WolfeNotes.com

The key protection of the Highlands Region’s water and land resources may about to be sabotaged – quietly – by DEP Commissioner Bob Martin.

DEP Commissioner Bob Martin – at March 23 Red Tape Review Group hearing

[Update: 7/6/10 – it only took the Morris Daily Record a few months to write the story today:

NJ is re-evaluating strict septic rules that angered Highlands Act landowners ~~~ end update]

To protect the groundwater drinking water resources of the Highlands Region from pollution, DEP adopted regulations (see Highlands Rule) that, among other things, restrict the density of septic systems in the core Preservation Area (in July 2008, I wrote about that rule).

In the sensitive Highlands Preservation Area, the DEP septic standard allows one home per 88 acres in forested lands, and one per 25 acres on farmland. This is the most restrictive standard in New Jersey.

Large land areas are needed to dilute septic pollution due to the geology of the Highlands region, where very little of the rainfall seeps into the ground and “recharges” drinking water aquifers. Here is DEP’s basis for the standard: (for complete technical basis, see: NJDEP-Highlands-Basis & Background of Septic Density Standard)

The HWPPA at N.J.S.A.13:20-32(e) directs that a septic system density standard must be established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses from individual, secondary, and cumulative impacts, in consideration of deep aquifer recharge available for dilution. The septic system density standard was to be established in consideration of the antidegradation provisions of both the Surface Water Quality Standards (SWQS) at N.J.A.C. 7:9B-1.5(d)6(iii), and Stormwater Management rules at N.J.A.C. 7:8-5.5(h), that are applicable to Category One waters, and are to be applied to all Highlands open waters pursuant to subsection g. of section 34 of P.L.2004, c.120 (C.13:20-32). The Surface Water Quality Standards rules at N.J.A.C. 7:9B-1.5(d)6.iii. state that Category One Waters shall be protected from any measurable changes (including calculable or predicted changes) to the existing water quality. The Stormwater Management rules at N.J.A.C. 7:8-5.5(h) require the preservation of a 300-foot special water resource protection area (SWRPA) along all Category One waters.

Does that look like a farmhouse to you? Farm Bureau building in Trenton – just another fat cat lobbying outfit living high on the hog while feeding at the trough of taxpayer subsidies. Does the typical real NJ farmer live like this?

The NJ Farm Bureau has sued DEP to block that rule. They lost the initial round, the DEP rules were upheld, and their appeal case is now in the Appellate Division.

Legal briefs have been filed and the arguments were scheduled to be presented to a three-judge panel on March 9 in Trenton. But according to a NJ Farm Bureau Op-Ed in yesterday’s NJNewsroom.com:

We are greatly encouraged by acting DEP Commissioner Robert Martin’s decision last week to obtain a six-month delay in the legal challenge on the septic density rule to take “a fresh look” at the standard.

This is extremely disturbing – Martin’s “fresh look” is very likely to gut the most protective standard in the Highlands .

The DEP’s rules were held scientifically and legally valid by Administrative Law Judge Metzger’s thorough decision of March 24, 2009. ALJ Metzger’s opinion was adopted by the DEP on July 13, 2009.

Commissioner Martin should be SUPPORTING the decisions of ALJ Metzger and his predecessor and PROTECTING the Highlands, not taking a “fresh look” which is little more than a cynical euphemism for rollback and sell out to development interests.

The Christie Transition Team recommendations basically call for the abolition of DEP regulations in the Highlands region and full delegation to the Highlands Council. Martin’s “fresh look” would be a back door way to advance such a wrecking ball agenda and in one stroke take out the core protections of DEP regulations and the Council’s Regional Master Plan, which by law is based on and must be at least as protective as DEP standards.

Any move by Martin in this direction must be stopped – and nipped in the bud NOW.

(full disclosure: I was the architect of the DEP elements of the Highlands legislation, I wrote the “deep aquifer recharge” provision in the law that drives the density standard, and worked on the development of the regulatory standard while at DEP. After leaving DEP, I later worked as a consultant for the Highlands Coalition in meeting with DEP on the Highlands regulations. So, for once, the revolving door revolved to the benefit of the public interest).

[Update: below is the typical BS we see from the Farm Bureau –

It seems like the Warren County Planning Board doesn’t know that we’re in a deep recession and the housing bubble and financial crisis are what have caused the “70% decline in economic activity” they report. If such a decline were caused by “additional environmental regulations enacted by state agencies” it would be limited to NJ and worst in the Highlands. But that simply is not the case – we are in a  global and national economic recession – furthermore, thousands of DEP permits/approvals have been issued to thousands of projects that have not been built. That’s why the Legislature passed the Permit Extension Act.

There are a GLUT of environmental approvals, a GLUT of vacant commercial office space, thousands of vacant foreclosed homes, housing prices are dropping, and new construction is stalled. Environmental regulations are not slowing economic activity, lack of demand, lack of financing, and private sector business decisions are.

Regardless of cause, slowing the growth rate in Warren County is a good thing – it preserves farmland (our food supply) and keeps taxes from rising due to the increased costs of local services caused by development – Google “ratables chase”.

HIGHLANDS LITIGATION: NJFB was informed this week that its legal challenge to the Highlands septic density rule is moving ahead. Oral arguments before the Appellate Division are scheduled for March 9 in Trenton. Farm Bureau is contesting the legal and scientific basis of 25-acre (farm) and 88-acre (wooded lots) minimum building lot sizes in the Preservation Area of the Highlands, regulations imposed and enforced by the DEP. As but one indicator of the drastic impact of these and other Highlands rules, the Warren County Planning Board reports a steep decline in the number of site plans and subdivision applications it has reviewed. The total numbers for both in recent years: 2004-169; 2005-145; 2006-135; 2007-103; 2008-91; 2009-55. The Planning Board cites “additional environmental regulations enacted by state agencies” as a contributing factor to this 70% decline in economic activity.

Saturday in the park – some photo’s of a great ECCC Princeton University & Steven Institute of Technology sponsored weekend bike race in lovely Cadwalader Park, Trenton’s historic Frederick Law Olmsted design. Olmsted, founder of the US School of Landscape Architecture, is best known as the landscape designer of Central Park in NYC. Enjoy the pics. Advocacy contacts: NJ Bicycle Coalition – Urban parks funding.

John A. Roebling

EPA Administrator Lisa Jackson (during testimony at her Senate Confirmation hearing)

[Update: I was told that Jackson’s recusal from involvement in NJ was for 1 year. If so, how is she in compliance with Obama’s Executive Order on ethics which mandates a 2 year period?:

“2.Revolving Door Ban — All Appointees Entering Government.  I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.“]

Obama US EPA Administrator Lisa Jackson visited NJ yesterday for whirlwind press stops in Newark, Ringwood, and Pompton Lakes (the Ringwood visit was not mentioned in the itinerary of the official EPA press advisory). Along with the press conferences and photo ops, Jackson took the opportunity to meet with small groups of residents to listen to their concerns. The Pompton Lakes meeting was private and not open to press.

The NJ press corps played right along and gave Jackson exactly what she was seeking – headlines, photo’s, and generally non-critical stories that echoed her message (see Bergen Record Pompton Lakes; and Bergen Record Ringwood and Star Ledger coverage).

I want to focus briefly on the policy and then on the politics of this visit with respect to the Pompton Lakes site.

Jackson’s message was consistent with what she did for over 3 years as NJ DEP Commissioner and thus far as head of US EPA: create an appearance that she and EPA are acting aggressively, responding to the concerns of the community, and holding polluters accountable (all while delivering little to nothing of substance, and sometimes doing exactly the opposite – see: WHY LISA JACKSON SHOULD NOT RUN EPA — Disastrous Record in New Jersey Bodes Ill for Reforming EPA).

Bob Spiegel of Edison Wetlands Association quote got it exactly right in the Bergen Record story:

“The problem is that the EPA and DEP keep asking DuPont to do things about the cleanup. What they need to do is start telling DuPont to do things about the cleanup …  At what point do the agencies start using their authority to direct DuPont to act?”

EPA has tremendous legal power and financial and technical resources under Superfund, the Resource Conservation and Recovery Act (RCRA), and the Clean Water Act. The fact of the matter is that Jackson’s visit did nothing to enforce this legal power or deploy EPA resources.

For example, Jackson refused to commit to listing the site on the Superfund “National Priorities List” (NPL). But the Pompton Lakes site does not have to be listed on the NPL before EPA can take immediate action, allocate resources, or pursue enforcement actions against Dupont.

Similarly, EPA has long been involved at the Dupont site under RCRA’s “Corrective Action” program. Yet despite this authority, EPA has issued no enforcement orders that compel Dupont to do anything, or imposed any RCRA fines and penalties to punish Dupont for what they have done to Pompton Lakes.

And as a result of huge off site water quality impairment and sediment pollution, EPA could hammer Dupont with Clean Water Act enforcement actions (i.e. fines, penalties, cleanup Orders), including issuing Natural Resource Damage restoration and compensation Orders.

But Jackson’s only written materials were press releases, not EPA enforcement Orders or litigation. Compare that to Jackson’s visit to Libby Montana, where she didn’t go to pay lip service (and I am not equating the risks of Libby and Pompton Lakes, just merely illustrating EPA tools).

In terms of responsiveness to the community, there was muted and implied criticism in the Bergen Record story:

Pompton Lakes residents and officials said they did not recall Jackson coming to the borough to discuss the DuPont contamination when she had been DEP commissioner, but appreciated her presence there Friday.

Exactly.

That unstated criticism was included in the Bergen Record coverage of the Ringwood visit which noted that the meeting with residents there did not focus on the Ford site cleanup issues but “focused more on personal, family issues”. So this quote is about as close to criticism as it gets for a member of “the family” as fellow Ramapough Mountain Indians referred to Jackson (see this photo & story for the context here – Jackson politically used Ringwood residents during her confirmation hearing):

“I’m glad she’s still thinking about us,” said Jack Walker, another resident. “For a while there, we haven’t heard anything and I thought maybe we were forgotten.”

In terms of the larger political context, Jackson’s visit can be interpreted as motivated by several different objectives.

First, Jackson could be engaging in the typical and relatively harmless political dog and pony show that has gone on for years at NJ’s Superfund sites.

But that kind of cynical political stunt is NOT harmless and is especially inappropriate right now because the residents of Pompton Lakes are facing a cancer cluster and demanding that EPA take over the cleanup due to failures by DEP and deep distrust of Dupont, who have not been honest with them. (see this for Dupont’s power at EPA)

Residents are expecting independent and  aggressive EPA intervention, not typical political games. And that’s exactly why Jackson’s personal involvement is totally inappropriate because for 7+ years she did nothing as a DEP Commissioner and Assistant Commissioner to force Dupont to cleanup the site. During Jackson’s tenure at DEP, vapor intrusion issues were being mismanaged by NJ DEP. These failures led directly to Pompton Lakes exposures.

Jackson can not be the independent objective broker the community seeks at EPA because she has a direct conflict of interest, having been involved as a decision-maker at NJ DEP. That’s why Jackson was recused from any involvement in NJ issues as EPA Administrator. Her involvement now undermines EPA independence and creates the appearance of politicization.

The Bergen Record previously reported on the Lisa Jackson recusal in a 9/1/09 story (below)- I didn’t see any time limit in that story:

“Jackson said she agreed when she took over the EPA to recuse herself from involvement with any actions she took as New Jersey’s commissioner. A spokesman said the recusal is designed to prevent Jackson from influencing EPA employees to act one way or another regarding New Jersey.”  (see: EPA chief’s spin on DEP audit)

While one might think that NJ would benefit by having a former NJ DEP Commissioner head up EPA, actually, the opposite is the case. There were subtle yet profound benefits for NJ as a result of Jackson’s recusal, which tended to empower EPA Regional Administrator Judy Enck. Enck is not tainted by and has no loyalties or obligations to any NJ politics. Enck comes out of the NY environmental advocacy community and has roots in Governor Eliot Spitzer’s progressive approach to public policy, particularity with respect to the important role of regulation and vigorous enforcement. Jackson simply does not share that progressive philosophy or environmental advocacy experience and commitment and she is tainted by NJ political ties. As I wrote on December 11, 2009:

Enck’s boss, EPA Administrator Lisa Jackson was previously NJDEP Commissioner and Chief of Staff to Governor John Corzine. Jackson is  recused and can not participate in EPA decisions in NJ. This provides Enck more autonomy and control in NJ within the EPA chain of command, yet it also requires that she avoid any appearance of favoritism in NJ. (See: New Obama EPA Regional Administrator Plants a Flag in NJ)

Or, Jackson could be sending a strategic political shot across the bow of the Christie Administration on behalf of the Obama EPA. (see: Christie’s Environmental Rollback Agenda Receiving National Attention)

Christie said during the campaign that he looked forward to battles with the Obama EPA – Christie said (watch it on YouTube)

“I’ve got a feeling that you will see, come January 2010, a lot of battles between the Christie administration DEP and the Obama administration EPA.”

His actions thus far tread heavily on compliance with EPA delegated or funded programs. (See: Christie Regulatory Czar Given Power and Tools to Rollback Environmental and Public Health Protections

But if this were Jackson’s motivation, again she played a very weak hand by delivering nothing of substance and failing to focus on or hold Christie accountable for  actions he already has taken (see: CHRISTIE OUTLINES RADICAL ECO-ROLLBACK IN NEW JERSEY — Privatization Specialist Tapped to Head Department of Environmental Protection)

Either way, looks like more of the same old same old from Lisa Jackson:  politics and symbolism over policy and substance.

NJ Governor Chris Christie – on the right wing’s radar screen.

While the depleted and crisis diverted NJ press corps has not yet covered the story, Washington DC outlets are writing about NJ Governor Christie’s environmental rollback agenda.

Christie has put NJ in the national spotlight, and the picture is not pretty (just read this right wing rag story: “Christie Takes on the Environmentalists” – what’s next? Tea-party Support Polluters rallies at the Statehouse? Is this how the NJ Republican Party wants to be perceived on a national stage? Are there no moderate voices in the party? Does Christie really want NJ to align with other governors, including Haley Barbour (R) of Mississippi and Perry of Texas?)

But seriously – more credibly and substantively, the leading DC Beltway environmental policy trade journal “Inside EPA” wrote an extended piece. Inside EPA is widely read by opinion leaders and policy makers in Congress and EPA. The Inside EPA story puts Christie’s agenda in the context of a national republican backlash attack on Obama and government. Although Inside EPA is a  subscription Trade journal, I will run the risk of a copyright infringement challenge and take the liberty of excerpting significant portions of the article, under fair use public interest doctrine by a non profit:

New GOP States Flex Muscle, Signaling Strong Resistance To EPA Agenda

Recently elected Republican officials in New Jersey and Virginia, along with sitting GOP governors, are strongly resisting the Obama EPA’s agenda, signaling likely broader opposition from the states if the party gains control of more state houses in the upcoming 2010 elections — much as GOP state officials did during the Clinton era.

The new state-level action suggests a reversal from the Bush-era when Democrats used state offices to push for strict controls on toxic chemicals, greenhouse gases and other environmental pollutants.

Since taking office earlier this year — Govs. Robert McDonnell (R-VA) and Chris Christie (R-NJ), along with Virginia Attorney General Ken Cuccinelli (R) — are taking steps to stall or reverse strict state environmental regulations and scale back funding for environmental agencies, steps that could harm several EPA efforts.

In New Jersey, for example, Christie’s administration delayed implementation of the state’s strictest-in-the-nation drinking water standard for the rocket-fuel ingredient perchlorate, and the governor is backing a bill working its way through the legislature barring the state from adopting standards stricter than EPA’s, which echoes executive orders he has already signed.

Christie has also named a controversial nominee with a track record in privatization but none in environmental matters to head the state Department of Environmental Protection (DEP) — a slot once held by Obama EPA Administrator Lisa Jackson. Despite his limited experience, nominee Bob Martin won confirmation from a state Senate panel March 15, where he testified that “DEP is broken and needs to be fixed.” Relevant documents are available on InsideEPA.com.

One New Jersey environmentalist calls the abandoned perchlorate standard “the first victim of [a] Christie moratorium and federal rollback policy.” [Note: that would be me!]

And in Virginia, McDonnell has postponed state stormwater rules and cut funding for state environmental agencies — both measures that could undermine EPA’s planned Chesapeake Bay cleanup. He is also expected to back a controversial bill that would roll back the state’s “clean smokestack” law enacted in 2006.

Cuccinelli and McDonnell have also joined with Texas Gov. Rick Perry (R) — who is running for re-election — and almost two dozen other states in a high-profile legal challenge to EPA’s finding that greenhouse gases endanger public health and the environment.

The actions in Virginia and New Jersey over the last two months show that “elections matter,” one state source says. …

While the state activities are not yet considered coordinated, sources say staff within the new administrations may be gearing up for more pushback and that the early activities could portend what is to come following the upcoming November elections, when 20 Democratic governors are up for reelection.

But already, the efforts by new GOP officials to limit strict environmental controls are being echoed by Republican gubernatorial candidates. In the party’s primary in California, for example, all of the GOP candidates are looking to block — at least temporarily — the state’s landmark climate change law, AB 32, which was signed by outgoing Gov. Arnold Schwarzenegger (R). Former eBay CEO Meg Whitman — who is leading both her GOP challenger and the Democratic candidate, Attorney General Jerry Brown, in the latest polls — is calling for a one-year suspension of the law and scaling back the state’s environmental assessment law, while her challenger, Insurance Commissioner Steve Poizner, wants to block the law’s implementation until employment levels rise.

Whitman and Poizner’s positions may be moot, however, as state officials are worried that an industry-funded ballot initiative may overturn the law (see related story).

In New Jersey, the activist group Public Employees for Environmental Responsibility (PEER) is already strongly criticizing Christie’s early actions. “One of two Republican governors elected in 2009, Christie may offer a template of eco-dismantlement for other gubernatorial hopefuls seeking to capitalize on anti-government sentiment. Since many of the DEP programs operate under federal delegation with national minimum standards, Christie’s actions [on environmental issues] set him on a collision course with the U.S. Environmental Protection Agency, headed by former DEP Commissioner Lisa Jackson,” PEER says.

…..The source notes that during the Clinton administration, a handful of GOP-led states including Texas, Michigan, California and Virginia deliberately banded together to”make trouble” for EPA, challenging the agency’s effort to address environmental justice, enforcement policies and other measures.

…. The source does expect more agitation from Christie than McDonnell — and sees Christie possibly aligning with other governors, including Haley Barbour (R) of Mississippi, Joe Manchin (D) of West Virginia and possibly Perry of Texas.

“Christie . . . will look for a fight” the source says, adding his nomination of Martin to head DEP “surprises me not at all.” However, McDonnell lacks”fire in his belly,” according to the source, who notes he retained Kaines environmental secretary, David Paylor.

Nevertheless, Virginia environmentalists are worried about McDonnell, criticizing his support of the endangerment finding lawsuit filed by Cuccinelli, along with statements he has made supporting offshore drilling. Groups also sent McDonnell a March 11 letter urging him to veto the bill to weaken smokestack emission limits.

Additionally, they note he has dramatically cut funding for Chesapeake Bay cleanup — from $20 million last year to $9 million in the current budget — while acknowledging the slash is consistent with dramatic budget cuts across all state agencies.

One Virginia environmentalist says groups are especially concerned about McDonnell’s “aggressive” support for offshore drilling. And the source notes that though he has been in office only a short time, – “There are some very disturbing actions taken by the governor . . . and we will see how he proceeds.” — Dawn Reeves

Joe Navarra, BC Express, HVAC contractors. Toms River, NJ

While Christie Cuts $300 million for job producing energy efficiency and renewable wind & solar, ratepayers get socked with $750 million power line to import more dirty coal power and increase profits

“I am Green Energy” said Joe Navarra, General Manager of BC Express HVAC out of Toms River, NJ.

Navarra joined over 200 representatives of clean energy businesses, local governments, labor unions, small contractors, electric & gas utility companies, and environmental advocates to oppose Governor Christie’s proposed $158 million diversion of Clean Energy Program energy efficiency and renewable energy funds at a special public hearing held today in Trenton by the NJ Board of Public Utilities (BPU).

The hearing room was so packed that it exceeded fire code and had to be cleared of dozens of people to allow the hearing to continue.

Speaker after speaker praised the popular BPU Clean Energy Program as creating thousands of quality jobs, for saving consumers billions of dollars in utility bills, and for reducing global warming and air pollution emissions. There was a strong consensus that the Governor’s diversion of ratepayer funds from BPU’s energy conservation and renewable energy programs was ill advised, shortsighted, and would hurt economic development, investment, jobs, and the environment.

The League of Municipalities Mayors Taskforce for a Green Future is promoting BPU’s Clean Energy programs and has signed on 255 towns. A spokeswoman noted that although local governments tend to move slowly, they were strongly supporting green energy and rapidly responding to residents’ concerns:

“Citizens are demanding that their State be sustainable and their energy be renewable“

In my 25 year Trenton experience, I don’t recall a more unified or stronger consensus on any issue among business groups (especially job producing small businesses), labor, environmentalists, and local government. It also was unusual to see a government program strongly and universally praised and noted for achieving real benefits.

Lee Solomon, President of the Board of Public Utilities

Governor Christie’s new BPU President Lee Solomon was put on the hot seat – and he didn’t even attempt to defend the Governor’s unpopular diversion. He made it clear that the purpose of the hearing was to take public comment on BPU’s “Straw Proposal” for allocating the Governor’s $158 million cut among BPU’s Clean Energy programs.

Ironically, Christie’s selection of Solomon drew early press praise by the NJ Environmental Federation:

“Lee Solomon has the legal, environmental, personal, and political background to ensure a cleaner, greener 21st century”, said Sharon Finlayson, the [NJ Environmental] Federation’s chairwoman.

In addition to Christie’s energy industry agenda, the BPU is expected to play an important role implementing some of the key pieces of the governor’s environmental agenda including:

Implementing the Global Warming Response Act and Energy Master Plan to reduce greenhouse gas emissions with greater emphasis on clean renewables and energy efficiency;

It is curious that now that Christie has shredded the Global Warming Response Act and diverted over $300 million of clean energy funding, the NJ Environmental Federation was nowhere to be seen at today’s hearing (*the meeting started at 2:30 and I left around 4:30, so I doubt that Dave Pringle was that late).

BPU was spared criticism in managing a difficult situation and their “Straw Proposal” to distributing the cuts drew support. But others focused on the source of the problem:

“[Governor Christie’s] Budget cuts crush energy efficiency and job creation progress” said Lia Sims, of Bright Alternatives, a full service energy consulting company out of Atlantic Highlands that conducts energy audits and installation of renewable energy systems.

Environment NJ and the NJ Sierra Club strongly opposed the Governor’s diversions – plus additional diversions of $128 million in Retail Margin Fund and $65 million from Regional Green House Gas auction proceeds, over $300 million in total – and urged Solomon to talk to Governor Christie about restoring the cuts.

Senate Environment Committee Chairman Bob Smith – who also sits on the Senate Appropriations Committee – also has opposed the diversion.

This is not a done deal. We’ll keep you posted.