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Going In Circles on Barnegat Bay – DEP Says No “Impairment”

DEP: Bay Water Quality “did not cross any barriers of impairment”

Here we go again:

“We have the data already. We’ve had it for years”, said Michael Kennish, a research professor who heads Rutgers University efforts to study Barnegat Bay’s pollution problems. “We know what the problems are. We need to have big stuff done, mandates and requirements imposed by DEP.”  ~~~ Asbury Park Press. 8/6/2010, story by Kirk Moore.

It’s deja-vu all over again:

A similar [TMDL] plan is needed for Barnegat Bay, said Bill Wolfe of Public Employees for Environmental Responsibility, a former DEP official. In addition to the Chesapeake model, New Jersey can look to Florida, where EPA administrator Lisa Jackson is seeking to enforce phosphorus limits on Florida to clean up the Everglades, Wolfe wrote on his blog wolfenotes.com.

“I’m not afraid to listen to Bill Wolfe when he has a good idea,” [Senator] Smith said. Wolfe says he would like the Legislature to take a stronger stance with a bill to require action by the DEP. ~~~  Kirk Moore of thAsbury Park Press story on 9/27/10

Going in circles, today the Senate Environment Committee again heard and released the package of Barnegat Bay clean water and storm water infrastructure bills that Governor Christie vetoed last time, including the TMDL bill. 

As in prior hearings, DEP obfuscated and dissembled regarding the TMDL program.

DEP simply misled the Committee about:1) the current status of water quality monitoring data, 2) the adequacy of current surface water quality standards, 3) whether DEP had assessment methods that accurately evaluated the ecological health of the bay; and 4) how the science, the regulations, and the methods reconcile a huge contradiction: which is that the science demonstrates that the Bay is literally dying and the regulators insist that the Bay is healthy (given current standards and assessment methods).

A TMDL – for “Total Maximum Daily Load” – is the mandatory, science based cleanup program under the Clean Water Act for polluted waterbodies that do not meet current standards, known in regulatory speak as  “impaired waters” .

There was excellent testimony from the head of Maryland’s TMDL program as to why the TMDL is the way to go (listen to it here).

But NJ DEP refused – and was not compelled – to testify about the NJ TMDL program.

The NJ DEP’s own Science Advisory Board (SAB) has said the theTMDL approach is the way to go and “makes the most sense” in their Report last year to DEP Commissioner Martin on the DEP’s nitrogen model. I quote from the SAB Report:

“The most sensitive receptors for for excess nitrate are likely to be estuaries and low nutrient coastal plain streams. Given the nature of estuaries, a load-based regulatory approach (TMDL type approach) would make the most sense. Such an approach, furthermore, would be based on total nitrogen, not nitrate alone. (@ page 8)

The proposed TMDL bill would require that DEP make a determination about whether the Bay is legally “impaired”. An “impairment” determination is based on water quality monitoring data and technical data methods that assess whether the monitoring data shows that the waterbody meets surface water quality standards. An impairment determination is required BEFORE a TMDL can be developed.

Under the Clean Water Act, DEP must follow a sequential process that requires the existence of science (monitoring data), regulatory standards, and assessment methods,  BEFORE a TMDL can be developed.

NJ DEP currently does not have adequate water quality standards and assessment methods for nitrogen, sediment, and eutrophication impacts on Barnegat Bay or estuarine waters.

Here is how DEP describes the process:

The Department then updates the Integrated Water Quality Monitoring and Assessment Methods Document (Methods Document), as needed. This document includes a description of quality assurance and other data requirements, as well as the scientific methods to be used to assess water quality and use support. The Methods Document also explains the rationale for placing waters on the 303(d) List, delisting waters from the 303(d) List, and ranking the priority of 303(d)-Listed waters for TMDL development. A notice of availability for public review of the draft Methods Document is published in the New Jersey Register and a thirty-day comment period is provided. After review and consideration of comments received on the proposed Methods Document, the Department finalizes the Methods Document and publishes it on the Department’s Web site along with the agency responses to public comments received.

After the Methods Document is finalized, the Department compiles all readily available data that meets quality requirements and assesses the data to determine designated use support and compliance with surface water quality standards. The results of these assessments are presented in the Integrated List and the 303(d) List. The Department prepares these Lists as part of the Integrated Report, along with a discussion of the assessment results, water quality trends, other water quality assessments, descriptions of water quality programs and actions taken and planned to restore water quality, including TMDL schedules, as well as monitoring needs and schedules, and makes it available for public review. The draft 303(d) List is submitted to USEPA for approval along with the two-year TMDL schedule and priority ranking.

Pursuant to the federal Clean Water Act, only the draft 303(d) List is subject to public participation requirements. Concurrent with submission to USEPA, the Department posts the draft 303(d) List on its Web site and solicits public comment via Listserv email to interested parties and a public notice published in the New Jersey Register. A thirty-day public comment period is provided. After review and consideration of comments received on the proposed 303(d) List, the final 303(d) List is revised as needed, approved by USEPA, and adopted as a Statewide WQM Plan amendment. A notice of adoption is published in the New Jersey Register along with the Response to Comments and the entire Integrated Report, including the Integrated List of Waters and the final 303(d) List, is posted on the Department’s Web site.

Jill Lipoti, head of DEP’s water quality program testified today that last year’s Bay monitoring data, quote:

“did not cross any barriers of impairment”.

That testimony means that no TMDL is now required and will not likely be required based on this year’s data.

I tried to explain to the Committee why current Surface Water Quality Standards and Water Quality Assessment Methods make it virtually impossible for DEP to make an “impairment” determination, which triggers a TMDL.  

Those interested in going into the scientific and regulatory weeds should listen to the testimony for some of the details – especially the testimony of the head of the Maryland TMDL program testimony and my testimony, which applied that to NJ DEP’s programs.

Here is my followup note to Chairman and sponsor Senator Smith:

Senator – the material below is from DEP’s website. It explains the step by step sequence of data monitoring, water quality standards, assessment, impairment determination, and TMDL. I have excerpted and boldfaced the text that explains why DEP can not make an “impairment” determination for Barnegat Bay – there is plenty of science and monitoring data that proves the Bay is “WQ impaired”. But DEP can not make this regulatory determination because DEP lacks both SWQS and a WQ Assessment methods document. If DEP were serious, they would have revised the assessment methods document and the SWQS, I’ve testified to this this numerous times. Here it is again:

“The Integrated Water Quality Monitoring and Assessment Methods (Methods Document): Details the assessment methods used to by the Department to generate the Integrated Report.”

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