Archive for August, 2012

DEP Must Stop Spinning On Barnegat Bay TMDL and Impairment

August 20th, 2012 No comments

 Water Quality Standards A State Responsibility Under the Clean Water Act

Jill Lipoti, head of DEP’s water quality program testified today [June 18, 2012] that last year’s Bay monitoring data, quote:

“did not cross any barriers of impairment”.

[Update – here is a very nice DEP chart and powerpoint that proves my point: “state monitoring aligned with state standards”

Source: NJDEP - see above link

Last week, I wrote about DEP’s “Decade of Delay” on pulling the TMDL trigger on Barnegat Bay and our letter demanding US EPA intervention to enforce the Clean Water Act.

Since then, we are pleased that both the Star Ledger (Christie Administration has yet to do enough to stem Barnegat Bay pollution) and the Asbury Park Press (EPA must force the DEP’s hand)  have editorialized in support of that position.

Unforunately, the Asbury Park Press (in both news coverage and editorial) has repeated an error that is based on DEP Press Office mis-statements.

This error is not minor, but goes to the core issue of who is responsible for the flawed water quality standards, monitoring, and assessment methods that have allowed a decade of delay on designating the Bay impaired and adopting  a TMDL cleanup plan.

Specifically, DEP is pointing the finger at EPA, by saying that federal water quality standards are the problem.

Most recently, that DEP lie again is repeated in the APP editorial of August 17 (see: EPA must force the DEP’s hand):

Under Clean Water Act regulations, dissolved oxygen levels above 5 parts per million mean the bay is not impaired. Even the DEP knows that this is not a good measure of the health of the bay. But a DEP spokesman said, essentially, that EPA rules are EPA rules. The state is following the rules. Therefore, the bay is not impaired.

So let me be absolutely clear here – this is all NJ DEP’s responsibility, not the US EPA’s:

1) Under the Clean Water Act, the State DEP has primary responsibility for establishing Surface Water Quality Standards and priorities for the TMDL program.

State standards must assure that all state waters meet the “fishable and swimmable” goals of the Clean Water Act, protect all “existing and designated uses” of those waters, and include “anti degradation” policies to prevent the lowering of water quality in high quality waters.

Those State standards are reviewed and approved by US EPA and become federally enforceable.

The Clean Water Act also requires – every two years – that States (NJ DEP) submit a list of their priorities for TMDL implementation – e.g. which polluted or “impaired” waters are the most important to clean up.

2)  The NJ DEP Surface Water Quality Standards establish the “designated uses” of the Bay

3) The NJ DEP sets the dissolved oxygen, nutrients, and all other standards to assure that they protect the existing and designated uses.

4) The NJ DEP establishes the water quality monitoring network and sampling methods to measure compliance with Surface Water Quality Standards.

5) The NJ DEP establishes the water quality assessment methods to apply monitoring data to determine if a waterbody attains the water quality standards or is “impaired”.

The DEP states all that very clearly on the surface water quality standards page on their website – perhaps the DEP Press Office should read this:

Surface Water Quality Criteria

The surface water quality criteria established for each of the different stream classifications in the SWQS are numerical estimates of constituent concentrations, including toxic pollutants, that are protective of the designated uses of the surface waters of the State. Narrative criteria describe instream conditions to be attained/maintained or avoided. The SWQS also contain technical and general policies, including antidegradation policies and nutrient policies, to ensure that the designated uses are adequately protected.

The Department has recently developed a Nutrient Criteria Enhancement Plan, required under USEPA’s National Nutrient Policy. This document explains the Department’s approach to developing and enhancing the existing SWQS nutrient criteria and policies to protect designated uses of all New Jersey’s surface waters, including saline waters (estuarine and marine). Nutrient criteria development requires an understanding of the causal relationships between nutrient over-enrichment, various response variables, and documented impacts on attainment of designated and existing uses of New Jersey waters. This Plan outlines the steps to support nutrient criteria development, including monitoring and data collection; research of causal relationships; selection of appropriate indicators of use impairment;development of new assessment methodologies;development of new/enhanced criteria; and promulgation of the new criteria through amendments to the SWQS.

Repeat: the “Nutient Criteria Enhancement Plan” was written and adopted by NJ DEP. All flaws in standards, monitoring, and water quality assessment under that plan are the responsibility of the NJ DEP.

The 5 year old  US EPA “Nutrient Policy” makes it very clear that this is a State – not a federal – responsibility:

Today, EPA is encouraging all states, territories, and authorized tribes to accelerate their efforts and give priority to adopting numeric water quality standards for nitrogen and phosphorus pollution or numeric translators for narrative standards for all waters in states and territories that contribute nitrogen and phosphorus loadings to our waterways. Incremental progress can be an effective way to accelerate progress. If a state needs to implement numeric criteria for nitrogen and phosphorus pollution incrementally, EPA strongly recommends that states first adopt numeric water quality standards for priority waters—that is, waters at greatest risk of nitrogen and phosphorus pollution (such as those identified through the EPA-USGS SPARROW modeling effort) or of greatest consequence (such as drinking water sources). States may also choose to prioritize their actions for waters where sufficient information is available to move quickly to adopt numeric criteria in the near-term. The state’s nutrient criteria plan should reflect the state’s approach to setting standards for its waters and include schedules for adopting those standards.

Here are the NJ DEP State Surface Water Quality Standards:

DEP SWQS Dissolved Oxygen and Nutrient criteria “Narrative Standard” (NJAC 7:9B-1.14 (d) – @ p.27 – 28)

Except as due to natural conditions, nutrients shall not be allowed in concentrations that render the waters unsuitable for the existing or designated uses due to objectionable algal densities, nuisance aquatic vegetation, diurnal fluctuations in dissolved oxygen or pH indicative of excessive photosynthetic activity, detrimental changes to the composition of aquatic ecosystems, or other indicators of use impairment caused by nutrients. 

As we have repeatedly written, there are a sequence of steps required before DEP can implement and enforce this “narrative standard” for nutrients.

  • The DEP must apply existing monitoring data, in light of known causal mechanisms (called biological stressor-response indicators) and develop what are called “numeric thresholds” for determining exactly what “objectionable algal densities” “nuisance aquatic vegetation“;”excessive photosynthetic activity“; and “detrimental changes to the composition of aquatic ecosystems” are.
  • This is not difficult and it doses not require more data – DEP did this in a few months for phosphorus eutrophication in NJ freshwater in 2003.
  • DEP must then adopt those numeric thresholds as revisions to the current EPA approved “Water Quality Monitoring and Assessment” document. In the alternate, DEP could promulgate these impairment thresholds as “Technical Manuals” or as regulations.
  • DEP must then apply those thresholds in light of current data to make “impairment determination” and submit that determination and the basis for it to EPA for review and approval.
  • In addition to the “impairment” determination, DEP must modify its EPA approved “2 Year TMDL Priority Schedule” to include Barnegat Bay

This sequence of steps begins the TMDL process.

It is all under NJ DEP control.

Don’t be fooled by the finger pointing by DEP’s press office.

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Prominent Scientist Calls DEP Bull’s Island Clearcut “A Travesty”

August 19th, 2012 1 comment

DEP Failed To Consult with Ecologists and Follow DEP’s Own Review Process

Clearcut plan an affront to 40 years of NJ’s leadership in landscape ecology

Emile Devito, PhD (top) NJCF explains forest ecology at Bull's Island Natural Area.

The DEP press Office just can’t seem to stop lying and attacking critics of their harebrained scheme to clear-cut magnificent mature riverfront forest at Bull’s Island State Park (for details and documents, see:

The latest DEP PR offensive grows out of press coverage of last Wednesday’s (August 15)  regular meeting of the Delaware and Raritan Canal Commission (DRCC). Because it is so egregious, we will have to spend some time here today providing documentation. So bear with me on this lengthy post, please, before you hit the delete button.

Let me first give a quick rundown of what went down at that 8/15 DRCC meeting and talk briefly about a wonderful interpretive walk in the southern Natural Area of Bull’s Island conducted by Emile Devito, PhD of NJCF immediately after the meeting (see above photo).

Then I will expose the most recent round of DEP lies and completely over the top spin in today’s story in the Lehigh Valley Express: Delaware and Raritan Canal Commission asked to deny Bull’s Island plan

I)  DRCC Meeting

The NJCF issued an alert to warn their members that the DEP would present the clearcut plan at the August 15 DRCC meeting. But for some reason, perhaps to avoid public criticism, after that alert was issued, the DEP apparently chose not to do so, see: Bull’s Island forest removal application postponed

So only a handful of concerned citizens and the leaders of environmental groups opposing the clearcut attended the August 15 hearing.

Because DEP’s Bull’s Island clearcut proposal was not on the Agenda, the issue had to wait until the various monthly reports were provided at the end of the hearing. But, in an unfortunate pattern, again, the DRCC Executive Director, the DEP D&R Canal State Park Superintendent, and the representative of the NJ Waters Supply Authority all were mum and had nothing to report on Bull’s Island.

The public comment period provided the only opportunity to make inquiries and talk about what is going on at Bull’s Island. As I’ve noted previously, this is because DEP lacks a public planning process for managing State Parks and State Lands – given this deficit, the Legislature should enact a law to mandate a public process before a project of this magnitude could occur in a State park or other public lands.

Several in attendance rose to speak about DEP’s proposed clearcut plan.

Jeff Tittel of Sierra Club reminded the Commissioners that Governor Christie tried to abolish the Commission, a move that drew strong public opposition and was blocked – on a bi-partisan basis – by the Legislature.

Tittel noted the outstanding natural resource and parks values and strong public interest in what was going on. He urged the Commission to ignore DEP’s rejection of their prior request to present a plan and instead hold a public hearing to solicit input from all interested parties.

I then was recognized to speak. I first took exception to the minutes of the May 22 meeting  – I was on the Tour De Frack and unable to attend that meeting, yet my concerns were criticized in my absence by Commissioner Loos.

I had noted and criticized the Executive Director’s failure to report about various very important correspondence to the Commission, including: 1) a municipal Resolution by Alexandria opposing the DEP clearcut plan; 2) a Cease and Desist Order issued by the US Army Corps of Engineers to NJWSA and DEP Parks; 3) an Enforcement action by the Hunterdon County Soil Conservation District; and 4) the conduct of numerous site inspections and important meetings on Bull’s Island with federal, state and local regulatory agencies.

The public must be informed of this kind of information, particularly given the huge controversy and DEP’s failure to present any information on their controversial clearcut plans.

I suggested that to fix this transparency problem, that a correspondence and meeting log  be included in all monthly reports by the Executive Director.

I then advised the Commission of other important matters that I recently learned about in reading a trove of documents provided to me by the US Army Corps of Engineers (USACE) in response to my FOIA request.

None of these important issues war disclosed to the public or the Commissioners in the relevant monthly reports, including:

1) NJWSA is having significant permit and compliance problems with the USACE regarding their canal dredging and maintenance practices. This is beyond the scope of this note but needs to be looked into.

The USACE concerns are directly related and critical to the DRCC review not only for clean water issues, but because the Island’s trees protect from flooding and erosion and provide structural stability for the D&R Canal.

The Canal provides 100 million gallons per day of water suppy to 600,000 residents of central NJ – if the Island is clearcut, the mouth of the canal could be washed away or the necessary passing flow could be blocked by sediment.

That’s why the DRCC regulations require the protection of the structural integrity of the Canal and that the Commission act to preserve its function as a water supply source.

2) the USACE issued a Cease and Desist Order on May 23, 2012 to the NJWSA and the DEP Parks for: a) violations of the Clean Water Act for illegal destruction and fill along a 400 foot long stretch of the Wild and Scenic Delaware River and b) permit violations for D&R canal dredging, including an expired permit; violations of seasonal restrictions on dredge operations designed to protect rare and threatened/endangered species; and illegal disposal of dredge along the riverfront fill.

3) The USACE flagged fisheries management issues that have not yet been mentioned;

4) The USACE noted that both DEP and NJWSA officials made false statements regarding the illegal disposal of dredge material along the river.  I emphasized that is was totally unacceptable for public agencies to lie to another public agency.

I warned the Commission that failure to report publicly on these issues not only keeps the Commission and the public in the dark but – to me – this pattern of conduct severely undermines the credibility of DEP.

Commissioner John Loos interjected that he was told that DEP will be posting a public survey on their website, asking the public what they would like to see done with Bull’s Island.

I then suggested that perhaps this could be the face saving move the DEP Commissioner needs – when public opinion come in 95% opposing his clearcut plan he can abandon it and say he listened to the public!

Last up to speak was Emile Devito, PhD, Director of Science and Stewardship at NJCF.

Emile was reserved but scathingly critical of the DEP clearcut plan, calling it a “travesty” that lacked any basis in science.

Emile stated that the DEP clearcut plan was not reviewed by internal DEP or external scientific experts and did not consult with formal DEP advisory bodies as required by a longstanding DEP policy.

Under longstanding DEP policy, DEP consults with the Endangered Nongame Species Advisory Council and the NJ Natural lands Trust  regarding the management of state lands and state parks. Devito said this review process is triggered by even minor actions, like building a kiosk on preserved lands.

As a professional, Devito has participated in these review processes for several years.

Devito warned that the DEP’s cleat plan was a “travesty”, has strong opposition in the conservation science community  and is becoming one of the most controversial DEP State lands proposals ever. Here’s how Emile’s concerns were reported:

Emile DeVito, of the New Jersey Conservation Foundation, said the DEP is not following its process.

“This is supposed to be an internal and thorough process,” he said. “That process has not been followed.”

DeVito claims the island is the only place in the eastern part of the country where two rare bird species make their home. He’s also concerned about erosion and invasive plant species that could occur before new plantings take hold.

No restoration could possibly happen there,” DeVito said. “I urge you all to educate yourselves on the ecology of Bulls Island.”

By way of background, here is his letter to DEP opposing the clearcut.

Emile also is a member of DEP’s Endangered and Nongame Species Advisory Committee :

The Endangered and Nongame Species Advisory Committee was established in 1974 under the New Jersey Endangered and Nongame Species Conservation Act (N.J.S.A. 23:2A-7e). The committee is appointed by the Commissioner of the Department of Environmental Protection and serves as an advisory body to that office in matters of New Jersey endangered and nongame wildlife resource. The original group consisted of five citizens with professional interest in nongame wildlife.

The Endangered and Nongame Species Program staff present Program research agenda, policies, and controversial topics to the Committee for advice on appropriate handling. The Committee formally recommends status listing changes to the State nongame wildlife list biennially. In addition, Committee members often open and pursue issues of importance and recommend action to the Program and Division. The viewpoint of the committee members based on their personal experience and interest is of great value to the Program, Division and Department. The Committee’s formal recommendations become an integral part of the State’s development of policy and making of decisions, however, the role is advisory only. There is no legal obligation for the Department to adopt the Committee’s recommendations. An excellent working relationship between the Program, Division, Department and the Endangered and Nongame Species Advisory Committee has developed over the years, and policies often reflect the ideas generated at committee meetings. 

Emile also is on the Board of Trustees of the NJ Natural Lands Trust:

The New Jersey Natural Lands Trust was created in 1968 by the Legislature as an independent agency in but not of the Division of Parks & Forestry in the New Jersey Department of Environmental Protection (DEP). Its mission: to preserve land in its natural state for enjoyment by the public and to protect natural diversity through the acquisition of open space…

The Trust manages its properties to conserve rare plant and animal species habitat and rare ecological communities. The Trust invites passive use by the public for recreational or educational purposes wherever such use will not adversely affect biological diversity. Currently, the Trust is responsible for over 26,000 acres of open space, including over 2,500 acres of conservation easements.

Remember all this when we get to the quotes and spin by the DEP Press Office that this is all only about only a “few critics” who are “looking for confrontation”. 

[Note: Dave Moore, one of NJ’s most well known conservationists –  hardly a bomb thrower, having rubbed elbows at a recent black tie event with Governor Christie and other luminaries – wrote a scathingly critical letter opposing the DEP plan.

Dave agreed with me on the risks of erosion to the mouth of the D&R Canal. Dave also recommended preservation as a Natural Area:

” … there is an opportunity for the forest understory to naturally regenerate if left alone, it is appropriate to include the northern portion of the island in the natural area designation. Removal of the existing specimen forest would set back a return to natural conditions for a century or more. There is nothing to gain by the proposed logging proposal, and a lot to lose.” –

How can DEP press Office spin that? end note]

II)  Interpretive Walk at Bull’s Island Natural Area

After the DRCC meeting, Devito conducted an interpretive tour of the Natural Area in the southern portion of Bull’s Island.

He turned the Island into an outdoor classroom, and showed the group a sycamore and silver maple dominated forest approaching old growth characteristics (carefully distinguishing old growth characteristics from ancient forest). He noted how that mature forest and closed canopy provides shade that limits invasive species and provides rare bird habitat.

Emile spoke passionately about forest and plant ecology, the role of regular river flooding, and why there are deciduous trees in this climate. He explained the evolutionary adaptation of sycamore’s in riverfront environments. He illustrated this process by explaining how sycamores and vines survive regular flooding and how they relate to each other.

Devito showed the group examples of the how the Bull’s Island forest was a wonderful example to show the migration of species of trees from the Mississippi river valley – and especially noted the presence of a scientifically rare sub-species – the yellow throated or sycamore warbler.

Devito decried the DEP clearcut plan as an ignorant affront to 40 years of NJ’s leadership in landscape ecology.

III)  DEP Press Office Can’t Stop Lying and Attacking Critics 

I’ve previously written at length to explain DEP lies (see: DEP Statements on Bull’s Island Are Flat Out False)

But since then, I had fun discovering vindication in my USACE FOIA document trove: 1) a Cease and Desist Order, 2) several revealing memo’s and field reports, and 3) a USACE press release that basically thanks me and NJ PEER for bringing the matter to their attention.

For blowing the whistle with the USACE, the DEP press office called me “completely ridiculous and irresponsible“. The USACE May 14, 2012 press release stated:

The US Army Corps of Engineers announced today the successful restoration of a section of riverbank at the Bull’s Island recreation are in Huntedon County, New Jersey

The Army Corps’ Philadelphia District directed the restoration in response to a complaint filed in late March by Bill Wolfe, director of the Public Employees for Environmental Responsibility. (sic) Wolfe complained that the Delaware and Raritan Canal was being dredged and sediment and debris was being bulldozed into the Delaware River.

So take that Larry Rangonese! You’re the one who is “completely ridiculous and irresponsible”.

But instead of backing off and flying right in light of the facts, DEP is doubling down on the secrecy, lies, and misinformation.

Here’ some of the most recent examples from the Lehigh Valley Express story:

1) Lie #1 – DEP denies clearcut

“We’re not clear-cutting sycamore trees,” Ragonese said a day after opponents urged commissioners to deny the plan.

Larry is technically correct – DEP is NOT clear cutting just sycamore trees – they are clear cutting ALL trees and going even beyond that: DEP is “removing all vegetative material”.

Here’s the clearcut plan, in DEP’s own words: (I have many other DEP documents and emails that refer to the plan as a “clearcut”)

(please read the entire DEP memo and see how it says DEP is “proceeding” and never once mentions any prior ecological scientific review or legally required DRCC review or DEP permits. In contrast, however, note how economics and the logistics of forest logging ARE considered. Last, look how DEP arrogantly states that simply notifying the public AFTER the fact on its website is all they need to do – no public involvement at all! ):


Based on the consultant report and technical review by DEP forestry experts, we are proceeding with removing all vegetative material in the upper section of Bull’s Island.

Once the area is cleared, the Department will proceed with replanting the area with appropriate floodplain vegetation that matures at smaller heights and does not pose a public safety risk; […]

Field foresters from the northern region have made a preliminary vist to the site to assess the value of the wood and the site conditions. They are actively identifying all merchantable trees in the upper river capsize area and creating an inventory list in preparation of the bid.

2) Lie #2 – DEP Denies Attempts to Defend a Bad Decision and Save Face

“Why would we want to take down 150-year-old trees that we love? There is no gain in it for us,” Ragonese said, adding there are other sycamores nearby.

First of all, DEP does not “love” sycamore’s, or they would not be proposing to clearcut them

Second, aside from small logging revenues and furtherance of a plan to increase concessions at State Parks, at this pint the primary “gain” for DEP is avoiding further harm to reputation and credibility.

In a classic bureaucratic move, they simply are in a hole and continue to dig deeper.

The press Office continues to defend a DEP Commissioner made a very bad knee jerk reaction by DEP Commssioner Martin (and I have emaisl that show Martin’s clearcut decision was made at least a week BEFORE thee DEP consultant’s report was submitted on July 15, 2011.)

3. Lie #3 – DEP refuses to unequivocally commit to DRCC review

Ragonese wouldn’t say specifically when a plan would come before the commission, but he did say that the DEP hopes to begin replanting in the spring.

DRCC Executive Director Dooley has stated that DEP has assured her that DEP will seek DRCC approval before trees are cut.

But note how Rangonese refuses to unequivocally commit to that review, merely saying DEP hopes to begin replanting in the spring (meaning trees will be cut down before then).

4. Lie #4 – DEP falsely claims a reforestation plan is “in place”

“We actually have a reforestation plan in place,” Ragonese said.

When a regulatory bureaucracy says something is “in place” that means adopted, approved, done ,final, finished, good to go.

But oops, the reporter clearly was skeptical of Rangonese’s spin, because he reported the facts that the reforestation pal is NOT “in place”:

The reforestation plan, however, hasn’t been finalized, he said.

5. Lie #5 – DEP whitewashes history , ignores  attempt to abolish Commission

Ragonese said there will be a collaborative effort with the Delaware and Raritan Canal Commission.

“We’ll work with them,” he said. “We’re not at odds here either.”

Could Larry have forgotten that the Governor and DEP Commissioner sought to abolish the DRCC?

That the DEP’s own clearcut plan documents show that they totally IGNORED the DRCC?

That Gov. Christie has failed to make appointments to the DRCC, risking lack of a quorum?

That DEP Commissioner Martin has blocked and dragged his feet in approving staff to the Commissison, despite the Legislature having budgeted these funds?

All of this shows a pattern of bad faith on DEP’s part.

6. Lie #6 – DEP attacks critics

“A couple of critics have gone out of the way to hammer the DEP,” Ragonese said. […]

This is not a confrontational issue except by those looking for a confrontation,” Ragonese added.

We’ll keep you posted on next moves.

Media coverage is increasing and public opposition is clearly growing.

Parks, Conservation, and environmental groups who have already written DEP to oppose the clearcut: 1) NJ Audubon Society, 2) NJ Conservation Foundation, 3) Delaware Riverkeeper, 4) Sierra Club, 5) NJ PEER, and 6) several local D&R Canal Watch supporters and watershed groups.

On the regulatory front, in addition to the DRCC review and approval, 1) the US Fish and Wildlife Service, 2) the National Parks Service, 3) the EPA, 4) the US Army Corps of Engineers, 5) the Delaware River Basin Commission; 6) The Delaware River Wild & Scenic management Committee; and 7) the Hunterdon County Soil Conservation District all have review jurisdiction, all have weighed in already, and all are all looking closely.

It is important that any DEP website survey get a large public response opposing the clearcut plan and that we get good public turnout for the DRCC review process.

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Who Killed Barnegat Bay?

August 16th, 2012 2 comments

CAFRA Died Long Ago – Bay a Funeral For Coastal Land Use Planning 

Reaping the Results of Builders Gone Wild

With the proliferation of scientific reports and scathingly critical media editorials on the impending death of Barnegat Bay competing with the proliferation of algae and jellyfish, it’s time to step back and begin to take stock of just what went wrong.

A comment from my friend Bill Neil (a must read, see below) reminds me that I tend to get bogged down in the regulatory weeds, and often fail here to tell the story with a broader brush.

Simply put, the Death of Barnegat Bay is an illustration of the greed and political power of the development lobby – builders, banks, realtors, landowners, business groups, etc – and the total failure of land use planning and environmental regulation at the State level under the “Coastal Area Facility Review Act” (CAFRA).

[This is the process Chris Hedges calls “the Leviathan of unregulated capitalism” – citing Marx and Polanyi on capitalism as a “revolutionary force” that commodifies people and the natural world and exploits them until exhaustion or collapse.]

The CAFRA law was enacted in 1973 – here are its objectives:

The Legislature finds and declares that New Jersey’s bays, harbors, sounds, wetlands, inlets, the tidal portions of fresh, saline or partially saline streams and tributaries and their adjoining upland fastland drainage area nets, channels, estuaries, barrier beaches, near shore waters and intertidal areas together constitute an exceptional, unique, irreplaceable and delicately balanced physical, chemical and biologically acting and interacting natural environmental resource called the coastal area, that certain portions of the coastal area are now suffering serious adverse environmental effects resulting from existing development activity impacts that would preclude or tend to preclude those multiple uses which support diversity and are in the best long-term, social, economic, aesthetic and recreational interests of all people of the State; and that, therefore, it is in the interest of the people of the State that all of the coastal area should be dedicated to those kinds of land uses which promote the public health, safety and welfare, protect public and private property, and are reasonably consistent and compatible with the natural laws governing the physical, chemical and biological environment of the coastal area.

It is further declared that the coastal area and the State will suffer continuing and ever-accelerating serious adverse economic, social and aesthetic effects unless the State assists, in accordance with the provisions of this act, in the assessment of impacts, stemming from the future location and kinds of developments within the coastal area, on the delicately balanced environment of that area.

The Legislature further recognizes the legitimate economic aspirations of the inhabitants of the coastal area and wishes to encourage the development of compatible land uses in order to improve the overall economic position of the inhabitants of that area within the framework of a comprehensive environmental design strategy which preserves the most ecologically sensitive and fragile area from inappropriate development and provides adequate environmental safeguards for the construction of any developments in the coastal area.

The CAFRA law set up a regional planning and DEP development permit program – DEP was empowered to prepare a comprehensive plan for land use in the coastal zone and consider the cumulative impacts of development.

Ecological based planning and water resource protection were cornerstones of CAFRA.

Section 19 of CAFRA [Correction: Section 10 – h/t Helen Henderson] specifically directed DEP to make positive findings or else deny a CAFRA permit to enable DEP to assure that any project:

a. Conforms with all applicable air, water and radiation emission and effluent standards and all applicable water quality criteria and air quality standards.

b. Prevents air emissions and water effluents in excess of the existing dilution, assimilative, and recovery capacities of the air and water environments at the site and within the surrounding region.

[Notethis explains why there are no TMDL (numeric water pollution limit) or DEP water quality standards for nutrients – if there were, DEP would be required by law to deny development permits that did not meet them and the public could enforce those standards via lawsuits if/when DEP failed to do so. ]

d. Would result in minimal feasible impairment of the regenerative capacity of water aquifers or other ground or surface water supplies.

[Note: this is why there are no DEP cumulative limits on groundwater withdrawal, which has allowed unsustainable mining of groundwater, depletion of stream base flows, loss of 30% freshwater inputs into the Bay, and salt water intrusion to happen.]

And check out this broad power to DEP to deny CAFRA permits

Notwithstanding the applicant’s compliance with the criteria listed in section 10 of P.L.1973, c.185 (C.13:19-10), if the commissioner finds that the proposed development would violate or tend to violate the purpose and intent of this act as specified in section 2 of P.L.1973, c.185 (C.13:19-2), or that the proposed development would materially contribute to an already serious and unacceptable level of environmental degradation or resource exhaustion, the commissioner may deny the permit application, or the commissioner may issue a permit subject to such conditions as the commissioner finds reasonably necessary to promote the public health, safety and welfare, to protect public and private property, wildlife and marine fisheries, and to preserve, protect and enhance the natural environment.

The “”tend to violate” provision is precautionary and shifts the burden in DEP’s favor. There is no legal need to wait until proof positive causal science is complete (as DEP has consistently done and is still doing with Bay science).

The “already serious unacceptable” provision is supposed to have been DEP’s basis for “cumulative impact” standards – DEP never adopted regulations to implement that.

DEP never had the political will or leadership to develop a regional plan, regulations, or enforce a permit scheme to implement the standards in CAFRA law.

DEP rarely – if ever – denied CAFRA permits or enforced permit violations.

As a result, we see impairment of water resources – do those (above) 1973 CAFRA standard sound familiar right now?

The Bay is proof positive and a result of the fact that DEP never implemented the  “framework of a comprehensive environmental design strategy”  called for in the CAFRA statute or a regional plan for the coastal zone.

On the regulatory side of the ledger, DEP never developed a methodology to measure or regulate the cumulative impacts of individual developments (AKA “death by a thousand cuts”).

After almost 40 years since its passage, sadly, the CAFRA program has devolved into a site specific permit program.

Now, under the Christie Administration, even that permit program is being rolled back.

For a cogent analysis of what went wrong, here are my friend Bill’s Neil’s thoughts – with which I concur:


Since I began my environmental career at the American Littoral Society under Dery Bennett, and continued to work on coastal issues, especially the “strengthening” of the coastal law – CAFRA – and trying to get regulatory teeth in the State Plan, with a great deal of resistance from Republican conservationists on the merits of a State Plan with consequences, I feel obligated to add a few comments.

1. Everyone could see this coming and a good deal of the blame should be placed on the power of the NJ Builders and the real estate industry, who exert power all over the state but especially in the coastal areas, where the development process is “supercharged.”

2. I knew it was a losing battle to try to protect coastal water quality in the most threatened areas – like Barnegat Bay – under a CAFRA law that was indifferent to the volume and density of suburban development. And we were unable to win stronger protections via that law, despite many repeat performances, the last one I recall was under Governor Whitman, whose staffers were saying their proposals would do the job.

3. It is very tough to clean up the pollution that is a direct by-product of “the way people live” after the suburban development is in place. I understand that Willie de Camp had a hell of a tough time getting even a moderate fertilizer-reduction bill passed.

4. The results demonstrate the truth that economic development and environmental protection are not always compatible – certainly not under the terms which took place surrounding Barnegat Bay.

5. The power of the building and real estate industry is truly awesome when deployed inside the corridors of power at the state house and the party fundraising mechanisms, and the NJ Builders did a good job saying environemntalists like me were blocking the American Dream of home ownership via regulatory plans. But they never owned up to the costs of ruined resources, and one might ponder, given the state of the Bay, to the property values going down as the once former “amenity” decays.

6. I’ve come to see the power of local governments to create financial value via their zoning authority as literally the creation of money; next to the Federal Reserve’s powers, they have the second greatest ability to create money from land and natural resources by increasing density or allowing building in the first place. It is not the sole reason, but a strong contributor the historically high levels of corrpution between local and county officials and the private economic actors who seek their favors and the magic of money by zoning.

7. I don’t know if it is possible to clean up this Bay; under a Green New Deal that was willing to spend domestically what we now spend (spent) on building the 900 plus military bases in Iraq and Afghanistan – it might be. But under current Republican Right philosophy humans apparently can’t do nature any harm, and even if they took the giant step in admitting the damage, ongoing and past cumulative, they have the added ideological burdens of being anti-gov’t, anti-spending and anti-regulatory – which ought to lead every environmentally friendly citizen too take a good hard look at any conservationist claiming to be a good Republican and a good conservationist: I say it is impossible intellectually unless you believe ideas can be twisted like pretzels and still retain their meanings.

I’ll conclude with the observation, confirming just how hard the clean-up will be – and the costs, by mentioning the largest storm-water proposal I ever came across. It was the one by the city of Providence Rhode Island, in order to protect Narragansett Bay – to build a giant underground stormwater storage facility to retain the stormwater and avoid jointly sending it at the same time to treatment plants – which then would be overwhelmed with their normal sewage treatment duties plus all that run off. It made sense, but was quite expensive. It was the boldest idea/project in the nation in the early years of the 2000′s – but I don’t know if it every came off. Of course it now runs against the grain of the new stormwater treatment trends: to retain and infiltrate all the stormwater right on existing sites: which is not cheap or easy either when one multiplies the number of sites times the cost.

My final comment is this: to all the legislators and regulators who heard me speak or read my written testimony and gave me that “we’re realists, you’re dreaming” look, which included the unspoken thought that I was exaggerating the pending damage or costs to continued physical development in the wrong locations, I now urge you to ponder your complicity in the results. F. Scot Fitzgerald was right in the closing pages of “The Great Gatsby”: the green light for full speed ahead always is shining at the end of the dock, and it continually blinds us to the costs and consequences of running that light, even after it has gone from yellow to red. But I doubt that Governor Christie will be quoting from the Great Gatsby in his forthcoming speech.

 [Note: this post was revised]

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DEP Decade of Delay on Barnegat Bay Warrants EPA Intervention

August 15th, 2012 3 comments

Yesterday, I wrote EPA Region 2 Administrator Judith Enck a letter, requesting that EPA intervene to force a TMDL on Barnegat Bay  to slow the “insidious ecological decline” and restore water quality (see below for text of letter).

I shared that letter with NJ legislators and media.

So, we were pleased to read this morning that the Star Ledger editorial board agrees with both our assessment of the Christie Administration’s failed effort and the need for EPA to intervene

(see: Christie administration has yet to do enough to stem Barnegat Bay pollution

So, time for drastic steps to fight this problem: The federal Environmental Protection Agency must step in, based on its authority under the Clean Water Act, and set strict limits on nutrient pollution in the bay. Up until this point, the state has refused to do so.

See the text of the letter below for the 10 year history of the DEP delays on pulling the TMDL trigger.

DEP has wasted a decade, as the Bay’s ecological death accelerates and rampant over-development in the watershed proliferates faster than stinging jellyfish.

Hit the links below to read the underlying regulatory documents.

Dear Regional Administrator Enck:

Below please find a link to the Asbury Park Press coverage of yesterday’s joint legislative hearing on Barnegat Bay.

As you know, I recently wrote to advise you that DEP recently proposed delisting portions of the Bay from the current impaired waters list.

As you also know, I’ve previously written to advise that Barnegat Bay was included on the list of impaired waters required to undergo a TMDL pursuant to the September 2002 US EPA – NJDEP TMDL MOA, which identified the Bay as a “high priority” for TMDL development.

The Bay was also listed as impaired on the EPA approved DEP 2002 303(d) list

The 2002 EPA-DEP MOA provided in pertinent part:

“IV. Schedule for establishment of TMDL’s

“… This schedule …  shall ensure the  the establishment of all TMDLs on the approved 2002 CWA Section 303(d) list by March 31,  2011.”

Bay impairments included (in 2002) dissolved oxygen, pathogens, fish PCBs, and a suite of toxic heavy metals: arsenic, copper, lead, nickel, and zinc.

Portions of the Bay remain impaired and listed on the 2010 current 303(d) listCurrent impairments include DO, mercury, and PCB, but I am unsure of the status of the other metals (I think they were delisted).

Subsequent to the 2002 MOA, the EPA approved DEP 2004 “303(d) integrated Report“, repeated the 2002 listing and the NJ DEP’s HIGH priority ranking.

A TMDL for the Bay was legally due by March 31, 2011, almost 2 years ago.

As you also know, for many years US EPA has been funding and overseeing DEP work on Barnegat Bay, including: 1) nutrient monitoring, 2) water quality assessment methods, 3) development of bio-criteria, 4) nutrient management strategy, and 5) surface water quality standards development issues.

These substantial EPA resource commitments  and reciprocal NJ DEP administrative output expectations have been codified in several NEPPS and PPG agreements between US EPA and NJ DEP over this time period.

In light of Professor Kennish’s recently published science and testimony yesterday, given the aforementioned federal funding and regulatory oversight, it is well past time that EPA pulled the trigger and directed NJ DEP to initiate the TMDL process on Barnegat Bay immediately.

FYI, given the DEP and Christie Administrations intransigence on this issue, I am working with NJ legislators to take action to appeal to US EPA to enforce the Clean Water Act with respect to Section 303(d) requirements that are applicable to the Bay.

For example, last session I believe there was a Concurrent Resolution that urged EPA to support a TMDL. But State legislative options are limited by Governor Christie’s veto powers.

It would be much easier if EPA Region 2 would initiate action to encourage DEP to meet TMDL obligations on the Bay by threatening to withhold federal Clean Water Act funding.

In the alternative, we would encourage US EPA to initiate the TMDL work themselves.

We look forward to your earliest and favorable consideration of this request.


Bill Wolfe, Director



PO Box 112
Ringoes, NJ  08551
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Reach Out and Touch Someone

August 14th, 2012 No comments

Joint Legislative Hearing Brings Out Strange Shore Friends

Hal Bozarth "The Godfather of NJ Toxics" and lobbyist for the NJ Chemistry Council (R) greets Senator Bateman (R-Somerset) at annual shore hearing in Lavallette, NJ

Sometimes a picture really is worth a thousand words.

What was Hal Bozarth, AKA “The Godfather of NJ Toxics” and chief lobbyist for the NJ Chemical Industry, doing at yesterday’s legislative hearing in Lavallette that focused on the ecological decline of Barnegat Bay? 

It was obvious that Hal got the memo and dressed down – in casual attire.

But what was he doing there?

[Update: Here’s why Hal was there (see NJ Spotlight story)  – who knew that the American Chemistry Council was so concerned about reducing carbon footprints and was an arbiter of environmental friendliness?:

Representatives of the plastics manufacturing industry disputed that view, telling legislators in Lavalette on Monday plastic bags are more environmentally friendly than paper bags.

“Paper bags have a lot larger carbon footprint than paper bags,” said Donna Dempsey, a spokesperson for the American Progressive Bag Alliance.

The American Chemistry Council supports that view. Using paper bags doubles the amount of carbon dioxide produced versus paper bags; plastic bag production uses less than 4 percent of the water needed to make paper bags; and using paper bags creates almost five times the amount of solid waste than using plastic bags, according to the industry group’s website.

Maybe Hal was saying thanks to Legislators for  saving his chemical industry members millions by abandoning legislation that would have mandated liability insurance costs for risks associated with chemical and oil spills?

Or was it thanks for not banning the treatment of fracking wastewater at NJ giant chemical Dupont Chambersworks plant on the Delaware River in South Jersey?

Or for not over-riding Governor Christie’s global warming and energy policies, that promote fracking, natural gas pipelines, and provide subsidies to corporate fossil fuel users, like the energy intensive chemical and oil refineries Bozarth represents that use huge volumes of frack gas as feedstock?

Or for not holding oversight hearings on DEP failures and a recent court decision to prohibit DEP from recovering hundreds of millions of dollars in natural resource damage injuries caused by the chemical industry?

Or was it to say thanks for passing legislation that privatized DEP’s toxic site cleanup program, placing polluters in charge of cleanups and saving them hundreds of millions of dollars in cleanup costs?

Or was it for looking the other  way while DEP Commissioner Martin disbanded the NJ Drinking Water Quality Institute and enacted a moratorium on drinking water standards, saving chemical industry members millions in cleanup costs liability?

Or was it to say thanks for not objecting to DEP Commissioner Martin installing  a Dupont corporate strategist on the Science Advisory Board?

Or was it to say thanks to Legislators for not vetoing a controversial Christie DEP rule that limits public access to urban river and ocean waterfronts, while providing economic relief and reducing public access obligations of major chemical plants and industrial facilities than line NJ’s rivers and waterfronts?

Or for ignoring Governor Christie Executive usurpation and DEP’s “regulatory relief” and cost benefit rollback under Christie Exucutive Order #2?

Or looking the other way as DEP dismantled environmental enforcement?

Or for concurring – on a bi-partisan basis – with Gov. Christie’s Red Tape Myth?

Or for ignoring air toxics and broader environmental justice issues that could costs his fellow chemical industry members millions in compliance costs to reduce disproportionate pollution burdens?

Or for giving the Christie Administration a pass on gutting toxic vapor intrusion Guidance?

Or for approving budgets that allowed  Governor Christie to divert of over $500 million in Clean Energy Funds to provide tax breaks to millionaires and $1.57 billion in corporate welfare?

Or was a big thanks for allowing Governor Christie to kill the Global Warming Response Act?

Whatever Hal’s motives were, I’m fairly certain that Hal was not there to discuss the health of Barnegat Bay or ocean ecosystems – or the interests of people living in Senator Bateman’s Somerset County district.

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