WolfeNotes.com

San Juan National Forest – West Branch San Juan River (Colorado)

We’re tucked in on the bottom left:

View from just up the ridge:

Rare DEP Rollback Results In A Huge Loss of Protected Wetlands

Allows PSE&G To Avoid Costly Avoidance, Minimization, and Mitigation Requirements 

Just days before DEP denied a petition by climate groups, the Murphy DEP approved a petition, filed by PSE&G, to deregulate and eliminate protections from 148.9 acres of previously regulated wetlands at their Salem Hope Creek nuclear power plant. You can read the DEP decision here.

Remarkably, PSE&G argued that the wetlands no longer existed – largely because they had destroyed them (emphases mine):

DEP either lied or made a big error. PSE&G did NOT claim that the elevation was one foot “above the local extreme high water”. PSE&G claimed that the elevation was above the:

That is not only a huge loss of protected wetlands – one of the largest individual loss in State history that I’m aware of – it is a rare if not unprecedented rollback in response to a petition from a regulated entity (PSE&G). There are no similar DEP concessions on DEP’s rule petition webpage.

The DEP wetlands rollback saves PSE&G potentially millions of dollars in off-site wetlands mitigation:

Mitigation refers to an activity or activities carried out to compensate for impacts to freshwater wetlands, State open waters or coastal wetlands disturbance caused by regulated activities. Wetland mitigation is currently required under the Freshwater Wetland Protection Act for some general permits and when an applicant receives an individual permit. Under the Coastal Zone Management rules, mitigation is required for all coastal wetland impacts.

If DEP denied the PSE&G petition, PSE&G would have been required to apply for and receive wetlands permits. NJ DEP wetlands regulations require avoidance of wetlands impacts, minimization of wetlands impacts, and mitigation for any losses. Under DEP mitigation requirements (See NJAC 7:7A-11 @page 114)) , PSE&G would have been required to preserve hundreds of acres of off-site wetlands.

Loss of wetlands contributes to flooding. Therefore, by deregulating these wetlands, DEP just abandoned an opportunity to increase wetlands protections via off-site mitigation (and thereby reduce the severe coastal and inland flood impacts NJ just experienced).

Additionally, there are serious concerns about the vulnerability to and risks of flooding and storm surge at this PSE&G nuclear complex. Filling and destruction of wetlands exacerbates these risks. For example, there were NJ legislative hearings and other investigations in the wake of the Fukushima disaster that explored the Delaware river elevations and the height of the intakes at these nuclear plants. These risks are magnified by climate change. Obviously, that critical issue must be addressed, particularly in light of climate change. See: “Japanese Nuclear Accident And US Response” – NEI, Public hearing on (4/7/11 – Trenton)

DEP Claims Petition Requires “Further Deliberation”

DEP implies that they lack statutory authority to regulate greenhouse gas emissions

Kicking the can down the road exposes Murphy DEP climate fraud

Delay and indecision contrasts with DEP’s approval of PSE&G nuke site wetlands 

Back in July, a Statewide coalition of 58 groups submitted a “petition for rulemaking” to DEP urging DEP to adopt regulations that would mandate a 50% cut in greenhouse gas emissions, based on the “best available science”, which is the most recent IPCC Report. I wrote about that here: (hit the link for the details and the petition)

• After 4 Years Of Cheerleading And “Stakeholder” Diversions, NJ Climate Activists Finally Pull The Regulatory Trigger

The Murphy DEP just decided to punt and postpone decision on that petition. (I had not anticipated that kind of cowardly response in my prior post).

DEP set no firm date for deciding the issue. The DEP punt decision will not be officially published in the NJ Register until October 18, 2021, just weeks before the election.

You can read DEP’s full response to the rulemaking petition here (emphases mine):

False Assertion Of DEP Permit Denials Damages Credibility Of All Involved

False Basis Diverts From Real Issues And Rewards Incompetent Opponents

The union guys knew exactly what to demand (401 WQC) and who to target (DEP). The Hunterdon County folks, driven by Rethink & Tom Gilbert? Not so much.

Last week, I filed an OPRA request to DEP for all communications they received and issued on the PennEast pipeline. My objective was to get the facts and report the real story, which was being falsely presented in NJ media circles. We will soon have the facts.

I copied NJ Spotlight reporter Jon Hurdle on that request as a way of urging him to rely on facts, not false assertions and false narratives (including to challenge fact free, speculative, and false claims he already had reported).

Curiously, today, instead of waiting a few days for the facts to emerge, Mr Hurdle and his editors at NJ Spotlight rushed to publish not only a premature but a false and misleading narrative, see:

• PennEast opponents say community activism was key to beating pipeline

NJ Spotlight is not some neutral and objective party to this dispute.

Their reputation and credibility are at risk, because, for years, despite being asked to do so, they failed to report on the alleged basis for cancelling the project: i.e. DEP Water Quality Certification (WQC) under Section 401 of the Clean Water Act. Spotlight also falsely reported on alleged prior DEP permit denials.

The same criticism holds for “PennEast opponents”, who similarly failed to focus on and publicly pressure the Governor and DEP to deny the WQC and instead spent years and millions of Foundation grant and membership dollars in pursuit of a totally failed two pronged strategy: 1) FERC review and 2) eminent domain and land owner issues.

As we all know, FERC issued all approvals and provided an extension of them. Similarly, the US Supreme Court rejected the opponents legal arguments and granted PennEast eminent domain power.

For example, while “opponents” spent hundreds of thousands of dollars on legal work and technical consulting Reports on FERC and property issues – backed up by press releases, public events, Op-Ed’s, and legislative lobbying – I am not aware of any funding for a project or public campaign to appeal to the Governor and DEP to deny permits or WQC, e.g. a Technical Report by Princeton Hydro on how DEP could enforce WQC requirements under flawed DEP regulations.

NJ Spotlight also has financial issues as well as reputational issues at stake: because they are funded by the same Foundations and corporations that the “PennEast opponents” they selectively choose to quote as sources for their false and diversionary narrative. Imagine that: Foundations fund “opponents” to pursue a failed strategy; then they fund Spotlight to report on that same failed strategy by those incompetent opponents they funded. Then, they craft  a false narrative and declare victory!

I loath these people:

• Some PennEast Pipeline Opponents Want To Take Their Open Space Ball And Go Home

But the nightmare is not over: those same incompetent and corrupt “opponents” use this “victory” as evidence of their effectiveness and pursue even more Foundation grant money to fuck things up even worse.

On top of all this, the false narrative does severe damage to DEP’s credibility and institutional integrity – as well as that of the legislature – for “politicizing” regulatory decision-making and evasive delay driven decision-making.

And I really resent how Spotlight has twisted this narrative, to hide their incompetence (and that of “opponents”) behind the skirts of legitimate citizen activism!

My resentment is compounded by the fact that I wrote extensively about and actually tried to educate and organize opponents and get them focused on the Gov. and the DEP WQC issues, but those efforts were undermined intentionally by diversions by these same “opponents” who now declare victory! (of course, Spotlight never focused on the WQC issue either).

We had a small success with this from the Chesterfield/Bordentown folks I worked with, but “Rethink NJ” (Tom Gilbert) and Patty Cronheim immediately undermined that work, see:

• Anti-Pipeline Activists Target Christie DEP’s Clean Water Act Powers

In case they all missed it, we’ve been following and urging a 401 WQC NJ campaign for YEARS: (regulatory arguments in red posts):

• Don’t Frack NY – Albany Protest Photos (September 2012)
• By The Time They File for State Permits, It’s TOO LATE!
• While PennEast Pipeline Foes Focus on FERC, Pennsylvania DEP Quietly Issues Water Quality Certificate
• Why Is NJ Media Keeping NY Gov. Cuomo’s Pipeline Kill A Secret?
• NY Environmentalists Call On Gov. Cuomo To Use Clean Water Act Power to Kill Gas Pipeline
• Continuing Misplaced Focus Diverts Pipeline Foes
• Lack of NY State Water Quality Permit Blocks Constitution Pipeline
• Strategic Advice To NJ Pipeline Foes: Build A Public Campaign To Pressure DEP To Deny Clean Water Act 401 Approval
• Advice for PennEast and All NJ Pipeline Opponents On Upcoming DEP Permit Hearings
• Citizen’s Guide To Using The Clean Water Act To Kill Pipelines
• Connecting the Dots Between Pipelines and Clean Water
• Christie DEP FERC PennEast Review Again Dodges The Only Hook That Could Kill The Pipeline

It really matters who and what killed JR – if the public and media are misled by the false narrative that substantively hollow, politically cowed, and technically misdirected advocacy can kill a major corporate initiative, then there will be very few in the future. Strategy and tactics matter:

• Here’s How To Really Kill The PennEast Pipeline

(Keep in mind the context and the effect of this false narrative and incompetent advocacy on the several pending fossil infrastructure projects and delays in DEP climate PACT regulations).

When I receive DEP’s OPRA reply, I will tell the factually based story and destroy this false narrative.

In the meantime, all those issues are suggested in my letter to Senator Bateman just now – I will back it up with another very specific OPRA request to DEP today.

I’m guessing that Bateman refuses to provide his “letters” to DEP.

Dear Senator Bateman:

According to today’s NJ Spotlight:

“[Senator] Bateman said he wrote “at least twice” to the DEP, asking it to deny permits, and said many other lawmakers and officials also responded to public pressure.”

https://www.njspotlight.com/2021/10/penneast-pipeline-throws-in-towel-ends-quest-natural-gas-nj-public-private-land-grassroots-opponents-celebrate/

I am doing a forensic policy and regulatory analysis of the PennEast pipeline case, focusing on the alleged publicly asserted basis for the cancellation: DEP regulatory review, especially the Clean Water Act Section 401 Water Quality Certificate.

I filed an OPRA request last week to DEP for all communications.

As DEP may assert an OPRA privilege on legislative communications, I was wondering if you would provide a copy of those letters to DEP, the ones you sent “at least twice”, which are now a matter of public record and have lost all OPRA and legislative privilege.

I’d also like your comment on the optics and institutional legitimacy issues the Spotlight narrative has created:, i.e that purely political pressure from land owners, public officials, and State legislators led to DEP – covertly and without formal regulatory action –  somehow letting PennEast know that their permit application and WQC request would be denied (or created sufficient “regulatory uncertainty” and “delay” to achieve the same result).

I know of no technical analysis submitted to DEP by project opponents that would form the basis of denial of a WQC (e.g. a Report by Princeton Hydro). The DEP OPRA response will clarify that issue.

I am aware of multiple technical and legal analyses paid for and/or prepared by project opponents on FERC and related eminent domain and property issues, but none were related to DEP WQC or permits (as far as I know).

My concern is that this narrative effectively totally politicizes DEP regulatory review, and destroys the integrity and credibility of DEP as a regulatory agency.

It also reinforces the regulated community’s longtime attacks on both DEP permit review delays and “regulatory uncertainty”. This too is damaging to DEP as an institution.

Finally, I don’t recall any open legislative oversight hearings and development of a public record on DEP regulatory review issues. Again, this lack of transparency damages public confidence and trust in both the legislature and the DEP, in terms of “politicizing” public policy and regulatory decisions.

I appreciate your timely reply.

Bill Wolfe

[End Note – here’s my second OPRA and note to Mr. Hurdle (I sent first on 9/27/21, so DEP’s response is due this week):

Jon – I just filed this second OPRA, so the facts will out soon:

“According to today’s NJ Spotlight story:

“[Senator] Bateman said he wrote “at least twice” to the DEP, asking it to deny permits, and said many other lawmakers and officials also responded to public pressure.”

https://www.njspotlight.com/2021/10/penneast-pipeline-throws-in-towel-ends-quest-natural-gas-nj-public-private-land-grassroots-opponents-celebrate/

I therefore request the letters Senator Bateman sent to DEP regarding his opposition to the PennEast pipeline.

I also request copies of, specifically reiterating and clarifying my prior OPRA request, the letters from all NJ legislators, County officials, and local officials opposing the PennEast pipeline that are referenced in the NJ Spotlight story linked above.”

This is now about competence, credibility, and integrity.

The facts will out. We’ll see who opposed the pipeline and on what basis.

Wolfe

The Voluntary Local Approach Abdicates State Government’s Role

Toothless State Plan Can Not Be Effective

The Whole Approach Is Designed To Fail

Regardless, here are my ** initial review comments I sent to the Office of State Planning just now:

Thank you – I would like to make the following comments for your consideration:

1) “extreme weather” must explicitly include excessive heat waves or excessive heat events. Did I miss that in this draft?

2) “resilience strategies” must explicitly include mitigation of urban heat island effects and other preparation and response actions to excessive heat events. This would include an urban forestry and parks component. Did I miss that in this draft?

3) disproportionate and disparate impact analysis in “environmental justice communities” must be explicitly addressed in the Guidance. Did I miss that in this draft?

4) I understand that the State Plan and this Guidance are voluntary and not regulatory, but there still needs to be a more aggressive planning policy to encourage municipalities to actually implement the Guidance via enforceable means, including zoning and land use ordinances.

Perhaps your Office might consider holding public hearings and developing a policy planning paper on related issues, such as Statewide versus local responsibilities, and voluntary versus regulatory approaches. 

Clearly, voluntary and local based approaches have not been and will not be effective. We must move towards a more Statewide and mandatory policy.

5) where will the funding come from to respond to this Guidance?

6) Are there any science based technical standards that govern? e.g. statistical frequency of storm events (500 year storm?) It is my understanding that DEP’s various stormwater, coastal, and flood management regulatory programs are based on the 100 year storm, which fails to consider climate science and the actual flood events over the last 10 years in NJ.

Even FEMA strongly criticized these DEP flaws, which remain and have not been reformed by the Murphy DEP, see:

• FEMA FLAYS DEP STORMWATER PROPOSAL

7) There needs to be a much greater focus and far more detail on implementation of the resilience strategy.

8) Under the authorizing legislation and this Guidance, municipalities are limited to “resilience” (climate adaptation) planning and appear to have no role in reducing greenhouse gas emissions (mitigation) or promoting energy conservation, energy efficiency or renewable energy. These are serious flaws.

9) It is inappropriate for a State Agency Guidance document to include incorporation of recommendations of private groups, including NJ Future and Sustainable NJ. This is a subtle form of outsourcing and privatization.

On what basis were these groups’ work incorporated in this Guidance?

For example, supposed the NJ Builders Assc. or NIAOP developed their own recommendations – would your Office include them as well?

I appreciate your consideration and response.

Bill Wolfe

** these comments were expanded after I submitted them and links included

Update: 10/5/21

Bill,

While we made some minor languages changes based on your suggestions, much of your references are already included in the links.  Additionally, a link is provided to the 2020 scientific report that informed development of the Climate Change Resilience Strategy, which you can find online.

We fully vet efforts by non-governmental agencies and will include the references if they are in line with state policy.  Further, Sustainable Jersey is quasi-governmental organization and NJ Future has worked with DEP in the past on several related issues. We are comfortable including their work in this document as they are in line with state policy.  In fact, one link in this document, the NJ Developers Green Infrastructure Guide, involves contributions from the NJ Builders Association was a partner in developing that document.

I agree that there must be additional focus on implementation; in fact this document is OPA’s first step in providing just that kind of focus.  A recent change to the Municipal Land Use Law requires incorporating resiliency assessment and strategies in the Master Plan.  Keep in mind, however, that this guidance and these requirements will continue to be updated and refined as DEP’s Strategy evolves.

Discussion are underway at/with DEP regarding public hearings and working with municipalities for local input which is something that is planned for early next year.

Other items that you reference such as funding for this guidance is currently under discussion.  This document provides guidance for those municipalities that choose to go further in their planning and implementation than is currently required in MLUL, but we cannot wait to plan for finalization of funding options and other issues.

The matter will be discussed at tomorrow’s SPC meeting.

Donna A Rendeiro

Executive Director

State Planning Commission

Office of Planning Advocacy

NJ Business Action Center

Office of the Secretary of State

33 W. State Street, 4^th Floor

PO Box 820

Trenton, NJ 08625-0820

609-292-7156