WolfeNotes.com

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.

NJ DEP still does not have delegation from EPA to implement the 1984 RCRA/HSWA amendments.

What have EPA and DEP been doing for 25 years?

How is it possible that a groundwater plume was allowed to migrate under 450 homes without warnings to the residents and installation of vapor mitigation systems in those homes?

[Update: 11/16/10 – I’ll write something and post photos later today, but this is good story on last night’s hearing by Jim O’neill of the Bergen Record: DuPont’s permit-change request irks Pompton Lakes residents – literally a killer quote:

“Vojo Congura, who lives directly across the street from the DuPont property on Barbara Drive, grew emotional as he described his efforts to test the groundwater under his own house as he cared for his wife, who he said died of cancer at 46. Referring to DuPont, he asked the DEP to “step on their throats like they stepped on ours.”]

This story is complicated and needs a little background and context. But I don’t want to get into the weeds and rehash the whole story – those interested can read prior posts (see this and this and this).

DEP will hold a public hearing Monday night (11/15) in Pompton Lakes on a Dupont “permit by rule” (PBR) for the groundwater remediation pump and treat system’s discharge to groundwater.

The hearing is only being held because alert residents read the fine print in the legal notices section of the local newspaper and protested.

Initially, DEP ignored residents’ concerns and downplayed the issue as a purely minor administrative permit matter.

Then, after more informed local protests, DEP rejected requests for a public hearing but agreed to extend the written public comment period for 60 days.

But then PEER intervened with a letter to US EPA, which prompted EPA oversight and basically forced DEP to agree to hold a public hearing on the PBR proposal.

The Dupont toxic site has massive groundwater contamination and a plume has travelled off site and is now under 450 homes in Pompton Lakes. Chemical pollutants in groundwater are migrating into homes – a process know as “vapor intrusion”.

The long known and ignored vapor intrusion problem was disclosed to residents only recently, which sparked outrage and renewed demands that the site be cleaned up.

Residents were especially frustrated by a cozy relationship between Dupont and DEP, lax DEP oversight, and a pattern on secret dealings between DEP and Dupont. That process under NJ’s “streamlined” cleanup laws led to residents having been virtually shut out of cleanup decisions at the site for over 20 years.

In response, NJ DEP pledged to do more, while NJ Department of Health officials conducted a study that found elevated cancer rates in Pompton Lakes that were associated with the toxic chemicals in groundwater.

Elevated cancer risks only added to the outrage and prompted residents to demand that the site be listed on the federal Superfund National Priorities List (NPL) so that oversight of the cleanup could be taken away from NJ DEP and shifted to US EPA.

In response, US EPA and NJ DEP officials pledged to work with the community. Both EPA and DEP pledged to work openly with residents and imporve transparency and Dupont accountability.

But EPA recommended against Superfund listing, purportedly on the basis that Dupont was a financially solvent responsible party and federal EPA supervised RCRA cleanup oversight would be the better option. Despite our requests – voiced at public hearings and in writing –  no written rationale was ever provided by EPA to support this EPA policy decision to rely on RCRA, not Superfund.

But now we learn that this may have not been the real reason for not pursuing the Superfund option. The real reason may be due to the fact that EPA’s Superfund risk ranking method, known as the HRS for “Hazard Ranking Score”, does not consider risks from the vapor intrusion exposure pathway. This issue also recently came to light in chromium exposure in basements in Garfield NJ.

But back to the Dupont cleanup – Given the EPA and NJ DEP pledges, of course residents’ expectations were raised.

So that’s the background and context for the Dupont PBR hearing.

In terms of the PBR, DEP created a statewide PBR option for certain NJPDES permits back in 2005 as a means of streamlining oversight of cleanups, given scarce resources. Polluters were given the option to ask DEP to grant approval so that an individual NJPDES permit could be replaced by a “permit by rule”, which entails less DEP oversight.

The proposed Dupont PBR would rescind the current individual NJPDES discharge to groundwater permit, renewed on a 5 year cycle, and replace it with a permanent approval.

The PBR option was designed for minor, low risk, mainly administrative purposes. Certain facilities were NOT eligible for the PBR alternative under DEP’s own rules. For example, RCRA hazardous waste facilities and “corrective action” cleanups are NOT eligible for a PBR under DEP’s own rules. The RCRA facilities also are not eligible due to federal RCRA requirements.

Dupont is an EPA regulated RCRA facility undergoing corrective action, and therefore is not eligible and should never even have requested as PBR. Given that Dupont is NOT eligible for a PBR, DEP should never have issued the draft PBR for Dupont.

The Dupont draft PBR – especially after it was discovered by residents in the fine print of the legal public notices buried in the back of the newspaper – totally undermined prior EPA and DEP openess commitments.

Procedurally, the current NJPDES individual permit is renewed on a 5 year basis. This allows residents an opportunity to comment on the permit in light of new information.

For example, some Pompton Lakes residents claim that the DEP approved pump and treat discharge to groundwater is not the best cleanup technology and is exacerbating the vapor intrusion problem by increasing local groundwater elevations and pressures, by forcing groundwater and vapors to migrate more quickly into residents basements. It is not clear whether cleanup alternatives and that potential problem have been technically evaluated. Therefore, the individual NJPDES permit renewal process and public hearing becomes an opportunity to raise these kinds of issues.

The DEP NJPDES permit regulations also require that DEP respond in writing to all concerns raised by the public. This is an important accountability measure.

Additionally, DEP regulations allow residents – at any time – to petition DEP to modify or even to revoke the NJPDES permit, in light of new information, or omissions or errors in the original permit.

All these opportunities to hold Dupont and DEP accountable would be lost under the PBR approach.

One more point before the press release and the various documents in the below PEER press release.

I was suprised by the EPA reply letter. EPA basically said that – after more than 20years – EPA has not issued a final RCRA cleanup permit, not taken enforcement action, and does not know the source of the contamination at the Dupont site. EPA claimed:

However, it is currently unclear whether the groundwater contamination is coming from RCRA-regulated units or other of the more than 200 solid waste management units (SWMUs), also referred to as Areas of Concern (AGCs) in documents submitted by DuPont. …

Final cleanup requirements will be incorporated into the EPA corrective action permit, subject to public review and comment. If necessary, post-closure conditions applicable to the RCRA-regulated units could be imposed via a separate enforceable instrument (e.g., a postclosure permit or an order).

I found those admissions by EPA quite troubling.

Congress directed EPA to implement RCRA corrective action requirements at RCRA facilities way back in in 1984 (26 years ago), in the “Hazardous and Solid Waste Amendments” (HSWA).

I supervised the development of NJ DEP’s RCRA HSWA corrective action program as my first assignment at DEP back in 1985.

Dupont Pompton Lakes was a high priority RCRA/HSWA corrective action land disposal facility back in 1985.

NJ DEP still does not have full delegation from EPA to implememt the 1984 RCRA/HSWA amendments.

What have EPA and DEP been doing for 25 years?

How is it possible that a groundwater plume was allowed to migrate under 450 homes without warnings to the residents and installation of vapor mitigation systems in those homes?

News Releases

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For Immediate Release: November 12, 2010
Contact: Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

AFTER 20 YEARS NEW JERSEY TOXIC SITE REMAINS REGULATORY SWAMP  – EPA Assurance Adds to Confusion about Fate of DuPont Pompton Lakes Clean-Up

Trenton – The U.S. Environmental Protection Agency has issued a new promise that it will require complete and proper closure and post-closure care one of New Jersey’s most notorious toxic sites, according to a letter posted today by Public Employees for Environmental Responsibility (PEER), but EPA’s assurance raises more questions than it answers. At the same time, the New Jersey Department of Environmental Protection (DEP) will hold a public hearing in Pompton Lakes on Monday evening, November 15th, on its proposed “oversight streamlining” at has residents up in arms for fear that contaminated groundwater and vapor intrusion from the DuPont plant will not be effectively addressed.

For more than 90 years, the E.I. DuPont De Nemours & Company manufactured blasting caps, copper and aluminum shells and other metal products on the 600-acre site which straddles two parallel valleys of the Wanaque River and Acid Brook which run through the site. Back in 1992, EPA first issued a “corrective action permit” to clean up the DuPont plant which ceased operation in 1994. The subsequent nearly two decades of federal and state remedial involvement, however, have yet to produce a definitive remedy.

Residents and environmental groups have objected to a DEP proposed “permit by rule” at would give permanent approval for the current pollution discharge to groundwater permit associated with the groundwater cleanup. The DEP “permit by rule” would eliminate the ability of the public to seek revisions or revocations in light of new information, or even to comment on the renewal of the current permit. In a September 3, 2010 e-mail to EPA Regional Administrator Judith Enck, New Jersey PEER Director Bill Wolfe laid out concerns that DEP handling of the site violated federal law, including requirements that public hearings for residents be held.

In an October 14th reply to PEER, Regional Administrator Enck wrote “you have my commitment that DuPont will fulfill its [legal] obligations for this facility [including] a comprehensive compliance schedule for all of the on and off-site areas requiring remediation”.. Enck also indicated that based upon consultation with DEP, the residents “will be afforded opportunity for comment”. Shortly thereafter, DEP noticed a public hearing for this Monday.

“We appreciate EPA’s assurances but after all these years EPA has yet to issue a final corrective action permit or take enforcement action at DuPont”, stated Wolfe, a former DEP analyst. “We believe that the DEP is clearly violating federal law at Pompton Lakes but EPA is sidestepping that question.”

Most curiously, Ms. Enck’s letter concedes that after all these years the source of the contamination has not been isolated. In addition, EPA did not disclose that its current Superfund risk scoring methodology does not consider vapor intrusion exposure, an issue central to the community’s demand to list the site under Superfund. Approximately 450 Pompton Lakes homes suffer harmful vapor intrusion.

“At Pompton Lakes, state and federal agencies are engaged in a marathon arm wrestling contest, allowing the polluter to exploit the conflict and leaving the residents on the sidelines without a program,” Wolfe added. “At this rate, the Pompton Lakes clean-up will drag on for another 20 years.”

###

Read the EPA letter 

See the PEER e-mail which prompted it

View the 11/15 Pompton Lakes public hearing notice

Look at the vapor intrusion regulatory vacuum

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

Views Along the AT at Delaware Watergap

Mt. Tammany (NJ) viewed from Mt. Minsi (Pa.)

AT

 

At the end of the trail, after a spectacular day in the woods, I met this gentleman (80 years young). He was working on “dark matter”, as part of his book on the history of the universe. I asked him about his work, and sat and listened as he laid out his cosmology and religous views. While he saw “intelligent design” throughout the universe and here on earth, contrary to the ignorant anti-evolutionary “intelligent design” religous political advocacy wingnuts, he was remarkably scientifically literate. He said he was completely convinced on the truth of the Bible when he first read it as a child. He had been been a Baptist preacher, then a theology professor, and after reading everything in his theological field (he mentioned his 3,000 book library he had since boxed up), left religion to seek larger truths, including scientific ones. He spoke intelligently about the various theories of a host of philosophers and scientists, from Democritus’ “particle” universe, to Descartes’ cartesion model, to Newtonian physics, and the space time quantum model of Einstein. He weaved this science into his own model, which was comprised of various spiritual and energy levels. He viewed the recently discovered “dark matter” as providing space to fit in angels - the angels being the source of the “dark matter” in the vacuum of “ghost”. It was a fun and facinating conversation about religion, spirituality, and science. The perfect end of a great day in the woods!’

The Power of individual conscience, acting with courage and moral integrity 

Thanks to a NJ whistleblower, the US Justice Department was able to prosecute and settle an Iraq War contractor fraud case for $69.3 million — the largest recovery in a case involving war-zone contractors in Afghanistan and Iraq. The criminal war profiteer, The Louis Berger Group, was a NJ based engineering consulting company.

Curious, given Louis Berger’s NJ location and the bilking of billions of taxpayer dollars by corporate military contractors, I must have missed Governor Christie’s press conference denouncing corporate greed and war profiteering. Guess he was too busy attacking “greedy” teachers and “greedy” unions and “greedy” school district superintendents.

That case, in addition to the recent whistleblowing disclosures by Wikileaks on the Iraq video and Afghanistan warlogs (echoing Daniel Ellsberg’s heroic disclosure of the Vietnam “Pentagon Papers“), reminds us of the power of the conscience of the individual, acting with courage and moral integrity on his/her convictions.

So, this Veterans Day, we bring you excerpts of the words of other historic military figures who spoke out in conscience about the lies and fraud of war.

We go first to WWI USMC General Smedley Butler, and then to former USMC Captain Mathew Hoh, who resigned in protest over Afghanistan war :

WAR is a racket. It always has been.

It is possibly the oldest, easily the most profitable, surely the most vicious. It is the only one international in scope. It is the only one in which the profits are reckoned in dollars and the losses in lives.

A racket is best described, I believe, as something that is not what it seems to the majority of the people. Only a small “inside” group knows what it is about. It is conducted for the benefit of the very few, at the expense of the very many. Out of war a few people make huge fortunes.

In the World War [I] a mere handful garnered the profits of the conflict. At least 21,000 new millionaires and billionaires were made in the United States during the World War. That many admitted their huge blood gains in their income tax returns. How many other war millionaires falsified their tax returns no one knows. […]

Take our friends the du Ponts, the powder people – didn’t one of them testify before a Senate committee recently that their powder won the war? Or saved the world for democracy? Or something? How did they do in the war? They were a patriotic corporation. Well, the average earnings of the du Ponts for the period 1910 to 1914 were $6,000,000 a year. It wasn’t much, but the du Ponts managed to get along on it. Now let’s look at their average yearly profit during the war years, 1914 to 1918. Fifty-eight million dollars a year profit we find! Nearly ten times that of normal times, and the profits of normal times were pretty good. An increase in profits of more than 950 per cent. […]

And let us not forget the bankers who financed the great war. If anyone had the cream of the profits it was the bankers. Being partnerships rather than incorporated organizations, they do not have to report to stockholders. And their profits were as secret as they were immense. How the bankers made their millions and their billions I do not know, because those little secrets never become public – even before a Senate investigatory body.

[Full text is here]

For anyone who might think Mr. Smedley Butler was some hippie pacifist, here’s his Wiki bio:

Smedley Darlington Butler (July 30, 1881 – June 21, 1940), nicknamed “The Fighting Quaker” and “Old Gimlet Eye”, was a Major General in the U.S. Marine Corps, and at the time of his death the most decorated Marine in U.S. history. During his 34-year career as a Marine, he participated in military actions in the Philippines, China, in Central America during the Banana Wars, the Caribbean and during World War I, he served in France. By the end of his career he had received 16 medals, five of which were for heroism. He is one of 19 people to twice receive the Medal of Honor, one of three to be awarded both the Marine Corps Brevet Medal and the Medal of Honor, and the only person to be awarded the Brevet Medal and two Medals of Honor, all for separate actions.

Next, we go to the words of USMC Captain Hoh. Hoh didn’t leak documents or blow the whistle, he honorably resigned in disgust. Here is his resignation letter:

… Our support for this kind of [Afghanistan] government, coupled with a misunderstanding of the insurgency’s true nature, reminds me horribly of our involvement with South Vietnam; an unpopular and corrupt government we backed at the expense of our Nation’s own internal peace, against an insurgency whose nationalism we arrogantly and ignorantly mistook as a rival to our own Cold War ideology.[…]

I realize the emotion and tone of my letter and ask that you excuse any ill temper.  I trust you understand the nature of this war and the sacrifices made by so many thousands of families … Thousands of our men and women have returned home with physical and mental wounds, some that will never heal or will worsen with time. The dead return only in bodily form to be received by families who must be reassured their dead have sacrificed for a future worthy of futures lost, love vanished, and promised dreams unkept. I have lost confidence that such assurances can anymore be made. As such, I submit my resignation.

[please read complete letter here]

[Update: and to see how tame I am, read this]

No Dissent from Planners As Rate of Land Loss Accelerates

“The Garden State has just completed its two most sprawling decades in history.”

"The Return of Rip Van Winkle" (John Quidor, 1849) (updated 2/21/13)

I randomly decide to give awards every now and then.

For example, I gave the “Lapdog and Schlock Journalism Award” and the “Heck of a Job, Brownie“ award. On a more serious note, also “NJ Most Under-reported story Award” (no link available).

After reading today’s Asbury Park Press story “Planners question credentials of Middletown committeeman coordinating N.J. policy“, as a Hudson Valley Boy and Tarrytown Native – the home of Washington Irving – I decided to create and present “The Rip Van Winkle Award”.

Here’s the Wiki on our good friend Rip:

“Rip Van Winkle” is a short story by Washington Irving published in June 1819. Set in the Catskill Mountains of New York before and after the American Revolution, the title character is a young married Dutch American of a kind and generous disposition. Averse to profitable labor, he prefers rambles in the mountains, playing with the village children, and sitting in the shade gossiping with his cronies. One day he wanders into the mountains and happens upon the ghosts of Henry Hudson and his crew playing nine pins in a mysterious hollow. He drinks their brew and falls asleep. Twenty years later, he wakes as an aged man and wanders back to his village, where he is astonished by the changes that have taken place.

Today’s Asbury Park Press story is about the disappointment of the NJ professional planning community with the lack of progress by the Christie administration, after planners were “excited“:

Many officials in the New Jersey planning field were excited when Lt. Gov. Kim Guadagno announced in July that the state Department of State was to take over the Office of Smart Growth from the Department of Community Affairs and refresh its mandate, said Peter Kasabach, executive director of New Jersey Future, a smart-planning advocacy group.

But planners are also upset by the alleged lack of qualifications of the Christie head of the Office of State Planning. But, I’ll leave that issue alone because the APP story pretty well exposed the ludicrous nature of that claim:

Just like former Gov. Jim McGreevey and Gov. Jon S. Corzine before him, Gov. Chris Christie hired a politician who lacks state accreditation as a licensed planner to direct what is now the Office of Planning Advocacy, said Charles Latini, president of the New Jersey chapter of the American Planners Association.

I mean, doing my best Claude Rains, I’m shocked, just shocked, that there’s politics in NJ planning circles!

And so is Rip Van Winkle Award winner Carlos Rodrigues:

Carlos Rodrigues, who worked in the Office of Smart Growth from 1994 to 2004, said when the state needed a director for the agency in the past, it conducted national searches, seeking experienced professionals with planning backgrounds.

“It was taken seriously,” said Rodrigues, a senior fellow with the Regional Planning Association. “Now we have a mayor as the head of the office? That’s a really, really bad idea. It’s ridiculous.” …

Rodrigues said the Christie administration needs to decide whether it is taking the Office of Planning Advocacy, and its cost to taxpayers, seriously.

“If you’re not going to fix it, then get rid of it,” Rodrigues said. “It’s an embarrassment the way it is, a complete sham.”

But, the larger issues are substantive and performance in nature – stuff you hear nary a word about from the planners.

Bottom line: the entire State Plan enterprise amounts to exactly what my colleague Bill Neil, former head of conservation at NJ Audubon, described. Neil called the NJ State Plan “the biggest fraud ever perpetrated on the people of NJ”.

And NJ’s planning community has led the parade in perpetrating this fraud.

The data tell the ugly story. So lets examine, very briefly, how the state plan has performed in terms of achieving it’s goals and objectives.

The NJ State Planning Act was passsed in 1985. Here’s just some of what the Legislature found and set as planning goals, which have come to be described by various slogans, such as “sustainable growth”, “smart growth”, and prevention of “sprawl”:

The Legislature finds and declares that:

a. New Jersey, the nation’s most densely populated State, requires sound and integrated Statewide planning and the coordination of Statewide planning with local and regional planning in order to conserve its natural resources, revitalize its urban centers, protect the quality of its environment, and provide needed housing and adequate public services at a reasonable cost while promoting beneficial economic growth, development and renewal; […]

g. An increasing concentration of the poor and minorities in older urban areas jeopardizes the future well-being of this State, and a sound and comprehensive planning process will facilitate the provision of equal social and economic opportunity so that all of New Jersey’s citizens can benefit from growth, devel-opment and redevelopment;

Have those goals been met? Are we making progresss or going backwards?

• NJ remains extremely segregated – by race and income
• poor & minority communities bear disproportionate pollution burdens & health risks
• NJ has perhaps the highest property taxes in the country
• There are huge deficits in affordable housing
• NJ is the nation’s most densely populated and spawled out state, and
• NJ has the highest percentage of polluted waters.

Seven years ago, I was astonished by this data that show that since the 1985 State Planning Act – and all that planning – virtually every metric of land use in NJ has gotten WORSE.

In fact, the land development pattern and intensity AFTER the 1985 Act was WORSE than BEFORE the legislation was passsed!

The sprawl indicators examined indicate that throughout the sixteen year study period, the proportion of development that can be characterized as sprawl increased substantially while the proportion of development that is characteristically Smart Growth decreased in terms of Greenfield acres developed. 

The findings indicate that two thirds of the acres developed during the past two decades occurred outside of the OSG’s Smart Growth areas. At the same time development trends became less dense, more fragmented, leapfrogged further and utilized land less efficiently than development patterns pre 1986. These patterns are classic indications of sprawl. As of 2002, New Jersey is falling substantially short of its goal to channel new development that occurs on green fields (e.g., previously undeveloped land) into Smart Growth. (@ page 21 – 22) 

Source:  Tracking New Jersey’s Dynamic Landscape: Urban Growth and Open Space Loss 1986 – 1995 – 2002

But don’t go away yet – since 2002, the problems have gotten even worse.

More recent data are provided in this joint Rutgers/Rowan University Report: “Changing Landscapes in the Garden State: Urban Growth and Open Space Loss in NJ 1986 – thru 2007

What the data show is that is that urban development in the nation’s most densely populated state has continued unabated and in fact gained momentum up through 2007. The data reveals a 7% increase in development rate to 16,061 acres of urbanization per year by 2007, up from the previous rate of 15,123 acres per year during the 1995 through 2002 time period. During the 21 year period since the datasets were first compiled, New Jersey urbanized a massive 323,256 acres (507 sq. mi.) of land adding 26.8% to the state’s pre 1986 urban footprint. (@ page 4-5) …

On a per-capita basis, the land occupied by NJ’s population in 1986 was 0.16 acres (6,941 sq ft) per person. In the 2002-2007 time period, the per capita consumption of land for each new person added to the population was 4.8 times the 1986 rate at 0.76 acres (33,311 sq ft) per person. …

By this measure, considering the density of urban development pre 1986, the Garden State has just completed its two most sprawling decades in history. (@ page 5)

Let me repeat that: development consumed almost 5 TIMES more land per capita AFTER the State Planning Act than BEFORE.

Where have you been, Mr. Van Winkle?