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Hey You!

June 25th, 2016 No comments

Box turtle

Saw two box turtles on our walk this morning!

Hey you don’t help them to bury the light
Don’t give in without a fight. ~~~ Pink Floyd (listen)

Now that I’ve got your attention, consider this argument:

Anderson complains that scientists self-censor because they cannot fund bad news and don’t want to be its messenger. But it seems to me that he is guilty of the same fault when he offers hopeful answers that affect our lives little.

Only someone who knows the danger and cares about the future of humankind could make the last ditch effort to try and keep global average temperature rise to 2°C. For that effort cannot be made without total upheaval in how we live. We are not going to do this with a simple painless adjustment of the knob. We cannot use hydrocarbon fuels for energy, period.

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We Call on NJ Audubon To Repudiate Trump Money and Sever Partnership

June 24th, 2016 No comments
Donald J. Trump, the presumptive Republican presidential nominee for president, arriving at his Trump Turnberry resort in Scotland on Friday. Credit Jeff J Mitchell/Getty Images

Donald J. Trump, the presumptive Republican presidential nominee for president, arriving at his Trump Turnberry resort in Scotland on Friday. Credit Jeff J Mitchell/Getty Images

The above photo may come to be known as part of a 21st Century Arch Duke Ferdinand like moment. 

(I used that metaphor in a limited sense as an event that catalyzes chaos, but a Weimar moment is the far more apt analogy to describe the descent into barbarism and climate collapse we seemed locked into.)

Given Trump’s incredibly opportunistic self promotion of the disastrous right wing driven exit from the European Union from his golf course in Scotland – and the dangerous reactionary and fascist politics that is feeding in the US – we renew our call for NJ Audubon to repudiate Trump money and (very publicly) sever their partnership with Trump at his Trump National Golf Club in Bedminster, NJ.

For those who find it hard to believe that a group like NJ Audubon would partner with the likes of Mr. Trump – at an environmentally destructive golf course no less –  please see the facts here:

In a nutshell, NJA partners with and is funded by Trump.

On top of all that, Trump already is building as wall – at his Irish golf course to adapt to climate change driven sea level rise, see:

Memo to Eric Stiles, CEO of NJ Audubon – have you no shame?

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Is Senate President Sweeney Playing Politics With Clean Water?

June 24th, 2016 No comments

Sweeney Yet to Post Veto of Christie DEP Flood Rules for Senate Vote

Is Sweeney carrying the Builders’ water or saving the best for last?

“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.” ~~~ Senate Environment Committee Chairman Bob Smith (June 16, 2016)

Senate President Sweeney has yet to post SCR 66, the veto of Governor Christie’s DEP flood hazard, stormwater management, and coastal rules.

The Assembly passed the Assembly version (ACR 160) and the Senate Environment Committee approved SCR66 and released it to the full Senate on June 16.

The case for a veto is strong.

At a State House rally later that day, Senator Lesniak (co-sponsor) promised that the Resolution would be passed during the Senate’s June 23 session. That did not happen. I really hope he was not just blowing the same smoke he did on Exxon NRD.

And I really hope Sweeney has changed his mind now that he is Senate President – and running for Governor – and is not attacking clean water and promoting inappropriate development again, like he did back in 2007 when the Category One waters buffers were incorporated in the stream encroachment permit program. Back in 2007, then Senator Sweeney joined then Republican Senate President Bob Littell in attacking the C1 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)

Both houses previously passed the Resolution, but the Constitution requires that DEP be provided a chance to respond and that the Resolution be passed by both houses twice to finally veto the rule.

There are just two sessions left before the Legislature adjourns for summer recess – June 27 and June 30 – the Board list for June 27 has been posted and the Resolution is not on it.

We urge readers to call Senate President Sweeney at (856) 251-9801 and urge him to post SCR 66 to protect clean water and not make flooding worse.

Here is my letter to key Senators urging that they do the same:

Dear Chairman Smith and members of the Environment Committee:

I am writing to urge you to contact Senate President Sweeney and ask him to post SCR 66, the legislative veto of DEP flood hazard, storm water management, and coastal rules DEP recently adopted, despite prior passage of the Resolution by both Houses and legislative requests urging DEP not to do so.

As members of the Environment Committee, you heard the testimony and fully understand the implications of allowing the DEP regulations to stand:, i.e. there will be increased flood risks and further degradation of water quality in NJ’s “exceptional value” Category One waters due to allowance of additional destruction of stream buffers and more development closer to the water.

You have a serious responsibility to convey these implications to Senate President Sweeney and convince him to post SCR 66 for Senate vote, particularly given the Senate’s prior passage of the Resolution.

The DEP rules roll back water quality protections long supported by the Legislature and violate legislative intent and the regulatory policy in NJ’s Surface Water Quality Standards (NJAC 7:9B-1 et seq.).

As Chairman Smith noted on June 16 when the Resolution was released from the Environment Committee:

“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.”

It is time to affirm that support.


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Massive Sprawl Development Follows Christie DEP Approval of New Sewer Plant

June 20th, 2016 No comments

Sham downtown New Egypt revitalization plan cover for same old sprawl

Real downtown and community investment needs neglected

Does this look like downtown revitalization to you?


We warned that a new sewage treatment plant would not only harm water quality in the Crosswicks Creek, but promote massive sprawl development and destruction of prime farmland, open space and community character, see:

Those warnings were ignored and back on January 8, 2016, the Christie DEP approved the permits for a new sewage treatment plant on Crosswicks Creek.

Now, Plumsted Township will hold a hearing on Tuesday June 21 at 7:30 pm on the massive development that was  the real reason for the new sewage plant, which was sold to local residents as an effort to promote downtown revitalization and replace failing cesspools and septic systems.

illegal cesspool discharges to street i downtown New Egypt

illegal cesspool discharges to street in downtown New Egypt – that’s a park in background

cesspool discharge flowing towards downtown

cesspool discharge flowing towards downtown New Egypt

We called bullshit on that – multiple times and for multiple reasons, including a corrupt permitting process at DEP.

Sorry, I have not been involved in the issue since January when DEP issued the permit, so I don’t have any current information or analysis to provide on the development, which I think is called “Greenbrier”.

Just posting this as a heads up and to urge folks to attend the meeting.

Here’s some more shots of downtown New Egypt to show the needs for investment and revitalization the are being neglected, while investment goes to build new sprawl (and there’s small pocket of dilapidated homes of mostly immigrant farm workers that no one is even talking about, never mind providing resources to): (all photos shot 1/1/15)




illegal discharge

illegal discharge

stormwater discharge

stormwater discharge

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Connecting the Dots Between Pipelines and Clean Water

June 20th, 2016 No comments

The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity …

5. Will not cause or contribute to a violation of any applicable State water quality standard ~~~ (NJAC 7:7A-7.2)

A wonky but significant note this morning on a topic I’ve nibbled around the edges of in multiple posts.

After last Thursday’s Senate Committee release of the Legislative veto Resolution of DEP’s Flood Hazard rules and State House rally on clean water, I  ran into Dale Florio and couldn’t help myself from taunting him on the pending victory on the veto. For those who don’t know him, meet Dale:

Of particular relevance and interest is the fact that:

Dale Florio, who served 18 years as the county GOP chair and remains influential in Republican politics there, is the founder and managing partner of Princeton Public Affairs, the lobbying firm that PennEast Pipeline hired in October to represent it.

Good old Dale wasted no time in a rapid and dismissive reply. He acknowledged the win, but quickly noted that the environmentalists “got one thing wrong in your framing: it has no effect on pipelines because they are exempt”.

Bingo! That’s what a good lobbyists does – gets right to the core issue and confidently spins it. Works every time with the press and legislators, who don’t know jack.

I shot back just as quickly: not so fast Dale, it’s not so simple. Pipelines are not exempt, at least from requirements to comply with the NJ surface water quality standards (NJAC 7:9:B) and the federal Clean Water Act. You’re highly vulnerable and you know it!

But Florio was half right – pipelines are exempt from the stormwater quality standards for post construction total suspended solids and nutrients and the disturbance restrictions in C1 buffers (NJAC 7:7A-5.2(d)).

And pipelines are given a pretty green light under the lax standards in the Flood Hazard permit rules(NJAC 7:13-8.10 & NJAC 7:13-11.9)

But Florio must know that pipelines are not exempt from and must meet the NJ State surface water quality standards (SWQS) (which are federally delegated and federally enforceable) and the federal Clean Water Act, including Section 401 which requires that DEP issue a “water quality certificate”.

Florio knows that DEP can not issue a permit or approval to a regulated activity that would “cause or contribute” to a violation of a surface water quality standard (SWQS). The SWQS include the antidegradation policies, the requirement to protect all existing and designated uses; the narrative policies; and the numeric criteria.

Florio must know that strict DEP enforcement of those SWQS led to the revocation of a NJPDES permit for a major Pulte Homes project in Clinton Township (Milligan Farms) along the Sidney Brook, a C1 stream due to (DEP @ page 22 – 23):

Sidney Brook, a clear, rocky tributary of the South Branch Raritan surrounded by a mosaic of successional fields, forested wetland, wet meadows, and cropland, provides excellent habitat for the State threatened wood turtle, and the bog turtle (C. muhlenbergii), listed by New Jersey as an endangered species and by the Federal government as a threatened species. Several wood turtles of various age classes have been documented along the Sidney Brook during limited surveys performed by the ENSP, which are excellent signs that a viable population is present within this drainage. Wood turtles are dependent on the Sidney Brook’s clear waters for foraging, breeding and hibernating. The complex of wetland and upland habitats surrounding the riparian corridor provides important nesting and foraging habitat for the wood turtle during the summer months.

Data on the health of the benthic macroinvertebrate community in Sidney Brook indicate that there is low stress (non-impaired) to the aquatic community. Additionally, an assessment of the in-stream habitat quality demonstrated exceptional habitat quality (optimal habitat) with 15 different fish species including adult brook trout. Some of the significant features present include stable banks with infrequent erosion, little sediment deposition, no channelization, a healthy riparian corridor, and a good mix of substrates including riffles, boulders, runs and pools.

Accordingly, the Department has determined that the Sidney Brook is a waterbody of “exceptional ecological significance” and is proposing to amend the antidegradation designation of the entire Brook from headwaters to its confluence with the South Branch Raritan River, including all tributaries from C2 to C1.

And the Windy Acres project along the South Branch of the Rockaway Creek is another example of this regulatory compliance risk: (DEP – @ page 23 – 24)

The South Branch Rockaway Creek provides exceptional wood turtle habitat. Wood turtles have been documented at several locations along the riparian corridor, suggesting that the entire stretch of the South Branch Rockaway Creek, from the headwaters to where it becomes impounded at Lake Cushetunk, is critical habitat for the species. The clear waters of the South Branch Rockaway Creek and the diverse structure of the riparian habitat and surrounding habitats, which includes fallow fields, woodlands, and wet meadows, are highly conducive to supporting a viable population of wood turtles. Based on the quality of the habitat and the high frequency of wood turtle sightings, the South Branch Rockaway Creek may support one the best wood turtle populations in the Piedmont physiographic province. The State is divided into four regions based on geological and land form characteristics, the piedmont physiographic province is one of them and runs roughly northeast to southwest from Trenton to Carteret.

Data on the health of the benthic macroinvertebrate community in South Branch Rockaway Creek indicate that there is low stress (non-impaired) to the aquatic community, while an assessment of the in-stream habitat quality demonstrated exceptional habitat quality (optimal habitat). The Department selected South Branch Rockaway Creek to be proposed for a higher antidegradation designation of C1 based upon the wood turtle survey and optimal habitat conditions. The 98-acre P. Lomar Nature Preserve could also benefit from the proposed C1 antidegradation designation by maintaining the existing excellent water quality. Accordingly, the Department has determined that the South Branch Rockaway Creek is a waterbody of “exceptional ecological significance” and is proposing to amend the antidegradation designation from headwaters to Lake Cushetunk, including all tributaries from C2 to C1.

Florio knows that the PennEast pipeline would cross scores of Category One stream segments with similar exceptional characteristics and a multitude of existing uses, the same ones that involved Milligan Farms and Windy Acres permits.

Florio knows that PennEast opponents can very easily review the DEP’s scientific basis for designating these streams as Category One and use that information in the permit and 401 WQC process, including Bob Martin’s DEP November 2012 Report that validated the C1 designation program (how long before DEP takes down those links? Folks should print out or download and copy/save those documents).

Florio knows that these NJ surface water quality standards are the basis for DEP’s issuance of the federally mandated water quality certificate, and that DEP is not preempted by FERC on this issue.

Florio knows that these compliance requirements are implicit and/or lack a specific implementing permit requirement in some cases, e.g. the Water Quality Planning Act and DEP regulations prohibit DEP from issuing any permit that is inconsistent with the Water Quality Management Plan – those WQMP regulations and Plan incorporate the surface water quality standards. (see NJAC 7:15 – 3.1.)

The Commissioner shall not undertake, nor shall he or she authorize through the issuance of a permit, any project or activity that conflicts with applicable sections of an adopted WQM plan or with this chapter. For purposes of N.J.A.C. 7:15-3.1 and 3.2, “permit” includes permits, approvals, certifications, and similar actions.

But compliance with SWQS is also made explicit in the NJ DEP Freshwater Wetlands permit rules: (NJAC 7:7A-2.1(d))

(d) A permit issued under this chapter shall constitute the water quality certificate required under the Federal Act at 33 U.S.C. §1341 for any activity covered by this chapter. If a discharge of dredged or fill material into waters of the United States, as defined at N.J.A.C. 7:7A-1.4, does not require a permit under this chapter but does require a water quality certificate, the Department shall use the standards and procedures in this chapter to determine whether to issue the water quality certificate, except in the New Jersey Coastal zone, as described at N.J.A.C.7:7E-1.2(b).

Those regulations very clearly subject pipelines to the SWQS and prohibit DEP from issuing any permit that might violate them: (NJAC 7:7A-7.2):

(b) The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity:

[1. – 4.

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

Surely, Florio and pipeline lawyers are aware of the water quality impacts from construction of a pipeline (part 1, and part 2, and the erosion and the sinkholes – and are familiar with NJ SWQS temperature, TSS, & TDS criteria and all existing uses, like wood turtle, and the antidegradation standard for C1 streams of “no change in existing water quality” – importantly, “(including calculable or predicted changes)” and “without adverse impacts on organisms, communities, or ecosystems of concern.” (see: NJAC 7:9B-1.5(d)2.iii)

Surely they have closely read the NY State DEC decision denying a 401 WQC for the proposed Constitution pipeline and know exactly how a pipeline would fail to meet NJ’s strict SWQS.

What Florio and his PennEast pals are banking on is this false claim that FERC preempts DEP (a lie by Christie DEP Commissisioner Bob Martin);

They (FERC) are the overall controlling entity on it at the end of the day. They could over-ride anything we could even do from the State of New Jersey. […]

We can not fight that .. If we did reject a pipeline it would end up in court very quickly.

But the PennEast lawyers know that Martin was just blowing smoke and that his comments were false.

They are relying on this long standing DEP assumption that BMP’s protect water quality, which amounts to a total abdication and failure to enforce NJ’s SWQS, which was emphasized by DEP in the response to public comments on the Flood Hazard rule (at page 145-146)

The antidegradation policies at NJAC 7:9B-1.5(d) are implemented through the NJPDES permitting process. For point source discharges that are nonpoint source in origin, the Department, consistent with the federal rules at 40 C.F.R. 131.12(a)(2), utilizes a “best management practices” or “BMP” approach to protect water quality. …

As with all BMPs, neither the SWRPA nor the FHACA riparian zone require measurement of water quality before and after the imposition of the vegetated buffer or zone to determine its effectiveness. Both sets of rules presume that if a vegetated area is maintained in accordance with Department standards, which require avoiding disturbance, minimizing disturbance, and mitigating when disturbance is unavoidable, water quality will be protected.

Got that? Repeat: DEP simply assumes that all BMP’s protect water quality – with no evidence! No field verification or water quality study. Not even a modeling based demonstration.

The absurdity of that assumption was exposed during the recent debate on logging on Sparta Mountain, because the outdated DEP 1995 wetlands forestry BMP Manual only recommends as little as 40 foot buffers on Category One trout production streams in the Highlands Preservation Area that otherwise would get 300 foot wide buffer protections. And technically, even that lax BMP is NOT a regulatory requirement and is essentially unenforceable. You can’t get away with the stuff under the Clean Water Act.

The DEP’s arbitrary assumption about BMPs will be tested, particularly in Category One streams where no change in existing water quality is allowed. How can that antidegradation standard be enforced if there is no data on existing water quality and no water quality study demonstrating that it will be maintained? DEP can no longer fly blind.

DEP and pipeline projects will be required to characterize “existing water quality” and to demonstrate that they would have no impact on EWQ (physical, chemical, and biological characteristics and functional values).

The DEP’s arbitrary and historic failure to apply the antidegradation policies and surface water quality standards to non-point pollution and NPS pollution sources will be challenged.

The DEP’s historic failure to apply and enforce the surface water quality standards in land use permit programs  will be exposed and challenged.

The DEP’s historic failure to protect all existing uses will be challenged and EPA will be asked to intervene and enforce the Clean Water Act, given the failure by NJ DEP to do so.

The DEP’s historic failure to apply an enforce the surface water quality standards in issuing a Clean Water Act Section 401 Water Quality Certificate will be challenged.

Sharpen you pencils boys and girls – this is sure to get interesting.

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