Archive for August, 2010

You’ve Come a Long Way Baby!

August 23rd, 2010 No comments

[Update: 8/31/10 – for anyone who thought this visual juxtaposition was exaggerated: Mosque site burning smacks of Klan action


NYC yesterday August 22, 2010


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Sitting on the Science of the Bay (as the Bay Dies)

August 22nd, 2010 No comments

Sittin’ in the mornin’ sun
I’ll be sittin’ when the evenin’ come
Watching the ships roll in
And then I watch ’em roll away again, yeah

I’m sittin’ on the dock of the bay
Watching the tide roll away
Ooo, I’m just sittin’ on the dock of the bay
Wastin’ time

Look like nothing’s gonna change
Everything still remains the same
I can’t do what ten people tell me to do
So I guess I’ll remain the same, yes
~~~ Sitting on the Dock of the Bay Otis Redding (1967)

[Update below]

I want to take a different tack on science and DEP decision-making today.

My typical argument is to focus on scientific integrity and complain about political intervention or economic considerations being injected into the science. I then argue in support of rigorous science.

But, the science issues with respect to Barnegat Bay are different and more complex.

In the case of the Bay, a misguided and mismanaged quest for scientific certainty is impeding good decision-making.

DEP Managers’ tendencies to dodge accountability by seeking a false scientific certainty is the flip side of the industry game of  “manufacturing uncertainty” – both approaches paralyze regulatory decisions and delay necessary action.

Available science is being ignored by the policy makers. Policy must be supported by science, but not limited by it. Science will not tell us what we should do. See the lessons learned in the Puget Sound with respect to the role of science, which include:

Best Available Science and Restoration Policy

The published literature is rich with insights into the often troubled relationship between science and policy. Throughout our interactions with the five projects, we were reminded of several basic principles of an effective working relationship between science and policy that further suggest fundamental strategies for optimizing science’s role in the decision making processes.

To avoid the misuse, and ensure the best use, of science, we must understand the fundamental limitations of the scientific discipline. Science is a process of inquiry grounded in hypothesis testing and observation. Scientists aim to produce objective, value-free information from data gathered from the natural world. Thus, scientists are comfortable collecting information that can be used to understand the potential consequences of actions; however, scientists generally begin to feel uncomfortable when asked to advise decision makers regarding what should be done given the scientific information presented. Scientists who abandon objectivity for advocacy run the risk of loosing credibility in the eyes of other scientists and the public (Boesch and Macke 2000). Therefore, scientists should not be asked what should be done, but rather to define the possible range of actions and evaluate the consequences of those actions. Decision makers should then consider other factors, such as social, economic, and legal issues in addition to scientific input (Boesch 1999, Huxham and Sumner 2000).20

In order for science, and problems addressed by scientists, to effectively influence decision-making, the science must be judged to be relevant. Clark et al. (2002) defined three attributes that influence the effectiveness of science:

  • Saliency”whether science is perceived as addressing policy relevant questions;
  • Credibility”whether science meets standards of scientific rigor, technical adequacy, and truthfulness; and
  • Legitimacy”whether science is perceived as fair and politically unbiased
  • Clearly articulated problems are essential for program success. For scientists to translate program goals into technical objectives and assess the feasibility and associated uncertainties of potential actions, science must be involved from the earliest (planning) phase of the program.
  • Maintaining the independence of science from policy pressures ensures legitimacy and quality. However, science activities must be coordinated with other aspects of the program. Vertical integration teams help ensure communication between policy and scientific aspects of programs.

In Barnegat bay, so called scientific uncertainty is being exaggerated by DEP and used as an excuse to avoid tough decisions.

As we wrote previously, DEP takes a hands off approach in Barnegat Bay, deferring to the voluntary partnership National Estuary Program. This management weakness is compounded by the fact that despite very clear DEP regulatory jurisdiction and responsibilities under the Clean Water Act, there are few clearly articulated goals and virtually no vertical integration at DEP and between DEP and the BB NEP strategy.

Under this management void, DEP is literally on a course to science the Bay to death.

DEP policymakers, water quality scientists, and regulators seem to misunderstand the difference between basic science and regulatory science. DEP scientists are not academic scientists. Their role is to guide DEP priorities and support DEP decisions.

Scientists never have enough data and always want to collect more. If allowed to, scientists will study a problem forever, regardless of the need to make decisions.

Proof of causation is virtually impossible. Waiting for absolute proof is a fool’s errand, and is not good science or policy.

Decisions must be made under conditions of uncertainty. Statistical correlation or association – supported by a technical rationale or simplified model – are adequate.

Bullet proof mechanistic causation is not required to support regulatory decisions. The law merely requires that decisions be based upon “the best available science“.

3. Nutrient Studies
New Jersey recognized in the mid-1990s that relying on chemical concentrations alone as
indicators of nutrient impacts did not adequately identify or protect waters with nutrient-related
problems. Nutrient-related problems (e.g., excessive algae or excessively low dissolved oxygen
(DO)) were sometimes observed in waters with low concentrations of total phosphorus and
sometimes not observed in waters with high concentrations of total phosphorus.

The best available science concludes that nutrient (and sediment) over-load are the primary cause of the Bay’s decline. Other factors are important, but reduction of nutrient pollution loads demands immediate action. [Update: Restoring reduced freshwater flows and the Oyster Creek cooling tower NJPDES permit decision also fit this obfuscation and paralysis by analysis paradigm. The cooling tower permit decision can be made right now and does not require any additional science or regulation by DEP, so it is actually a more reprehensible evasion. end update]

Immediate action depends on enforcement of a regulatory mandate.

A regulatory mandate requires promulgated DEP surface water quality standards (also called “criteria”).

Those water quality standards require monitoring, measurement and assessment methods and programs at DEP.

All this must be based on thebest available science”.

From 2002 – 2004, I led a DEP clean water team initiative that put all these pieces together to draft a Technical Manual to enforce phosphorus surface water quality standards in NJ freshwaters – it’s not rocket science, it’s regulatory science! (and that is far different than the industry “junk science” lie).

The same results can be accomplished for nitrogen in the Bay in a reasonable timeframe if the leadership and political will exists at DEP (which it does not at the present moment).

The below excerpt from the DEP’s 2009 Nutrient Criteria Enhancement Plan is a perfect illustration of those problems. Read it closely and see how DEP is misguidedly setting far too high a scientific burden of proof. DEP confuses causation with merely linking stressors to biological response:

3. Nutrient Studies

New Jersey recognized in the mid-1990s that relying on chemical concentrations alone as indicators of nutrient impacts did not adequately identify or protect waters with nutrient-related problems. Nutrient-related problems (e.g., excessive algae or excessively low dissolved oxygen (DO)) were sometimes observed in waters with low concentrations of total phosphorus and sometimes not observed in waters with high concentrations of total phosphorus. …

The Department is conducting technical studies linking stressors (i.e., total phosphorous, nitrogen) with biological responses (i.e., periphyton diatoms, biomass, chlorophyll a, diurnal DO, turbidity, etc.). Active field investigations and site-specific studies are currently underway to investigate the relationships between nutrients (stressors) and response indicators (e.g., chlorophyll a, algal biomass and algal community structure) to determine if predictive stressor response models can be developed that are protective of designated uses and can be used in future assessments. The following studies are being conducted to develop appropriate biological indicators and indices to correlate between chemical concentrations of nutrients and the biological responses. (@page 19) […]

Shallow Coastal Bays (including Barnegat Bay):

The federal government (USEPA and NOAA) has already developed a suite of indicators (e.g., EPA’s National Coastal Assessment Report 2005 and NOAA’s National Estuarine Eutrophication Assessment update) and applied them to New Jersey’s coastal bays. The Department is working with Rutgers, USEPA Region 2, USEPA Office of Research and Development, and NOAA to evaluate existing indicators and establish New Jersey-specific benthic indicators to assess aquatic life use in New Jersey’s shallow coastal bays by 2010. The Department has also begun collecting real-time diurnal DO data, in partnership with Monmouth University and the Barnegat Bay Estuary Program. These benthic indicators will also help identify aquatic life use impairments that are nutrient related. Existing data on benthic communities in the near shore ocean waters and estuaries of New Jersey has been compiled and additional data has been collected; however, additional research is needed to develop cause/response indicators to determine if nutrients are the cause of any use impairment found in these waters. The Department has applied for a USEPA grant to collect sediment cores from the tidal region of Barnegat Bay and determine the chronology of nutrient changes (N/P) and associated ecosystem level responses. Changes in various biogeochemical proxies (biogenic, stable isotopes of C and N, etc), along with changes in diatom community structure, will be used to infer changes in nutrient loading and land use throughout the watershed.

These benthic indicators for coastal waters, once they are developed, will be used to reassess aquatic life uses in these waters. Where assessment results indicate use impairment based on these new indicators, the Department will need to determine if nutrients are the cause of impairment before proceeding with nutrient criteria development for these waters. (@page 18)

DEP does not have to have science documenting the cause of eutrophication before it can establish nutrient standards and enforceable load reduction requirements.

If DEP is allowed to continue to follow this long and winding road, the Bay will die before the data come in.

And there will be no boats or people sitting on the docks of Barnegat Bay.

[Update: 8/25/10 – a source just forwarded DEP Bay Science seminar held on July 14. Check it out by clicking here. Look at Professor Kennish’s presentation. His Mid Atlantic Lagoon system slide shows 7 ecological indicators of eutrophication. All are rated as “high” except one, dissolved oxygen, which is “low“. Dissolved oxygen is the only indicator DEP uses for surface water quality standards, monitoring, and assessment regulatory purposes. So obviously, DEP is regulating the wrong thing. Then look at the DEP presentation, it gets worse. DEP bacteriological monitoring (fecal coliform) actually says the Bay is improving! (shellfish acres prohibited are improving (despite hardclam landings going to zero) and beach closures). The EPA benthic index shows one isolated local problem. DEP regulatory assessment says Bay OK, despite all the conflicting evidence. DEP refuses to change regulatory standards, monitoring and assessment to account for science. But DEP did change all those things in 2003 for purposes of enforcing phosphorus load reductions in inland freshwaters. BBay NEP has the science but not the regulatory power. DEP has the regulatory power but not the science. This is insane. All it takes is the will and leadership to change. End update]

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Did Oil and Chemical Industry Lobbyists Quietly Kill The $1 Billion Liability Bill?

August 21st, 2010 No comments

Bill Not On Aug. 23 Senate Board List – Have “forces of evil” prevailed in Trenton too?

On July 15, 2010, the Senate Environment Committee released S 2108 (Smith (D-Midddlesex)/Bateman (R-Somerset), a bill in response to the Gulf BP oil blowout. The bill would increase the NJ State oil spill liability cap from $50 million to $1 billion (see: Gulf Blowout Prompts NJ Lawmakers to Increase Polluter Liability To $1 Billion)

Oil and chemical industry lobbyists strongly opposed the bill in Committee.

Senator Beck (R-Monmouth) supported the off shore liability, but agreed with some of the industry testimony regarding differences between inland and off shore operations and liability. Beck suggested the need for amendments to address those issues, based upon data on risks.

I was next up right after Beck’s remarks, and testified about inland liability issues. I noted that BP, prior to the Gulf blowout, had a 2005 explosion and fire at a Texas refinery that killed 15 workers and caused huge toxic air emissions. I urged the Committee also to consider the huge liability associated with catastrophic release from chemical facilities regulated under the NJ Toxic Catastrophe Prevention Act program (TCPA). For example, US EPA says 15 NJ TCPA chemical facilities could kill over 100,000 people. I also mentioned Natural Resource Damage liability and shortfalls in current Spill Act funds.

Strong industry opposition and Senator Beck’s concerns lead to a compromise. Chairman Smith announced a plan to release the bill and then amend the bill on the Senate floor on August 23 to address the inland liability issues. The bill was approved unanimously with that understanding.

Smith then asked industry lobbyists and DEP to provide recommendations that were supported by data. (click on to listen to the testimony – Chairman Smith’s plan is at time 1 hour;13 minutes)

Based on this request, I’ve since advised Senator Smith that in a 2008 rulemaking proceeding, in a response to my comment (#77 below), DEP claimed that they lacked legislative authority to require that the chemical industry provide insurance or financial assurance to address catastrophic releases. In the May 5, 2008 TCPA rule adoption document, DEP stated:

77. COMMENT: The proposal should require the facility to provide financial assurance to the Department and proof of private insurance for the total economic liability that would result from release of an EHS, based upon the off site consequence analysis.

RESPONSE: The Department does not have the authority under the Act to require owners or operators to provide liability insurance for an EHS release.

So, all eyes are on the Senate Board list for August 23 – I just checked. The bill is not posted.

So, who killed the bill? Or is there some good explanation for delay?

The NJ State bill parallels a federal effort led by NJ Senator Menendez.

During the hearing, during the testimony of Jim Benton of the NJ Petroleum Council, Committee Chair Bob Smith described oil industry Washington DC lobbyists opposing the Menendez bill as “forces of evil” – but Smith claimed that those same forces did not have as much influence in Trenton as they do in DC.

Since then, the “forces of evil” (i.e. oil industry lobbyists) were successful in killing the Menendez bill to increase the cap on federal liability (see: Senate Democrats punt on oil spill bill)

Have the forces of evil prevailed in Trenton too?

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Alert: More Political Science Coming To DEP

August 20th, 2010 No comments

dunesIt is beyond shortsighted and recklessly foolish to reduce coastal flood protections at a time when global warming science is telling us that there will be sea level rise and an increased frequency and intensity of coastal storms.

We have been predicting the increasing politicization and abuse of science by the newly created DEP Science Advisory Board (SAB). We have warned that the SAB would become involved in regulatory issues, inject political and economic issues into science, and be used to provide political cover for bad decisions by DEP.

DEP has repeatedly denied all that and made assurances that the SAB would stick to science.

Well, sure enough, we were correct.

The first issue the SAB will engage is a political one having nothing to do with science: LOWERING the height of dunes that provide flood protection for Atlantic City.

According to today’s Press of Atlantic City (“Department of Environmental Protection to consider allowing decrease in Atlantic City dunes height):

City officials and 2nd Legislative District lawmakers met privately with the department Thursday to find a compromise between aesthetics and storm protection.

“The dune is providing shore protection. But we’re looking at the dune as it relates to scenic resources and visual access to the waterfront,” said Assistant DEP Commissioner Marilyn Lennon, who oversees land use.

Lennon said the newly created Science Advisory Board will examine the city’s request as one of its first tasks. The advisory board was created by Gov. Chris Christie to evaluate state policies based on science, but to also consider the costs and benefits of decisions. Several business officials sit on the board.

“We will consider this as part of the new administration’s approach at looking at all our rules and regulations,” Lennon said.

Wow! Lennon  is way off base. Talk about muddled thinking!

First of all, the aesthetics of views from the boardwalk are purely subjective and have nothing to do with science. The science can examine the increased flooding risks of lowering the height of the dunes. But there is no scientifically valid method to compare or balance these risks with alleged aesthetic benefits.

That comparison is not science, it is a policy call.

It is unfair to task scientists with such an assignment. Worse, it is purely an attempt by DEP to avoid accountability for DEP managers to ask the SAB to do so.

Second, the SAB is not empowered under its enabling Administrative Order to consider economic costs and benefits. The appointees to the SAB are scientists, not economists.

Furthermore, Governor Christie’s Executive Order #2, which mandates cost benefit analysis (CBA) in decision-making, applies to DEP, not the SAB. So again, it is simply wrong to ask scientists to become economists and do a CBA.

Third, this is a regulatory policy issue. DEP has repeatedly denied our complaints that the SAB would become involved in regulatory issues and not stick to the science.

Fourth, there won’t be any tourists on the boardwalk if it gets washed out by storm surge.

It is beyond shortsighted and recklessly foolish to reduce protections at a time when global warming science is telling us that there will be sea level rise and an increased frequency and intensity of coastal storms.

We need to be increasing shore protections in light of these increasing risks!

And a minor correction is in order. The SAB was created by former DEP Commissioner Lisa Jackson, during the Corzine Administration DEP. The appointments to the SAB were made by current DEP Commissioner Bob Martin, but almost all of them had previously been made but not publicly announced  by outgoing Acting Commissioner Mark Mauriello.

[Update: clarification: I do not consider beach replenishment as a coastal protection (see this 11/16/09 post). Even DEP, in reports submitted to US EPA, has found that false public perception a barrier to reducing coastal hazards. DEP wrote:

All of the impediments to meeting this 309 programmatic objective that appeared in the last New Jersey Coastal Zone Section 309 Assessment and Strategy remain. These include lobbying efforts of special interest groups, legal challenges to DEP permit decisions, provision of flood insurance through the National Flood Insurance Program, and public perception that large-scale beach nourishment projects eliminate vulnerability to coastal hazards.

(ps – note to Tittel and Dillingham: Strap it on gentlemen. This is not a “tough call” or an issue you signal “compromise” on.


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Water Wars – Farmers Versus The Rest of Us

August 19th, 2010 1 comment
Clinton Reservoir (Aug, 11, 2010)

Clinton Reservoir (Aug. 11, 2010)

A dispute in Washington Township (Morris County) illustrates at least three significant statewide policy issues that stem from flaws in New Jersey’s Water Supply Management Act and how it is implemented by DEP.

The first is the lack of legal authority for DEP to regulate the withdrawal of water by farmers regardless of competing uses for water supply and/or impacts on the environment. Into that legal void, farmers generate expansive and false expectations under the Right to Farm Act. But the Right To Farm Act does not provide any protections to pollute or deplete public water supplies.

The second is failure of DEP to enforce clean water laws to restrict use of chemicals (pesticides, fertilizers) by farmers to protect public health and the  environment.

And the third is the lack of an overall rational policy framework to address issues of allocating water among competing water users and the environment, due to failure by DEP to Update the Statewide Water Supply Master Plan since 1996.

But you wouldn’t know any of that that by reading the news coverage of this dispute, in fact, you might get exactly the opposite impression.

The coverage did not bring those issues out because it incompletely defined the issue by  focusing too heavily on the use of eminent domain to condemn private property.

The Morris Daily Record reported: “NJ opposes Washington Township MUA bid to seize private Long Valley Far to dig wells”.

At issue is a plan by the township authority to invoke eminent domain and take over 0.86-acres on both the Smith farm on Drakestown Road and the Searles farm on Flocktown Road for the installment of public water wells. Both farms are in agricultural development areas, where agriculture is the preferred use of the land. Additionally, both farms are located within the Highlands Preservation Area.

Does the Record reporter know that the primary objective of the Preservation Area is the protection of public water supply for half the State’s residents? (that’s both water quality and water quantity protection – “clean and plentiful”, as the DEP slogan goes).

The Star Ledger story also failed to engage the key issues because – like the Morris Daily Record – it allowed the farmers to define the problem.

In doing that, the story unfortunately created a false impression that the lack of state authority was limited to an inability to block the use of eminent domain to condemn private property for public uses; and that the use of pesticides and fertilizers is strictly limited (i.e “prohibited”) to protect water supplies:

The problem, said Hope Gruzlovic, spokeswoman for the Agricultural Development Committee, is that the two farms are in an Agricultural Development Area, a designation awarded by Morris County, which means that agriculture is the preferred use of the land.

Digging wells on the two working farms would have “unreasonably adverse impacts on the preservation and enhancement of agriculture,” Gruzlovic said.

Pesticides, herbicides and livestock would all be prohibited for fear of contaminating the water supply.

“It limits the type of agricultural activity that can take place on the farm,” Gruzlovic said. …

…  The state cannot stop the MUA and has only the power to delay the project and hold a public hearing.

“Beyond that, its authority is limited to recommendations,” Gruzlovic said.

No, the County Ag designation is not THE problem (and there is not just one problem and it can not be defined by one special interest group) and the far more important limit in State authority is inability to regulate agricultural withdraw of water.

New Jersey is entering another drought and some portions of the state are under drought emergency conditions. For example, last week, DEP issued a drought watch for the northeastern region of the state and Bergen County Executive imposed  mandatory water conservation requirements.

Yet while people and businesses are being asked - and in some cases legally forced – to conserve water, farmers are under no such obligations.

In fact, DEP has no legal power to restrict the use of water by farmers.

That’s right, regardless of the severity of the drought emergency,farmers can continue business as usual. As I wrote on August 11:

4. Develop a management program to better restrict and impose allocation requirements on farmers. Under current rules, a DEP issued water alllocation permit is NOT required for agricultural uses, regardless of volume or impact. An Agricultural Water Usage Certificationor Agricultural Water Use Registration must be obtained from the County agricultural agent if a person has the capability to withdraw ground and/or surface water in excess of 100,000 gallons per day for agricultural, aquacultural or horticultural purposes.

Obviously, that is not good public policy and it must be reformed.

And I didn’t even mention the fact that not only does farm irrigation have large impacts on the environment (e.g. by depleting groundwater and reducing stream base flow), farming is one of the biggest polluters of groundwater (e.g. nitrates from fertilizers) and nearby streams via runoff of chemical pesticides, fertilizers, and antibiotics used on the farm.

Farmers have to become part of the water supply solution, instead of part of the problem.

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