EPA Asked To Review Christie DEP Order for Compliance With the Clean Water Act
[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
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,
[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.]