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Senate Environment Committee Releases flawed TMDL bill

“We must send a clear message to DEP that we want it [a TMDL] done now.” [Senator Gordon]

[Update: 11/16/10 – good coverage by Kirk Moore of the Asbury Park Press: Barnegat Bay pollution limits encouraged; senators want numbers from DEP

“You’re hearing a status quo argument from the DEP,” retorted Bill Wolfe, a former DEP worker and critic now with Public Employees for Environmental Responsibility. “When the DEP says it’s going to adopt a narrative standard, that just kicks the can down the road” without requiring action to reduce nutrient inflows, he said.

 In his own critique of the legislation, Wolfe insisted that the only way for lawmakers to force action is for the Legislature itself to declare Barnegat Bay an “impaired” waterway under state and federal pollution laws.

This is a quick note on today’s Senate Environment Committee action on S 2341 , because I have to prepare for tonight’s Dupont Pompton Lakes press conference and public hearing (those interested in the BBay TMDL details can read prior posts here. You can listen to the testimony here starting at time 19:00 minutes).

The bill would require the Department of Environmental Protection to conduct a study and prepare a report that evaluates the water quality of Barnegat Bay to determine whether the bay is impaired as described pursuant to section 303(d) of the federal Clean Water Act, 33 U.S.C. s.1313.  The study would examine whether the waters of Barnegat Bay meet State water quality standards, and would be required to focus on the impairments caused by phosphorus, nitrates and excessive sediment.  Upon a finding that the Barnegat Bay is impaired, the bill would require the department to develop total maximum daily loads for the bay  

I testified to thank Chairman Smith for recognizing that a TMDL is a necessary and key tool to restore Barnegat Bay. But I advised the Committee that the bill – in its current form – was doomed to failure because:

• The bill leaves the decision about whether the Bay is “impaired” to DEP. That determination is a legal pre-requisite to a TMDL;
• DEP views a TMDL  as an inappropriate approach to restoring Barnegat Bay;
• DEP currently designates only portions of the Bay as “impaired” for a limited set of parameters.
• DEP’s 303(d) “impaired waters” list has not deemed a TMDL a priority for restoring those impairments or scheduled a TMDL; 
• DEP lacks water quality standards required to protect aquatic life designated uses and ecological functions, and to support a TMDL;
• DEP lacks adequate water quality monitoring and assessment methods to determine impairment; and
• The bill is out of sequence with Clean Water Act TMDL bi-ennial 303(d)/305(b) framework, and therefore will lead to additional years of delay.

I uged the Committee to pursue an “action forcing” approach (see this for some history of the US Congress’ EPA action forcing legislation and this for NEPA “action forcing” requirements. Congress and the Courts also have enacted extensive “action forcing” requirements under the Clean Air Act).

This would be done by legislatively declaring the Bay “impaired” and legislatively mandating that DEP adopt and implement a TDML under specific legislatively established action steps and timetables, similar to the mandatory approach EPA has taken under the Chesapeake Bay TMDL.

Chairman Smith responded that he had consulted with OLS and was advised that the Legislature lacks legal authority to legislatively declare the Bay “impaired”, because this was an Executive Branch function under the federal Clean Water Act. He further indicated that he wanted to avoid anything that could be interpreted as taking away DEP executive branch powers, which he felt would prompt a veto by Governor Christie.

While I’m no constitutional scholar, the latter veto concern is a political judgement based on the politics of separation of powers, not on any legal lack of authority. So I bet the Chairman lunch that OLS and/or the AG will not render a formal legal opinion that the Legislature lacks the power to declare the Bay “impaired”. They could pass a bill that declared it purple if they could get the votes.

But more importantly, I was disturbed – but not surprised – by DEP’s testimony.

DEP Commissioner Martin’s Deputy Chief of Staff testified. He stated that DEP will adopt a proposed narrative nutrient policy for nitrogen in coastal waters and release a restoration plan for the Bay by the end of the year.

Last December, the Corzine DEP proposed a revised “narrative nutrient policy”. The proposal merely expands the application of the current narrative nutrient policy from freshwater to coastal waters.

The current “narrative nutrient policy” limits “excessive algal densities” or “nuisance aquatic vegetation”. But what exactly does that mean? How is that policy enforced and implemented?

I advised the Committee that the current narrative standard has proven unenforceable with respect to freshwaters and phosphorus driven eutrophication impairments.

DEP can not implement or enforce that nutrient policy because DEP lacks science based methods to translate ambient water quality nutrient concentrations to the adverse biological responses and derive numeric regulatory thresholds that can be enforced (i.e. how much nitrogen causes what specific eutrophication, algal densities, nuisance aquatic vegetation, et al?). (full disclosure: in 2003, I represented former Commissioner Campbell on a  DEP workgroup that derived such thresholds for phosphorus and chlorophyll a, an algae indicator.]

And how did DEP forget that Commissioner Martin just referred this issue to his new Science Advisory Board:

1. Nutrient pollution – Both EPA and DEP have been working on this issue for years.  Nutrient standards and controls are a significant policy and regulatory matter, on both a statewide basis and in the Barnegat Bay, where DEP has failed to move forward. Why would the SAB, with no nutrient water quality experts improve on those efforts? The SAB process become an excuse to delay action: “they’re working on it – the science is not ready for regulation”. Here was DEP’s referral to SAB:

Site-specific factors may mitigate or exacerbate biological responses to excessive nutrients. What are the best state-of-the-art approaches for technically sound and implementable nutrient thresholds/criteria in fresh and  coastal waters? 

Here is the language from the DEP proposal (@page 5-6):

N.J.A.C. 7:9B-1.5(g)

 N.J.A.C. 7:9B-1.5(g) specifies the SWQS nutrient policy and provides that it is applicable to all FW waters of the State. As indicated above, the Department has determined that the existing nutrient policies at N.J.A.C. 7:9B-1.5(g) could also be appropriately applied to SE and SC waters. Although the primary limiting nutrient may differ between freshwaters and coastal waters (phosphorus and nitrogen, respectively), the biological response due to excessive nutrients is similar in both types of waterbodies. In both fresh and saline waters, nutrients may cause algal blooms, depletion of dissolved oxygen, loss of water clarity, and impacts to aquatic life, such as fish kills, loss of submerged aquatic vegetation and shellfish habitat, loss of aquatic habitat, harmful/toxic algal blooms, and natural flora and fauna replacement. However, the response indicators and thresholds may vary. Therefore, the Department is proposing to delete ‘FW’ from N.J.A.C. 7:9B-1.5(g)1. As a result, the nutrient polices would apply to all waters of the State.

DEP testified that a TMDL is not “useful” or appropriate for Barnegat Bay because the Bay is impacted by non-point sources like stormwater [correction: surely DEP must know that stormwater outfalls are regulated point sources under the Clean Water Act TMDL program].

The Department also stated that a TMDL can not be implemented and that alternative “enforceable measures” are more appropriate.

Senators Smith and Gordon seemed highly skeptical of this testimony, and asked good questions that DEP was unable to respond to.

In fact, DEP Deputy Chief of Staff could not accurately describe what a “narrative standard” was, and that completely undermined his credibility and testimony. It was embarrassing, really.

Senator Gordon summed things up by describing his meeting with Maryland officials, who advised him that the TMDL was an efffective tool and high priority program in restoring the Chesapeake Bay.

Senator Gordon supported the bill by noting the many years of delay and inaction: “We must send a clear message to DEP that we want it [a TMDL] done now.”

We’ll keep you posted – next time we focus on the benefits of a TMDL and how it could be implemented in current DEP programs, if the bill were amended. We’ll also layout those amendments.