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Christie Killed Corzine Shore Protection Initiatives

October 6th, 2015 No comments

Nixed Planning For Impacts of Climate Change And Sea Level Rise in NJ

Given the stunning amnesia and failure by the media to understand the implications of Hurricane Joaquin – and even the revival of some of the Blue Fleece cheerleading for Gov. Christie – I thought’s I’d repost this 11/4/13 post verbatim:

(Note: to any reporters interviewing Professor Farrell, the sand pumping cheerleader, ask him about his consulting work opposing FEMA V Zone mapping. Before you portray him as some kind of independent academic, specifically, ask him who his V Zone consulting clients were. Ask him who he met with in the Governor’s Office about V Zones and DEP regulations. Ask him about the last time he met or spoke with DEP Commissioner Martin. Ask him how his academic work is funded.)

Christie Killed Corzine Shore Protection Initiatives

November 4th, 2013

Christie Defunded, Dismantled, or Ignored Programs That Would Have Greatly Reduced Sandy Damage and Turmoil

Anyone remember this? “New Jersey Catastrophe Preparedness and Protection Act

The current approach to dealing with catastrophes is an after-the-fact response model that is inadequate to protect New Jersey residents from catastrophic loss. New Jersey consumers need a public-private partnership which improves the means to provide financial assistance to families that are victims of catastrophes, enhances prevention and mitigation measures, improves recovery and rebuilding processes and educates homeowners on issues surrounding catastrophe management. […]

The State of New Jersey is commonly viewed as one of the states in the region that is exposed to catastrophic events. Given the scope and magnitude of hurricanes Katrina and Rita, and given that New Jersey is the most densely populated state in the nation and because of the size of New Jersey, it is likely that a Category 3 or better storm could devastate the State.  Legislative findings, A3236 (2006)

Or this:

  • “Proposal for a High Level Summit to Address Fiscal Impacts of Global Climate Change And Sea Level Rise in New Jersey” (memorandum to Governor Corzine from the Commissioners of DEP and Department of Banking and Insurance – April 12, 2006)
  • Financial Risks and Opportunities of Climate Changes” (memorandum from DEP Commissioner Jackson to Banking and Insurance Commissioner Goldman – April 3, 2006)
  • Summit: Confronting Global Climate Change in New Jersey” (invitation letter from Governor Corzine – August 3, 2006. Agenda, goals, and invitees)
  • Section 309 Coastal Assessment – Department of Environmental Protection (DEP), February 2006. excerpt of Coastal Hazards section; 

Or all this?

I thought for sure that the saturation coverage of the 1 year anniversary of Sandy – much of it surprisingly critical of the Christie Administration’s performance after a year of cheerleading – would include mention of the Governor’s climate change record, especially as it applied to coastal planning and storm preparedness (including ignoring warnings of “imminent impacts”).

Thus far, the only media coverage that has even attempted to connect the dots between planning, preparedness, and Sandy damage has focused on just two issues: NJ Transit fiasco and theAshBitt scandal. Both were directly the result of a lack of planning and preparation. (WNYC opened that door early on).

I have repeatedly argued that NJ Transit and AshBritt are the tip of  a huge iceberg and urged legislators to conduct oversight and the press to investigate.

But, the coverage did not go there – and neither did the Legislative oversight hearings – despite the promise by Senator Gordon. Twice, Gordon promised to go there:  1) in his opening remarks during the AshBritt hearings and 2) during his tough questioning of DEP Commissioner at theSenate Budget Committee’s December 2012 hearing.

I was optimistic that these issues would be scrutinized, because Senator Gordon has personal background and professional experience in hazard planning,  and because – prior to Sandy – he sponsored a bill (with Senator Buono, see S2208) that would mandate that DEP update state flood hazard maps, which Gordon correctly noted  are decades old and date to the Carter Administration (an embarrassing fact that DEP acknowledged).

But none of that ever happened – it astounds me that both Gordon and Buono failed to follow through and make this an issue. (Was Gordon cowed by Christie preemptive attack?)

So, today I repost a piece on exactly how the Christie Administration abandoned Corzine Administration initiatives to respond to climate change risk, conduct adaptation planning and better prepare for extreme weather , sea level rise, and coastal storms.

The Corzine initiatives included a State Catastrophic Storm Fund to provide compensation to those harmed by storms like Sandy.

A State level program would have helped in the Sandy recovery, because, as Senator Bob Smith has noted, reliance on federal funding makes NJ dependent on the political whims of Congress and the oversight of federal agencies (AP Press, 10/22/13):

“As long as we’re living by the federal rules and federal rules only, the piper is calling the tune, and the tune is not necessarily good for New Jersey,” Smith said.

Smith then outlined a new NJ state legislative initiative: (AP Press 10/27/13)

Smith said more than a half-dozen bills will emerge from the hearings, including proposals to create a $250 million catastrophic relief program through which the state could advance people money needed to make repairs, which would then be reimbursed with federal aid; to establish qualifications for home-elevation contractors; andto have a coastal commission put together a shorewide master plan. 

Sounds like a good start – but we could have been there by now if Christie didn’t abandon the effort that the Corzine  administration began.

So today we repost this piece from from November 1, 2012 – and remember, elections have consequences:

Catastrophic Failures and Catastrophic Fools

November 1st, 2012 

[Update below] –

No doubt, Sandy was a Catastrophic storm.

No doubt, NJ still suffers from “an after-the-fact response model”.

No doubt that all this will be ignored by the press coverage.

But, as the stormwaters recede and power is restored, before we move on to the next new thing, let’s not lose sight of the need to reflect and understand important lessons.

It is crucial that we take this moment to reflect NOW, before new expectations are formed and we mindlessly begin repeating the same mistakes that brought us to this crisis.

Some of the most important are:

1) Sandy as a Final Wake up Call – connecting the dots of this storm to global warming induced climate change- (see:  “Frankenstorm” Another Example of Global Warming Extreme Weather

Over the last year, the rest of the country has suffered record wildfires, heat waves, droughts, hurricanes, and tornadoes – now its the East Coast’s turn to experience extreme weather directly.

2) Sandy as an opportunity to re-imagine a new Jersey Shore and begin the painful process of “strategic retreat” and adaptation (see:  A Dirge To McHarg and Mumford

3) Sandy as illustrating the need for planning and public policy leadership

I’ve written briefly about the first two lessons to be learned from “Hurricane” (or “Superstorm”) Sandy, so today I will touch briefly on the planning and public policy issues.

It is no secret that many in leadership positions in Corporate and Republican circles deny the science of global warming, are “market fundamentalists”, and view government as the problem, not the solution.

Those Catastrophic Fools have a lock on government and have used their power to block all forms of government intervention – Republicans even sought to slash FEMA funding, hand it off to the States, and eliminate and privatize FEMA.

But, we read today that the Star Ledger is reporting that the cost of Sandy will exceed $30 billion:

The damage from Hurricane Sandy will likely exceed that from Tropical Storm Irene, but the cost to businesses could be far worse.

Analysts estimate property damage along the Eastern Seaboard could be as much as $20 billion, but say business losses could reach as high as $30 billion.

I found it tragically ironic that the NJ Business and Industry Association was quoted in the story, complaining about the costs to business (a prelude to subsidies?):

“The impact was very broad,” said Christopher Biddle, vice president of the N.J. Business & Industry Association. “It hit every business across the state.”

He said it was too early to put a dollar sign on the damage, but expected the state’s economic recovery would be slowed.

“This has been a difficult and weak economy,” he said, “so it’s been tough to begin with. Now, with Sandy, it’s an extremely tough time for any business that’s already struggling.”

It’s folks like NJ BIA that are blocking the kind of government policy interventions that could mitigate those economic hits to business!

Catastrophic Fools like NJBIA should suffer the fulll consequences of their foolishness andCatastrophic Failures!

So, while the press will certainly report the NJBIA whining and will write even more disgusting lapdog stories about Gov. Christie “rising to the crisis”, here’s something to chew on that you will not read in the paper:

Although the press has amnesia, we recall that not so long ago, during the Corzine Administration, government leaders actually took steps to not only mitigate global warming emissions, but to anticipate, plan for and finance catastrophic storm events (what we now refer to as “extreme weather”).

While Governor Christie prances around and demagogues the emergency response on YouTube and multiple press conferences – even using the storm as cover to weaken Flood Hazard regulations –  former Governor Corzine exercised leadership and actually proposed solutions, not empty rhetoric and slogans.

[Note: This is not a partisan issue. We criticized the Corzine initiatives at the time as woefully inadequate – but, in contrast to Christie, at least Corzine was proposing solutions.]

For example, in an April 12, 2006 memo, Corzine DEP Commissioner Jackson and Banking and Insurance Commissioner Goldman warned Governor Corzine that:

“Global climate change is predicted to have a pronounced impact on New Jersey. Changes are already occurring. Rising ambient temperatures are expected to effect the health of our citizens. …Sea level rise is expected to accelerate and threaten New Jersey’s coastline. Higher sea levels will increase the severity of storm-related flooding is coastal and bay areas. In addition to significant property losses, sea level rise will adversely affect coastal ecosystems and may threaten fresh water supplies through salt water intrusion. With climate change, storm frequency and intensity is predicted to increase.”…

These are but a few of the results we can anticipate from climate change and we can also expect the changes to have serious consequences for New Jersey’s economy. In March, the National Association of Insurance Commissioners voted unanimously to establish as task force on climate change to examine the issues bearing on the insurance industry’s long term solvency. Late last year, New York State’s largest provider of homeowners insurance, Allstate, announced that it would no longer sell new homeowners insurance in NY City, Long Island and Westchester County. According to a company spokesperson, Allstate is studying whether to stop writing new policies in other parts of the country, particularly for properties in vulnerable shorefront areas.

In response, to address those serious threats, Corzine held a “Climate Change Summit”.

The Summit was called: “Confronting Climate Change in New Jersey”. It  was held on September 25, 2006. The Governor directed Summit participants to focus on, among other things:

  • What policy changes should the State make in response to the focus issues of floods and storms (including sea level rise)?
  • Are there current State policies and practices regarding the regulation of …land use and construction that serve as disincentives to sound practices in light of climate change?
  • What …[policies] could we modify to encourage consideration of floods and storms in development and land use practices?

As part of that effort, Assemblyman Panter (since un-elected), proposed legislation, A3236, called: “New Jersey Consumer Catastrophe Preparedness and Protection Act“,.

We testified and suggested amendments to strengthen that bill – which found:

2.  The Legislature finds and declares that:

     a.  The exposure in New Jersey to major catastrophes is greater than commonly understood, particularly catastrophes involving hurricanes, earthquakes and other natural disasters.

     b. All New Jersey residents, regardless of location, are susceptible to the devastating and unpredictable consequences of catastrophes, thereby necessitating a Statewide preparedness and proactive program of catastrophe management. 

     c.  There is a compelling State interest in maintaining a viable and orderly private sector market for property insurance in this State. To the extent that the private sector is unable to maintain a viable and orderly market for property insurance in this State, encouraging and assisting such a viable and orderly market are valid and necessary exercises of the police power.

     d.  The failure of the State to properly prepare for a potential catastrophe could result in a devastating impact on New Jersey families, as well as the entire State’s economy.

     e.  The current approach to dealing with catastrophes is an after-the-fact response model that is inadequate to protect New Jersey residents from catastrophic loss. New Jersey consumers need a public-private partnership which improves the means to provide financial assistance to families that are victims of catastrophes, enhances prevention and mitigation measures, improves recovery and rebuilding processes and educates homeowners on issues surrounding catastrophe management.

     f.  The result of unprecedented levels of insured losses from natural catastrophes in recent years, as evidenced by Hurricane Andrew, the 2004 four-storm hurricane season in Florida, tsunamis in Asia, the Northridge Earthquake in California, Hurricane Wilma in Florida and the most recent devastation in Louisiana, Mississippi, Alabama and Texas from hurricanes Katrina and Rita, have resulted in numerous insurers determining that in order to protect their solvency, it is necessary for them to reduce their exposure to catastrophic losses. The instability of the global reinsurance market which leads to increased reinsurance costs, also caused in part by these events, has also increased the pressure on insurers to reduce their exposure to catastrophic loss.  This pressure will result in an increase in reinsurance costs and could force an increase in homeowners insurance premiums.

     g.    The State of New Jersey is commonly viewed as one of the states in the region that is exposed to catastrophic events. Given the scope and magnitude of hurricanes Katrina and Rita, and given that New Jersey is the most densely populated state in the nation and because of the size of New Jersey, it is likely that a Category 3 or better storm could devastate the State.

So here we are –

Will will continue along the same failed path?

[Update: 11/5/12 – To their credit, DEP’s Office of Coastal Zone Management has done somegood work on vulnerability assessment and adaptation, but I don’t think it has been implemented, or funded, and relies on voluntary local initiative and planning. There are no funds, no state support, and no state regulatory sticks that I am aware of.

This is another example of Christie delegating DEP responsibilities to the local level and dodging DEP regulation.

Also, that Office previously had greater resources, staffing, and influence because it used to report directly to the Commissioner. But it was dismantled and transferred when Martin abolished the Office of Policy and Planning and buried Global Warming initiatives in air quality.

That bureaucratic move by Marin is another subtle but significant way to dismantle environmental initiatives without fingerprints or accountability for having done so.

In contrast, illustrating his priorities, DEP Commissioner Martin created several new deregulatory and economic programs in the Commissioner’s Office.

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Pinelands Commission Urged To Support Probe Into Staff Role In Joint Base Pipeline Scheme

October 6th, 2015 No comments

“Pretense of Military Purpose” Fabricated To Avoid Regulatory Scrutiny

Remarkably, it appears that the scheme was initiated by un-named NJ Pinelands Commission officials, who appear to have suggested it to NJNG officials who then presented it to Joint Base officials.

According to emails presented to the Pinelands Commission in public testimony on September 11, 2015, staff of the Pinelands Commission suggested that  NJ Natural Gas revise the route of their proposed pipeline through Joint Base in order to “streamline” the Commission’s regulatory review.

NJ Natural Gas officials wrote an email to Joint Base officials that said:

We met with the Pinelands Commission last week for an initial review of our pipeline proposal and they suggested that we approach you to see if we could re-route the line through your base. They believed that this new route, along with a letter from the base that the presence of the pipeline would be a positive attribute to future base activities could streamline their process”

Got that? Commission staff actually initiated and suggested an alternative pipeline route to make it easier for the Commission to approve the pipeline. And they suggested a cover story to justify it as well.

Subsequent emails strongly suggest that NJ Natural Gas and Joint Base officials then fabricated what was described as a “pretense of a military purpose” to justify the pipeline route and avoid regulatory and public scrutiny during the Pinelands Commisssion’s review process.

The extent of knowledge and involvement of Pinelands staff in this scheme is unknown at this time.

The identity of Pinelands staff mentioned in the NJ Natural Gas emails to Joint Base official is not known, nor is it known who NJ Natural Gas officials met with from the Pinelands Commission staff, and why they allegedly provided this “guidance” to NJ Natural Gas.

The Pinelands Commission and the public have a right to know whether these claims are true and who from the Pinelands Commission staff engaged in these behaviors.

If the claims in the NJ Natural Gas’ email to Joint base officials are true – i.e. that Pinelands staff “suggested that we approach you to see if we could re-route the line through your base” and also suggested a letter from base officials in order to “streamline the process” – then staff have engaged in egregious misconduct that must be investigated and appropriate disciplinary actions taken.

Yesterday, I requested that the Department of Defense Inspector General investigate the role of Joint Base officials in this scheme (see this).

Today, I wrote a letter to the Pinelands Commission urging them to support an independent investigation:

Dear Chairman Lohbauer and Pinelands Commissioners:

I am writing to request your support for investigating serious charges made by an individual during public testimony at the September 11, 2015 Commission meeting public comment session.

Unfortunately, I was unable to attend that meeting, but recently watched the video tape.

A gentleman, whose name was not audible, testified. He introduced himself as a former employee of NJ Natural Gas. He said he had filed a FOIA for emails regarding the NJ Natural Gas pipeline.

He claimed that, based on his review of emails between Joint Base officials and NJ Natural Gas, that un-named Pinelands Commission staff met with NJNG and initiated a false “pretense of a military purpose” for the NJNG pipeline.

Worse, according to tho gentleman’s testimony and the text of emails this gentleman read during testimony, un-named Pinelands Commission staff actually suggested that the gas pipeline be routed through Joint base to streamline the Commission regulatory oversight.

Here is the text of that testimony I transcribed from the videotape (boldface emphasis is mine):

“As you know, [a military purpose] affords the pipeline far less regulatory scrutiny and compliance than it would receive without an actual military purpose. …

The [NJNG official] wrote [to Base officials] “We met with the Pinelands Commission last week for an initial review of our pipeline proposal and they suggested that we approach you to see if we could re-route the line through your base. They believed that this new route, along with a letter from the base that the presence of the pipeline would be a positive attribute to future base activities could streamline their process”

If this claim is true, i.e. “they [Pinelands Commission staff] suggested that we [NJNG] approach you [Joint Base] to see if we could re-route the line through your base” … in order to “streamline [the Pinelands Commission’s review] process”, and that representatives of the Pinelands initiated and subsequently knowingly participated in a scheme to create a “pretense  of a military purpose“, then there have been egregious breaches of ethics and/or possible fraud or official misconduct.

This situation reminds me of the debate we had on abuses of the pre-application conferences during the South Jersey Gas pipeline controversy.

I urge your support for an independent and thorough investigation into this matter, perhaps by the NJ Attorney General’s Office or the State Ethics Commission.

For your information, I filed a complaint and request for investigation of this matter with the US Department of Defense Inspector General’s Office. You may review that complaint at this link:

I look forward to your timely reply and support for this request.

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Christie DEP Dead Set on Dismantling Protections For Land and Water Resources

October 5th, 2015 No comments

Time To Ramp Up Public Campaign To Defend Existing Rules

The Highlands Are The Next Target

Let’s hope that the Legislature holds hearings very soon to block DEP’s proposed Flood Hazard regulatory “overhaul” as inconsistent with Legislative intent.

Let’s hope that legislators can begin to understand exactly what is going on in DEP and expand their focus to include the recently adopted major “overhaul” of the coastal zone regulations.

Both vetoes are necessary to send a message to Governor Christie and DEP Commissioner Martin that rollbacks of existing land use and water quality protection are not acceptable and will not be tolerated.

That legislative message is necessary because the Christie driven Bob Martin DEP wrecking ball is headed next for the Highlands rules, which expire on December 31, 2015.

Gov. Christie’s extended those rules back in 2013, but only for 2 years. I personally confirmed that this fact was unknown to Highlands Council professionals as recently as Friday. They thought the 2013 extension was for a full re-adoption without change for 7 years;

By the authority vested in him pursuant to N.J.S.A. 52:14B-5.1d(2), Governor Chris Christie, on November 7, 2013, directed that the effectiveness of the Highlands Water Protection and Planning Act Rules be restored as of its expiration date and the expiration date for N.J.A.C. 7:38 be extended from November 2, 2013 to December 31, 2015.

You don’t have to take my word for it about the Christie/Martin rollback agenda.

Just like his boss, who openly bragged about “dismantling” DEP climate and regulatory protections, DEP Commissioner Bob Martin is similarly arrogant and makes no secret of his commitment to corporate economic interests over his legal duty to protect public health and the environment.

In a recent interview with a business rag, Martin openly revealed his rollback agenda:

Q. Any upcoming overhauls within the Department to be on the lookout for?

A. There will be a flood hazard rule overhaul within the next month. There will also be a water quality management plan overhaul. Fresh water wetlands drafts are being formulated and there will be an overhaul in this area as well. Round two of coastal rules will be overhauled. Basically everything that has to do with land use will be overhauled within the next few years. This will allow for more general permits overall.

Got that? More “overhauls” on the way – on top of the ground – literally – already lost.

Well, you can overhaul this, Martin. Overhaul my ass.

Only environmental and public interest activists can stop Martin from dismantling 20 years of progress on land use and water quality protections.

In a legal sense, only the legislature, via exercise of its Constitutional oversight, budget and regulatory veto powers can stop the rollbacks.

It’s way past time to get to work on this – but I’m not optimistic.

The Foundation funders have abandoned regulatory work.

The funders pull the strings – when they say “jump”, the ENGO’s ask how high – and they fund useless diversions and cultural events.

The media doesn’t have the experienced reporters to cover the issue and they have shifted their reporting as well. A regulatory story is a very rare bird indeed nowadays, a role relegated to Tom Johnson at NJ Spotlight.

That abdication of scientific and regulatory reality has empowered the Christie hacks to accommodate longstanding corporate demands for regulatory rollbacks.

But the Highlands are dear to the Dodge faction of the Green mafia, so maybe a new regulatory campaign is possible (but not with the existing staff of Dodge-ball drained organizations).

Please prove me wrong, folks, and stop the rain barrel workshops, carnivals and road rally’s and get your assess engaged.

[PS – and I know a regulatory expert with years of NJ campaign experience who is currently out of work and in desperate economic straits.]

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Legislators Seek To Veto Christie DEP Flood Hazard & Coastal Rule Proposal

October 4th, 2015 No comments

Senate Resolution Declares Rules “Inconsistent with Legislative Intent”

A Long List Of Regulatory Rollbacks 

We await text of SCR 180 and Senate Committee oversight hearings

This necessarily will be a long post – it analyzes DEP’s 900+ page rule proposal – so please, grab a cup of coffee and hit the head now. As usual, I left the best for last.

Back in June, upon initial review of the DEP rule proposal,  we requested a legislative veto in an email to legislators. We concluded:

Among many other things, the proposal would

1) repeal and eliminate the “Category 1″ 300 foot stream buffer program incorporated in the DEP storm water management rules that were adopted during the McGreevey Administration;

2) systematically roll back regulatory protections enacted during the Corzine Administration, which incorporated and expanded the scope of the Category One stream buffers in the DEP Flood Hazard Act stream encroachment permit program;

3) create a radically new stream mitigation program and mitigation bank that would provide relief from current stream buffer protections.

The mitigation scheme lacks legislative authorization and is inconsistent with legislative intent under the Flood Hazard Act;

4) propose numerous new technical loopholes that would promote new development in flood hazard areas; reduce or eliminate current protections for stream buffer and riparian vegetation; reduce water quality; put more people and property in harms way; and reduce or eliminate DEP and/or public reviews; and

5) ignore climate change impacts and risks, which include increased frequency and severity of extreme weather,including rainfall and flooding events. Climate impacts magnify flood risks caused by hydrological changes caused by NJ’s high degree of development and imperious surfaces. The rule also ignores prior FEMA objections to DEP’s Emergency Flood Rule enacted in the wake of Sandy.

Since then, NJ legislators introduced a Senate Resolution (SCR 180 – Lesniak, Smith) that would veto DEP’s proposed rollbacks of Flood Hazard, Coastal Zone Management, and Stormwater rules, see NJ Spotlight story:

Although announced as introduced in the Senate over a week ago, the Resolution appears to not have been drafted yet. A copy is not available yet on the Legislature’s website.

The DEP rule proposal is complex and comprises more than 900 pages, so it is a technically difficult Legislative resolution to draft. Adding to the challenge is the fact that legislators and OLS professionals are better versed in the broad brush language of legislation than the fine print of regulatory proposals.

How the resolution is drafted, e.g. what DEP provisions are targeted by Legislators, raises important political and policy concerns.

So we thought we’d draft an outline of the major provisions of the DEP rule we see as “inconsistent with legislative intent”. This is just an outline – we omit the specific regulatory citations, although these can readily be determined by reviewing the Table of Citations on page 27 and in Table 11.2 on page 690.

It will be very interesting to see how many of what we see as major flaws are targeted by the Resolution.

I)   Clean Water – Water Pollution Control Act

The most significant controversy will be over proposed changes to various stream buffer rules that would allow more disturbance to those buffers by development, which would generate additional non-point source pollution and negatively impact water quality.

A. Legislative  intent

The fundamental goals and policy of the federal Clean Water Act, upon which NJ is delegated authority and State law is based, are:

The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. 

With respect to the subject DEP rules, it is important to note that one of the original fundamental goals of the Clean Water Act included control of non-point source pollution:

(7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution.

It is also important to note that although Congress recognized State interests, that those State interests were: a) subordinate to national policy, b) that State’s were expected to consult closely with US EPA, and that c) the linkage between land use – exclusively a state prerogative and limited federal role – and water resources was specifically identified:

It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.

B. How DEP rule is inconsistent with legislative intent

The proposal has numerous weakenings of existing rules that would exacerbate current poor water quality.

1. The proposal would repeal the current 300 foot “Special Water Resource Protection Areas” (SWRPA) C1 buffers in the storm water rules (@ NJAC 7:8), including their regulatory prohibitions and strict restrictions on disturbance, and replace them with “riparian zones”.

The proposal would then weaken the current standards for allowable disturbance in “riparian zones”.

Here is how DEP justifies that (@ page 9-10)

The Department is proposing various changes to the riparian zone requirements. First, the total amount of riparian zone vegetation allowed to be disturbed for roadways, utility lines, buildings, and other construction activities is proposed to be increased to better reflect the Department’s experience in permitting these activities. Second, the Department is proposing to increase the area of riparian zone vegetation that can be disturbed for activities that do not adversely impact riparian zone functionality, such as disturbance to lawn, gardens, and other actively disturbed areas; work within roadway and utility line easements; and construction adjacent to a bulkhead or revetment along tidal waters and impounded fluvial waters. Third, allowances for riparian zone disturbance associated with a number of construction activities not addressed in the existing rules, which therefore require a hardship exception, such as site remediation projects, landfill closures, trails, boardwalks, footbridges, and subsurface sewage disposal systems, are being proposed, which will facilitate these projects and reduce the number of hardship exceptions requested. Fourth, the Department is proposing changes that will obviate the need for an applicant to obtain a hardship exception where an applicant demonstrates that a given project cannot feasibly meet the limits on riparian zone disturbance. The rules will require that the applicant provide riparian zone mitigation for all vegetation removed in excess of the limits. The proposed amendments additionally expand the locations where restoration and enhancement may be conducted to provide applicants with additional opportunities for riparian zone mitigation as well as to promote restoration and enhancement in degraded areas that may not be in close proximity to the disturbance requiring mitigation.

DEP admits that the rule will weaken buffer protections and make it easier to develop closer to streams. As far as I’m concerned, that’s enough. Case closed. There is no legislative intent to promote development closer to streams. Period.

But it’s even worse: under the waiver and mitigation scheme, in effect, there would no longer be enforceable restrictions on buffer disturbance. A waiver and mitigation scheme would replace the current prohibitions in the stormwater rule C1 SWRPA buffers and weaken the current riparian zone limits set out in current Table C.

This would be a radical regulatory policy shift and it works only to increase buffer disturbance and further reduce water quality.

2. The proposal would make a series of smaller technical changes to current rules whose cumulative impacts will reduce already poor water quality, including:

  •  weaken “hardship exception” waivers. DEP says its too hard to get a hardship waiver, that they need to make granting a waiver easier
  •  DELETE current requirements for the placement, storage or processing of solid waste in a riparian zone
  • ELIMINATE current requirements for the placement, storage or processing of hazardous substances in riparian zones
  • ELIMINATE current requirements for storage of unsecured materials in riparian zones
  • providing new “flexibility” to weaken current requirements for restoring impaired streams to a natural condition
  • As sea level rise & flood risks increase, DEP will reduce the number of walls and bulkheads that need engineering certification
  • proposes 19 new permits-by-rule (PBR) There is no DEP or public review of a PBR.
  • proposal of new “certification” permits
  • effectively deregulates (via Permit by rule) stream “cleaning” & forestry activities
  • increase in allowable stream buffer disturbance for  roadways, private driveways, and railroad projects
  • there is  NO limit on disturbance of riparian zone vegetation provided the disturbance is justified by stream “stabilization” or “restoration”
  • increase the amount of disturbance for storm water outfalls from 1,000 square feet to 2,000 square feet used within the riparian zone
  • provides a 50% increase is stream buffer disturbance for utility line stream crossings
  • significant increase in allowable stream buffer disturbance for  single-family home or duplex in a riparian zone
  • provide new disturbance for reconstruction or expansion of existing homes (previously not allowed)
  • increases in allowable buffer disturbance for addition to a private residence or construction of a garage, barn, or shed
  • new allowable disturbance for alteration, expansion, or repair of individual subsurface sewage disposal systems
  • elimination of any disturbance limits for “hazardous substance remediation,” “solid waste facility closure,” “trail or boardwalk,” “footbridge,” “removing sediment and/or debris from a regulated water,” and “removing existing fill and/or an existing structure
  • delegates review of certain storm water outfall construction projects to the local Soil Conservation District for review under weaker Soil Erosion & Sediment Control Act standards
  • eliminates current buffer width and disturbance restrictions and allows NEW SEPTIC SYSTEMS to be built just 50 feet from a stream.

3) New Mitigation scheme and creation of mitigation bank

The proposal includes a new SUBCHAPTER 13. RIPARIAN ZONE MITIGATION, which is sweepingly broad in scope and hugely significant in substance, both economically and environmentally.

A change in regulatory policy of this magnitude requires express statutory authorization by the Legislature.

The Flood Hazard Act (Act) does not authorize the Department to enact regulations that would create a mitigation scheme or a mitigation bank.

The Act lacks any provision for “mitigation” or a “mitigation bank”.

In contrast, the Act clearly establishes standards and authorizes the Department to enact regulations to enforce these legislative standards via a traditional regulatory permit program.

The Act does not specifically – or implicitly – authorize a mitigation program and mitigation bank – nor does any other authority the Department relies on as the legal basis for the proposal.

Because such a program is a radical departure from many years of DEP regulatory policy and practice, the Department’s proposal is ultra vires, not legislatively authorized, and contrary to law and the express framework and provisions of the Act.

The mitigation scheme and mitigation bank are also inconsistent with legislative intent.

II)  Flood risk – Flood Hazard Control Act

The most significant controversy will be focused on proposed changes that would allow more development in flood hazard areas.

A. Legislative  intent

The legislative intent of the Flood Hazard Area Control Act is to prevent and reduce risks to people and property from flooding by regulating development. The Legislature declared:

It is in the interest of the safety, health, and general welfare of the people of the State that legislative action be taken to empower the Department of Environmental Protection1 to delineate and mark flood hazard areas, to authorize the Department of Environmental Protection to adopt land use regulations for the flood hazard area, to control stream encroachments, to coordinate effectively the development, dissemination, and use of information on floods and flood damages that may be available, to authorize the delegation of certain administrative and enforcement functions to county governing bodies and to integrate the flood control activities of the municipal, county, State and Federal Governments.

B. How DEP rule is inconsistent with legislative intent

The proposal is inconsistent with legislative intent because several provisions would allow more people and property to be placed in flood hazard zones, thereby increasing flood risk.

For the general thrust of that, we’ll keep things brief and note Jon Miller, head on the Association of NJ Flood Plain Managers, comments from the prior round of rule changes, which are still apt (actually, any Senate Resolution SCR 180 should include these prior rules as well)

Sea level rise, driven by global climate change and by geological, climatic, and human factors particular to our region, poses a growing risk to New Jersey, threatening property, infrastructure, ecosystems, and livelihoods. Intensifying development in increasingly vulnerable coastal areas will magnify this risk. The proposed rules do not consider the effects of sea level rise; incorporating sea level rise into the permitting process is critical if it is to meet its goal of not putting the inhabitants of the New Jersey shore at risk. The Department should address this issue when revising the rules. …

The consolidation and simplification of the rules is supported; however, there is concern with respect to increased development in high risk areas. Public safety, property protection, and reducing risk which strengthens local and State economies are paramount. This position is also supported by the New Jersey Legislature through the enactment of CAFRA, at N.J.A.C. 13:19-2, and the Wetlands Act of 1970 at N.J.S.A. 13:9A-1 and 2. The legislative intent of these laws is violated by intensifying density and uses in coastal high hazard areas. The proposed rules do not consider increased risk in coastal development in the impact assessment, whether to the financial interests of local, State, or Federal taxpayers and to the NFIP and other disaster assistance programs well utilized after Superstorm Sandy.

III)  Stormwater Management

The most significant controversy is likely to focus on proposed repeal of what are known as “Special Water Resource Protection Areas”, commonly known as the 300 foot wide buffers, along Category One Waters (C1), first adopted by DEP in 2003/04 as water quality “best management practices”.

A. Legislative  intent

Stormwater has water quality, flooding, and habitat impacts.

The DEP storm water management rules are designed to prevent, reduce and mitigate those impacts. DEP adopted these rules pursuant to the authority of

Statutory Authority: N.J.S.A. 12:5-3, 13:1D-1 et seq., 13:9A-1 et seq., 13:19-1 et seq., 40:55D-93 to 99, 58:4-1 et seq., 58:10A-1 et seq., 58:11A-1 et seq. and 58:16A-50 et seq.

The legal eagles at OLS can read all that statutory law – but I suggest a shortcut would be to read the DEP rule proposal basis and background document. DEP website has rule adoption archives.

B. How DEP rule is inconsistent with legislative intent

Back in 2003, the DEP adopted major upgrades to storm water management rules. One of the most significant provisions of these new rules were new water quality requirements: a 300 foot buffer along designated Category One (C1) “exceptional value” waters (see NJAC 7:8-5.5(h))

The objective of these rules was to strictly limit disturbance by “major development” in order to preserve stream vegetation, which provides the following benefits, according to both the US Army Corps of Engineers and the DEP: (@ page 1-5)

  1. Reduce adverse effects to water quality by removing nutrients and pollutants from surface runoff;
  2. Reduce concentrations of nutrients and pollutants in subsurface water that flows into streams and other open waters;
  3. Moderate storm flows to streams, which reduces downstream flooding and degradation of aquatic habitat;
  4. Stabilize soil (through plant roots), which reduces erosion in the vicinity of the open water body;
  5. Provide shade to the water body, which moderates water temperature changes and provides a more stable aquatic habitat for fish and other aquatic organisms;
  6. Provide detritus, which is a food source for many aquatic organisms;
  7. Provide large woody debris from riparian zones, which furnishes cover and habitat for aquatic organisms and may cause the formation of pools in the stream channel;
  8. Provide habitat to a wide variety of aquatic and terrestrial species;
  9. Trap sediments, thereby reducing degradation of the substrate that provides habitat for fish and other aquatic organisms (for example, some fish species depend upon gravel stream beds for spawning habitats); and
  10. Provide corridors for movement and dispersal of many species of wildlife. In addition, vegetated buffers next to streams provide flood storage capacity and groundwater recharge functions.

(Source: Federal Register Volume 64 No. 139 Page 39274, July 21, 1999)

The SWRPA buffers were designated a “best management practice” (BMP) for water quality protection.

Under the Clean Water Act and various EPA implementing regulations, states are required to adopt anti-degradation policies, implementation procedures and “best management practices”.

The Clean Water Act does not mandate 300 foot buffers. Nor does it mandate 300 foot buffers in EPA’s water quality standards, municipal storm water, or “TMDL” programs.

EPA did not put a gun to NJ DEP’s head and require that they adopt 300 foot buffers. Traditionally, most BMP’s and non-point source pollution controls are not mandatory at the State level and are not federally enforceable.

Instead, NJ DEP chose to adopt 300 foot buffers as mandatory water quality BMPs in NJ’s state storm water management regulations.

Then, DEP chose to justify these BMPs as federally mandated State anti-degadation implementation procedures.

Finally, DEP chose to demonstrate compliance with federally mandated municipal storm water permit rules by including a link in State municipal storm water permit rules to these mandatory storm water water quality BMPs.

For all these reasons, the 300 foot buffer water quality BMPs are federally enforceable. The State of NJ has used them to demonstrate compliance with federal Clean Water Act requirements.

The selection of all these are under the control of the States – but once designated by regulation, become federally enforceable. Even DEP agrees with this interoperation (see page 58 which responded to my comment):

According to Section 4.5 (“Protection of Water Quality in High- Quality Waters”) of the Environmental Protection Agency’s Water Quality Standards Handbook, which is available at, the Federal Water Quality Standards do “not mandate that States establish controls on nonpoint sources” but requires the implementation of best management practices where established. The adopted riparian zone requirements are considered a best management practice that is designed to address nonpoint source pollution and their implementation is, consistent with Federal regulation.

The C1 buffers are BMPs are “established” and they are State SWQS implementation procedures for attaining the anti-degradation policy for C1 waters. They may not be repealed without EPA prior approval.

Additionally, C1 buffers are linked to and satisfy State compliance obligations of EPA’s municipal stormwater permit program.

Specifically, the NJDEP municipal storm water permit requirements specifically mandate compliance with the storm water management water quality rules.

Accordingly, the C1 buffers are federally enforceable and may not be eliminated without EPA prior approval.

Unfortunately, EPA folded and did not assert these federal regulatory oversight powers in their letter to DEP, which was more saber rattling than serious federal oversight.

Therefore, it becomes even more important for the NJ Legislature to step up where EPA failed and strike these rules down.

IV)  Coastal protections – Coastal Area Facilities Review Act (CAFRA)

The most significant controversy is likely to focus on proposed changes to allow more development in previously prohibited areas (like shellfish growing waters) and promoting development in designated flood hazard areas (like on piers over the Hudson river)..

A. Legislative  intent

The primary objective of CAFRA is to protect coastal resources by regulating development in the coastal zone. The Legislature declared:

The Legislature finds and declares that New Jersey’s bays, harbors, sounds, wetlands, inlets, the tidal portions of fresh, saline or partially saline streams and tributaries and their adjoining upland fast land drainage area nets, channels, estuaries, barrier beaches, near shore waters and intertidal areas together constitute an exceptional, unique, irreplaceable and delicately balanced physical, chemical and biologically acting and interacting natural environmental resource called the coastal area, that certain portions of the coastal area are now suffering serious adverse environmental effects resulting from existing development activity impacts that would preclude or tend to preclude those multiple uses which support diversity and are in the best long-term, social, economic, aesthetic and recreational interests of all people of the State; and that, therefore, it is in the interest of the people of the State that all of the coastal area should be dedicated to those kinds of land uses which promote the public health, safety and welfare, protect public and private property, and are reasonably consistent and compatible with the natural laws governing the physical, chemical and biological environment of the coastal area.

It is further declared that the coastal area and the State will suffer continuing and ever-accelerating serious adverse economic, social and aesthetic effects unless the State assists, in accordance with the provisions of this act, in the assessment of impacts, stemming from the future location and kinds of developments within the coastal area, on the delicately balanced environment of that area.

B. How DEP rule is inconsistent with legislative intent

(see Jon Miller’s comments above)

V)  Federal Flood Insurance Program Compliance and Eligibility

The issue here is that the proposal does not meet minimum National Flood Insurance Program (NFIP) requirements and thereby jeopardizes eligibility for NFIP and federal funds.

A. Legislative  intent

The Flood Hazard Area and CAFRA would establish an overall intent, but I could not find a State law that was specific to the federal Flood Insurance Program (NFIP).

However, especially given NJ’s status as a coastal state and national leader in flood damage and repeat flood damage claims, particularly after the devastation wrought by Sandy, it would seem obvious that the Legislature intends to meet the minimum requirements of the NFIP and maintain municipal eligibility for participation in the NFIP.

B. How DEP rule is inconsistent with legislative intent

The rule does not meet minimum NFIP requirements and FEMA and the League of Municipalities have objected to the proposal on that basis (see this for details).

The most egregious provision is to allow new development on piers over the Hudson River in mapping high hazard areas.

It will be interesting to see if the Legislature finds that DEP’s failure to include more conservative flood elevation requirements, above and beyond the 1 foot of “freeboard” adopted during the Corzine administration, is inconsistent with Legislative intent because it would allow development at hazardous elevations and put people and property at risk, especially given projected sea level rise and storm surge.

VI) Failure to consider risks and impacts of climate change and sea level rise

This is a key issue that will test whether the Legislature is serious in reforming policy or is more interested in politically embarrassing the Governor

The DEP’s proposed rule does not consider climate change, projected sea level rise, and more severe storms and storm surge.

There is no specific law that mandates that DEP consider climate change and base flooding and coastal management regulations on climate change.

The Legislature recognized the reality of climate change in the Global Warming Response Act and funded various related climate mitigation programs in the RGGI law.

DEP has already adopted climate change related permit requirements that would require that 500 year flood elevations be considered in CSO planning and engineering.

It would be scientifically justified to consider more conservative rainfall events and flood elevations in flood hazard and coastal rules.

President Obama issued an Executive Order on Climate Adaptation in federal programs and most all coastal states have adopted climate adaptation plans.

Back in 2004, DEP regulated greenhouse gases as “air pollutants” – more than a decade before EPA.

NJ’s 2014 Hazard Mitigation Plan recognizes climate change risks – but that plan lacks enforceable implementation requirements.

DEP clearly has the authority to consider climate change –

Will the legislature find their failure to do so inconsistent with legislate intent?

The whole world’s watching.

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Pentagon Inspector General Asked To Investigate Joint Base Gas Pipeline Scheme

October 4th, 2015 No comments

Scheme By Base Command, NJNG & Pinelands Staff To Mislead Regulators and Public

“Pretense of Military Purpose” Fabricated To Avoid Regulatory Scrutiny


The Honorable Jon T. Rymer

U.S. Department of Defense – Office of Inspector General

4800 Mark Center Drive

Alexandria, VA 22350-1500


Dear Inspector General Rymer:

I am writing to request your investigation of alleged unethical and/or improper conduct by military officials at Joint Base McGuire – Dix – Lakehurst NJ (Joint Base).

This request is based on open public testimony to the NJ Pinelands Commission on September 11, 2015 by a gentleman (hereafter “Mr. R”) regarding a proposed NJ Natural Gas Company Pipeline (NJNG).

This testimony makes deeply troubling claims based exclusively on quotes from emails between Joint Base officials and representatives of NJ Natural Gas Company (NJNG). The emails were obtained via a FOIA request.

The proposed route of that NJNG pipeline includes portions of Joint Base. The pipeline is subject to the regulatory jurisdiction of the NJ Pinelands Commission in the federally established Pinelands National Reserve.

You can view the entirety of that Pinelands Commission September 11, 2015 public hearing at the following link – the relevant testimony by Mr. R begins at time 1:19:38 and ends at 1:22:10.

Mr. R claims that he is a former NJ Natural Gas Company employee.

Mr. R claims that Joint Base officials created a “pretense of a military purpose” for the proposed NJNG pipeline and that this pretense of a military purpose was concocted to avoid regulatory scrutiny and to streamline and assure approval of the pipeline by the Pinelands Commission.

Mr. R then makes specific disturbing allegations based on the text of emails he procured via a FOIA:

As you know, [a military purpose] affords the pipeline far less regulatory scrutiny and compliance than it would receive without an actual military purpose. …

The [NJNG official] wrote [to Base officials] “We met with the Pinelands Commission last week for an initial review of our pipeline proposal and they suggested that we approach you to see if we could re-route the line through your base. They believed that this new route, along with a letter from the base that the presence of the pipeline would be a positive attribute to future base activities could streamline their process”

Mr. R testified that the Joint Base, NJNG and Pinelands Commission officials involved appear to know that there is no actual military purpose or need for the pipeline and that they are knowingly falsifying various technical aspects of that military purpose or need for the express purpose of avoiding regulatory scrutiny.

Thus, it appears that NJNG, the Pinelands Commission, and Joint Base officials concocted a scheme to mislead regulators and the public regarding a false military purpose, need for, use of and route for the proposed NJNG pipeline

Remarkably, it appears that the scheme was initiated by un-named NJ Pinelands Commission officials, who appear to have suggested it to NJNG officials who then presented it to Joint Base officials.

The testimony appears to be credible and based exclusively on emails involving NJNG and Joint Base officials.

If these claims are true, then it appears that Joint Base officials have conspired with representatives of the NJ Pinelands Commission and NJ Natural Gas Company to purposely mislead and deceive Pinelands Commission regulators and the public regarding the military purpose and need for the NJNG pipeline.

If true, they warrant a broader investigation to determine the full scope and extent of military officials’ actions with respect to the proposed NJNG pipeline.

If true, such conduct constitutes fraud and abuse and official misconduct.

If true, such behavior undermines public and Congressional trust and support for the mission and the integrity of the leadership of Joint Base.

I urge your immediate attention to this serious matter and look forward to your prompt and favorable response to this request for investigation.



NJ Congressional delegation

NJ Governor Chris Christie

NJ Pinelands Commission

NJ Attorney General

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