US Army Corps Of Engineers And US EPA Urged To Review PSE&G Wetlands Destruction And Murphy DEP Wetlands Deregulation
PSE&G Petition And DEP Deregulation Amount To Illegal Self Disclosed Immunity
I sent a letter to US ACE and US EPA Region 2 requesting federal oversight of the PSE&G wetlands destruction, fill, and hydro-modification and the Murphy DEP’s regulatory proposal to deregulate these wetlands in lieu of enforcement.
In the March 21, 2022 NJ Register, the Murphy DEP proposed regulations that would remap 150 acres of previously mapped coastal wetlands. I wrote to raise questions about that, see:
The DEP’s rationale to justify the remapping is based on a petition for rulemaking filed by PSE&G requesting the remapping.
In the PSE&G petition, PSE&G claimed that the subject coastal wetlands were no longer wetlands. These wetlands, PSE&G admitted, no longer functioned as wetland because they had been destroyed, filled, and hyrologically modified by PSE&G’s operations.
According to DEP (emphases mine):
The Petitioner contends in the petition it filed that Coastal Wetland Maps 224-1752, 224- 1758, 231-1752, 231-1758, and 238-1752 do not reflect the current property conditions due to the presence, as described above, of sand, dredged material, gravel, asphalt, parking areas, berms, and elevated topography that precludes tidal inflow and, consequently, the area in question does not meet the definition of a coastal wetland under the Act.
The DEP confirmed the PSE&G claims:
Area 2 – Block 26, Lot 4 contains the PSE&G Nuclear CDF, which is used for management of maintenance dredged material and desilting of water intake structures and the cooling tower basin. The area was initially used for construction staging and lay-down during construction of the Salem and Hope Creek Generating Station (the Station) and has been continuously used and managed to support the Station. This area also includes the PSE&G Nuclear Security Training Center and target range …. Hydrologic characteristics are limited by the perimeter berms. Soils are highly disturbed and characterized by the historic placement of fill during the original construction of Artificial Island and the construction of the generating stations. Vegetation is dominated by invasive phragmites, due to the disturbed nature of the area.
Area 3 – Block 26, Lot 5 contains an existing PSE&G Nuclear laydown/emergency preparation area, existing employee parking areas, chill water plant, and a maintained 500kV transmission right-of-way and maintained buffer. The area consists of existing developed areas including soil/gravel laydown, asphalt parking asphalt roadways
What’s happening here functionally sounds a lot like an illegal practice that’s known as “self disclosed immunity”. Two steps:
1. PSE&G effectively openly admitted what amounts to violations of State coastal wetlands laws and DEP regulations in their petition (self disclosure);
2. DEP failed to take enforcement action and instead remapped and thereby deregulated the wetland, which eliminates any PSE&G enforcement liability (effectively providing immunity).
During the Whitman Administration, NJ passed the “Grace Period” law, which initially included a broad self disclosure immunity provision. We forced Gov. Whitman to conditionally veto and narrow that provision because it would have violated federal law and triggered federal oversight and sanctions.
These [State audit disclosure and immunity] laws need to be scrutinized carefully to discern differences that may impact decisions on compliance with minimum federal requirements.
So, just like State audit disclosure/immunity laws must be carefully reviewed by EPA for compliance with federal requirements, so too must NJ DEP’s regulatory and permitting and enforcement practices that amount to the same thing.
So, I sent a joint letter to US ACE and US EPA Region 2 requesting federal oversight of the PSE&G wetlands destruction, fill, and hydro-modification and the Murphy DEP’s regulatory proposal to deregulate these wetlands in lieu of enforcement.
I request their review pursuant to federal jurisdiction and State oversight under:
- NPDES permits by USEPA under Section 402 of the Federal Clean Water Act, 33 U.S.C. § 1342;
- Permits for the discharge of dredged or fill material issued by the USACE under Section 404 of the Federal Clean Water Act, 33 U.S.C. §1 344;
- Permits for activities that have a potential to discharge in navigable waters issued by the USACE under Sections 9 and 10 of the Rivers and Harbors Act, 33 U.S.C. §§ 403 and 404;
I sent a copy to FEMA as well, because the DEP proposal involves technical issues (extreme high water elevation and wetlands regulation) that impact FEMA program responsibilities. I sent a copy to US FWS too, in case there are impacted federal natural resources or species of interest.
We’ll keep you posted on how the federal agencies respond.
[Note: I omitted “Area 1″, the largest part of the wetlands destruction. That is a USACE sediment disposal site (CDF), which DEP claims operated long prior to the passage of NJ coastal wetlands laws (and Clean Water Act) so is not regulated.]
I’m not optimistic, given the longstanding relaxation of federal oversight of State programs begun under the federalism policy adopted under the Clinton/Gore’s “reinventing government” initiative, which paraded under the Orwellian acronym “NEPPS”, for National Environmental Performance Partnerships.
Thanks again, Al!