Archive for September, 2015

DEP (*Permit condition) Ordered Halt to Pumping River Water to Fill Wanaque Reservoir

September 30th, 2015 No comments

Drought Meltdown Scenario Begun in North Jersey 

Critical Low River Flows In Passaic Basin – Declining Reservoirs

September Passaic river flows at Little Falls, where minimum passing flow is set. (Source: USGS)

September Passaic river flows at Little Falls, where minimum passing flow is set. (Source: USGS)

[*Clarification: 10/2/15 – Technically, DEP did not issue an enforcement “order” to stop pumping. A water allocation permit limit was the mechanism, based upon a passing flow requirement in the river. Unclear whether the permit limit was self enforced or DEP permit or enforcement staff conducted oversight and contact NJDWS based on low flows.]

The DEP just ordered a halt to pumping of the north jersey rivers to replenish the Wanaque reservoir. Here’s why that’s important.

As we’ve written, north jersey lacks adequate reservoir storage capacity and therefor must rely on Passaic basin rivers (Passaic, Ramapo, Pompton rivers) to pump water to fill the reservoirs and to take for direct water supply. Some reservoirs lack adequate natural watershed drainage in order to fill and require river pumping to be filled.

There are limits to how much water can be pumped out of rivers, to protect the aquatic life and ecology in the rivers and to protect public health.

Those limits are called “minimum passing flow requirements” that are set by NJ DEP – see this for a good primer on these minimum passing flows set by DEP. This sums things up:

… Modification Of Dilution Passing Flows

Assimilative capacity is the ability of a natural body of water to receive wastewaters or toxic materials without harmful effects. Some passing flows are set based on the need for sufficient assimilative capacity at a downstream point to meet a set standard. If the waste load increases or the water-quality standard becomes stricter, the passing flow may have to be increased. If the waste load decreases, or the water-quality standard is relaxed, the passing flow may be reduced without causing a violation of the standard. This highlights the interdependence of water quantity and quality.

Relaxation of Reservoir Passing Flows During Droughts

A reservoir system’s safe yield is that volume of water it can reliably deliver during a repeat of the most stressful conditions yet experienced. Reservoirs with a minimum-release or minimum-instream passing flow must release water to the stream and this can decrease storage during a drought. As an additional safety factor, some reservoir passing flows are reduced during a drought, providing an additional margin of safety. …

Preservation of Water Quality

Treated wastewater is routinely discharged into the surface waters of New Jersey. This activity is highly regulated by the U. S. Environmental Protection Agency (USEPA) and NJDEP. The discharges may not cause a violation of surface-water-quality standards. The allowable waste loads are calculated as a function of streamflow volumes, quality of the effluent and the receiving water, and the surface-water-quality standards. The allowable load is usually calculated assuming a representative low flow. If flows decline below the design flow then the discharge may cause a violation of water-quality standards.

(note: the “highly regulated activity” does not include EPA and DEP pollution discharge permit limits on all chemicals known to be present in wastewater. These chemicals pass through sewage treatment plants and are discharged to the river. They wreak havoc on aquatic life – e.g. endocrine disrupting compounds cause things like dual sexed fish – and are threats to public health. The wastewater dominated flow of chemical laced water is then taken from the river for water supply. Unless it is highly advanced – and even advanced treatment is not 100% effective in removing all chemicals present – the treatment at the drinking water plant does not remove all these chemicals, many of which are not regulated or even monitored for, and they pass through treatment directly to your tap. These are the issues DEP glosses over and downplays the risks of in the above excerpts.)

The nightmare drought scenario is lack of rainfall takes the rivers off line and the limited fixed capacity reservoirs are depleted. At some point, without rainfall, north jersey could literally run out of water.

As we warned, that nightmare scenario began in September –

Today, the Bergen Record story buries that hugely significant lede, revealing that critical fact towards the end of a story that optimistically suggests the current storms will alleviate the drought:

But because flows in the Pompton, Ramapo and Passaic had become so low in recent days, the commission was forced under state regulations to stop pumping, said commission spokesman William Maer.

The fact that DEP ordered a halt to pumping from the rivers to replenish the Wanaque reservoir is a very big deal, particularly given how low that reservoir is.

Wanaque reservoir (9/24/15)

Wanaque reservoir (9/24/15)

DEP halting of river pumping and the depletion of the Wanaque will force reliance on the Monksville reservoir, then inter basin transfers. We are in an extremely serious situation.

If the storms that are forecasted bring 5 or more inches of rain – which would cause widespread flooding –  we may dodge the huge bullet of the drought meltdown scenario –

Instead of The China Syndrome, let’s call it The Sahara Syndrome.

End note #1: What explains the dramatic increases in river flows around September 9 and September 28?

Are those increases related to the end of pumping? I don’t recall any rainfall during this time.

[End note #2: meanwhile, ignoring the above kind of problems, NJ’s conservation and environmental groups are doing stuff like planning festivals and promoting “sustainable” rain barrels. Their Foundation funded retreat from scientific and regulatory reality on major issues of water, air, land use, waste/materials management, and energy/climate is shameful. ] 

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Christie DEP Covering Up Reasons for Publishing Faulty Drought Data

September 29th, 2015 No comments

DEP denies public records request for explanation DEP provided to Advisory Council

Wanaque Reservoir from Monksville dam (9/24/15)

Wanaque Reservoir from Monksville dam (9/24/15)

[Update #2 – Acting State Geologist Hoffman made a presentation to the Water Supply Advisory Council today about the “mix up” with respect to drought data. It boils down to a complex statistical methods issue involving precipitation data. This led to misleading reporting. No big deal in the sense that is was a legitimate technical error. The briefing expanded upon the memo I filed an OPRA for.]

Update #1: 9/30/15 – Jim O’Neill at the Record finally gets it half right on the flow issue – as I noted, the Passaic basin flows were critically low.

But he continues to ignore the water quality issue – ironically in today’s story about rainfall making everything OK:

The North Jersey District Water Supply Commission, which operates the reservoir, can refill it when levels drop by using pump stations on the Pompton and Ramapo rivers. The state prohibits the commission from pumping water out of the rivers during July and August, because of concern that flows are too low. The commission pumped water out of the Pompton through much of September, and was sending 50 million to 95 million gallons a day of river water into the Wanaque Reservoir.

But because flows in the Pompton, Ramapo and Passaic had become so low in recent days, the commission was forced under state regulations to stop pumping, said commission spokesman William Maer.

Once again, though, O’Neill doest get it quite right. The flows in the Passaic “in recent days” are actually HIGHER that they were on September 6 – 9, when I raised the issue! see:

passaic flow7


My guess is that the cessation of pumping is what explains the increase in flows on 9/23 –

Yes, once again, we are lurching from drought to flood  ~~~ end update]

As the summer’s lack of rainfall persisted into the fall and drought worsened, some private water companies issued water conservation advisories.

So people were scratching their heads asking why DEP refused to declare a drought watch, and the news media began to ask questions and write stories.

I posted criticisms of the Bergen Record’s coverage, noting errors and omissions in river flow and water quality data.

Stephen Stirling of the Star Ledger (NJ Advance media) took that criticism one step further and discovered that DEP had published and relied on faulty data.

On September 11, 2015, he wrote a scathingly critical story:

No drought about it, DEP published faulty rainfall data

Everyone except the New Jersey Department of Environmental Protection seemed to know that mounting precipitation deficits were becoming a problem for New Jersey’s most populous region.

By several measures of the National Weather Service and the New Jersey State Climatologist, precipitation deficits in northeastern New Jersey, prior to Thursday’s rains, were operating between four and six inches below average. The U.S. Drought Monitor, a national collective of academics, placed northeastern New Jersey in a “moderate drought” designation. United Water, which provides water to more than 800,000, called for voluntarily water restrictions after its reservoirs fell to about 45 percent of capacity, following a scorching and dry August.

But visit the DEP’s drought monitoring site, and a different story is being told:

The agency’s drought monitoring site has stated that precipitation, reservoir and ground water levels all remain near or above normal.

But for an undetermined amount of time, an analytical error has led the state agency to use and publish erroneous information about the state’s water situation, a topic that affects virtually every facet of life in New Jersey, from farming to day-to-day residential water usage.  

Obviously, DEP was embarrassed by the error. I imagine Commissioner Martin was very angry too.

At some point, I am not clear how, this news story became a concern of the NJ Water Supply Advisory Council (WSAC). The Council is an advisory body to the DEP Commissioner. It has no formal powers.

The controversy led to the unusual last minute cancellation of the September WSAC meeting.

I attend Water Supply Advisory Council meetings and am on their email distribution list.

Typically, not much of substance is discussed on those emails, except for the scheduling of meetings. So I was stunned to get an email from DEP to WSAC members on 9/17/15 that highlighted an explanation of the technical error in the news story drought data. DEP wrote:

Assistant Commissioner Dan Kennedy expressed his desire to attend this meeting; unfortunately, a schedule conflict precludes his availability tomorrow. His preference is that he and other key staff are available at the meeting to discuss condition status, changing conditions and next steps. DEP anticipates fully explaining at this WSAC meeting its system for monitoring water-supply conditions and deciding on appropriate status in each drought region (in the interim, you should have received an email from Steve Doughty providing a drought condition update and brief explanation of the precipitation indicator mix-up).

That email revelation was like putting a red flag in front of a bull.

Obviously, I was very curious about this DEP “mix up” and immediately filed an OPRA requesting the Steve Doughty DEP email on 9/18/15.


Yesterday (9/28/15) DEP denied my OPRA public records request.

The DEP’s denial has seriously negative implications for transparency at scores of advisory bodies to state government, and sets a very bad precedent under OPRA. It must be challenged.

DEP denied the OPRA request for the following reasons:

The requested September 16, 2015 email from Steve Doughty to the Water Supply Advisory Council members is an intra-agency advisory and deliberative record. This record is being withheld on the basis that the requested record is not considered a government records pursuant to N.J.S.A. 47:1A-1.1.

DEP’s denial is obviously an attempt to cover up their embarrassing “mix up”.

The basis for denial –  intra-agency advisory and deliberative record – is false and blatantly illegal, for the following reasons:

1. The author of the email,  Steve Doughty, is an administrative assistant, not a policymaker. Doughty does not make decisions or participate in management decision-making.

2. The email was factual and explanatory of technical information – facts can not be withheld under OPRA.

3. The email was from the DEP, the decision making body who deliberates on policy, to the WSAC.

It is arguable that a recommendation from the WSAC to the DEP Commission could be considered deliberative, but it is absurd to argue that a technical email from a low level DEP employee to WSAC is deliberative.

4. There was no “deliberation” because there was no decision pending. The DEP email was explanatory of decisions made and actions already taken by DEP

5. The WSAC is not a decision-making body so the DEP memo can not be deliberative. There is nothing to deliberate.

6. There are private sector members of the WSAC. Those private members routinely share WSAC with their corporate colleagues. They are under no confidentiality or secrecy restrictions on material provided to them from DEP.

There also  is a “public” representative on the WSAC that should provide this kind of information to the public (ahem….). I should not have to file an OPRA for it. WSAC is not some top secret entity.

The public deserves the same information that DEP provides to private water companies.

7. The WSAC also has private sector water companies on it, so the DEP memo can not be an intra-governmental record.

This is little more than petty bureaucratic ass covering that can not be allowed to stand.

It sets a horrible precedent under OPRA – we’re looking for lawyers willing to take this case. It is a high probability win and OPRA provides for full reimbursement of attorney’s fees, plus costs.

Wanaque Reservoir (9/24/15)

Wanaque Reservoir (9/24/15)

Wanaque Reservoir (9/24/15)

Wanaque Reservoir (9/24/15)

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An Open Letter to PennEast Pipeline Opponents

September 28th, 2015 No comments

A Note on Strategy

[Update below]

Friends – I previously wrote to suggest that your coalition focus on the only regulatory tool that can effectively win the battle and stop the pipeline.

That tool is the Clean Water Act “water quality certificate” issued by the NJ DEP.

I’ve urged you to focus on researching that tool and preparing a public campaign to pressure Gov. Christie to use his executive branch power to order DEP to deny the WQ certificate.

It is a long shot – and Christie is unlikely to veto the pipeline, but it lays the foundation for a lawsuit and holds the Governor accountable.

I’ve also spoken with many of you to advise that submission of comments to FERC is a waste of time, because FERC is captured by the energy industry and there is virtually no chance of FERC denying an approval of PennEast’s application.

Now that PennEast has formally submitted an application to FERC, the DEP has one year – 365 days – in which to approve or deny the Clean Water Act water quality certificate. The clock is running.

If DEP fails to act, the application is deemed approved.

So, it is critical now to shift to a focus on the WQ certificate – has PennEast submitted a WQ certification application to DEP? Have you filed OPRA’s for it yet?

When is the Trenton press conference to announce the campaign to target DEP, the WQ certificate and the Gov – much like coastal advocates successfully appealed to Christie to veto off shore LNG?

I thought there was some agreement on this strategy.

That’s what the folks in NY are focused on.

So, I am baffled to learn that today, just when the WQ certificate campaign should be kicking off, that NJCF and other groups held a press conference with NJ State legislators

Congresswoman Watson Coleman Joins with Local

Elected Officials to Defeat PennEast Pipeline

Lawmakers are joining the fight against plans to seize private property in order to build a natural gas pipeline through parts of New Jersey and Pennsylvania.

Bonnie Watson Coleman and Senator Christopher “Kip” Bateman will be joined by other state and local elected officials in a bipartisan call for the denial of PennEast’s application to construct a pipeline through 118 miles that include preserved open space and farmland, private properties and 31 of the states cleanest and most ecologically significant streams. The route of the proposed pipeline would take it through the Ted Stiles Preserve at Baldpate Mountain in Hopewell Township.

Coleman and Bateman are fine people, but the NJ Legislature has no effective power to block the pipeline.

What the hell are you doing?

I knew that Tom Gilbert of NJCF was in way over his head, but I know that you have competent scientific and legal advisors, so I’m starting to think you don’t even want to try to win.

To do that wil take a very heavy lift, targeting all you resources on the Gov. and DEP.

Best to start that effort NOW, not a legislative sideshow.

[Update – looks like NJCF and Hopewell friends are not the only ones in need of a targeted focused strategy – this event, held the next day, was in the right place but the message and the targets sound like a Pipeline Piñata (no mention of WQ certificate????)


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Sometimes In Winter

September 27th, 2015 No comments


Sometimes in Winter
I gaze into the streets
And walk through snow and city sleet
Behind your room

Sometimes in Winter
Forgotten memories
Remember you behind the trees
With leaves that cried ~~~ Blood, Sweat and Tears  (1968)- listen

(after all, You made me so very happy)

(and I’ve been waiting so long)

(in the White Room)

(especially since you’ve taken such a piece of my heart)

(because feeling good was good enough for me) 

(after all those good times in your Red House)

(I’ll always carry that ball and chain)

(you shouldn’t have took more than you gave)

(I feel tied to the whipping post)

(And I can’t find my way home_

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Christie DEP Denies Rollback in Stream Buffer Protections

September 27th, 2015 No comments

Bergen Record Story Gives DEP Platform To Lie

DEP proposal opposed by EPA, FEMA & League of Municipalities, hardly a tree hugging trio!

[Updates below]

It’s a cool Sunday morning, perfect for a bike ride, so I’m headed out right now and have no time to write an extended rebuttal of today’s DEP statement about the Flood Hazard rule proposal.

I’ve already written about this several times, so I’ll keep it very short and sweet today and do a more detailed  post early next week or in advance of the Legislative oversight hearings on SCR180 (introduced, but text not posted yet)

Here’s what DEP said about “some” criticisms of their rule proposal in the Bergen Record story:

“After hearing some of the criticism we’ve heard of the proposed rule, we’re wondering if they’re actually reading it,” Considine said. “They say the 300-foot riparian zone has been eliminated from the proposed rule. It hasn’t. It’s retained and it’s far above and beyond any requirement of the Clean Water Act. Headwaters will not be deregulated, as they’ve said.”

Haven’t read it?

I WROTE the DEP’s original category one buffer rule and was the primary architect of the program under DEP Commissioner Campbell.

Before I get to DEP, let me just say that this is awful reporting, just awful.

First of all, the headline makes the issue appear to be partisan. There is little substance of what the rule does to enable a reader to understand the controversy. The reporter allowed DEP to use vague qualifier like”some” criticisms without being precise, which is just sloppy and lazy. WHOSE criticism? WHAT criticism? BE SPECIFIC!

Below is the text of the current DEP proposal – it doesn’t “eliminate” the C1 buffers, it REPEALS them and it weakens their protections. The headwaters arguments are more complex for now.

Bottom line: There are good policy and scientific reasons why the C1 buffers in the storm water rules (designed to protect water quality from runoff) are different from the riparian zone buffers in the stream encroachment rules (designed to protect people and property from flood risk).

The two rules have different objectives, so of course they have different technical requirements!

That’s not duplication – and DEP’s proposal is not streamlining its a rollback. 

If DEP wanted to “harmonize” or “consolidate”  or “unify” the two sets of different rules, they could have simply picked the most stringent protections in the two rules. Instead they did the opposite: they eliminated the strongest protections and weakened the weakest ones.

DEP explains this in a circuitous way in the proposal – Note the use of the word “repeal” (see DEP proposal at page 10)

Repeal of SWRPA in the Stormwater Management rules

The SWM rules at N.J.A.C. 7:8-5.5(h) establish a 300-foot special water resource protection area (SWRPA) along Category One waters and certain tributaries. The FHACA Rules establish a 300-foot riparian zone along Category One waters and a slightly different set of tributaries. Where these buffers both apply to the same activity or project, implementation issues have arisen because of the differences in the regulatory requirements.

 Also keep in mind that while the rollbacks to the buffer protections are the worst part of the rule proposal, there are many other terrible provisions weakening flood and coastal protections, ignoring climate change risks, et al – these have been opposed by EPA, FEMA and even the League of Municipalities, hardly a tree hugging trio!

[Update #1: for those that don’t hit all the links, let me make it easier for you by  providing the on-point text of the DEP’s historic position, from the 2008 adoption of the current Flood Hazard rules: (@ page 54-55)

RESPONSE: While the commenters do not identify specifically those sections of the rules they believe are inconsistent, the Department assumes the commenters are referring to the established riparian zone, and does not agree that the rules duplicate, or are inconsistent with, other existing Department rules. As the Department stated in its summary of the proposal of the new Flood Hazard Area Control Act rules at 38 N.J.R. 3951, the Stormwater Management rules establish a 300-foot Special Water Resource Protection Area along Category One waters “only when a major development, as defined at N.J.A.C. 7:8-1.2, is proposed.” In contrast, the Flood Hazard Area Control Act rules apply to “any activity that requires approval under this chapter, which includes a larger set of activities than that which is regulated under the Stormwater Management rules.” Further, the Flood Hazard Area Control Act rules establish a 150-foot buffer and a 50- foot buffer along waters that do not receive such protection under the Stormwater Management rules. The Stormwater Management rules also include specific standards related to the quality of stormwater runoff from developed sites at N.J.A.C. 7:8-5.5, which is not included in N.J.A.C. 7:13. While both N.J.A.C. 7:8 and N.J.A.C. 7:13 derive authority from the Water Pollution Control Act, N.J.A.C. 7:13 also derives statutory authority from the Flood Hazard Area Control Act. It is appropriate, therefore, for the Department to establish additional standards under N.J.A.C. 7:13 which are designed to preserve channel integrity and prevent flooding. The Stormwater Management rules and the Flood Hazard Area Control Act rules are intended to work in unison to ensure that development will not cause or exacerbate flooding, erosion or ecological degradation of New Jersey’s surface waters.Consequently, the Flood Hazard Area Control Act rules neither duplicate nor are inconsistent with the Stormwater Management rules.

Update #2: When Gov. Christie bragged about dismantling over-reach by former DEP Commissioner Lisa Jackson, here is what he was referring to with respect to the Flood Hazard rules (from the Lisa Jackson DEP Public Notice on proposal of this rules)

Unless properly controlled, development within flood hazard areas can increase the intensity and frequency of flooding by reducing flood storage, increasing stormwater runoff and obstructing the movement of floodwaters. In addition, structures that are improperly built in flood hazard areas are subject to flood damage and threaten the health, safety and welfare of those who use them. Furthermore, healthy vegetation adjacent to surface waters is essential for maintaining bank stability and water quality. The indiscriminate disturbance of such vegetation can destabilize channels, leading to increased erosion and sedimentation that exacerbates the intensity and frequency of flooding. The loss of vegetation adjacent to surface waters also reduces filtration of stormwater runoff and thus degrades the quality of these waters.

In light of the concerns described above, the proposed new Flood Hazard Area Control rules incorporate more stringent standards for development in flood hazard areas and adjacent to surface waters in order to mitigate the adverse impacts to flooding and the environment that can be caused by development. Consequently, a large number of significant changes are being proposed to the construction and environmental standards of the rules. For example, under the proposed rules, any flood storage that is lost due to most new construction activities must be compensated by the creation of an equal volume of flood storage either onsite or in close proximity to the development. This will preserve existing flood storage and help mitigate increases in flooding over time. Furthermore, the 25-ft and 50-ft stream buffers under the existing rules are proposed for expansion to 50-ft, 150-ft and 300-ft, depending on the environmental resources of each stream. Many other changes are also being proposed to protect the public from the hazards of flooding, prevent unnecessary impacts to stream corridors, and facilitate projects that would benefit the environment and not contribute to flooding.

The Department is also proposing related amendments to the Coastal Permit Program rules, N.J.A.C. 7:7, and to the Coastal Zone Management rules, N.J.A.C. 7:7E, in order to ensure better consistency with N.J.A.C. 7:13 as regards development in flood hazard areas and preservation of vegetation and habitat along surface waters. For example, the new construction and environmental standards of the Flood Hazard Area Control rules are proposed for incorporation into the coastal rules, and the proposed stream buffers described above would be extended to include most tidal waterways. In addition, flood hazard area application fees and review procedures are proposed to be relocated into the Flood Hazard Area Control rules from the Ninety-Day Construction Permits rules, N.J.A.C. 7:1C, so that all fees and application review standards are located in one rule.

The proposal is scheduled to be published in the New Jersey Register dated October 2, 2006. The proposal can be viewed or downloaded at

PS – the DEP link is stale, DEP has taken down the proposal – you need to go to a law library and get the 10/2/06 NJ Register

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