WolfeNotes.com

Tales From A Rigged Regulatory Regime

Maybe if I put the metaphor in the headline, people, the press and policymakers will begin to get it?

In the case of the dual sexed fish story, the metaphor closely approximates reality.

This is not a new story –

What Rachel Carson’s groundbreaking 1962 book “Silent Spring” did for pesticides – i.e. set off public outrage, generated huge media coverage, and resulted in Congressional legislation and regulation of the pesticide industry –  Theo Colbern’s 1996 book “Our Stolen Future” should have done for endocrine disrupting chemicals (EDC’s) – but didn’t. The guard dog didn’t bark.

The failure of media and government to respond is a prefect illustration of what Bernie Sanders calls our “rigged system” – Big Pharma and corporations have gone way beyond the quaint academic notion of “regulatory capture” and have bought and paid for the government regulators. Follow the logic:

• Hundreds of unregulated chemical are discharged without treatment to NJ rivers.
• NJ relies on major rivers, like the Delaware, Raritan, and Passaic, that receive billions of gallons of this chemically laced wastewater for drinking water supplies.
• Almost all of these unregulated chemicals are not removed by conventional drinking water treatment systems and pass though directly to your tap.

Numerous scientific studies demonstrate that many of the pharmaceuticals, personal care products, and hundreds of other unregulated chemicals found in our drinking water supplies are “endocrine disruptors”: biologically they mimic human hormones.

The same biological abnormalities these chemicals are causing in fish and amphibians are occurring in human beings, including the developing fetus:

Effects Already Seen

Some argue that these chemicals are found in our drinking water in such tiny amounts (parts per trillion or ppt) that they cannot possibly cause human harm. However, insulin, estrogen, and other hormones are exceptionally potent chemicals that operate at concentrations of ppt, and fetuses are sensitive to chemicals in the parts per quadrillionrange.

Already these chemicals are being associated with reproductive abnormalities in fish – male fish bearing eggs – and genetic damage in frogs and other indicator species. The potential effects on humans are now coming to be understood. EPA admits that endocrine disruptors “may cause a variety of problems with, for example, development, behavior, and reproduction. They have the potential to impact both human and wildlife populations.” Even the drug industry is expressing concern.

In addition to direct health effects, the widespread presence of antibiotics in our water is fostering thegrowth of antibiotic-resistant bacteria.  This could result in the spread of human diseases that cannot be treated by our current arsenal of antibiotics.

I got a call from Chasing News this morning for an interview on that story, so we’ll see how they use what I gave them. Always a mystery what narrative they will frame.

In terms of the canary autopsy metaphor, take a look at all the forensic autopsies conducted by the USGS on fish and amphibians and streams and rivers – sampling everything but drinking water sources, discharges from pharmaceutical facilities, and conducting human health studies. Note especially the Orwellian euphemisms of “emerging contaminants” – emerging for the last 25 years? That’s some gestation period!- instead of the correct but dangerous term “unregulated toxic chemicals”:

• Emerging Contaminants In the Environment

Take a look at all the inaction by US EPA over the last 20 years, despite direction from Congress way back in 1996 amendments to the Food Safety Act. Note especially the Orwellian “screening program” instead of “regulatory program” and 20 year pattern of inaction by EPA:

• Endocrine Disruptor Screening Program Federal Register Notices

Do you want more politically safe forensic autopsies and regulatory inaction?

Our friends at the Pinelands Commission jumped on the canary autopsy bandwagon last friday, with this corporate friendly Penn Foundation grant proposal (note how the forensic autopsy funder, the Wm. Penn Foundation, is not even mentioned by Pinelands Commission):

PR Campaign to Rollback Septic Density Standards Kicks Off With Local Officials

Any weakening of Highlands water protections by DEP sure to face Legislative Veto

Sparta Mountain Battle An Opening Skirmish in War on Highlands

It is vital that any effort to weaken Highlands Protections be immediately and aggressively opposed BEFORE it is formally proposed in the NJ Register.  Once a rule is proposed, DEP is politically committed and it will be very difficult – absent legislative veto – to stop.

[Update below]

According to an email we obtained written by the head of Christie DEP’s Office of Local Government Assistance Cindy Randazzo, on April 21, 2016, the DEP will rollout a campaign to weaken core protections of the Highlands Act, known as the septic density standards.

Those standards are a core feature of the Highlands Act that set the nation’s strictest land use density standards: one septic system per 88 acres of land in forested areas and one per 25 acres on agricultural lands.

I explain the legislative and regulatory history and technical basis, including links to key DEP documents in these prescient but premature posts:

• Is Bob Martin Sabotaging The Highlands Septic Density Standard?
• Christie DEP Using USGS To Weaken Highlands Water Protections

Development restrictions imposed by the septic density standards are the primary regulatory standards that “preserve” lands in the Preservation Area of the Highlands.

They have long been opposed by land owners and developers. For over a decade, they have survived legal challenges in the Courts and political challenges in the legislature. They underpin not only DEP’s Highlands Preservation Area rules, but the Highlands Regional Master Plan (RMP).

In a March 29, 2016 email, DEP’s Randazzo wrote:

 ———- Forwarded message ———-
> From: Randazzo, Cindy <Cindy.Randazzo@dep.nj.gov>
> Date: Tue, Mar 29, 2016 at 3:50 PM
> Subject: IMPORTANT – DEP Highlands Municipal and County Meeting
> To: “Randazzo, Cindy” <Cindy.Randazzo@dep.nj.gov>
> Cc: “Rogers, Joseph” <Joseph.Rogers@dep.nj.gov>, “Fenderson-Singh, Nateshea” <Nateshea.Fenderson-Singh@dep.nj.gov>

Good Afternoon Municipal and County Official,

Please join us for a Highlands meeting to discuss DEP’s proposed changes to the Highlands Septic Density Rule and what it may mean to your Municipality or County.

Parsippany-Troy Township Municipal Building
1001 Parsippany Boulevard, Parsippany 07054
Thursday, April 21st from 9:00 to 10:00 am

Good afternoon indeed! And the day before Earth Day no less. I’m sure that meeting will garner public attention!

Thus starts a huge battle for the future of the Highlands, for I can assure you that if these standards are weakened, they will never be strengthened by a future DEP and thus begins the unraveling of Highlands Preservation Area protections.

It is significant that the septic density campaign rollout begins with Ms. Randazzo’s briefing of municipal and county officials.

The DEP recently was severely criticized for failure to involve local officials in major controversial initiatives, like the recent “Motorized Access Plan” (MAP) in the Pinelands, the Sparta Mountain logging plan in the Highlands, and commercial development in Liberty State Park.

DEP seems to have learned the political lesson so is now, similar to a corporate marketing campaign, conducting local outreach to garner political support.

This is completely inappropriate political behavior for a regulatory agency in the process of promulgating rules.

It is vital that any effort to weaken Highlands Protections be immediately and aggressively opposed BEFORE it is formally proposed in the NJ Register.  By that time, once a rule is proposed, DEP is politically committed and it will be very difficult – absent legislative veto – to stop.

So I fired off this warning letter to DEP Commissioner Martin today to put him on notice that any rollbacks will be strongly resisted and very likely incur an immediate VETO by the Legislature as “inconsistent with the intent” of the Highlands Act: (I omitted the text on the first 2 process points):

Dear Commissioner Martin:

According to a March 29, 2016 email from Cindy Randazzo of your staff addressed to an unidentified universe of “municipal and county officials“, the Department is proposing changes to “the Highlands Septic Density Rule” (sic).

I assume Ms. Randazzo was referring to the septic density standards codified at N.J.A.C. 7:38-3.4(b)  in the Department’s Highlands Water Protection and Planning Act Rules, NJAC 7:38 – 1 et seq.

Ms. Randazzo invited all those “municipal and county officials” to an April 21, 2016 meeting at the  Parsippany-Troy Township Municipal Building to “discuss DEP’s proposed changes to the Highlands Septic Density Rule and what it may mean to your Municipality or County.”

For the following reasons  I strongly urge you to cancel this proposed meeting and terminate any effort by the Department to – in any way – weaken the septic density standards in the Highlands rules.

I) The closed and selective meeting format is inappropriate; invites violations of the Open Public Meetings Act; and is Inconsistent with the spirit and intent of the OPMA

 […]

II) The meeting format may violate the rule-making procedures of the Administrative Procedures Act and is inconsistent with the spirit and intent of the APA

[…]

III) ANY weakening in the scope, applicability, scientific and technical methodologies that form the basis of the current standards, or the procedural requirements of the current septic density standards would be inconsistent with the legislative intent of the Highlands Act to prevent degradation of water quality.

The septic density standards in the DEP regulations are a cornerstone and vital protection to implement the Highlands Act.

The septic density standards are authorized by the following provision of the Highlands Act ( C.13:20-32 Rules, regulations, standards.; P.L. 2004, c.120):

http://www.njleg.state.nj.us/2004/Bills/PL04/120_.PDF

e. a septic system density standard established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses from individual, secondary, and cumulative impacts, in consideration of deep aquifer recharge available for dilution;  (emphasis supplied)

The Highlands regulations and the septic density standards have survived judicial challenges and been deemed by the Courts to be legislatively authorized, scientifically valid, an appropriate exercise of DEP discretion in accordance with the legislative standards in the Act, and not an unconstitutional taking of private property without due compensation.

The Department’s science and methodologies and regulations for implementing this provision of the Act are working well, have been implemented for over a decade now, and are well understood by the public, the Highlands Council, and the regulated community.

The legislative intent of the Highlands Act is very, very clear with respect to preventing the degradation of water quality (surface and ground waters) based on septic density

“and to protect ecological uses from individual, secondary, and cumulative impacts, in consideration of deep aquifer recharge available for dilution”.

I remind you of the Legislature’s overall intent, as expressed in the Act:

… The Legislature finds and declares that   …  the existing land use and environmental regulation system cannot protect the water and natural resources of the New Jersey Highlands against the environmental impacts of sprawl development.

The Legislature further finds and declares that the protection of the New Jersey Highlands, because of its vital link to the future of the State’s drinking water supplies and other key natural resources, is an issue of State level importance that cannot be left to the uncoordinated land use decisions of 88 municipalities, seven counties, and a myriad of private landowners; that the State should take action to delineate within the New Jersey Highlands a preservation area of exceptional natural resource value that includes watershed protection and other environmentally sensitive lands where stringent protection policies should be implemented; that a regional approach to land use planning in the preservation area should be established to replace the existing uncoordinated system; that such a new regional approach to land use planning should be complemented by increased standards more protective of the environment established by the Department of Environmental Protection for development in the preservation area of the New Jersey Highlands; that the new regional planning approach and the more stringent environmental regulatory standards should be accompanied, as a matter of wise public policy and fairness to property owners, by a strong and significant commitment by the State to fund the acquisition of exceptional natural resource value lands; and that in the light of the various pressures now arrayed against the New Jersey Highlands, these new approaches should be implemented as soon as possible.  (emphases supplied)

Since passage of the Highlands Act, several bills have been introduced to weaken, rollback or repeal the Legislative protections and standards of the Highlands Act. Those bills have failed to gain necessary legislative majorities. This legislative history of failure by the Act’s opponents to achieve legislative rollbacks of the Act or the DEP regulations is additional evidence of the strong legislative intent to protect critical Highlands water resources.

The Department may not rollback or weaken Highlands Act protections via regulatory policymaking given these facts.

Such an effort would not only be inconsistent with Legislative intent, it would usurp Legislative policymaking powers and constitute an egregious violation of constitutional separation of powers doctrine.

For the above, and many other reasons too complex to discuss in this note, I again urge you to cancel this meeting and cease and desist in any effort to weaken Highlands protections, including the septic density standards.

I am copying the Chairs of the Legislative Committees of jurisdiction and prime sponsors of the Highlands Act.

Respectfully, Bill Wolfe

c: Senator Bob Smith, Senate Environment Committee

Senator Robert Gordon, Senate Legislative Oversight Committee

Assemblywoman Grace Spencer, Assembly Environment Committee

Assemblyman Reed Gusciora, Assembly Regulatory Oversight

[End note: Full disclosure: I wrote the legislative provision “deep aquifer recharge” and thus have a huge dog in this fight.]

[Update: Remember that DEP proposed to gut the nitrate dilution & zoning requirements in proposed WQMP rules now pending adoption.

DEP could now claim merely to be aligning the Highland septic density rules with the new WQMP nitrate dilution requirements – a two step rollback Kabuki!!!

More evidence is that DEP is kicking off a new “Stakeholder” process on revisions t the Groundwater Quality Standards tomorrow  (4/11/16)- but the agenda makes no mention of nitrate dilution or septic density standards revisions.

Yet, at the same time, DEP is briefing local and county officials about septic density standards revisions.

Why the double dealing?

Don’t get played.

With the recent USGS study on background nitrate levels, the planets are aligning – a bad moon is on the rise. (and what ever became of the DEP settlement on the farm Bureau’s lawsuit?)

Boycott the Stakeholder process NOW – draw a line in the sand and mount a Highlands water quality defense campaign.

The Forest Stewardship Plan poses an imminent danger to the natural forests and wildlife on Sparta Mountain.”  ~~~~ Hardyston Township (3/31/16)

The public comment period for the DEP’s controversial Sparta Mountain logging plan closed on March 31, so the criticism is starting to roll in.

I filed an OPRA for all the comments on 3/31 which DEP has not yet responded to, so I will do a more comprehensive post when I get all the documents.

The Hardyston Township  comments were very critical and illustrate not only the substance of local concerns, but suggest an organizing strategy for opponents of the plan.

I had not anticipated the strength and the effective organizing by the numerous lake Homeowners Associations.

The Highlands are blessed with many lakes – natural and man made – that provide not only places rich in aquatic life, but sites of organized political support for land preservation and protection of forest and water resources.

The lake homeowners are vested in the high quality of life that the splendid natural resources of the Highlands provide. They have good relationships with local officials and are well respected, credible, and effective voices for preservation. The Beaver Lakes folks obtained high powered legal support and submitted killer legal arguments (provided upon request, likely the subject of a future post).

My sense is that they were so well organized and effective organically on their own, in spite of and not as a result of advocacy groups with significant resources and paid staff, like the Highlands Coalition.

The Highlands Coalition prepared solid technical criticism of the DEP plan, but inside baseball and technical comments without strong and effective political organizing are doomed to fail.

HiCo needs to do much, much better in making the case to the public and organizing opposition.

Here is the intro and excerpts of the issue headers from the Hardyston comments – with an even more critical conclusion:

1) The Forest Stewardship Plan (hereafter “Plan”) poses an imminent danger to the natural forests and wildlife on Sparta Mountain.

2) The Plan presents potential dangers to wildlife, water supply, land and natural resources.

3) The Plan presents potential danger to the homes and infrastructure in the area of Sparta Mountain.

4) The Plan risks interference with the aesthetics of the surrounding area.

5) The NJDEP did not conduct any preliminary testing to determine the “real life” impact of the Plan.

6) The NJDEP failed to work cooperatively with Sussex County & local governments in developing the Plan.

how do you dare tell me that I’m my Father’s son
when that was just an accident of Birth.
I’d rather look around me — compose a better song
`cos that’s the honest measure of my worth.
In your pomp and all your glory you’re a poorer man than me,
as you lick the boots of death born out of fear.  ~~~ “Wind Up” (Jethro Tull – 1971)

Failure to consider climate change risks is a fatal flaw

NJ should follow NY State’s lead

“an appeal to science, reason, and moral sanity”

As we last noted, the legislature backed away from taking the final step to veto the Christie DEP’s proposed 900+ page “overhaul” of current flood hazard, storm water management, and coastal management rules, see:

• Senate Committee Blinks In Showdown On Veto of Christie DEP Clean Water Rule Rollbacks

Subsequent to that open Senate hearing, I learned that DEP met behind closed doors and briefed Legislators to defend the original proposal and outline their complex plan to adopt certain provisions of the original proposal and to propose substantive changes in a new “concurrent proposal”.

It is unclear exactly who attended this closed door legislative DEP meeting – including environmental groups – but what is clear is that it confirms exactly the Kabuki I suspected after listening to the Senate hearing.

Additionally, after the closed door meeting with legislators, on March 15, 2016, DEP met with a “by invitation only” group of Stakeholders to present their adoption and re-proposal plan.

Invited environmental groups walked out of that meeting because Delaware Riverkeeper was unable to attend and DEP would not allow their designated representative to attend  (see this link to find list of attendees, hear the walkout discussion, and listen to an audio MP3 of the meeting).

Importantly, 3 representatives of US EPA Region 2 attended the meeting.  EPA officials and their press office refused to comment on EPA’s position when asked several days after the meeting. So, the writing seems to be on the wall that EPA is softening on their original opposition.

I won’t go int detail here – those interested can listen to the audio of the March 15 meeting where DEP made a lengthy and detailed oral presentation – but merely say that it is clear that DEP is committed to moving forward with the bulk of the original proposal, with a few clarifications to resolve what they claim are misunderstandings by environmental groups.

DEP is sticking with their story that the original proposal did not in fact weaken any protections.

The only real substantive improvement the DEP will re-propose seems to be DEP’s concession to the FEMA objections. Based on what I heard, DEP also may have satisfied EPA’s concerns regarding compliance with Clean Water Act requirements.

Given a June 1 legal deadline to adopt the proposal and what I fear is the abandonment of opposition by Legislative Democrats and EPA – curiously,  environmental groups seem to have moved on as well –  adoption of the proposal is imminent.

So, I figured I’d make a last ditch effort to provide a compelling reason to abandon the original proposal.

I sent this note to DEP and Legislative leadership: an appeal to science, reason, and moral sanity:

Hi Vince –

Energy, land use and infrastructure decisions made now will determine how vulnerable our children and grandchildren will be to rising sea-levels.

So, I thought the Department should be aware of the science, regulatory policies, and standards with respect to consideration of climate change adopted by our neighbors at the NY State DEC that are of direct relevance to NJ’s Flood Hazard Area program, including projected sea level rise elevations (for inland and coastal areas).

These standards are far more conservative and protective than NJ’s with respect to flood and wave elevations, design storm, flood hazard area, and volumes:

“This Part applies to consideration of sea-level rise by the Department, other State agencies, and applicants for relevant permits and approvals in the context of programs specified in the Community Risk and Resiliency Act.”

Part 490, Projected Sea-level Rise – Express Terms 6 NYCRR

http://www.dec.ny.gov/regulations/103877.html

The technical basis for the NY DEC standards is found in the ClimAID Report (2014 update),

ClimAID: 2011 and 2014

In 2011, Responding to Climate Change in New York State (ClimAID) provided the first projections of sea-level rise specifically along New York’s coastlines and estuaries. The ClimAID 2014 Supplement refined these projections to take into account all known components of sea-level rise, based on advances in physical understanding, climate modeling and computing and reflecting observational data that include Hurricane Irene and Superstorm Sandy. DEC considers these projections to be the best available at this time for New York planners.

see:

http://www.nyserda.ny.gov/About/Publications/Research-and-Development-Technical-Reports/Environmental-Research-and-Development-Technical-Reports/Response-to-Climate-Change-in-New-York

In addition, NY DEC has plans and regulatory policies regarding projected climate impacts and adaptation strategies and requirements for projected increased storm and rainfall frequency, magnitude, and intensity of direct relevance to NJ FHA design storms and flood hazard area delineation, see: Sea Level Rise Task Force Report

http://www.dec.ny.gov/docs/administration_pdf/slrtffinalrep.pdf

While NJ does not have legislation directly analogous to the NY State Community Risk and Resiliency Act,  NJ law does authorize the Department to consider – if not require – consideration of best available science as the basis for regulatory policy and standards.

Equally, the Legislature has recognized the reality of climate change in passing the Global Warming Response Act. It is time for the Department to recognize climate change risks across the board.

I was encouraged recently when the Department proposed NJPDES CSO permits that included design standards for the 500 year storm.

If I were in your shoes, I would write Commissioner Martin a memo ASAP and recommend that the Department withdraw the current proposed FHA rule revisions and re-propose new rules based on the best available science that considers climate change and includes adaptation standards similar to NY DEC.

Finally, if I and many others were able to attend the Department’s “by invitation only” Stakeholder meetings, you would have been advised of this information prior to rule proposal, and we might have avoided the current impasse.

I am copying Senator Smith on this so that the Legislature may be advised of the science and regulatory policies that are relevant to their current ongoing review for consistency with Legislative intent.

Respectfully,