Basis for NJEF Endorsement of Christie Called Into Question

I wrote yesterday about the total fraud and failure of the Christie Administration to develop and implement what the Governor himself promised on environmental justice.

Christie used this promise to secure a political endorsement by the NJ Environmental Federation. As a candidate seeking NJEF’s endorsement, Christie promised to develop and implement:

“standards and guidelines … so that cumulative and disproportionate impacts will carry much greater weight in our [DEP] decisions.”

When I wrote that, I was unaware of last year’s dissenting Report by the Clean Air Council on precisely that issue. I had never read about it in any news reports, and it was buried at the very end – literally the last 2 pages on the Council’s Report, and I missed it.

So, given my focus yesterday, before I write about what went on at today’s Clean Air Council annual public hearing, I thought it very important to print last year’s Council’s dissenting Report to DEP Commissioner Martin in its entirely.

It is unprecedented for the Council to issue a dissenting report – and the dissent itself is extraordinarily well written and right on the mark. I completely agree with it.

A Report of this significance should not be buried, but made a rallying cry across the state, particularly in disproportionately burdened urban communities.

The dissent also makes the case for the NJEF to revoke the Christie endorsement even stronger (see page 36).

Girl and Dad at Princeton University Art Museum

John Constable exhibit (through June 10)

Clean Air Council Holds Annual Public Hearing Tomorrow at DEP

Too many communities bear a disproportionate share of the pollution burden, as they do to many others. (sic) Too often state decisions are made without keeping that in mind. I will require my administration to develop standards and guidelines and implement them so that cumulative and disproportionate impacts will carry much greater weight in our decisions. Governor Chris Christie, quoted in testimony by Dave Pringle, NJEF

Last year’s Clean Air Council annual public hearing focused on environmental justice, cumulative impacts, and air toxics.

Hit this link to read the testimony and Council’s Report and recommendations to DEP Commissioner Martin (and see this for how DEP addressed similar health risks and EJ issues in Paterson)

But you can’t talk about any of that now – this year’s agenda is limited to transportation and small sources.

If you show up to the public hearing at 9:30 am, and sit and listen to 5 hours of technocrats banter, you can stand up (after the DEP Commissioner and half the Council are long gone) and maybe you can speak for up to 10 minutes!

But don’t be intimidated by the experts on the Council and giving presentations – for example of the rigorous testimony that is given, here’s last year’s testimony of Dave Pringle, NJEF (@p.235)

Based on the Governor’s commitments and Dave’s testimony (key excerpt below), some intrepid journalist or policy wonk  just might want to ask Dave – or DEP Commissioner Martin – just exactly what “standards and guidelines” DEP has adopted and is “now implementing ” “so that cumulative and disproportionate impacts will carry much greater weight in our [DEP] decisions.”

I do know that the Governor Christie HAS “lifted a finger” – too many times.

In his first hour in office, Christie issued Executive Orders that explicitly dictate “regulatory relief” and direct DEP to issue “waivers” for polluters (those are policy terms used in Executive Order #2) and to cut “job killing Red Tape“.

DEP complied with EO#2 and adopted the waiver rule. The Governor also later signed legislation that prohibits DEP from issuing guidance documents (see final version enacted as P.L 2012, c. 215)

I also know that and that DEP has NOT adopted ANY new “regulations or guidelines” or even “methodologies” regarding cumulative impact assessment, disproportionate burden, or environmental justice.

But, without confusing matters with facts, here’s Dave:

You know old trees just grow stronger, and old rivers grow wilder every day”

If you lie like a rug,

and you don’t give a damn.

You’re never gonna be,

as happy as a clam.  ~~~ John Prine (listen)

Songs and meaning from the man who did Sam Stone and

In Spite of Ourselves and

Angel From Montgomery and

Hello In There and

The Great Compromise and

Illegal Smile and

My Old Man.

Hey kids, I don’t think there are any more meaningful  Easter messages to be had.

View from Pa. of Bulls Island riverfront bulldozing and fill. Note contrast between fill area and natural vegetation (4/4/12).

Another update, in what is becoming quite a saga, provided in 4 parts: 1) Field progress/photos; 2) Regulatory front; 3) assessment and removal of “dangerous trees”; and 4) correspondence.

1. Small field progress – photos

Photos shot yesterday (4/4/12) from the Pennsylvania side show that a silt fence has been installed along the full length of the 450 foot long bulldozed and filled area. Could not see installation, but did see a few hay bales as well.

Last week, only a 100 foot segment had been installed shoddily, prompting reader comments calling it “a joke”.

We will continue to urge removal of all fill and debris and restoration and revegetation. I would guess that there is about at least 1,000 cubic yards of fill/debris, landfilled in an area of about 3/4 of an acre to an average depth of 2-3 feet.

Take a look at and compare the natural riverside floodplain conditions just south of the bulldozed and filled portion:

note difference between shoreline vegetation

And we were pleased to note that the bulldozer and other construction and dredging equipment is no longer stored at the tip of the Island:

Tip of Bulls Island at river inlet to D&R Canal

2. Regulatory Front

We are getting stymied by the regulators and attacked and spun by the DEP Press Office.

They still are sticking with their original half true but fraudulent cover story that this was just “maintenance dredging” permitted by USACE and NJDEP.

That is almost verbatim exactly what the NJ Water Supply Authority (NJWSA) told me, what the Hunterdon County Soil Conservation District told me, and what DRBC told me. So, the agencies are talking to each other.

Sadly, that same spin (and additional false and misleading assertions) was echoed in an email to area environmentalists by a representative from a so called conservation group Delaware River  Greenway Partnership. So DEP has even deployed their funded minions to downplay the problem and mislead activists.

And it is more than ironic that while the Partnership defends the destruction of soil, vegetation, and habitat on the Island,  the Partnership has a DEP funded restoration project on the Island designed to:

Volunteers put in more than 300 native plants. Some, like persimmons and big bluestem grass, stabilize the soil to help prevent future erosion. Others provide habitat and food for the island’s wildlife.

Thankfully, that spin is NOT what the USACE project manager;  the DEP Land Use Enforcement; and D&R Canal Commission staff told me.

So, we still have some integrity remaining in the system.

As we have repeatedly noted – and documented by ground level photos, aerial photos, and site visits – that misleading spin ignores the facts that:

• the D&R Canal dredging violated numerous conditions of the USACE and NJDEP permits (see my letter to USACE and NJDEP enforcement email below); and
• the riverfront bulldozing and fill operation was not permitted and it is unrelated to the permitted dredging project.

Examples of blatant permit violations:

USACE permit condition:

In order to protect anadromous fish species, no dredging shall occur between March 15 and June 30, inclusive, of any year.

In order to protect federally listed bald eagle, no dredging shall occur between December 15 and July 31, inclusive of any year, unless additional consultation between the Corps of Engineers and the US Fish and Wildlife Service takes place for the specific proposed dreading location, and such consultation results in a determination that such work is not likely to adversely affect the species.

All dredged material shall be disposed of at the Rt. 202 site.

FACTS:

I witnessed and photographed dredging on March 10 and March 21. I spoke with and FOIA’d the USACE project manager for all documents and no USACE, NJWSA, USFWS consultations occurred. Dredge material and debris was disposed of along the riverfront. On my March 10 and 21 visits, there were no soil erosion or sediment controls or BMPs installed.

DEP permit conditions that have been violated:

In order to protect State threatened Wood turtle the following conditions are required;

[a-b]

c. No in stream or in canal excavation or dreading is permitted between November 1 to April 1

d. The applicant shall use best management practices incuding, but not limited to the stabilization of all disturbed areas in accordance with the Standards for Soil Eroision and Sediment Control

In order to protect State threatened invertebrate species yellow lamp mussel the following conditions are required;

a.  … canal work shall be avoided from April 1 – June 30 (glochida release) and August 1 thru October 15 (spawning activity)…

c. the applicant shall use Best Management Practices for sediment generation. [...]

If the applicant proposes disturbances to any tributaries or their riparian zones beyond what is authorized by this permit, the applicant must obtain either a Flood Hazard Area (FHA) applicability determination or a FHA permit. ]

The Delaware River is a tributary to the D&R Canal. There was fill and disturbance in the FHA. See above facts which document violations of these DEP permit conditions.

In response to filing FOIA request to the USACE; an OPRA to NJ DEP and a phone call to the NJ Water Supply Authority,  I received the USACE and DEP permits.

I filed comments to the USACE on numerous permit violations (see below) and will soon submit a similar another complaint letter to NJ DEP regarding violations of their wetlands GP and failure to secure stream encroachment permits.

DEP, D&R Canal and Hunterdon County SCD have not yet responded to my requests for field inspection reports and enforcement documents.

The Huntco SCS inspector made the same mistake DEP Land Use Enforcement originally did by inspecting only the D&R Canal dredge, ignoring the riverfront debacle. I advised the SCS about this and he indicated he would re-inspect, as DEP agreed to as well (see below, where DEP admits this error).

So, we will keep you posted on all that.

3. Assessment and Removal of “Dangerous trees”

We filed an OPRA on that. DEP requested an extension until today, but has denied my request to review the documents today. More foot dragging.

Here’s a photo of the grove of “dangerous trees” on the northern part of the Island, from the wing dam to the tip. This can give you a sense of the number of majestic trees that are at risk of being cut down:

4. Correspondence

Here is DEP Land USe Enforcement email from 3/26/12 – I’ve highlighted the critical stuff. Note how the DEP enforcement supervisor basically tells me that DEP management and Press office will not allow him to share documents:

Dear Mr. Wolfe:

Tanya Hatten inspected the site on March 13 at which time a violation could not be documented. However the activities depicted in the pictures we received from you and from other sources were not observed during that site inspection. I have concerns not only with what I’m seeing in the pictures, but also compliance with the Department’s wood turtle timing restriction.

I’ve asked Tanya to immediately reach out to the park’s manager and NJ Water Supply, advise them of the timing restriction, and schedule a site meeting as soon as possible.

While you are indeed a member of the environmental community you also constitute a member of the press, as such I think that it’s appropriate that I involve the DEP’s press office. You will be updated on our findings in accordance with the press office and management’s directives.

Armand Perez, Region Supervisor
Bureau of Coastal and Land Use
Compliance and Enforcement, NJDEP

Here is my letter to USACE regarding numerous violations of the conditions of the USACE permit:

Mr. Boyer:

Encap case a “vivid how-to lesson, a playbook for getting money and other favors from the government.“

Jeff Pillets of the Bergen Record is the best investigative reporter in New Jersey.

In Sunday’s Record, Pillets wrapped up the Encap case he broke and has worked on for about 8 years now. I am proud to have contributed to his investigation.

To wrap things up, Pillets summarized the testimony in the corruption trial of NJ Senator Wayne Bryant (D-Camden). Nowhere else in NJ will you read stuff like this (other than Wolfenotes of course!):

Corruption in high places seems so commonplace in New Jersey that few members of the public or media even took notice that a legendary lawmaker was on trial: For four weeks, testimony about secret payoffs echoed in a mostly empty courtroom.

But the mountain of evidence presented in Bryant’s criminal trial reveals more than the alleged misdeeds of a politician on the make. It tells a story about how easily Trenton can succumb to the influence of private interests who understand what levers to pull.

In many respects, the testimony from a parade of lobbyists and old State House veterans amounted to a vivid how-to lesson, a playbook for getting money and other favors from the government.

I agree that corruption in NJ is widespread – but corruption is discouraged, and there are systems in place to prevent, monitor, detect, and prosecute it.

As a result, doing corrupt deals requires stealth and violations of laws, regulations, and abuse of discretion and other ethical strictures.

But not any more -

The DEP waiver rule institutionalizes and legalizes EXACTLY the corruption Pillets disclosed in the Encap case.

The waiver rule invites and institutionalizes exactly the same abuse and will lead to widespread expansion of what is now a limited practice at DEP, literally making that kind of abuse the rule instead of the exception to the rule .

(This corruption is especially likely to occur when the waiver rule is implemented by a Governor who attacks regulations via Executive Order, who considers essential public protections as “job killing Red Tape”, and under a DEP Commisisoner who has no environmental training and views DEP’s mission as “promoting economic development” and treating the regulated community like “customers”).

To illustrate this, consider what I found most interesting in Pillets’ reporting: the role of the DEP.

Pillets’ disclosures show how easily private interests can corrupt DEP, if one knows what regulatory and political levers to pull.

I write about this all the time. But very few people understand how much discretion DEP has and how easy it is to influence those discretionary decisions.

Pillets also reveals how public relations and media are used to divert the media and public’s attention, and how lobbyists spin the underlying corrupt reality.

In just 4 succinct paragraphs, Pillets lays out the inside DEP and PR games:

… They paid one of New Jersey’s most influential public-relations firms to plant favorable letters in local newspapers, to supply ghost-written op-eds for elected officials and to divert the public from focusing on the possible environment hazards of building on contaminated sites. …

Handwritten notes from Wisler’s daily calendar from 2003 through 2006 show dozens of meetings with officials including former DEP head Bradley Campbell and his successor, Lisa Jackson; former Office of Smart Growth director Adam Zellner; former Meadowlands Commission director Bob Ceberio; and Patti McGuire, who served as ex-Gov. Jon Corzine’s deputy chief of staff. …

Campbell, as DEP commissioner under former Govs. James E. McGreevey and Richard J. Codey routinely met with the developers’ lead lawyer as department regulators reviewed the EnCap/Cherokee plan to clean up polluted sites and safeguard them for future homeowners.

At one meeting, Campbell advised the developers that they would not always have to resort to “legislative solutions” to advance their plans. They could simply work with his office administratively, Campbell said.

Which brings us to the point of this post.

Encap corrupted DEP managers, who bent and broke rules to serve corrupt purposes.

The waiver rule will produce the same results, but there won’t be any investigative expose’s or corruption trials – not anymore (and especially with a depleted press corps and – let’s not forget that Encap involved landfills and site remediation - NJ’s privatized toxic site cleanup program).

Earth Day Protest, 2005. DEP Commissioner Brad Campbell (L) and Wolfe (R) debate

Healthy Trout Waters Threatened By DEP Regulatory Rollbacks

Pequest trout stocking - D&R Canal at Bulls Island

DEP issued another self serving press release to celebrate this weekend’s hosting of the Pequest’s  25th TROUT HATCHERY FREE OPEN HOUSE.

Listen to the typical overt politicization of DEP, the spin, and the hypocrisy of the message from DEP Commissioner Bob Martin:

“Opening day of the trout season is a revered spring tradition for families and outdoor enthusiasts alike,” said DEP Commissioner Bob Martin. “The Christie Administration understands and appreciates this tradition for thousands of New Jersey residents and visitors, as well as the need to protect the waters that support these prized fish.”

Bob Martin and the Christie Administration may appreciate the tradition, but they are doing nothing to preserve that tradition and instead are seriously jeopardizing that tradition by rolling back water quality and land use regulations designed to protect trout.

NJ’s trout streams receive special protections under a host of DEP regulatory programs.

Additionally, many trout streams are located in the NJ Highlands region and are protected by the Highlands Master Plan, which is under attack by the Christie Administration and the Governor’s appointed minions on the Highlands Council.

But for today, instead of laying out the comprehensive nature of the threat, I’d like to focus on the most pressing threat to the health of trout waters, the DEP waiver rule.

Under the DEP waiver rule, the DEP Commissioner is granted extraordinary power to waive virtually any regulatory protection deemed by a permittee to be “unduly burdensome” or to conflict with other regulations. Additionally, permittees are given an opportunity to seek a waiver from any regulation if they can demonstrate that they can provide a “net environmental benefit”.

There are no technical definitions or scientific methods to apply “undue burden” or “net environmental benefit”.

Therefore, waiver decisions will be made on an ad hoc case-by-case basis, which means that they will not be governed by any consistent and scientifically based methodologies, criteria, standards, Guidance document, Technical Manual, or overall policy.

The vague nature and ad hoc practice of issuing waivers in the absence of science based methods invites abuse, increases uncertainty in permit decisions, reduces predictability and transparency, and will increase permit delays and backlogs.

Each DEP program and individual staffer writing permits will have their own perspective on how to waive requirements. Chaos will ensue as permit applicants forum shop.

Waiver reviews divert scarce DEP staff resources from the Agency’s core mission and undermine the public confidence in the integrity of the Department.

So, in addition to these severe management and policy problems, given the Pequest Trout Hatchery Open House celebration, we thought we’d provide a few illustrations of exactly how the DEP waiver rule would harm NJ’s sensitive high quality trout waters (wonks can hit the links below to read the rules).

I)  Wetlands Buffers

Trout are a sensitive species that requires clean and cold water to survive.

Freshwater wetlands that drain to designated trout streams are classified as “exceptional value wetlands” and given 150 foot wide buffers. Those buffers filter water pollutants from the trout streams and provide vegetation that shades the stream and helps keep water temperatures down.

Under the waiver rule, a builder or other construction project could be provided relief from the buffers, allowing development to destroy those protective buffers.

II)  Category 1 Stream 300 foot-wide Buffers

Streams that are able to sustain naturally reproducing trout are defined as “Trout Production” (TP) waters. TP steams are classified under DEP Surface Water Quality Standards as “Category One waters” (C1). C1 waters are afforded 300 foot wide stream buffers (on each side of the stream) as BMP’s under the storm water management and stream encroachment regulations.

These buffers limit development and are strongly opposed by land owners and builders.

Under the DEP waiver rule, builders will receive waivers from the 300 foot C1 buffers.

III)  Stormwater Best Management Practices (BMP’s)

Stormwater from rainfall running off developed impervious surfaces carries pollutants to nearby streams and causes erosion. The resulting sediment and pollutant loads destroy trout streams.

DEP stormwater regulations require and encourage various stormwater BMPs, most importantly to recharge water on the site, protect water quality, and avoid or minimize erosion. By recharging storm water into the ground, nearby stream benefit as groundwater provides “base flow” during the hot summer and periods of low rainfall.

BMP’s cost money and can reduce development. Builders view them as “unduly burdensome” and they will seek and be issued waivers from DEP stormwater requirements and BMP’s.  Trout will suffer.

IV)  Stream Studies

Many development projects and other so called “point sources” (pollution discharge via pipe, sewage treatment or industrial sources, etc) are required by DEP to conduct stream studies to assess the impacts of their projects and mitigate impacts.

These studies cost money are are considered “unduly burdensome”. They will be waived and water quality will decline and trout will suffer.

V)  Water Quality Monitoring

DEP requires that many polluters monitor their pollution (compliance monitoring) and/or the ambient water quality nearby. This information is vital to setting protective permit conditions and enforcing them.

But monitoring costs money and is considered “unduly burdensome”. Waive it goodbye.

VI)  Increases on Wastewater Flows or Pollutant Loads

DEP policy is to prevent degradation of high quality waters. The presence of high quality trout waters results in limits on the total capacity (wastewater flows and pollutant loads) that may be allocated to regional sewage treatment plants.

In turn, these limits on capacity restrict the amount of development that may occur in the watershed.

As such, the local sewer authorities view them as”unduly burdensome” limits on their operating revenues and the builders view them as limits of development.

A good example is the Sussex County Municipal Utilities Authority plant which discharges to the Walkill river near the National Wildlife Refuge. The capacity of the plant is limited, which limits development in this environmentally sensitive watershed.

Kiss those limits goodbye – they unduly burden development.

VII)  Water Releases to Maintain Minimum Stream Flows and Temperatures

Trout require cold flowing streams. Some of these stream are protected by DEP set minimum stream flow and temperature requirements. DEP requires some permittees to release water to meet these minimum flow or temperatures to protect trout.

Releases from the Newark reservoirs to the Pequannock River are a good example – but this costs money and is viewed as unduly burdensome. Waive those protections goodbye.

VIII)  Water Allocation Permits

DEP issues permits to pump groundwater or divert streams or rivers for water supply.

One of the factors DEP considers in deciding how much water that can be diverted to water supply  in an environmentally sound way is impacts on the flows of streams. Trout streams are given special consideration.

Water allocation permit applicants are required to conduct costly studies to assess these kinds of impacts.

Builders, landowners, business and economic development interests view DEP studies and permit conditions as limits on available water as undue burdens on economic growth and development.

Permit conditions and studies DEP require permittees to conduct support needed revisions of:

• Safe Yields and Minimum Passing Flows in light of new hydrological data, including revisions to the NJ Geological Survey Technical Memorandum 09-3 “The Hydrological Integrity Assessment Process in New Jersey”
• Revisions of Safe Yields and Minimum Passing Flows to address Ecological Flow Goals protections and cumulative impact methodology, including new restrictions on hydro-modification of wetlands systems and alteration of stream base flow, as illustrated by the Berlin Boro well case – NJ Geological Survey GSR 29 “GUIDELINES [ARE] FOR PREPARING HYDROGEOLOGIC REPORTS FOR WATER-ALLOCATION PERMIT APPLICATIONS”; and
• Establishing Cumulative impact thresholds and ecological standards for allowable withdrawals in groundwater dependent areas, in consideration of currently unregulated withdrawals (see this historical classic);

IX)  Septic System Permits

DEP issues permits to developments of over 50 units the rely on septic systems.

Nearby trout streams are given buffers and other protections that limit the location, design, and size of the septic system, and thereby limit development potential.

Landowners and developers see the costly DEP mandated studies and permit restrictions as “unduly burdensome” limits on development. Bye-bye.

X)  Watershed Studies – Water Quality Management Planning

DEP water quality management planing rules – which dictate where sewers are located and how much wastewater treatment capacity is assigned to a regional sewage treatment plant – dramatically impact land use and economic development.

The WQMP rules require numerous planning, mapping, and scientific studies related to land use and water quality. These studies cost  money and the rules limit development.

Builders, landowners, public authorities, and county governments view these rules as excessively prescriptive and unduly burdensome.

Gone.

XI) DEP Highlands Regulations

DEP Highlands regulations set forth comprehencie requirements to protect critcial Highlands waters and natural resources, including a restrictive 88 acre minimum lot size (septic density) in the preservation area.

These regulatory restrictions are strongly opposed by land owners and builders as “unduly burdensome”.

Trout streams benefit from these protections. All of them can be waived.

XII)  Net Environmental Benefit Abuse

Given the mitigation, land swaps, and pollutant trading schemes that are already approved by DEP, I can’t even begin to imagine the kinds of abuse that this will invite.

Incommensurables – apples – oranges – grapes – the sky is the limit.

Land for water – water for wildlife – air quality, energy, recycling and a multitude of other “good deeds” will be used to relax various regulatory requirements.

Just use your imagination- and then ask Bob Martin: Let’s Make a Deal!

(Or Call Lt. Gov. Guadagno and ask for a little “customer service“!)

(Or, you could always talk to Cindy or Dave – they have friends in High Places: