Foundation Elites and Private Water Companies Hijack Lead In Drinking Water Issue

January 15th, 2019 No comments

nj-american

Murphy Administration Outsources An Essential Government Function

Private Policy – Puppet Advocacy – Sham Solutions

For some time, I’ve been writing about various abuses by private corporate oriented elite Foundations and their self serving puppets in the non-profit community.

I’ve focused on how they: 1) displace government, 2) seize the policy agenda, 3) frame the issue, 4) co-opt real community activists, 5) use funding to control groups and individuals and marginalize critics, 6) define so called “reforms” (also called “fake solutions”) and 7) ignore basic democratic accountability mechanisms and public policy development processes.

At the same time, private water companies, assisted by Democratic and Republic lawmakers and Governors, have aggressively sought to privatize public drinking water systems across NJ.

Today, privatization and Foundation abuses combine, in an effort to hijack the agenda for responding to the public health crisis of lead in drinking water, see: Jersey Water Works Forms Task Force Focused on Lead in State’s Drinking Water

That Task Force is led by Chris Daggett, of the elite Dodge Foundation. Dodge is notorious for funding private, individual, market oriented, non-regulatory and voluntary initiatives that displace government and traditional regulatory interventions. Dodge uses funding to control the agenda and the advocacy efforts of the groups they fund.

Dodge is the epitome of what journalist Anand Giridharadas has called “the elite charade”.

The work of the Task Force is under the control of NJ Future, a “planning” group with a corporate and development oriented Board and a very checkered political history, going back to “smart growth” collaboration with the Whitman administration and more recently including secret planning with the Christie administration to privatize and develop Liberty State Park, a failed scheme (as the Bergen Record reported:)

The DEP quietly began the process in June 2014 when it awarded a $120,000 grant to the non-profit New Jersey Future, which hired Biederman Redevelopment Ventures to “analyze the potential attractiveness of the park to revenue producing developers.”

NJ Future also collaborated with Gov. Christie by using “resilience” as a slogan and taking DEP money to divert public attention away from the failures of the Christie administration to respond to climate change and coastal risks.

Of course, the Task Force includes several representatives of the water companies that seek to avoid high cost real solutions, like regulatory mandates and community involvement to solving the lead problems.

Similarly, the token “academic” representative is none other than the pliant former DEP bureaucrat, Dan Van Abs, who tried to shape the water agenda from his perch at Rutgers and NJ Spotlight, where he rarely speaks truth to power.

The Task Force includes several member of the Murphy administration’s government agencies (DEP, BPU, DCA and DoH), which demonstrates a total failure of leadership by Governor Murphy and DEP Commissioner McCabe and a very curious approach to developing public policy.

The Task Force effectively has displaced government policy development and amounts to an abdication of responsibility and an outsourcing of essential government regulatory functions to protect public health and enforce environmental laws.

The two environmental group members have both shown tendencies to play the inside game, opportunistically seek Foundation funding, sell out and stab local activists in the back, and engage in “transactional” schemes (like Amy Goldmith’s endorsement of Chris Christie for Governor in 2009).

Finally, the Task Force ignores real community based environmental justice advocates, but does include a sop appointee.

This will not end well.

More to follow.

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RGGI Is A Political Cover – Money Laundering Operation

December 29th, 2018 No comments
Gov. Environmental Award to NJ Climate Alliance (December 10, 2018)

Gov. Environmental Award to NJ Climate Alliance (December 10, 2018)

Honest Graft Among Friends

Legislative earmarks, Gov.’s awards, DEP grants, and scientific & media support

So let us not talk falsely now
The hour is getting late. ~~~ All Along The Watchtower, Bob Dylan

Multivariate analysis indicates that economic elites and organised groups representing business interests have substantial independent impacts on US government policy, while average citizens and mass-based interest groups have little or no independent influence. ~~~ Princeton Professor Martin Gilens – Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens

Follow the timing of events closely. Follow the money, the press release, the people, the regulatory proposals, and the science.

First, on December 10, 2018, DEP Commissioner McCabe announced the recipients of the ANNUAL GOVERNOR’S ENVIRONMENTAL EXCELLENCE AWARDS, which included the New Jersey Climate Adaptation Alliance, a group:

Facilitated by the Rutgers Climate Institute and Rutgers University’s Edward J. Bloustein School of Planning and Public Policy … The alliance of more than 45 organizations representing public, private, non-governmental and academic sectors has also undertaken research and policy analysis to assess climate impacts in New Jersey as well as outlining policy and other actions that can address sector-based impacts.

We’ve previously written about former high level DEP  employees that now work at Rutgers and authored the Alliance “policy” Report cited by DEP in the award press release.

Second, on December 17, 2018, the Murphy DEP proposed new regulations to rejoin RGGI (read Gov. Murphy’s press release, which provides links to the DEP rule proposals).

The Gov.’s self congratulatory press release left out a key point, found on page 91 of the DEP proposal:

The CO2 emissions from New Jersey’s CO2 budget units constitute approximately 16.5 percent of the State’s annual greenhouse gas emissions.

Get that? RGGI applies to just 16.5% of total emissions – that makes RGGI small change – and it doesn’t even come close to working as advertized in terms of reducing emissions.

I don’t want to get diverted and go into the weeds here, but I must note that among other key facts, the Gov. also failed to mentioned that: 1) the so called 2020 “cap” on emissions – 18.6 million tons – is HIGHER than current GHG emissions; 2) that in a letter, environment groups recommended a 2020 “cap” of just 12-13 million tons; and 3) that the “cap” never goes lower than 12.6 million tons, thereby locking in carbon emissions that make “decarbonization” of the electric sector and the Gov.’s own goal of 100% renewables impossible.

Getting back to the story here – we note that the DEP RGGI rule proposal cites the work of the Rutgers Climate  Alliance, the group that just received the Gov.’s award:

The New Jersey Climate Adaptation Alliance, a group facilitated by Rutgers University, prepared a series of working briefs to provide background information on projected climate impacts for six major sectors in New Jersey, including agriculture. (DEP proposal at p. 106)

So, just days after the Gov. and Tammy issued an award to Rutgers’ Alliance, they cited their work in the scientific basis for the RGGI rule proposal.

Smells like scientific corruption and a conflict of interest to me –

Imagine the outrage if Trump or Christie funded a “science” Report, written by a former staffer, then issued that Group an award, and then cited the Report in support of their policy views.

Or, at best, lazy science and old fashioned political games among a small circle of friends.

Third, the Gov. awards also went to American Littoral Society, who:

With funding from the DEP and several governmental and community partners, the American Littoral Society in 2017 designed and built a series of nonpoint source reduction and green infrastructure projects

Got that? DEP funds ALS, then issues ALS an award for the work DEP funded! On top of that, the Christie DEP outsourced this grant work to ALS as a means of avoiding complying with the Clean Water Act and enforcing a TMDL in Barnegat Bay!!!

So why the hell is the Murphy DEP awarding Christie DEP outsourcing and CWA TMDL compliance evasion?

DEP got a twofer – the ALS work DEP funded was described by the slogan “green infrastructure” – that’s a concept that not so coincidentally is at the heart of weak DEP’s recent stormwater rule proposal. 

Get that? DEP issues an award to the regulatory outsourcing of Christie DEP to ALS, a friend that is sure to support or not criticize the horrible Murphy DEP stormwater regulation.

But that’s not all – ALS is slated to receive RGGI money too.

As I wrote, explaining the way that DEP funds their friends (and amazingly, Jeanne Herb, author of the Rutgers Report, was involved in the RGGI legislative earmark):

Specifically, when the RGGI legislation was undergoing legislative deliberation, most of the environmental community was working hard and very publicly to make RGGI as strong as possible and to prevent the bill from being hijacked by Senator Sweeney on behalf of big oil (which it ultimately was, resulting in editorial boards and most NJ environmental groups to OPPOSE the final version of RGGI, see: Lame Global Warming Bill Goes to Governor.)

But two groups, NJ Audubon and American Littoral Society were working quietly behind the scenes NOT on strengthening the RGGI bill, but on seeking special amendments to essentially earmark RGGI revenues to their organizations and pet projects. 

Specifically, NJA and ALS met quietly with NJ DEP Director of Policy & Planning Jeanne Herb to secure earmarks of RGGI funds for carbon sequestration.

DEP supported these amendments and deceptively conveyed them to the Legislature as DEP amendments – thus disguising the special interests NJA and ALS behind them and essentially laundering special interest earmarks.

Here they are: (see Section 7.b.(4))

(4) Ten percent [of RGGI revenues] shall be allocated to the department to support programs that enhance the stewardship and restoration of the State’s forests and tidal marshes that provide important opportunities to sequester or reduce greenhouse gases.

NJ Audubon was the ONLY group in NJ doing “forest stewardship and restoration”.

ALS was the only group working on “tidal marsh” restoration.

This 10% was an earmark to those groups.

Get that?

Herb was involved in the ALS earmark; the DEP sham GWRA; the DEP sham regulation – deregulation of GHG emissions; the Rutgers Report and the Murphy DEP award and RGGI rule.

It’s all just honest graft among friends: legislative earmarks, Gov.’s awards, DEP grants, and scientific support.

End Note: Mike Catania, the heavy set well fed man on left in the photo above, not only works with Rutgers Climate Alliance, he was a former DEP Deputy Commissioner and now doles out tobacco blood money as head of the Duke Foundation – to groups like ALS and the Rutgers Climate Alliance. It’s all good among friends, right?. Or cronies?

Can’t make this stuff up.

 

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Which Way Is The American Way?

December 29th, 2018 No comments

Corporate Right Wing Attacks On FDR’s New Deal Still Alive & Well

Not so subtle propaganda seeks to equate capitalism with "the American Way" (Source - National Association of Manufacturers billboard, Dubuque, Iowa, 1940. (John Vachon/Library of Congress)

Not so subtle propaganda seeks to equate capitalism with “the American Way” (Source – National Association of Manufacturers billboard, Dubuque, Iowa, 1940. (John Vachon/Library of Congress)

At a time when the Democrats and the US media seems incapable of informing the American people just what government does and what the impacts of Trump’s government shutdown are, and while calls for a “Green New Deal” – led by The Sunrise Movement – are rising throughout the land, clear understandings of the benefits of government and the history of the economic and political forces that led to – and vigorously opposed – the New Deal are required.

The same corporate right wing forces that viciously opposed FDR’s New Deal in the 1930’s were the same forces behind the 1971 Powell Memo that has led to our current entrenched Neoliberal right wing crisis of the Trump administration.

Much like today’s paranoid right wing attacks on progressive or left movements – and prior red scares – Powell wrote:

Dimensions of the Attack

No thoughtful person can question that the American economic system is under broad attack. This varies in scope, intensity, in the techniques employed, and in the level of visibility.

There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism). Also, there always have been critics of the system, whose criticism has been wholesome and constructive so long as the objective was to improve rather than to subvert or destroy.

But what now concerns us is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts.

There is an organization called The Living New Deal that is a repository for much of that history – hit the link below and contribute to their efforts, as well as those of the current Sunrise Movement:

The mission of the Living New Deal is three-fold: research, presentation and education.  It begins with the historical work of uncovering the immense riches of New Deal public works. That research is then made available to all through digital mapping and a website that serves as a clearinghouse for information on the New Deal. And, finally, the information gained from our work is disseminated as widely as possible through newsletters, social media, written media, interviews, lectures and other public events. ….
The New Deal was America’s all-out response to unemployment, homelessness, and social inequality ‹when government¹s highest goal was helping ordinary people prosper.
Your donations to the Living New Deal are tax deductible. We are grateful for your support.
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Rutgers Covering Up Their Role In Drafting Flawed Climate Change Legislation

December 20th, 2018 No comments

Rutgers Denies OPRA for Records On Recommendations On Climate Legislation

I find Rutgers’ attempts to cover up their role in drafting a critically important piece of climate legislation contemptible as a matter of academic and scientific integrity and public policy.

[Update below]

Rutgers University just denied my Open Public Records Act (OPRA) request for public records regarding the role of the University in drafting seriously flawed climate legislation. Here’s the story:

On December 3, 2018, the Senate Environment Committee heard and released S3207, a bill purporting  to:

Establishes new timeframes for implementation of certain requirements in“Global Warming Response Act”; requires DEP to adopt strategy to reduceshort-lived climate pollutants.

During the hearing, Chairman Bob Smith, while voting to approve and release the bill, interjected “giving credit where credit is due”, to praise Jeanne Herb of Rutgers University for giving him the idea to introduce the bill.

I found that statement extremely interesting, for several important reasons (and not to trigger a climate denialist attack on science email scandal that we’ve seen before):

1) as I wrote, the bill is seriously flawed and misleading. Did those flaws originate in Rutgers’ recommendations or Senator Smith’s directions to OLS in drafting the legislation?

2) In September 2017, Rutgers released a comprehensive Report on climate change titled: An Examination of Policy Options for Achieving Greenhouse Gas Emissions Reductions. Ms. Herb was one of the authors of that Report.

The Report has sections titled “Analysis of Existing NJ legal Authorities “ and “NJ’s General Authority To Regulate Greenhouse Gas Pollution“. The Report uses the word “legislation” 76 times, and the word “regulation” 165 times.

Among other things, the Rutgers Report documented and made specific recommendations for new legislation and regulation to address major gaps and flaws in current NJ laws and DEP regulations regarding climate change.

The Rutgers findings included the fact that DEP deregulated GHG emissions in 2005, a vitally important fact directly relevant to Smith’s bill and that is not widely understood by the media, the public, environmental groups, or legislators. Rutgers wrote: (citations omitted, at pages 165-166):

NJDEP has affirmed that “air pollution” as it is defined under the APCA is broad enough to encompass GHGs. In 2005, NJDEP promulgated a regulation that revised existing regulatory definitions to clarify that CO2—as a GHG—met the definition of an air pollutant under the Act. The agency exempted CO2from existing regulatory requirements, but did require that stationary sources report emissions of CO2 and methane as an air pollutant. In the regulatory action, the agency also indicated that the other five GHGs commonly included in the basket of GHGs were air contaminants for the purposes of the Act.

That Repot received favorable new coverage, see:

However, the flawed bill, S3207, failed to incorporate any of the recommendations of the Rutgers Report.

How could Chairman Smith praise Ms. Herb when his legislation ignored virtually all of the recommendations of the Rutgers Report Herb authored ?

3) Prior to joining Rutgers, from 2002 – 2010, Ms. Herb was head of DEP’s Science and Policy unit and was directly involved in three major climate related policy initiatives:

a) the 2005 DEP regulation that defined greenhouse gases as air pollutants under NJ law, a move that anticipated the US Supreme Court’s groundbreaking decision in the “Massachusetts” case. However, that same rule, which DEP highly touted at the time, actually deregulated the emissions of GHG’s.

b) the passage and DEP implementation of the Global Warming Response Act, including drafting the 2009 Report required by the GWRA.

c) the passage and DEP regulatory implementation of RGGI.

Accordingly, Ms. Herb has been involved in over a decade of DEP climate change science, policy, regulation and public relations. For an analysis of that history, with links to all the documents, see:

4) In prior legislative testimony in Trenton before Smith’s Committee, it had been the policy of climate scientists at Rutgers to limit their role in the Trenton legislative and regulatory arena strictly to science, and actively avoid discussing legislative, policy and regulatory issues.

I was critical of that practice and called it basically an abdication of scientific responsibility, see:

Chairman Smith’s praise of Ms. Herb in suggesting the legislation directly contradicted prior Rutgers policy.

5) for over a decade, myself and others had been testifying before Smith’s Committee, writing Reports and issuing press releases, about all this, so the Rutgers Report and Ms. Herb’s recommendations could not have been new to Smith.

So, to get a better understanding of what actually transpired between Chairman Smith and Ms. Herb and to understand Rutgers’ role in drafting the bill, on December 5, 2018, I filed an OPRA for the public records regarding communications between Ms. Herb and Chairman Smith.

My OPRA requested:

Records Requested: On Monday 12/3/18, NJ Senate Environment Cmte. Chairman Bob Smith stated, during an open Senate Cmte. hearing, that Jeanne Herb of Rutgers University (Associate Director of the Environmental Analysis and Communications Group at the Edward J. Bloustein School of Planning and Public Policy) contacted him and was involved in the drafting of Senate bill #3207, regarding implementation of the Global Warming Response Act. I request all communications between Ms. Herb and Senator Smith and OLS staff, including emails, phone records, meeting notes, and correspondence regarding S3207 and climate change in general (e.g. adaptation, mitigation, & Rutgers research).

Two days later, just before 5 pm on a Friday, Mr. Casey Woods, Rutgers OPRA Custodian responded, with this reply that claimed my request was “unclear” and “overly broad”, and went on to cite Government Records Council Guidelines and a Court case to support that claim:

This request is unclear and overly broad as written. A search for “any and all” correspondence or communications would be impossible to conduct. This letter seeks to clarify what documents you are seeking from the University. You may narrow your request by specifying a specific type of record or records and by including a time frame so that we may conduct a search for responsive records. If you are seeking emails specifically, we would require a sender/recipient, keyword or phrase, and a date range to conduct a search.

I immediately phoned Mr. Woods and we had a robust discussion.  I advised that my request met the specific GRC Guidelines he cited and was in fact not overly broad” and was precise, not “unclear”.

I did agree to revise the word “”any and all” records to “every” record, and explained why in a followup email:

The reason I used the term “all” was to assure I was provided 100% of the records requested, i.e. to capture the entire universe of public records. If I didn’t use that term, a partial response by Rutgers would have been responsive. For example, if I omitted the term “all” and there were 3 emails between Ms. Herb and Senator Smith and Rutgers provided 2 of them, that would be responsive.

Accordingly, I am submitting this reply clarification without surrendering my original request for “all” public records requested. However, in the interests of clarity, I will revise the term “all” to “every”. The remainder of my original request stands.

You make a fair point regarding the timeframe of the request. My original request was not time bounded. During our phone conversation, I clarified that timeframe to January 1, 2018 to the present. However, I would like to revise that timeframe back to August 1, 2017. The reason I do so is that in September 2017, Rutgers publicly issued a Report supervised and/or written by Ms. Herb on directly relevant climate issues. I chose August in the event that Ms. Herb provided legislators, OLS staff, or Senator Smith a pre-release briefing.

So, it appeared that Rutgers had backed off the “overly broad” and “unclear” claims, and agreed to provide responsive records.

So, I was blindsided and shocked today to receive a flat out denial from Rutgers, and NOT on the bases they originally asserted and Mr. Wood and I discussed at length (i.e “overly broad” and “unclear”).

Rutgers moved the goalposts, and denied the OPRA on the basis of an alleged legislative exemption.

Here’s the full text or Rutgers’ denial:

The University has reviewed your request and determined that any records responsive to this request would be exempt as legislative records. OPRA specifically exempts legislative records, including “any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member’s official duties.” Therefore, your request for legislative records is denied. 

How is it possible that a publicly funded public University can deny public records regarding the scientific recommendations of their staff to a public legislator on legislation?

What about transparency, accountability, and scientific integrity? The public trust in and perception of the University as a science based, non-partisan, intellectual broker?

Surely, the legislative exemption in the OPRA statute was intended and written to apply to the lobbying efforts of private individuals, lobbyists, and attorneys representing private sector clients, not public university science.

I find Rutgers’ attempts to cover up their role in a critically important piece of legislation contemptible as a matter of academic and scientific integrity and public policy.

[Update: I left out two points:

1) Ms. Herb was a political appointee in the McGreevey and Corzine Administrations. Her initial career at DEP was boosted during the Florio administration as a result of her former spouse, Jeff Scott, who was then a CWA 1034 staffer and covert Democratic political operative.

Surely, Rutgers is aware of this Democratic partisan background, which would suggest that they bend over backwards to avoid an appearance of partisan activity.

2. In another example of  “arsonists are the best firefighters” and revolving door abuses, I note that the Rutgers Report received “expert peer review” from, among others,  Samuel Wolfe, of Viridity Energy Solutions, Inc. and Steve Gabel, of Gabel Assc.’s., the only two private sector “peer reviewers”.

Both Wolfe and Gabel are former high level DEP officials and have close relationships with Ms. Herb and Trenton Democrats. In addition to the partisan and “friend of the Report’s author Jeanne Herb” concerns, both have potential bias and conflict of interest issues.

Mr. Wolfe (no relation) began at DEP in the late 1980’s in the Office of Regulatory Affairs. He is a smart and hard working lawyer. I worked with him on various regulatory issues. He left DEP to join PSEG and then later was a political appointee at the McGreevey DEP in 2002, serving as Asst. Commissioner for Environmental Regulation.

In that capacity, Wolfe not only worked on regulatory and policy issues related to his former employer PSEG, he was directly involved – more so than Ms. Herb – in the 2005 gross deception on the DEP regulation that deregulated GHG emissions.

So, Wolfe now conducts “expert peer review” in the Rutgers Report, a critique of the poor regulatory policy he crafted at DEP back in 2002. How can one credibly peer review their own work?Readers of the Report would have no way of knowing any of this important background information.

Mr Gabel is a former BPU and DEP official. I worked for him during the McGreevey administration, when Gabel was a political appointee, transferred from BPU to the DEP Director Of the Division of Solid Waste (part of Gov. Florio’s consolidation of DEP with certain energy regulation at BPU, to form DEPE. ).

Gabel is an expert and, as a former regulator, clearly understands the disastrous policies of privatization and deregulation, as he was involved in the “McEnroe” deregulation of BPU economic regulation of garbage incineration “service agreements”. That McEnroe law set up a private deregulated procurement process that grossly ripped off the public.

Despite this knowledge and experience, he left DEP to benefit from the Whitman deregulation of the energy industry.

Again, Rutgers surely knows this political and professional background and should have been wary of perceptions of bias and conflicts of interest, as well as revolving door and partisan abuses.

I like and respect both Wolfe and Gabel, but the self serving nature and insiders game is quite distasteful and unethical.  ~~~ end update]

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Senate Asked To Review Murphy DEP Embrace of Christie Stream Buffer Rollback

December 17th, 2018 No comments

Senate Previously Vetoed Christie DEP Rule That Eliminated Stream Buffer Protections

  • “We as a legislature have consistently supported the sanctity of buffers for our C1 streams. These are the purest waters we have in the State of NJ.”  ~~~ Bob Smith, Senate Environmental Committee Chairman (6/16/16 – vote to pass SCR 66).
  • “Kudos to Bill Wolfe. We heard all kinds of testimony over these three meetings. But the one that stuck in my mind is [Bill’s testimony] that there’s no guarantee that they’ll be no deterioration in the State’s water quality standards if there’s development in the first 150 feet of buffer of C1 streams. That’s the critical missing legislative intent item for me.   ~~~ Bob Smith, Senate Environmental Committee Chairman (6/16/16 – vote to pass SCR 66).

The Murphy DEP, on  December 3, 2018, proposed a major new stormwater management rule that would, among other things, codify and expand the controversial Christie DEP rule that eliminated strict protections of 300 foot wide buffers along “exceptional value” streams, known as “Category One (C1) waters”.

That Christie rule was vetoed by both Houses of the Legislature in 2015, and again vetoed by the Assembly in 2016 but died in the Senate, killed by Senate President Sweeney (see also, the less focused NJ Spotlight story):

Sen. Bob Smith (D-Middlesex), who help negotiate the order, argued the changes made the new rule “equal’’ to the protections that were in place under the old regulation.

Environmentalists and others disagreed, dubbing the administrative order a “dirty deal” that does not settle the issue. They said yesterday they would continue to press the Senate to vote to revoke the rule, urge the EPA to block it, and take it to the courts, if necessary.

Early on in the process, the EPA expressed concerns the rule was inconsistent with federal water quality standards. Bill Wolfe, a former DEP staffer, already has written to Judith Enck, the EPA’s Region II administrator, asking the agency to review the administrative order for compliance with the federal Clean Water Act.

The Statement to SCR66 (6/16/16) lays out the procedural history of the Legislature’s efforts to veto this Christie DEP rule as “inconsistent with legislative intent“:

As required by the Constitution, the Legislature previously informed the Department of Environmental Protection, through Senate Concurrent Resolution No. 180 of 2015, of the Legislature’s findingthat this rule proposal is not consistent with legislative intent. In addition, the Senate Environment and Energy Committee held a public hearing on the resolution on March 7, 2016 as required by Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.

Senate Environment Committee Chairman Bob Smith

Senate Environment Committee Chairman Bob Smith

Given the major flaws in the proposed new rules and the legislative veto of the same Christie DEP rules, I just wrote the below letter to Chairman Bob Smith:

Dear Chairman Smith & Senators Greenstein and Bateman:

I write to you in your joint Constitutional and statutory capacities for:

1) legislative oversight of executive branch rule making – specifically pursuant to Article V, Section IV, paragraph 6 of the Constitution which provides authority to veto rules “inconsistent with legislative intent” and the NJ Administrative Procedure Act, which requires, among other things, legislative notification of agency rule making; and

2) as legislative sponsors and supporters of climate change and stormwater management reforms.

As you may know, on December 3, 2018, DEP proposed a major overhaul of current stormwater management rules, with proposed revisions to, among other major rules, the DEP’s Highlands, CAFRA, and stream encroachment/Flood Hazard Act  rules. Here is a link to the proposal:

https://www.nj.gov/dep/rules/proposals/20181203a.pdf

This rule making provided at least 3 huge opportunities, including:

1) to repeal prior Christie DEP rollbacks, including the Christie DEP’s repeal and revision of the stormwater management rules regarding encroachments into protected C1 stream buffers;

2) to address the current and projected impacts of climate change, including sea level rise, storm surge, extreme weather events, more frequent and intense rainfall events, drought, heat waves and associated urban heat island effects, and the need to sequester carbon in soils and forest biomass; and

3) to close long known loopholes and strengthen standards and DEP’s review authority over major controversial projects, including pipeline crossings of NJ streams.

Unfortunately, the DEP proposal failed to do any of that, and instead, actually codified and expanded the Christie DEP’s elimination of the prior ban and strict limitations on encroachments in C1 stream buffers.

As you will recall, Chairman Smith & Senator Greenstein were prime sponsors of SCR66, a concurrent resolution to legislatively veto the Christie DEP’s proposed stormwater management rules, including most importantly, the repeal of the prohibition on disturbance of the buffers of “exceptional value” Category One streams (for text of SCR66, see:

https://www.njleg.state.nj.us/2016/Bills/SCR/66_I1.PDF

During Senate Committee hearings and release of SCR66, on June 16, 2016, Chairman Smith stated (verbatim quotes):

  • “We as a legislature have consistently supported the sanctity of buffers for our C1 streams. These are the purest waters we have in the State of NJ.” 
  • “Kudos to Bill Wolfe. We heard all kinds of testimony over these three meetings. But the one that stuck in my mind is [Bill’s testimony] that there’s no guarantee that they’ll be no deterioration in the State’s water quality standards if there’s development in the first 150 feet of buffer of C1 streams. That’s the critical missing legislative intent item for me.

Given the prior legislative opposition to and partial veto of the Christie DEP elimination of protections for C1 stream buffers and the legislature’s focus on climate change (Global Warming Response Act, S3207, et al) and stormwater management (S1073, et al), I strongly urge you to conduct the following legislative oversight of the current DEP proposal:

1) hold an oversight hearing. Call DEP Commissioner McCabe to testify and allow experts and the public the opportunity to testify and understand the implications of the 169 page complex proposal

2) request that OLS consider whether the proposal is “inconsistent with legislative intent”, consistent with SCR66 and recent climate and stormwater management legislative policy developments.

3) contact DEP Commissioner McCabe and request a 90 day extension of the public comment period.

I urge your immediate attention to this matter, as time is of the essence.

The DEP proposal was not put on a regulatory calendar, thus there was no ability for the public to anticipate its proposal in the 12/3/18 NJ Register.

While DEP proposed a 60 day public comment period, the holidays and New Year celebrations  consume a significant portion of the public’s review time.

I appreciate your timely and favorable reply.

Bill Wolfe

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