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Dupont: Doubt (And Intimidation) Are Their Product

September 30th, 2009 No comments

Dupont Lawyers Target DEP Scientists – While Paid Dupont Consultants “Manufacture Doubt”

We have been writing about behind the scenes efforts of politically powerful polluters to exert improper influence on DEP scientists. We have called this the War on Science.

Dupont Chambers Works plant in Deepwater NJ is one of the worlds largest polluters. The plant manufactures PFOA & polluted groundwater with PFOA

Dupont Chambers Works plant in Deepwater NJ is one of the worlds largest polluters. The plant manufactures PFOA & polluted groundwater with PFOA

Today we focus on the ugly tactics of Dupont.

But, first we put Dupont’s moves in context, and then present the game plan Dupont is following, via review of a superb new book by a scientific expert in the field.

We have documented an extremely troubling recent series of events that illustrate this war:

  • DEP’s Chief Nuclear Engineer was demoted and transferred out of the nuclear safety program in retaliation for private remarks he made that questioned the nuclear industry’s influence on the Nuclear Regulatory Commission during the relicensing hearings on the Oyster Creek plant, one of the nation’s oldest and riskiest plants;
  • A PFOA health risk assessment paper prepared by DEP scientists was pulled from submission for publication under orders from then DEP Commissioner Jackson;
  • DEP Commissioner Jackson abolished the Division of Science and Research and used a bogus pretext to create a new external and potentially industry controlled Science Advisory Board. This move destroyed the independence of DEP science and a more than 20 years old effective scientific review process at DEP;
  • The former Division of Science and Research Director, a woman with a PhD and 15 years of experience, was transferred to an administrative job in retaliation for defending scientific integrity;
  • DEP issued a gag order in retaliation for DEP scientists’ release of a controversial Jersey City chromium health risk assessment. The new risk assessment concluded that chromium is a carcinogen and that current DEP standards are more than 200 times laxer than these new findings indicate are needed to protect public health. The gag order authorized DEP managers to hold completed scientific work in un-releasable draft form for an indefinite period; to restrict public disclosure under OPRA; and for intervention by political and DEP press office by allowing non scientists to conduct prepublication reviews of any controversial scientific reports;
  • We disclosed documents that revealed that DEP scientists had to run a political gauntlet to publish a risk assessment on a chemical that has spread to contaminate drinking water. The controversy concerned perfluorooctanoic acid (PFOA), a toxic chemical manufactured by a NJ giant Dupont, used in nonstick cookware and stain resistant fabrics, such as Scotchguard.Those documents showed that DuPont was urgently pressing DEP regulators to lower a potentially multi-billion dollar clean-up liability for polluting groundwater.
  • In a hostile move, lawyers representing DuPont filed several OPRA requests that personally targeted and intimidated the DEP scientists conducting the PFOA research.
  • Dupont was granted a highly unusual opportunity: on August 7, 2009,Dr. Robert Tardiff of the Sapphire Group, which is advising DuPont, presented his PFOA risk assessment to members of the NJ Drinking Water Quality Institute. That same week, Tardiff privately met behind closed doors with DEP scientists and regulators;
  • Facing a lawsuit, DEP was forced to released documents outlining how a health study of air pollution in Camden neighborhoods was re-written to allay industry objections. The released e-mails depict a clubby, closed door climate in which the state regulators seek to assuage industry concerns even while keeping the affected community in the dark;
  • An audit by the U.S. Environmental Protection Agency faulted the quality and consistency of New Jersey science, quality assurance/quality control (QA/QC) and technical programs for cleaning up toxic wastes, preserving wetlands and other key functions.

Scientific tactics in this war are laid out in detail in a wonderful new book by science professor David Michaels titled Doubt is their Product  -How Industry’s Assault on Science Threatens Your Health. Michaels is a professor at George Washington University, former Assistant Secretary for Environmental Safety and Health at the Department of Energy; and is now candidate for Administrator of the US Occupational Safety and Health Administration (OSHA).

Michaels exhaustively documents how industry, starting with the tobacco, lead, and asbestos industries, whose tactics were embraced by the chemical industry – has “manufactured doubt” to frustrate regulation, and as a result, killed and poisoned thousands of Americans. Using outright lies, denial, PR and then shifting to sophisticated “sound science”, industry is literally killing us.

Dr. Tardiff’s August 7, 2009 presentation of to the NJ Drinking Water Quality Institute scientists. Tardiff presented his own PFOA risk assessment to challenge the DEP risk assessment findings.

Dr. Tardiff's August 7, 2009 presentation of to the NJ Drinking Water Quality Institute scientists. Tardiff presented his own PFOA risk assessment to challenge the DEP risk assessment findings.

In my favorite chapter, The Enronization of Science, Michaels describes step by step exactly how a “classic uncertainty campaign” is conducted. I’ve seen it all at work here in NJ:

  • paid industry scientist attack government regulation and conduct dubious research to manufacture doubt and uncertainty in order to delay and forego regulation;
  • public relations groups mount PR and media campaigns to spin this science and mislead the American public;
  • highly paid legions of lawyers (“the products defense industry”) are called into action to litigate and intervene to frustrate regulation;
  • consulting firms, industry front groups, trade associations, and think tanks are formed to promote the industry’s economic interests and create an echo chamber for bogus scientific claims;
  • Lobbyists work Congress and the Whitehouse to pressure regulators and thwart regulation

Michaels concludes with an urgent warning and appeal to scientists to wake up to what is going on and speak out to the American public:

Industry has learned that debating the science is much easier and more effective than debating the policy. Take global warming for example. The vast majority of climate scientists believe that there is adequate evidence of global warming to justify immediate intervention to reduce the human contribution. They understand that waiting for absolute certainty is far riskier and potentially far more expensive  - than acting responsibly now to control the causes of climate change. Opponents of action, led by the fossil fuels industry, delayed this policy debate by challenging the science with a classic uncertainty campaign. I need only cite a cynical memo that Republican political consultant Frank Luntz delivered to his clients in early 2003. In “Winning the Global Warming Debate”, Luntz wrote the following:

“Voters believe that there is no consensus about global warming within the scientific community. Should the public come to believe that the scientific issues are settled, their views about global warming will change accordingly. Therefore, you need to continue to make the lack of scientific certainty a primary issue in the debate. The scientific debate is closing [against us] but not yet closed. There is still a window of opportunity to challenge the science (emphasis in original)….]

Polluters and manufacturers of dangerous products tout “sound science”, but what they are promoting just sounds like science but isn’t. Only the truly naive (if there are any of these folks left) will be surprised to learn that the sound science movement was the brainchild of Big Tobacco. George Orwell has given us a word fr such rhetoric. The vilification of any research that might threaten corporate interests as “junk science” and the sanctification of its own bought and paid for research as “sound science” is indeed Orwellian.

The scientific enterprise is at a crossroads.  We need to understand what is going on in the name of “sound science” and what the consequences may be and already have been for public health.  At its heart, this book is about the way in which product defense consultants have shaped and skewed the scientific literature, manufactured and magnified scientific uncertainty, an influenced policy decisions to the advantage of polluters. (emphases supplied)

In addition to the ugly attacks on DEP scientists by Dupont lawyers mentioned above, Dupont is engaged in a classic uncertainty campaign and war on science that so concerns professor Michaels.

I attended Dupont consultant Dr. Tardiffâs August 7, 2009 presentation of to the NJ Drinking Water Quality Institute scientists. Tardiff presented his own PFOA risk assessment to challenge the DEP risk assessment findings. Tardiff followed classic “manufacture doubt” tactics by challenging the validity of the animal studies that show that PFOA is a human carcinogen. Yet despite this over the top attack, not one DWQI scientist publicly challenged Tardiff’s misleading and radical conclusions. Clearly, they were intimidated and reluctant to call Tardiff out.

A single one of the above actions would be a problem.

Taken together they are deeply disturbing.

We’ll keep you posted.

In our next post, we will name names of industry scientists – including Dupont employees – that the chemical industry is pushing to control the new DEP Science Advisory Board.

New Front in War On Science – Lawsuit filed to Obtain Smoking Guns

September 29th, 2009 No comments

IMG_1493

[Update: Star Ledger covers this story:  N.J. environment group claims DEP denial of records request violated state law ]

We recently warned of a Hostile Takeover of DEP Science – Industry Seeks to Stack Board with Cronies , the latest in an orchestrated  War on Science by politically powerful polluters and developers in NJ. The Star Ledger reported on that in a September 20, 2009 story: Scientists line up to join DEP’s controversial new advisory panel.

IMG_2703Since then, we received additional leaked DEP documents and emails which show that the NJ Chemistry Council (the trade group and lobbyist for NJ’s chemical industries) is seeking to have Dupont and Merck scientists appointed members of a controversial new DEP Science Advisory Board. Similar industry efforts to stack federal Science Advisory Boards during the Bush administration were repudiated by scientists. A Science magazine editorial “Advice without Dissent” hit the nail on the head:

The Bush administration has made some unwise recent moves that undermine the process by which scientists provide advice to the U.S. government. The applicable current law (the Federal Advisory Committee Act), which requires these advisory bodies to “. . . be fairly balanced in terms of the points of view represented and . . . not be inappropriately influenced by the appointing authority or by any special interest,” is more than empty boilerplate….

Instead of grappling with scientific ambiguity and shaping public policy using the best available evidence (the fundamental principle underlying public health and environmental regulation), we can now expect these committees to emphasize the uncertainties of health and environmental risks, supporting the administration’s antiregulatory views. And in those areas where there are deeply held conflicts in values, we can expect only silence. Regulatory paralysis appears to be the goal here, rather than the application of honest balanced science.

In fact, DEP Commissioner Mark Mauriello is meeting with the Chemistry Council this Thursday  to discus SAB appointments. Commissioner Mauriello, in contrast to federal law that mandates balance and prohibits inappropriate influence by special interests, has virtually unbounded discretion to appoint SAB members.

So, with some of the documents already in hand, I filed an OPRA request to obtain all of them. But in an attempt to keep this chemical industry campaign a covert war, DEP denied the OPRA request.

In response, today, PEER filed a lawsuit against DEP seeking all the documents. We are confident that we will prevail in this lawsuit and that the documents will disclose industry pressure to politicize science at DEP and protect polluters from DEP regulations.

This industry effort must be derailed. Formal industry control over DEP science would have profoundly detrimental impacts on the health of residents and the natural environment.

See below press release for details.

For Immediate Release: Monday, September 28, 2009

Contact: Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

Industry Moves to Take Over Jersey Eco-Science Board

DEP Sued to Force Release of Lobbying Messages for Industry-Backed Scientists 

Trenton  - Industry wants to pack a new state environmental Science Advisory Board with its own scientists, according to Public Employees for Environmental Responsibility (PEER) which today filed a lawsuit to obtain public records regarding the industry lobbing effort. Department of Environmental Protection (DEP) Commissioner Mark Mauriello is reportedly making final picks for the 12-member board this week after meeting with the Chemistry Industry Council this Thursday.

The suit challenges the denial by DEP of an Open Public Records Act (OPRA) request filed by PEER seeking public records related to industry nominees and political lobbying for the Science Advisory Board (SAB) appointments. The DEP broadly claimed that practically all the requested documents are exempt from OPRA on the grounds that the pending appointments will be treated like candidates for employment, and thus confidential. Board members, however, are not DEP employees, nor would they be paid.

“DEP cannot make public records secret on the basis of an analogy,” stated New Jersey PEER Director Bill Wolfe who filed the document request. “Industry has a huge stake in getting friendly scientists on the board that will make the final recommendation on public health regulation.”

In late 2008, former DEP Commissioner Lisa Jackson abolished the Division of Science and Research, based in part on a recommendation of her Permit Efficiency Task Force, chaired by Chris Daggett, now an independent candidate for Governor. The Science Advisory Board is supposed to substitute for the work formerly done by DEP scientists.

Thus far, more than 100 nominations have been submitted. Industry associations have put forward scientists from major manufacturers such as DuPont and Merck as well as from engineers and technical specialists from industry-oriented consultant firms. This Thursday, October 1st, Commissioner Mauriello, who chooses the board members, will meet behind closed doors with the Chemistry Industry Council of New Jersey, the primary lobby group representing state-based manufacturers.

In recent months, DEP scientific studies have been the subject of intense industry lobbying pressure to amend or suppress, on public health topics ranging from the effects of chemicals, such as PFOAs made by DuPont, to cement dust blowing through Camden neighborhoods. The Administrative Order creating the SAB specifies a conflict of interest review of board nominees but it is not clear what specific rules will be applied, except that members are not supposed to act on matters in which they have a “financial or personal interest“ terms left undefined.

“It appears that industry will soon be providing the final edits on all scientific work done at DEP,” added Wolfe. “Without transparency in the selection process, there will always be the doubt that this board will more concerned with political science than environmental science.”

The OPRA lawsuit was filed today on behalf of PEER by Michael Pisauro of the Princeton-based firm of Frascella & Pisauro, LLC.

 ###

Read the PEER lawsuit

View DEP denial of record release under OPRA

Review the Science Advisory Board charter

Look at the ongoing war by industry against DEP science

Examine the tactics of DuPont

G 20 Summit – Massive Militarized Police Presence in Pittsburgh

September 27th, 2009 1 comment
militarized riot gear - including shotgun - at Thomas Merton Center peaceful rally & march (9/25/09)

shotgun bearing troops in riot gear disrupt a Thomas Merton Center G 20 peaceful rally & march (9/25/09)

[Update 1 - I was 1 of the 50 who filed complaints w/CPRB - see: Protesters blast police response, Oakland arrests ]

[Update 2 - just learned that this was a National Special Security Event

[Update 3: 10/2/09  watch Democracy Now! segment

[Update 4: 11/1/11 - I just came across this video of the G 20 in Toronto in June 2010. Looks really bad. One police tactic I saw also used in Pittsburgh was when police (in full riot gear) marched in lockstep, aggressively towards protesters, while pounding their shields as they walked. It sickened me. I thought of Nazi Germany and Rome. - end updates]

My kids go to school in Pittsburgh, so on Thursday I headed out to see them and witness and participate in the G 20 Summit protests.

Because the G 20 Summit provides a world stage, I was there to warm of “climate destruction ahead” and to advocate for a substantive global warming agenda for the upcoming December Copenhagen Climate Conference negotiations.

But there are other major pressing economic policy  issues related to the need to regulate global finance in light of economic collapse, as well as to re-conceptualize global “free trade” and economic development frameworks to protect labor and promote economic and social justice.

riot gear clad troops push through crowd at a peaceful permitted rally

riot gear clad troops push through crowd at a peaceful permitted G 20 protest rally

I was appalled by what I saw – and I’m obviously not talking about my kids. It sure looked different than the welcoming Pittsburgh I visited, photographed and posted here.

I’ve never been on the wrong end of a shotgun before. Face to face – it is not a good feeling.

Downtown Pittsburgh in military lockdown.

Downtown Pittsburgh in military lockdown.

But that’s not nearly all I saw. There were the dogs, Humvee roadblocks, no pedestrian zones, downtown lockdown, fenced off areas, designated protest zone, hundreds (thousands?) of military troops, helicopters, constant overhead military aircraft (F-16′s?), chemical gases, and even – the first time ever deployed in the US – ear splitting sonic crowd control technology.

There were a handful of anarchists – some possibly prone to violence – among a few thousand peaceful protesters. Dozens of college students, observers, media, and everyday local people were included in the crowds that police indiscriminately controlled and managed as violent. (listen to this for police state tactics)

Overwhelmingly peaceful people were met by a massive show of militarized police force. Riot gear armored police and military troops significantly outnumbered protestors.

I personally witnessed provocative, intimidating and repressive military tactics I had imagined were limited to third world countries, not the freedom loving USA. I directly experienced this when a group of 15 or so military troops – in full riot gear – marched aggressively and directly through a crowd at the Merton Center Rally. The crowd was attending a peaceful permitted rally before a march.

University of Pittsburgh study has ideas

University of Pittsburgh student has ideas

Small groups of anarchists - do these kids look scary to you?

Small groups of anarchists - do these kids look scary to you?

I talked to several people, all of whom described similar examples of where police and military units initiated violence, precipitated violence, or severely over reacted to minor threats associated with overwhelmingly non-violent protests.

After I got home I viewed several YouTube videos of events that confirmed this overreaction – just do the Google and see for yourself. The tear gassing of University of Pittsburgh students looked particularly egregious.

This level of militarized intimidation is un-American and raises serious questions about constitutionally guaranteed rights of dissent and protest – free speech, association, and opportunity to petition government for redress of grievances.

These are not mere words to me – I believe strongly in them. I watched videos where the protestors appealed to military units to respect their constitutional rights, only to have the troops ignore them while arbitrarily declaring peaceful protest illegal assembly. The scenes were redolent of a police state.

Protestors were not allowed anywhere near where the G 20 Summit was held, so President Obama and world leaders were totally isolated and could not hear their voices or see their signs.

Iraq Veterans Against the War join peaceful protestors

Iraq Veterans Against the War join peaceful protestors

And – of course – the media focus on police over-reaction and scattered minor property damage by a handful of anarchists totally obscures any public discussion of the policy agenda before the G 20 and world leaders – important issues are being ignored – watch “G 20 Summit in Pittsburgh Highlights Economic Decline of Former Steel Capital“.

shotgun toting riot control police confronts college student

shotgun toting riot control police confronts college student

In this time of economic collapse, accelerating global warming, and war, citizens engagement and protest needs to be valued and encouraged.

But when police state tactics intimidate protest and dissent and  media diversion squelches informed public discussion of critical issues, our Constitutional values are assaulted and necessary democratic pressure for reform is derailed.

As Frederick Douglass famously said: “Power concedes nothing without a fight – it never has and never will.”

military unit defends port-a-potties from peaceful protestors

military unit defends port-a-potties from peaceful protestors

canine unit troops and motorcycle cops intimidate peaceful protestors

canine unit troops and motorcycle cops intimidate peaceful protestors

Protestor reads from militasry adn police training manuals to advise troops of the need for non-violent and effective crowd control tactics.

Protestor reads from militasry and police training manuals to advise troops of non-violent and effective crowd control tactics.

Pittsburgh Welcomes the World - at lest that's what the signs all said

Pittsburgh Welcomes the World – at lest that’s what the signs all said
Pitt students face off against armed troops

Pitt students face off against armed troops

Military choppers monitor Pitt students - at least 3 copters continuously hovered over the city

Military choppers monitor Pitt students - at least 3 copters continuously hovered over the city

Some police presence was respectful and appropriate - Pa. State Police (R) and City of Pittsburgh office (L)

Some police presence was respectful and appropriate - Pa. State Police (R) and City of Pittsburgh officer (L)

IMG_3772

THIS is a REAL RIOT - Steeler Fans riot after Superbowl (Penguins Stanley Cup too)

Chemical (In)Security – Industry Profits Trump Community Safety – Corzine folds

September 22nd, 2009 No comments

In New Jersey, the chemical industry (not government) makes life and death decisions – based on how much it would cost – on whether and how to protect nearby communities from accidental release of toxic chemicals. Talk about “Death Panels”! Consider the “Fatal Fifteen” – There are 15 New Jersey chemical plants where each plant poses a fatal threat to 100,000 people or more. (see Report/list of facilities here)

Why is the chemical industry allowed essentially to regulate itself on such a critical public safety issue? Why are risks from deadly accidental chemical releases to communities kept secret?

Because Jon Corzine, acting as Governor, reversed the strong position he took as US Senator and never delivered on the promises made during his  2005 campaign with respect to mandatory chemical plant safety and open public environmental (EPA) regulatory oversight of the program. That fact was conceded by Corzine’s own head of Homeland Security in this revealing NY Times quote:

IMG_9047Richard Cañas, director of the New Jersey Office of Homeland Security and Preparedness, said the Corzine administration has had difficulty convincing businesses that switching to safer technology is worth the price, which can run into tens of millions of dollars at a single plant. “To the extent that replacing technology is going to break the bank, they’re not willing to go that far,” Mr. Cañas said. “It’s always money that impedes what you’d like to do.”

The core elements of Corzine’s state level chemical plant safety program regulations, e.g. whether a chemical plant must upgrade technology or change operations to reduce risks – are VOLUNTARY and decided by industry, not MANDATORY  and selected by government (see:  Toxic Catastrophe Prevention, inherently safer technology, Security at chemical and petroleum facilities, et al) 

Critical aspects of the chemical plant safety program, particularly with respect to public disclosure of health and safety risks posed by chemical plants on nearby communities - such as “off site consequence analyses“ that provide maps of the zone where all exposed individuals would die – are kept secret and under control of the Homeland Security regime, not DEP regulators. Homeland Security type restrictions mean that this critical information is kept secret, and exempt from public right to know (RTK) and public records laws (OPRA).

The NY Times was the only press outlet to call Corzine out on that here:

Corzine’s Chemical Security Stance Draws Scrutiny a Year Into His New Job

By DAVID KOCIENIEWSKI

Published: December 28, 2006

As a United States senator, Jon S. Corzine was relentless in warning that the nation’s chemical plants, and the railways that carry their potentially dangerous cargo, are vulnerable to a devastating terror attack.  

 

Governor Corzine calls his approach sensible and realistic (photo by Mel Evans, AP published in original NYTimes article))

Governor Corzine calls his approach sensible and realistic (photo by Mel Evans, AP published in original NYTimes article))

He traveled the country promoting legislation to force many manufacturers to use fewer toxic chemicals. In 2004, he even stood outside a chlorine plant in northern New Jersey, pointing out its flimsy security to a camera crew from “60 Minutes.”

But in the 11 months since he was sworn in as New Jersey’s governor, Mr. Corzine has taken a far more measured approach to the issue, disappointing some of the chemical security experts who helped him form his proposals in the Senate. These advocates say that the Corzine administration has made little tangible progress on increasing security at the 15 New Jersey chemical plants, and that each plant poses a threat to 100,000 people or more. They accuse the governor of being too intent on appeasing the chemical industry, which provides more than 80,000 jobs in the state….

Mr. Corzine’s approach to domestic security illustrates a basic reality of government: sweeping changes are sometimes easier to propose as a legislator in the minority party than to carry out as an executive in power. …

But those rules do not require the companies to adopt the safer processes if they deem them too expensive. And chemical safety advocates, like Rick Engler of the Work Environment Council, say it is often hard to know how much progress has been made because the state has been unwilling to release much information….

State environmental officials have acknowledged that many of the state’s most dangerous plants continue to use and store stockpiles of toxic chemicals near major population centers. That would include the chlorine plant in Kearny, in Hudson County, only about 10 miles from Midtown Manhattan, which Mr. Corzine toured with the “60 Minutes” crew.

That story never got out in the NJ press corps, who seemed unwilling or incapable to challenge the spin of Corzine press releases, like this:

But the Governor himself admitted he reversed course in response to pushback by the chemical industry – even more troubling, this is the first time I’ve ever heard traditional regulatory requirements referred to as a “super hammer”:

“I think people in the industry are worried that if we don’t get results we may use the super hammer,” he said, referring to such a mandate. “So we’ve gotten much better response because we’ve done this in a sensible, realistic manner.”

I guess Corzine sure is no carpenter, because he’s kept that “super hammer” well sheathed.

For additional information and links to the pertinent regulatory documents, see:

Chemical plant risk decisions privatized in NJ

New Chemical Plant Rules Rely on Voluntary Measures R

Still At Risk: Protecting NJ’s Jobs, Families and Hometowns from Toxic Disasters 

ps – to understand what’s really going on, forget the press releases – you gotta read the fine print of the regulations, like this (see boldface) - this pretty obviously says that the key protective decisions are up to the industry not DEP regulators, and that plant economics can be considered (economics means profits). So the chemical industry itself decides what risks (of death) are feasible and worth reducing: profits before people is policy.

Proposed new N.J.A.C. 7:31-3.6(e) requires the owner or operator to determine whether

the IST alternatives are feasible, which means capable of being accomplished in a successful

manner, taking into account environmental, public health and safety, legal, technological, and

economic factors. (link here)

 

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DEP Abandoned Wood Turtle Habitat Protections

September 21st, 2009 No comments

wood_turtle

[10/4/09 Update - Brian Murray of the Star Ledger picked up on the pine snake story today: Frustrated developers are hissing back at a snake

A colleague advised that the NJ Builders Association recently filed a petition for rulemaking urging DEP to delist pine snake and eliminate certain site specific regulatory protections for its habitat. 

This reminded me of the sorry tale of loss of DEP protections for the wood turtle - and countless other species.  Old news. 

But unless you closely follow the technical discussion on the NJ Highlands email listserve, you probably don't know that DEP abandoned a key regulatory tool to protect critical habitat of the State threatened species, Wood Turtle.

There were no press conferences, action alerts, sign on letters or other forms of protest by environmental groups. Yes, if one knew where to look, one could find some mention opposing this rollback by reading the fine print of written comments formally submitted to DEP on the rule proposal by a few conservation groups with biological expertise. But no major political or media opposition was mounted.

As a result, there was no press coverage to alert the public and no accountability for the DEP politicians who did this vile deed.
Earth Day, 2007 - environmentalist applaud DEP rollbacks

Earth Day, 2007 - environmentalist applaud DEP rollbacks

In fact, you might have  just the opposite impression, because the DEP rule proposal that abandoned protections for the wood turtle - and countless other species – was SUPPORTED by environmental groups. It received VERY FAVORABLE press coverage.

This occurred, despite a January 2007 warning letter signed by numerous groups, strongly urging DEP Commissioner NOT to make the regulatory change to current regulations that can be used to protect wood turtle habitat.

Dear Commissioner Jackson:

In a late December meeting attended by many of our groups, the Department outlined its plan for a new process to guide the designation of Category One waterways. The meeting afforded only a cursory overview of what would represent a very fundamental change to clean water protections in New Jersey, but did provide an outline of the narrow set of water quality indicators that might serve as the basis for deciding future C1 upgrades. We have serious objections to the proposed designation process and fear that its implementation would strip New Jersey of the ability to adequately protect and maintain its high quality waterways. If enacted, this method would reverse tremendous advances in clean water protection in the state, contradict the commitments made by Governor Corzine, and leave New Jersey without the ability to adequately protect and maintain many of its most deserving waterways.

Signed: Jeff Tittel, Sierra Club, NJEF, ANJEC, Environment NJ, et al

Say What? Here’s that sad tale:

According to DEP:

Wood turtles are semi-aquatic turtles preferring clear, well-oxygenated streams

surrounded by a mosaic of woodlands, scrub-shrub/herbaceous wetlands, and

successional meadows. In New Jersey, the wood turtle is commonly associated with water-quality sensitive fish such as native brook trout and brown trout.

While once ubiquitous throughout northern New Jersey, most of the viable wood turtle populations remain in rural portions of Sussex and Warren counties.

Degraded water quality, habitat fragmentation, road mortality, and predation are the primary factors behind its extirpation from developed portions of the State. Observational evidence from the Passaic River suggests that siltation of streams, as a result of storm water discharge and urbanization of the surrounding land, can lead to a decline in turtle populations.

In order to protect the wood turtle and its critical habitat – as well as habitat for numerous aquatic or aquatic dependent species – in 2002, DEP strengthened and greatly expanded water quality regulations – known as “Category One” (C1) waters – to implement the “antidegradation policy” mandated by the federal Clean Water Act. Federal law requires states to adopt antidegradation policies and implementation procedures.

Anti-degradation policy seeks to assure that exceptional high quality waters are not degraded by pollution. For the first time, using anti-degradation legal tools, DEP gave these exceptional waters real regulatory protections, by providing 300 foot wide stream buffers (on each side), where soil and vegetation may not be disturbed by major development.

Starting in early 2002, DEP began to classify C1 streams and rivers based upon “exceptional value” ecosystems. DEP also began designating streams and rivers that drained to reservoirs to protect water supply.

Previously, this C1 classification was limited to a few hundred stream miles that supported naturally reproducing trout populations.

Yet, even despite the C1 designation, historically, those streams were unprotected by DEP regulations.

The result of the new DEP C1 policy was a huge expansion of over 2,000 designated C1 stream miles and – at 75 acres of stream buffer per mile – thousands of acres of riparian land in new protected C1 stream corridors.  

These DEP regulatory moves were strongly opposed by the NJ Builders Association, pro-development industries, and property owners. Builders particularly opposed the new DEP policy of linking water quality and habitat, and using the “exceptional ecological significance” Clean Water Act policy tool to regulate development and land use to protect water quality.

The wood turtle became a poster child in this debate, because thousands of acres of land were classified as wood turtle critical habitat. Therefore, thousands of acres of such land located in stream corridors could be regulated and made off limits for development via DEP designation of C1 waters.

One key factor in determining “exceptional ecological significance”, was the presence of wood turtle or critical habitat. According to DEP’s new C1 designation methodology:

The stream’s ability to support water-dependent endangered and threatened species, such as bog turtle, wood turtle, long-tailed salamander and dwarf wedgemussel was a significant factor in determining whether a stream qualifies as a waterbody of “exceptional ecological significance”. (link here)

Between 2002-2003, the following exceptional streams were designated C1 protected on the basis of the presence of wood turtles and/or critical habitat – each designation protected lands in stream buffers. These regulatory moves by DEP triggered major battles with the builders because they blocked large development projects:

In November 18, 2002: Assiscunk Creek; Beaver Brook; Flat Brook; Sidney Brook;  South Branch Rockaway Creek; 

In January 6, 2003: Paulins Kill; 

In November 3, 2003: Harihokake Creek; Nishisakawick Creek; Pohatcong Creek; Wickecheoke Creek; Plum Brook;

Under the new pro-economic development Corzine/Jackson DEP, the legal ability of DEP to designate C1 streams on the basis of wood turtle – and numerous other threatened and endangered species – was lost by DEP in a May 21, 2007 rule proposal where DEP revised the C1 designation methodology.

The revisions greatly narrowed DEP’s ability to designate C1 waters and eliminated wood turtle as a basis for doing so.

The Lisa Jackson DEP found that a new method was required as a result of “experience” – read the code for “due to strong oppostion by the powerful development community“:

Based upon the experience gained in the review and analysis of waterbodies for potential Category One designation, the Department is proposing to establish new definitions. These new definitions better define the data and criteria utilized to identify waterbodies that qualify for consideration for upgrade to Category One designation. These definitions are data driven and will better serve to identify waters that are truly exceptional. The Department is proposing amendments to the definition of “category one waters” and introducing new definitions for “Exceptional Ecological Significance”, “Exceptional Fisheries Resource(s)”, “Exceptional Water Supply Significance”, and “HUC 14″. (link

The new DEP C1 designation method limited exceptional ecological value to a short list of specific species – if sa species was not lsited, it was not protected. The list did NOT include wood turtle.

Exceptional Ecological Significance – Endangered or Threatened Species (E&T) 

The Department is now proposing that a waterbody with the presence of suitable habitat verified by the Department to support Bog Turtle, Dwarf Wedgemussel, Brook Floater, Triangle Floater, Green Floater, Eastern Pondmussel, or Eastern Lampmussel, with a documented occurrence(s) of at least one of these species verified by the Department are eligible for consideration for Category One antidegradation designation upgrade. To qualify for consideration for Category One status as a waterbody of exceptional ecological significance, requires that the waterbody have suitable habitat verified by the Department to support on of these aquatic dependent E&T species and documented occurrence(s) verified by the Department. These species include several freshwater mussels and Bog Turtle. …

For a detailed description of each species and its habitat see: http://www.nj.gov/dep/fgw/ensphome.htm.

For the wood turtle, the fight for riparian habitat protections is over – DEP unilaterally surrendered.

The only protections remaining are case by case, site specific  mitigation in individual land use permits – a formula for extirpation.

End of story.