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EPA Asked To Review Christie DEP Order for Compliance With the Clean Water Act

July 31st, 2016 No comments

[With end note]

I just sent the oversight request letter below to US EPA Regional Administrator Enck – it involves the recent political deal on the proposed Legislative veto of Christie DEP’s flood hazard, storm water, and coastal rules.

Judith Enck, EPA Region 2 Administrator

Judith Enck, EPA Region 2 Administrator

EPA raised objections to the original DEP proposal before it was adopted (see this EPA July 30, 2015 letter and this followup EPA October 22, 2015 letter). I am not sure if all EPA concerns have been resolved.

EPA should be reviewing the “concurrent proposal” now undergoing public comment (the public comment period on that proposal closes on August 26, 2016. We missed the July 22 public hearing, operating under the expectation that the Legislature would veto the original proposal, making the concurrent proposal moot.)

This letter asks that EPA review the Order, most importantly for the DEP claim that BMP’s satisfy all water quality compliance obligations, in the absence of site specific demonstrations. If EPA signs off on DEP’s BMP policy asserted in that Order, we are screwed!

Dear Regional Administrator Enck:

On July 22, 2016, NJ Department of Environmental Protection (DEP) Commission Martin issued Administrative Order No. 2016-06 (Order), see:

http://assets.njspotlight.com/assets/16/0728/2006

The Order makes broad, sweeping, and unconditional claims regarding alleged compliance with the water quality requirements of a specific provision of the federal Clean Water Act.

At the same time, the Order is silent regarding other directly applicable provisions of the Clean Water Act.

Because the Order involves enforcement of federally delegated and EPA approved State Water Quality Standards and NPDES permit programs, I request that EPA review this Order – and the underlying regulatory framework it would implement – for compliance with all applicable requirements of the federal Clean Water Act.

First, at the outset, I note that the Order is procedurally flawed and violates both state and federal administrative law, regulatory, and due process procedural requirements.

NJ DEP can not impose new enforceable substantive requirements via Administrative Order. They must be adopted in accordance with rule making procedures, pursuant to black letter law, court decisions, and fundamental doctrines of administrative and Constitutional law.

Specifically, the Order would require application and enforcement, on a case-by case basis, of proposed regulatory provisions in NJAC 7:13.4(b) that have not been adopted.

Those regulatory provisions just were proposed in the June 20, 2016 NJ Register and are currently undergoing public comment – the comment period closes on August 26, 2016, see:

http://www.nj.gov/dep/rules/proposals/20160620a.pdf

I request that EPA review the Order for compliance with Clean Water Act requirements, particularly in light of the fact that the Order would apply to pending and future NPDES permits.

Second, the Order claims that NJ DEP’s “Best Management Practices” (BMP’s), including regulatory restrictions on disturbance, minimization, and mitigation, satisfy water quality requirements of the federal Clean Water Act.

This claim is made facially, in the absence of site specific analysis that would demonstrate compliance with water quality standards, including anti degradation review requirements, in stream numeric and narrative criteria, full maintenance of existing use protections and anti-backsliding NPDES requirements.

I request that EPA review the NJ DEP BMP policy for compliance with all Clean Water Act requirements, not solely the provision cited in the Order.

We are particularly concerned with NJ DEP’s attempt to skirt site specific water quality compliance obligations via reliance on BMP’s, in the absence of site specific demonstrations.

There may be cases where BMP’s do not meet water quality standards.

EPA must not allow NJ DEP to violate procedural requirements of the Clean Water Act.

EPA must not sign off on NJ DEP’s proposed BMP blanket compliance policy.

EPA must reserve the authority of NJ DEP and EPA to deny approval of a regulated activity that relies on BMP’s if those BMP’s would cause or contribute to a violation of water quality standards.

EPA must reserve authority to conduct site specific studies and site specific reviews and require site specific activities that  are broader and/or more specific than generic BMP’s.

EPA would surrender that authority if EPA allows NJ DEP’s unconditional blanket BMP policy to stand.

I look forward to your prompt and favorable reply.

Respectfully,

 Bill Wolfe

mauriello

[End note – a reader tells me that former DEP Commissioner Mark Mauriello was involved in the “negotiations” – if that’s true, shame on you Mark. If it is NOT true, then please contact me and I will toast the person who accused you of that.

I thought you came clean and admitted your political compromises as acting DEP Commissioner: (prior post)

[I loved Mark’s admission that – due to politics – he may have been part of the problem while at DEP!]

You remind me of another DEP wetlands program manger and mayor now running BS on the 401 WQ Certification issue to cover their own culpability for wielding a BIG FUCKING RUBBER STAMP. Ditto for failure to adopt enforceable water quality standards for wetlands.

Reminds me of the fact that when Campbell set me loose on the C1 and Highlands, I had to fight the DEP bureaucrats to get things done.

The DEP bureaucrats had never used the authority provided by the C1 regulatory criteria for exceptional ecological or water supply significance, so my efforts to do that made them look bad. Ditto for their nitrate dilution model, which I’ve written about extensively.

The same thing is now happening with the 401 WQ Certicate issue – a legal power and program historically ignored and mismanaged by the DEP wetlands program and subject to virtually no EPA oversight.

{update – I am now told by that same reader that Senator Smith specifically told environmental groups that the DEP Order specifically resolved my concerns – that I was mentioned by name and “used” by Smith. If that is true, for the record, I had NO involvement in or knowledge of any of this until I read the NJ Spotlight story.]

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Senator Sweeney Sells Out NJ’s “Exceptional Value” Streams and Rivers – Cuts Deal With Christie DEP To Avoid Veto

July 30th, 2016 No comments
Protest against Sweeney - Christie betrayal on pensions - ( 6/16/11)

Protest against Sweeney – Christie betrayal on pensions – (6/16/11)

So much for the “sanctity” of  New Jersey’s “purest waters”:

We as a legislature have consistently supported the sanctity of buffers for our C1 streams. These are the purest waters we have in the State of NJ.   ~~~ Bob Smith, Senate Environmental Committee Chairman (6/16/16 – vote to pass SCR 66).

Senator Ray Lesniak

Senator Ray Lesniak

Despite strong public commitments by Senate Environment Committee Chair Bob Smith and Senator Ray Lesniak to veto the Christie DEP rule at a Statehouse rally with environmentalists in June, Senate President Sweeney cut another political deal with the Christie administration to avoid a Legislative veto of Governor Christie’s DEP’s rules that rolled back protections and allow more development closer to NJ’s “exceptional value” “Category One” (C1) streams.

This most recent dirty deal is a huge sellout and will lead to more development along high quality streams and rivers, leading to more water pollution, more flooding, and more loss of some of the most ecologically valuable habitat. Period.

Even the Star Ledger Editorial Board – twice – urged Sweeney to veto the rules, see:

Will Sweeney protect our clean water from Christie’s bulldozers?

Sweeney’s rationale for the delay is that he’s trying to find a middle ground. He says he plans to meet with the head of the state Department of Environmental Protection to work out a compromise. “You have my commitment,” he said this week. “If we can’t fix this, on Aug. 1, we’ll pass it.”

From clean water rules to school funding, enough of Christie’s secrecy

So, enough. Not only should Sweeney stand up to the governor on stream and river protections, the Legislature should pass a similar resolution that overturns the rule changes on sewers and septic tanks, too. Christie officials shouldn’t get to conduct their policy negotiations behind closed doors. Time for a Legislative veto.

sweeney23
The deal represents exactly the political Kabuki I warned about back in March:

The public and the [Senate Environment] Committee will be drowned in the weeds of a lengthy adoption – response to public comments document on the original proposal along with an entirely new and complex re-proposal document. This is a formula for political manipulation. It will take weeks to decipher the documents. Meanwhile, by the time the dust settles, the original proposal will be adopted into law and the Veto Resolution will have withered on the vine (faded into the budget debate) and the Legislature adjourned for the summer.

Senate President Sweeney has long opposed the C1 buffer program because he listens to the builders lobby – Back in 2007, then Senator Sweeney joined then Republican Senate President Bob Littell in attacking the C1 stream buffer program:

404. COMMENT: The proposed Category One designations would appear to be more about curbing development than enhancing water quality standards. Unfortunately, this new regulatory proposal tips the balance even more against the economic prosperity of the areas, district 24 and 3. (127, 221)  (source: DEP regulatory document)

The cover story for Sweeney’s political deal is an Administrative Order issued by DEP Commissioner Martin. Shamefully, Sweeney obviously coerced Senator Smith and made it appear that Smith is responsible for it.

[Back on May 25, I predicted exactly this:

I strongly suspect that these “improvements” [in the “concurrent proposal”] are the political deal that bought off a large segment of the conservation community opposition and that will provide political cover for the Legislature’s abandonment of the veto, so it is important that I expose that lie.

Senator Smith must have had Sweeney’s gun pointed to his head. He should have resigned. As I wrote:

It is totally inappropriate [for Sweeney] to negotiate back room political compromises on regulatory protections (for an example of exactly how Sweeney abuses the process, see: “Political Pressure On DEP: How The Game Is Played”).

Talk about the blind leading the blind! (and Sweeney is expressing no confidence in Senate Environmental Committee Chairman Bob Smith, who has rigorously, openly, and fairly considered the DEP proposal and listened to hours of public testimony.)

If anyone took time to read the Administrative Order, they would see that DEP admits that they are weakening existing restrictions on development in the buffers. Here it is, hidden in plain sight:

ao6

In case it’s not clear, let me repeat: the former rules (7:8-5.5(h), which were repealed) “limited or prohibited disturbance” within the 300 foot buffer – i.e. disturbance was limited in the 150 foot outer buffer and prohibited in the inner 150 foot buffer. But it was “allowed” under the stream encroachment rules.

The Martin Order is blatantly illegal – it seeks to enforce proposed new requirements in the “concurrent proposal” in existing permits on a case-by-case basis before that proposal is adopted.

DEP can not impose enforceable substantive regulatory requirements via Administrative Order. They must be adopted via rulemaking procedures, under very clear black letter law, court decisions, and fundamental doctrines of administrative and Constitutional law. It’s called “due process”.

[Amazingly, the Order was signed on July 22 – on that same day, DEP held a public hearing on the “concurrent proposal“! The public process on the current proposal is meaningless, because the Order says DEP should begin enforcing the provisions of the proposal on a case-by-case basis. Sounds like lawsuit time to me.]

Senator Bob Smith

Senator Bob Smith

Even if the Order were enforceable – which it’s not – the provisions – taken from the “concurrent proposal” – still allow development inside the 150 buffer of C1 streams. That was supposed to be Smith’s bottom line and strongest reason for finding the DEP rule inconsistent with legislative intent. For details on that, and flaws in the “concurrent proposal” see:

If DEP were serious in trying to avoid a “takings” challenge to the prior “prohibition” in the storm water rules and absolutely minimize buffer disturbance, they would have put the strict takings “hardship waver” from the Highlands rules (NJAC 7:38-6.8)  in the “concurrent proposal” and Order. Instead, DEP made the previous “hardship waiver” in the stream encroachment program EASIER to get.

The Administrative Order actually makes the status quo WORSE:

1. The Order claims that NJ DEP’s “best management practices” satisfy ALL water quality compliance obligations under the federal Clean Water Act. That is a false and dangerous statement that EPA would never sign off on. But, because EPA has no review authority over State DEP Orders, they won’t weigh in on the issue.

[keep in mind that DEP’s claim that BMP’s meet Clean Water Act water quality requirements means that pipeline companies now have a guarantee of stream encroachment permit approval. It remains to be seen if DEP will attempt to claim that BMP’s satisfy all freshwater wetlands permit and Section 401 Water Quality Certificate requirements under the Clean Water Act. This debate will flesh out the provision in Section 1.c of of the order that regulated activity “complies with the applicable water quality standards”.]

[Update – it is interesting to note that the Order, which is not enforceable, includes the compliance with water quality standards language, but that same language was NOT included in the concurrent proposal, which would be enforceable on adoption. I previously called DEP out on this – in testimony on June 16 before the Senate and in a post here – and used that as evidence that DEP was not serious and misleading the public. I wrote the following:

 the DEP [concurrent proposal] summary falsely claims that the stream encroachment permits are linked to compliance with surface water quality standards, “similar to” the wetlands regulations:

“These requirements are similar to the requirements at N.J.A.C. 7:7A-7.2(b) for the issuance of a freshwater wetlands or open water fill individual permit, with amendments to reflect that the proposed subsection is only applicable to riparian zones to a Category One water, making some of the considerations applicable in the freshwater wetlands context not applicable under this subsection, and are intended to ensure that activities within 150 feet of a Category One water or regulated tributary to a Category One water are only conducted when there is no alternative to the activity and that the activity will not lead to the violation of State water quality standards and laws or otherwise have significant adverse environmental consequences.”

The wetlands regulation (NJAC 7:7A-7.2(b)) that DEP claims the CP is “similar to” explicitly requires that wetlands permits:

“5. Will not cause or contribute to a violation of any applicable State water quality standard;”

But the actual text of the CP rule does not include this language from the wetlands rules. While other provisions from the wetlands rules were included in the CP, this critical language was not.

The CP does not require compliance with State water quality standards or include this “cause or contribute to” language from the wetlands rule

After the Senate hearing, I spoke with DEP Assistant Commissioner Kopkash who told me that this issue was discussed internally, and the DAG Epply rejected the language as “unnecessary”. I then explained to KopKash that this involves the DEP regulatory jurisdiction over non-point source pollution in terms of application an enforcement of the water quality standards, and that it is a huge issue that Epply and I had debated for many years – I lost those debates. ~~~ end update]

2. The Order claims that NJ State Flood Hazard Act “riparian zone” requirements satisfy all federal Clean Water Act water quality requirements – again that is false.

Examples: EPA would never sign off on a broad statewide claim that DEP could allow a FHA permitted riparian zone disturbance to destroy an “existing use” (e.g. wood turtle) of aquatic dependent life. DEP already enforced the wood turtle existing use issue in the the Milligan Farms Pulte Home case. EPA also would not issue a blanket approval DEP to issue a FHA permit that lowered water quality without conducting a site specific antidegradation review.

Shamefully, now that he cut the dirty deal, Sweeney is running for cover and running away from it.

Sweeney made Senator Smith take the heat for the deal he forced.

According to the NJ Spotlight story, Smith supported the deal:

“What we were trying to achieve with a legal and constitutional challenge has now been achieved through negotiation,’’ Smith said. He argued, in a press release by partisan staff, that the changes to the regulations and the administrative order signed by the DEP commissioner are “equal to the protections that were in place before the rule changes were made.’’

But Tom Johnson, a veteran reporter, knew that was bullshit and noted the release was issued “by partisan staff” – that’s code for Senate Democrats, or Sweeney.

We are not fooled by the bullshit either and will hold Sweeney accountable.

Let’s hope that certain Senators can grow a spine and sustain a veto the DEP Highlands septic density standards rollback.

sweeney7

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Democrats Go All In For Hillary’s Military Madness

July 28th, 2016 No comments

USA! USA! USA!

Dems USA!

And after the wars are over
And the body count is finally filed
I hope that The Man discovers
What’s driving the people wild ~~~ “Military Madness” Graham Nash

I thought I was done with this, but just hit the on-line CSPAN coverage and saw this madness.

In case you weren’t watching, this group literally marched on to the stage to a snare drum –

The USA! chants began and continued throughout the rantings of a US Marine 4 Star General military zealot.

To our enemies, we will pursue you, as only America can.

You will Fear us.

And to ISIS, we will defeat you.

Madness. Read  ‘Spiral: Trapped in the Forever War,’ by Mark Danner

These drone are not butterflies

These drone are not butterflies

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DNC – Clinton Wrap-up: No Room Under the Tent for Dissent or Activists

July 28th, 2016 No comments
Bernie Sanders March, (Philadelphia, PA, 7/24/16)

Bernie Sanders March, (Philadelphia, PA, 7/24/16)

When the truth is found to be lies
And all the joy within you dies
Don’t you want somebody to love
Don’t you need somebody to love
Wouldn’t you love somebody to love ~~~ “Somebody to Love” Jefferson Airplane

The picture and the music above say it a lot better than I can in words.

The photo about sums up my feelings – elder legacy and all that jive – it is so loaded with meaning, that it is my favorite shot of the Bernie March and the contrast with the DNC Convention as a whole – from the accordion player to the concept of a moral obligation to future generations.

Old Man take a look at my life, I’m a lot like you ~~~ “Old Man” Neil Young

I could write a book about the multiple themes, values, and issues depicted, but will leave all that to the viewer and reader.

We spent this week wading into deep waters, trying to capture some meaning from the TeeVee show that the DNC Convention really is.

Be on my side, or be on your side, baby
There is no reason for you to hide …

This much madness
is too much sorrow
It’s impossible
to make it today. ~~~ “Down By The River” Neil Young

To me, the bottom line is that, first of all, the Democratic Party is incapable of reform – change will only come from Movement politics and civil disobedience that exerts pressure and creates a crisis outside the formal party structure and electoral and governing processes. Think Mario Savio or Dr. King’s idea of “creative tension”. Dr. King wrote:

You may well ask: “Why direct action? Why sit ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.

Second, Bernie Sanders was just not the man for the enormous burden he had to bear.

He did a great job, but catalyzed a movement and political dynamic he was totally unprepared to manage, and he was up against a powerful and corrupt Clinton machine. But still,  he did not have to collapse the way he did, and could have used the power he had far more effectively.

It was more a failure of leadership than vision or moral scruple. I think Chris Hedges was unnecessarily harsh in his personal criticism – Bernie was not a “useful idiot” –  but Hedges is essentially right about squandering the historical moment and the implications going forward.

Third and finally – and I really hope I am proven dead wrong about this – I think the Democrats, by nominating Hillary Clinton, have virtually assured that Trump is the next President.

There seems to be overwhelming evidence to support those conclusions – my notes don’t begin to scratch the surface, particularly of the DNC/Clinton sabotage of the Sanders campaign or the series of insults that went down inside the convention itself – but I think I document some of that evidence in the series of posts, with photos and music:

By the time we got to Woodstock
We were half a million strong
And everywhere was a song and a celebration
And I dreamed I saw the bomber jet planes

Riding shotgun in the sky
Turning into butterflies
Above our nation. ~~~ “Woodstock” Joni Mitchell

These drone are not butterflies

These drones are not butterflies

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DNC – Everybody Knows

July 28th, 2016 No comments

Wall Street Elites Emerge From The Shadows

Elites look down on Sanders March (Philadelphia, 7/24/16)

Elites look down on Sanders March (Philadelphia, 7/24/16)

When the Wall Street Elite Zombies are so egregious that they get called out on the front page of the New York Times:

After Lying Low, Deep-Pocketed Clinton Donors Return to the Fore

 

then EVERYBODY KNOWS:

Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed
Everybody knows the war is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That’s how it goes
Everybody knows  ~~~ “Everybody Knows” (Leonard Cohen – Listen)

elites1

 

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