Due Process Violation

Under the US and NJ Constitutions, executive branch  government agencies, because they are not legislators and elected officials, must provide people adequate public notice and opportunity for the public to participate in regulatory decisions that have the force and effect of law.

By invoking “emergency rules”, which become effective upon publication, the FGC and DEP did not do that:

The Council invoked emergency rulemaking less than three weeks before the intended start date of the hunt– giving no time for public comment or consideration of public feedback and no chance for Appellants to challenge the rule through ordinary motion practice — even though the agency has intended to re- authorize black bear hunting in the state for well over a year, and its own records showed it could have commenced ordinary rulemaking in January 2022 or earlier but did not.

The FGC and DEP violated due process protections and they did so intentionally and in bad faith to avoid public scrutiny and criticism.

II)  Administrative Procedure Act Violation – No “Imminent Peril”

NJ’s Administrative Procedure Act mandates that the public be provided opportunity to participate in any rulemaking by government agencies.

There is a very limited and narrow exception for emergency rules, but the law places a heavy burden on government to prove that an “imminent peril” to public healthy, safety or welfare exists.

The FGC and DEP did not come close to meeting that legal burden – there is no emergency (no “imminent peril”) and the DEP clearly attempted to manufacture one:

This rushed process was undertaken in contravention of the notice and comment requirements of the New Jersey Administrative Procedure Act (“APA”), unlawfully invoking extraordinary emergency powers on the false premise that the public is currently in “imminent peril, even though the Council has had ample time to propose such a measure through ordinary rulemaking procedures. […]

The APA allows emergency rulemaking without prior notice and comment only in the extraordinary case when “an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 30 days’ notice.” N.J.S.A. 52:14B-4(c). The Council claimed such peril exists for seven reasons (Pa 109-10), none of which are supported by evidence supporting the existence of “imminent peril.” […]

The Council’s first two claims – (1) that the state’s black bear population will explode by about 33 percent within the next two years and (2) thereby threaten public safety – are both flawed. First, they are unsupported by scientific evidence. As Dr. Sean Murphy, an expert in black bear population dynamics, explains, the Council’s “highly improbable” population growth projection “ does not meet the criteria for sound, evidentiary science that is useful for science-based management  of wildlife.” (Pa590 ¶¶ 16, 17). Moreover, as black bear expert Dr. Stephen Stringham notes, the number of black bears in a population is not what drives human-bear conflicts: food sources do. (Pa560a ¶10;Pa443). Even if the Council’s projection were plausible, a situation that may occur two years in the future does not “require” the “adoption of a [n emergency] rule upon fewer than 30 days’ notice.” N.J.S.A. 52:14B-4(c). If the Council genuinely believes such a population explosion will take place, it has ample time over the next two years to promulgate a rule addressing that situation in compliance with the APA.

The agency’s third claim, that nuisance reports of black bears have increased by 237% since last year, is also uncompelling. The number of overall reports does not provide any meaningful information about the danger posed by black bears to the public. These reports include non-threatening interactions with bears, and even sightings of deceased bears. In fact, the “overwhelming majority” of the incidents reported to the DEP “do not constitute a threat to public safety.” (Pa593 ¶ 24).

The Council’s fourth claim, that the state has “invest[ed] significantly in non-lethal management” practices that have not worked, is patently false. This apparently refers to the publication of several 15-second public service announcements in 2022 and the launch in August 2022 of a new website with “bear facts” and “safety tips.” (Pa13; Pa41). Non-lethal management of wildlife, though, requires actual involvement in the community—not simply publishing information online. Advocates, including Appellants, have urged the state for years to implement better practices, including adoption of a comprehensive non-lethal management plan; a ban on the feeding of bears; and distribution of bear-resistant trash cans. (Pa426 ¶ 4; Pa428-29 ¶ 11). The state has repeatedly refused to introduce such common-sense solutions. […]

The Council has known of the conditions it now calls on to support its finding of an “emergency”—an increase in the number human-bear incidents reported to the DEP—for at least eleven months. The increase in bear complaints is not an emergency and the Council recognizes that many factors contribute to complaints going up and down, including educational efforts and changes in public tolerance.

Courts rarely tolerate this kind of procedural abuse by regulatory agencies. Nor should they.

III) Seriously Flawed Data, Population Projection Methods, and Science

I had read summaries but had not read in detail the full DEP Comprehensive Black Bear Management Plan (CBBMP), so I was not aware of just had flawed that plan is.

The appellants rely on statements from two PhD bear experts to absolutely destroy DEP’s false premises and sham data, population estimates, population projections and other bear science.

The appellants make it clear at the outset what this hunt is really all about:

The agency’s own management plan reveals that the authorization of this hunt was never about wildlife management, nor is it about protecting the public. It is a recreational hunt authorized for the benefit of a small percentage of the state’s population who enjoy killing bears. The CBBMP, which Respondents adopted on an emergency basis, repeatedly refers to “recreation.”

BOOM!

The appellants expose a fatal flaw in DEP’s logic:

The CBBMP claims that hunting is “safe” (Pa58) but bears present a “risk,” when 631 people have been shot – 34 fatally – in hunting accidents in New Jersey in the past 50 years, while only one person has ever been killed by a bear during the state’s entire recorded history.

By ignoring the safety risks of hunting and claiming that bears present an imminent peril, Respondents are creating a true imminent peril from hunting accidents. It makes no sense to say that something that has killed 34 people in 50 years is “safe”  while something that has killed one person in 350 years is a “life-threatening” imminent peril

BOOM!

The brief then goes on to expose and demolish the seriously flawed data, population estimates, and population projections DEP relied on:

As explained in the attached certifications of black bear experts Sean Murphy, PhD, (Pa584), and Stephen F. Stringham, PhD, (Pa558), the Council approved the emergency hunt despite having no reliable information about the actual size of the state’s bear population. (Pa587-90 ¶¶ 9-15; Pa560 ¶ 8). The state applies a modified version of the “Lincoln-Petersen estimator” to approximate the total bear population, but this methodology is prone to causing “severe over- estimation of bear population sizes” and is “so deeply flawed that the agency has no scientifically defensible approximation of how many black bears may actually reside in New Jersey.” (Pa587-90 ¶¶ 10-11, 15). As Dr. Murphy illustrates, the state’s methodology generates erroneous and “illogical” results, such as the estimated bear population increasing when hunters kill more bears. (Pa588-89 ¶¶ 12-13). The state’s methodology also assumes that tagged bears are randomly distributed throughout the hunted population. (Pa561 ¶ 11; Pa590 ¶ 14). But this fundamental assumption is untrue. 

The state’s population estimates “are so deeply flawed” that the Council approved the emergency hunt despite having “no scientifically defensible approximation of how many black bears may actually reside in New Jersey.” (Pa590 ¶15). Proceeding with the hunt in the face of that uncertainty risks killing a sufficiently high percentage of the total bear population to cause “serious and long- lasting harm to the population.” (Pa591 ¶19). As the number of bears harvested rises relative to the actual population size—which is unknown to the Council— over-harvest sufficient to cause population decline is likely. (Pa560 ¶ 8). Because the state lacks the data and monitoring protocols to timely detect and respond to such a decline, it could continue undetected for years, further compounding the likelihood and magnitude of population-level harm. (Pa592-93 ¶ 23; Pa560 ¶¶ 8, 9). New Jersey’s bears will be especially vulnerable to overharvest this year: drought conditions have reduced the availability of acorns and other staple foods, likely leading to a low reproductive year. (Pa562-63 ¶ 12; Pa296; Pa591 ¶ 18).

Approving any bear hunt without accurate population data would be irresponsible and scientifically unsupportable. Here, the Council has gone even further and established a hunt that sets no absolute limit on the number of bears that may be killed during the season. The emergency rule does not specify a maximum number of bears that may be killed during the hunt. Rather, the only threshold that will trigger a closure of the hunt is if 30% of tagged bears are killed.

In practice, this will allow hunters to kill an unlimited number of bears – potentially, and even likely, exceeding 30% of the total population – so long as the number of tagged bears killed remains below the threshold. (Pa592 ¶ 20). Because hunting is more likely to occur where tagged bears are less common, untagged bears will be killed at a higher rate than tagged bears, meaning substantially more than 30% of the total population may be killed even if the threshold is not met. (Pa562 ¶ 11). Hunters may even intentionally exploit the rule by deliberately avoiding killing tagged bears in order to extend the season and allow more bears to be killed. (Pa591 ¶ 14; Pa430 ¶ 17).

Furthermore, there is no population number that will cause the hunt to be canceled under the emergency CBBMP. No matter how many bears there are in the state, the CBBMP will continue to authorize two bear seasons every year, which is further indication that the hunt is recreational and has nothing to do with imminent peril or the number of bears.

This dangerous combination of faulty population data and unlimited harvest generates an unacceptable risk that the hunt will cause population-level harm to the state’s bear population. The Council cannot mitigate this risk because it lacks “sufficient data to determine how many bears can be sustainably harvested from the population.” (Pa592 ¶ 22). The level of annual human-caused mortality – including hunting mortality – that a black bear population can sustain depends on  the population growth rate. (Pa592 ¶ 21; Pa560 ¶ 8). Studies have found that black bear populations can only sustain a 4 to 10 percent rate of human-caused mortality; in specific areas this has been found to be as high as 18 percent or as low as 1 to 2 percent. (Pa592 ¶ 21). Here, the state lacks sufficient data to determine the population growth rate, and therefore the level of human-caused mortality the population can sustain. (Pa592 ¶ 22; Pa560 ¶¶ 8-9). The growth rate estimates described in the CBBMP, (Pa85), are unreliable because they are based an inadequate sample size from which to derive an accurate growth rate, (Pa592 ¶ 22), and the estimates they produce do not align with high-quality research conducted elsewhere, (Pa560 ¶ 9). Without this crucial data, the Council cannot ensure that the emergency hunt will not cause population-level harm. (Pa592 ¶ 22; Pa560 ¶¶ 8- 9). Research on other bear populations (including in Pennsylvania, where “black bears have the highest known rates of reproduction”) has found that mortality far below the level that will soon be inflicted by the hunt the would be unstainable, (sic) indicating that the hunt is “extremely risky” and New Jersey’s bears will suffer population-level harm if it is not enjoined.

We’ll keep you posted – I’m hopeful and predicting the the Courts will grant the preliminary injunction!

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EPA’s Granting Petition To Upgrade Delaware River Water Quality Standards Is Not The Good News It’s Portrayed to Be

December 2nd, 2022 Comments off

EPA Made No Commitment To a Specific Numeric Standard

EPA Inserted A Poison Pill In A Footnote

NJ DEP Variance Loophole Lets NJ Polluters Off The Hook & Undermines Benefits

Columbia River sturgeon

Columbia River white sturgeon

The new requirements to incorporate WQS variance provisions will allow the Department to adopt temporary in-stream criteria or effluent conditions that will provide significant economic relief to permittees facing currently unattainable SWQS.  ~~~~ NJ DEP “variance” @page 51)

NJ Spotlight reports today that EPA granted a petition by environmental groups to upgrade water quality standards for dissolved oxygen in the Delaware River to protect endangered sturgeon, see:

The Environmental Protection Agency announced Thursday it will raise a key water-quality standard for an urban stretch of the Delaware River Estuary between Trenton and Wilmington, DE, giving a big — and unexpected — victory to environmental groups that had long-sought the increase.   

Environmentalists should not be spiking the ball quite yet. The EPA decision is not the “big win” they think it is.

The fine print once again shows how polluters and their friendly regulators are playing the long game, are two steps ahead of, and have once again outflanked the environmental groups.

The cliff notes version of the regulatory story (i.e. the long game) is that once the final EPA and/or DRBC water quality standard is actually adopted, it is implemented in State pollution discharge permit programs, not by EPA or DRBC.

The NJ DEP has already laid the regulatory foundation of that long game in a July 5, 2022 proposal of a “variance” from water quality standards. We drilled down and explained that in these posts:

The DEP makes it very clear that a variance is designed to avoid the costs of compliance with water quality standards:

A permittee requesting a WQS variance must justify and demonstrate to the satisfaction of the Department that the SWQS …. would result in substantial and widespread economic and social impact, as proposed at N.J.A.C. 7:9B-1.16(b)4. (proposal @ p. 27)

The Department anticipates that the WQS variance will be useful to address implementation challenges for situations when the water quality criterion for a substance or the designated use of a waterbody/waterbody segment(s) cannot be attained due to the lack of feasible treatment technologies, lack of analytical methods to measure the substance to the criterion thresholds, or the potential to cause widespread social and economic impact, if implemented. (proposal @ p.32)

The new requirements to incorporate WQS variance provisions will allow the Department to adopt temporary in-stream criteria or effluent conditions that will provide significant economic relief to permittees facing currently unattainable SWQS,(@page 51)

The EPA inserted a poison pill in their approval document that specifically links the EPA water quality standard to NJ DEP and other state water pollution control permit programs (NPDES) and DEP’s variance loophole.

The EPA gives this “variance” game away, as usual, in the very fine print of footnote #52 on page 10 of their approval document. Here is the poison pill (emphasis mine):

52 DRBC has not fully evaluated how that cost burden may be distributed across ratepayers, especially in underserved and overburdened communities. However, DRBC has provided a partial list of potential cost mitigation options, such as federal, state, and local assistance programs that, if awarded, adopted, or implemented, may help offset costs for low-income households or help utilities finance costs (see DRBC 2022: Social and Economic Factors Affecting the Attainment of Aquatic Life Uses in the Delaware River Estuary).

See footnote #26 for that document, curiously which is described as a “draft”:

26 Delaware River Basin Commission. 2022. Social and Economic Factors Affecting the Attainment of Aquatic Life Uses in the Delaware River Estuary. September 2022 Draft.

https://www.nj.gov/drbc/library/documents/AnalysisAttainability/SocialandEconomicFactors_DRAFTsept2022.pdf

The DRBC  Social and Economic Factors document plays right into the NJ DEP variance loophole via the economic impacts analysis – which includes a “household affordability score” – to analyze economic costs that could trigger the DEP variance loophole standard, i.e.:

“result in substantial and widespread economic and social impact”

The DRBC explains the objectives of this study – which explicitly are the same as NJ DEP’s variance:

Included in the list of studies to be completed is an evaluation of the social and economic factors affecting the attainment of uses, as described in the U.S. Environmental Protection Agency’s (EPA) water quality standards regulations at 40 CFR 131.10(g)(1)-(6). That regulation describes the factors that a state may consider in developing a use attainability analysis, including if meeting a use would cause substantial and widespread economic and social impact. While a use attainability analysis is typically performed by a state seeking to remove a use, an action not considered by Resolution No. 2017-4, it is apparent that the Commissioners intended for DRBC to utilize that framework in evaluating the social and economic impact of new proposed uses and associated effluent limits. The goal of this evaluation is to provide information on the social and economic impact of possible alternative uses for consideration and deliberation in rulemaking.

DRBC’s social and economic impact analysis is based on EPA Guidance, so the other States would be seeking to exploit the same loophole as NJ’s variance:

Two primary guidance documents were utilized to implement the evaluation of social and economic factors affecting the attainment of uses. These were:

  • EPA. Proposed 2022 Clean Water Act Financial Capability Assessment Guidance. February 2022. https://www.epa.gov/system/files/documents/2022-02/2022-proposed-fca_feb- 2022.pdf
  • EPA. 2021 Financial Capability Assessment Guidance (800B21001). January 2021. https://www.epa.gov/sites/default/files/2021-01/documents/2021_fca_guidance_- _january_13_2021_final_prepub.pdf.

Here are the results, which suggest that there may be “substantial and widespread economic and social impact” that triggers the NJ DEP variance standard as well as US EPA’s variance relief standard  – note that the NJ facilities are Trenton, Camden, Gloucester, Hamilton make up a significant fraction of the total pollution discharge to the Delaware River:

Screen Shot 2022-12-02 at 10.32.07 AM

Finally, I m must note that the environmental group petition demanded that EPA adopt a minimum numeric dissolved oxygen standard of 6.3 mg/L:

To protect the “propagation” use, the EPA must also upgrade the dissolved oxygen (“D.O.”) criteria for the subject zones to at least 6.3 mg/L.

However, the EPA’ approval document does not make a commitment to that minimum 6.3 mg/L standard. EPA merely references a range of values identified in research. Here’s how EPA evaded support for a specific numeric standard:

For example, experimental tests on juvenile Atlantic sturgeon showed instantaneous growth declined 50% when dissolved oxygen decreased from 70% to 40% saturation at 20°C, which is equal to dissolved oxygen concentrations of 6.35 to 3.62 mg/L, respectively.34 At summer temperatures for the Delaware River Estuary (i.e., 28°C), juvenile Atlantic sturgeon did not grow when dissolved oxygen concentrations were at the currently applicable summer criterion of 3.5 mg/L. 35

Once again, EPA regulators have played the environmental groups.

EPA and/or DRBC may set a weaker standard than the minimum 6.3 mg/L, especially when cost considerations are injected into the political pushback from the polluters.

Finally, EPA found that 12 months was a realistic timeframe for DRBC to propose a water quality standard (which typically take a year more for adoption). But I could find no date certain EPA committed to to propose or adopt any federal EPA water quality standard.

Based on EPA’s regulatory track record, I strongly doubt that EPA will propose, no less adopt, a water quality standard in 12 months.

After EPA or DRBC adoption of that water quality standard, the States then implement the standards in their pollution discharge permit programs.

Typically, when a water quality standard is updated, DEP phases it in during renewal of POTW discharge permits (NJPDES). DEP does not “call” all permits along a stretch of river and updated them all at once. Depending on the timing of permit renewals, implementation of any new EPA or DRBC water quality standard in permits could take another 5-7 years.

Of course, the polluters will likely challenge those State discharge permits, both administratively and judicially, particularly to exploit NJ DEP’s variance loophole, based on “substantial and widespread economic and social impact”.

Those legal challenges will add several years more.

So, any actual improvement in Delaware River water quality is highly uncertain and a long way off.

I don’t expect news reporters to understand this regulatory complexity, but Maya van Rossum at Riverkeeper is an attorney and she surely does. Shame on her for exaggerating the benefits and not calling out DEP on their variance loophole and EPA for their games.

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Pinelands Preservation Alliance’s Pitiful Defense Of DEP’s Logging Plan

November 29th, 2022 No comments

Ex. Director Carleton Montgomery Directs Junior Staffer To Walk The Plank

PPA Puff Piece Provides Pitiful Platitudes

Let me first state right up front that Carleton Montgomery is a despicable and dishonorable coward. And a gaslighting liar. And possibly a plagiarist as well (see #8 below).

What a smug bastard!

What a smug bastard!

Instead of publicly defending the controversial DEP logging plan that he supported for two years in behind closed doors meetings consumed with making quiet compromises with DEP, he forced his most junior staffer to write a blog post defending the DEP plan.

And this blog post was written AFTER the Commission approved the plan and the critics, like myself, first became aware of the project and started to protest and seek a veto by Gov. Murphy.

Carleton directed a young woman, Heidi Yeh, Policy Director, who joined PPA just this year, who has no forestry science or land use or regulatory expertise or experience, and who is likely distracted by writing her PhD dissertation at Rutgers on unrelated Marine and Coastal Science issues, to post on PPA’s blog, this pitiful capitulation, which is riddled with fact errors, assumptions, unsubstantiated premises, lack of relevant information, and flawed science:

Here is my first round of questions and comments to the author of that piece – criticism I feel terrible in having to write to her, when Carleton bears responsibility and should be the target of this criticism. (I apologize for the screwed up font, which I can’t seem to fix):

(and I thought that candidates for the PhD degree in science had been taught to honor the scientific method, which includes, among other things, weighing all available credible evidence in reaching conclusions and striving to eliminate bias. The informal blog format and engagement in a “policy” domain does not alleviate a scientist of that burden of basic reasoning and thinking skills.)

Hi – I’ve been writing quite a bit on the DEP plan and a mutual friend just sent me your blog post, so I’d like to ask you a few questions, OK?

I’ll do this in 2 steps: first, a few questions about your awareness of relevant available information and then some questions on the substance (in a second email).

By way of introduction, I’m a retired DEP policy planner (13 years), policy Director of NJ Sierra Chapter (7 years) and Director of NJ Public Employees for Environmental Responsibility (PEER) (10 years).

I see you’re in coastal science at Rutgers, so you can say hello and ask Professor Mike Kennish about me if necessary. I worked with him on some of his Barnegat Bay work. I also note your interest in [the role of the scientist in] policy, so you might want to check out a piece I wrote about that topic and the stance of certain scientists at Rutgers and Princeton, see:

Jim Hansen’s Talk at Princeton Provides A Sharp Contrast to Rutgers Climate Conference On Role Of Scientist

http://www.wolfenotes.com/2013/10/jim-hansens-talk-at-princeton-provide-sharp-contrast-to-rutgers-climate-science/

You wrote this, which is obviously targeted at my work, so I think I deserve the courtesy of a reply:

“Unfortunately, there has been some hyperbole in criticisms raised for the first time after the Commission approved the plan”

My criticisms are fact based and grounded in science and law and reflect 35 years of professional experience and graduate school level training (Cornell). They are not “hyperbole”. In terms of coming “after” the approval, as described below, I was affirmatively prevented from reviewing documents and timely submitting comments. Your comments are false and personally offensive. [That “after the fact” BS is amazing criticism, in light of the fact that PPA and NJCF kept this DEP plan quiet and off the public radar for 2 years.]

1. Your bio notes you joined PPA in 2022 – were you involved in PPA’s 2 year long review of the plan, which you note began in 2020? If not, who was? How did you review that process to gain sufficient knowledge to vouch for it in your own words?

Do you have training or experience in forestry, or DEP and CMP regulations?

2. You note that:

“Pinelands Preservation Alliance and the New Jersey Conservation Foundation were the only members of the public who provided substantive comments to DEP and the Pinelands Commission during the development and review of this plan.

Were you aware that I filed a petition for rulemaking to the DEP and Pinelands Commission on these specific issues of forest management, wildfire and land use earlier this year, and that petition was denied and gathered no support from PPA and NJCF?

Were you aware that I learned of this project by reading the Commission’s July Monthly Management Report and immediately filed an OPRA public records request on August 9 for the DEP plan and related Commission review documents? Are you aware that the Pinelands Commission staff denied that request on the basis that they had “no responsive records”?

Were you aware that I then attempted to file public comments on the DEP plan, in the absence of any documents, which were rejected by staff because they were submitted after the close of the public comment period?

The fact that there was no public participation other than PPA and NJCF is because there was no public knowledge of the plan and DEP and the Commission actively suppressed information.

So, why were no other members of the public given a heads up and opportunity to participate in this informal review process by PPA and NJCF?

Are you aware that when a controversial project comes along, NJ environmental groups typically issue “action alerts” to the public and their members to allow participation (or they issue press releases, or blog posts).

Did PPA do ANY of that? For the 2 YEARS they negotiated with DEP?

3. Are you familiar with the DEP land use, water quality, and forestry regulations and Pinelands CMP provisions that apply to this project (or provide loopholes, exemptions, voluntary standards, etc)? Do you have regulatory training and experience?

Are you aware that Stacey Roth, Pinelands Counsel, has taken the legal position that the Pinelands CMP does not apply to greenhouse gas emissions or climate change impacts and therefore are not regulated under the CMP?

The same loopholes – and more – apply to DEP regulations (more on that in next post, especially ad your blog post praises specific regulatory aspects).

4. Did you personally review the DEP plan and the Pinelands Commission’s approval document (w/conditions)?

5. You write:

“Our fundamental criteria for evaluating any forest management proposal on public land are whether it has a legitimate justification,

Are you aware of Pinelands Commissioner Wallner’s analysis and comments on the plan – he’s a retired US Forest Service wildfire expert?

Wallner stated on the public record that he reviewed the maps and found little to no people or property at risk and therefore found no justification for the project. He also said DEP provided no wildfire justification for the project in the Plan. He also said DEP conducted no alternatives analysis (like required under NEPA) or consideration of a “no action” alternative. (NJ does not have a State NEPA law, so there is no EIS required).

Wallner’s analysis directly contradicts the headline, assertions, and conclusions of your blog post. His analysis is not mentioned in your blog post. Are you comfortable with that as a scientist?

6. Are you aware of Pinelands Commissioner Lohbauer’s analysis – both orally on the public record and in writing after to explain his no vote?

Again, Lohbauer’s findings and conclusions directly contradict your analysis, yet are not even mentioned in it.

Again, are you comfortable with that as a scientist? 

You feel confident to directly contradict a retired USFS wildfire expert and a longstanding leading Pinelands Commissioner? And without even mentioning their criticism? That arrogant approach contradicts the conclusion of your blog post:

“PPA supports plans that take into account all aspects of Pinelands health and diversity, and welcomes comments based upon science and experience about how best to protect this unique ecosystem.”

7. You state (with no supporting citations)

“Modern forestry science advocates that this ladder be cut off to prevent more destructive forms of fire.”

Where did you get that? From DEP forestry people?

Have you reviewed Chad Hansen’s (PhD, forest ecology) work that was presented to the Pinelands Commission in March 2021 by Leslie Sauer (PhD forest ecologist)?

Are Chad and Leslie somehow ancient and scientifically misguided?

Again, no mention of that critically relevant and important scientific work.

8. You used two phrases that caught my eye:

“Critics that focus only on the number of trees, but not their size and type, are quite literally missing the forest for the trees. The resulting forest will be a healthy native Pine Barrens habitat.”

Curious, both those phrases were attributed to Carleton Montgomery in the Associated Press story.

Did you write those words? If so, did Carleton plagiarize them? Or did Carleton edit them into your piece.

Regardless, your claim are false. My criticism – and that of all others I am aware of – did not “focus only on the number of trees”.

[And what are your definitions, criteria, and standards that support this conclusion that the DEP logging will result in a “healthy native Pine Barrens habitat.”

My next inquiry will focus on fact errors in your post and other substance.

appreciate a timely and thoughtful reply.

Bill Wolfe

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