DEP Water Supply Plan Still Buried In Gov. Christie’s Office

August 24th, 2015 No comments

DEP Stonewalls the Water Supply Advisory Council – Again

DEP Managers Chastise Council For Their Public Criticism

New “Asset Management” Program Killed In Its Cradle

The NJ Water Supply Advisory Council (WSAC) held its regular monthly meeting at the DEP building on Friday. Here’s a quick note on what transpired:

Water Supply Plan Update Remains Stalled In Gov.’s Office

The WSAC recently embarrassed DEP Commissioner Martin and Governor Christie, by inadvertently publicly releasing a private letter to DEP Commissioner Martin expressing their frustration with long delays in public release of the Water Supply Master Plan Update and their inability to review the latest draft of the Plan.

That letter generated embarrassing new coverage, see:

That episode led to a discussion during the May 15, 2015 WSAC meeting, in which DEP Assistant Commissioner Kennedy admonished the WSAC – (following is verbatim from the minutes approved on Friday):

  • This letter was meant to be the Commissioner (sic) and never intended to be public… AC Kennedy does not know why the WSP has not come out yet.
  • Individual members, or other entities, could write letters to the Governor seeking action on the plan, but this should not come from the Council as a whole.
  • AC Kennedy informed the Council that parts of the WSP cannot be released to them at this time.

On Friday, the DEP staff to the WSAC reiterated that the WSP Update was still in the Governor’s Office for review and they were not authorized to talk about it.

Asset Management Initiative Stalled By Industry Opposition To DEP Regulation

With much fanfare, the DEP rolled out its new “asset management” initiative way back in 2010:

The proposal grew out of the Christie Administration’s infrastructure asset management and financing” initiative discussed at last October’s Clean Water Council annual public hearing at DEP.  BPU President Lee Solomon spoke at that hearing – see: Clean Water Council Considering Privatization

Since then, it’s been nothing but talk – and pushback by the private water companies and public water authorities who strongly oppose new DEP regulations mandating costly asset management requirements.

In response to a question from the WSAC Chairman, at Friday’s meeting, DEP staffers briefed the WSAC on the current status of the asset management initiative, basically signaling that industry opposition to a regulatory initiative had successfully killed it in its crib.

DEP refused to answer direct questions from industry representatives about whether the initiative – a staff strategy recommendation is now pending before Commissioner Martin – would be regulatory or rely on voluntary industry measures.

With passage of water infrastructure privatization, the last thing the industry wants are mandates from DEP telling them how to manage their “assets”.

“Resilience” Initiative Remains To Be Fleshed Out

The Christie DEP has talked a big game about new “resilience” requirements for water infrastructure, designed to respond to the devastation Sandy wrought on ill prepared water and sewer systems.

But the water supply industry and public utility members of the WSAC seem to be out of the loop of these conversations – either that, or like asset management, the resilience initiative is more hot air than substance.

After an extremely vague “briefing” on ongoing resilience efforts by DEP staff, WSAC members expressed concerns with the costs and feasibility of any new resilience efforts and opposed ant DEP regulatory mandates.

The Chairman concluded that resilience “is not a burning issue right now” (that is a direct quote).

How soon they forget.

Legislation on Gov.’s Desk to Mandate Drinking Water Quality Institute Develop Recommendation for TCP

DEP staffer Steve Doughty – a longtime DEP spinner who knows how to avoid a minefield, keeps his head low, and  stay on script –  briefed the WSAC on the passage of a bill that would require the DWQI to make recommendations on an MCL for 1,2,3 Tri-chlorpropane, a known carcinogen.

Doughty would not respond to my question about whether the Commissioner recommended that the Gov. sign the bill –

Seeming to appease the water purveyors, he highlighted the fact that DEP sought amendments (that gutted the bill) and also sought to downplay the significance of the bill, noting that DEP was still in charge of the MCL process. He also was not aware of the deadline in the bill for DEP action on the DWQI recommendation.

Pinelands Ecological Limits Discussed

During the public comment session, I advised the WSAC about the status of the Pinelands Commission’s regulatory initiative to develop ecologically based thresholds for water withdrawal.

I asked the USGS representative what the Pinelands contract to develop hybrid HUC’s was all about and its scientific rationale. The USGS rep was not familiar with this project and promised to report back next time.

The Pinelands Commission representative at the meeting los was not able to respond.

I asked DEP whether their approach in the WSP Update and the pending water allocation rules would consider ecological thresholds explicitly, as doe in the Pinelands initiative.

DEP staff replied that the DEP’s “Stream Low Flow Margin Method To Assess Water Availability in NJ’s Water-Table-Aquifer Systems” included surrogates for ecological stressor based withdrawal thresholds.

It will be very interesting to see how these technical methods are translated into policy in the WSP Update and the upcoming water allocation regulations.

This is a critical issue to keep on top of.

Dupont and DEP PFOA In National Media Spotlight

I advised the WSAC and DEP that 2 recent national media reports provided a critical focus on NJ DEP:

Both are must read stories I will be writing about, having worked on and written about both of them for years now.

[In fact, over 6 years ago, we broke a big part of the NJ PFOA story reported in the Intercept piece by disclosing DEP emails by Commissioner Jackson, see:

Our work was essentially stolen without attribution.

Cannonsville Dam – We Dodged a Bullet

DEP staff briefed the WSAC on the behind the scenes exciting story about the Cannonsville Dam (see NY Times coverage).

One thing I was surpassed by was that the original dam design and contraction did not anchor the dam in bedrock, apparently a mere 30 feet from the current bottom (I’m no engineer, but it sounded like this was a huge design error).

Although this story got virtually no play in NJ, we really dodged a bullet – a dam breach would have caused a massive flood, equivalent to a 500 year storm all the way down the Delaware to Trenton!

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Is West Milford Attack on Highlands Act The Beginning of the End?

August 24th, 2015 No comments

Christie Extended DEP Highlands Rules, but Only Until December 31, 2015

[With End Note]

Today’s Bergen Record has an important story, see:

The local government is going to attempt to poke some holes in the Highlands Act.

Earlier this month, West Milford’s Township Council initiated an attorney-led examination into the act’s standing as a potential unfunded state mandate. Council members say they are ultimately planning to develop and file a complaint with the state’s Council on Local Mandates. The 20-year-old council is authorized to declare state directives that lack a funding source as optional, enforcing New Jersey’s “state mandate, state pay” amendment to the state constitution.

But the story failed to connect the strategic dots or hold Gov. Christie accountable for his unfunded mandate policy.

The Council on Local Mandates could do a lot more than “poke holes” in the Highlands Act – it could essentially strike it down if it found the Highlands Act imposed unconstitutional unfunded state mandates.

The Highlands Act is implemented and enforced by the mandatory Highlands Regional Master Plan and mandatory DEP regulations. Those planning requirements and DEP regulations impose mandates not just on developers, but on local government too.

Lending support to the unfunded mandate cause, Governor Christie – in the first hour of his first day in office – issued a set of sweeping Executive Orders, including Executive Order #4, which provides:

1. No State agency shall recommend, propose, publish or submit any regulation containing an unfunded mandate, as defined under New Jersey law (N.J. Stat. 52:13H-2), unless expressly authorized in writing by the Governor or the Lieutenant Governor. 

Now here’s where the timing of the West Milford challenge and the DEP Highlands regulations gets interesting – suggesting critical decisions on the Highlands are in the balance.

Gov. Christie extended the DEP Highlands regulations, but only until December 31, 2015:

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. 

Even without action by the Council on Unfunded Mandates, the Christie DEP could gut the Highlands Act via regulatory rollbacks – something I fear has already been agreed to to resolve the Farm Bureau’s still pending lawsuit on the septic density standard.

Adding to the timing issue, the Highlands Council is now in the process of reviewing and updating the Highlands Regional Master Plan – another possible unfunded state mandate target.

Interestingly, the entire Council on Unfunded mandates memberships expire in February 2016.

If this Council is going to review the Highlands Act, it needs to happen quickly and right now – and the issue comes before the Council just during the same timeframe that DEP rules expire and the Highlands Master Plan is being updated.

Is all this just a coincidence?

Or is the West Milford attack strategic, signaling the beginning of the end of the Highlands Act as we know it?

Will someone wake up the”advocates” at the NJ Highlands Coalition and ask them?

(or are they too busy filling out Dodge Foundation grant application and organizing pub crawls, micro-brew promotions, and festivals?)

[End note: Think this can’t happen? Well, think again. Follow the numbers:

1. The DEP just proposed to repeal – that’s right, repeal – the Category One (C1) 300 foot stream buffer rules.

[C1 is repealed and replaced by “riparian zone” standards under Flood Hazard Act. As I’ve written several times – and DEP admits in the proposal – a C1 stream and buffer are very different from and have more protection than a FHA regulated water and a  “riparian zone”. While FHA regulates more activities than C1, the net effect is a significant loss of protections. And the linkage to water quality standards and federal Clean Water Act protections are eliminated.]

As a result, thousands of miles of C1 streams will lose protections, including many miles of streams in the Highlands Planning area, where the DEP Highlands rules don’t apply and the RMP is voluntary.

Yet there was not a peep of public opposition to that proposal by conservation groups, the Highlands Coalition or the Keep It Green crowd.

Seems they only want to spend your money to give to their friends to protect their backyards.

They seem to have abandoned the regulatory tools and DEP altogether.

Perhaps they fear that the public will ask why we spend millions of dollars to protect a place like Wichecheokie Creek, when DEP regulations can do most of the same job for nothing.

In contrast, Rich Bizub at PPA recently convinced the Pinelands Commission to raise concerns with DEP about impacts on the Toms River, which flows into the Pines.

2. But that’s not all – DEP issued a draft water pollution discharge permit for a new sewage treatment plant on a low flowing headwater stream (Crosswicks Creek) and Delaware tributary, designed to serve new development on farmland and forested stream buffer in a rural town on the edge of the Pinelands.

If DEP can permit a new sewage treatment plant here, DEP can do it anywhere.

This permit reversed 2 decades of DEP’s statewide water resource protection policy concerning new wastewater infrastructure.

Again, that permit got no public criticism from conservation groups, who recently noted that they are too busy to litigate the final permit expected to be issued by DEP any day now.

3. DEP adopted new coastal rules that not only ignore climate change, they actively promote new development in hazardous and environmentally sensitive coastal locations, including on top of shellfish beds.

Again, no public opposition from the conservation crowd.

4. DEP is flouting the Clean Water Act across the state, most obviously in Barnegat Bay, which is on the verge of ecological collapse.

Yet coastal groups work favorably with DEP, including praising bullshit projects, all while receiving $1 million grants.

5. The State Plan and all forms of water and land planning at DEP have been abandoned or weakened until death.

Silence.

6. But when the Christie DEP issued completely toothless Combined Sewer Overflow (CSO) permits in response to a lawsuit by NY/NJ Baykeeper, the applause by planning and conservation groups was loud and sustained.

Anything can happen folks, particularly with this Governor and DEP Commissioner and the current compromised and cowed conservation group “leadership”.

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Northeast Road Trip

August 22nd, 2015 No comments

A few shots from my recent whirlwind northeast road trip

There’s no place like …..

Last Tuesday, I went to Albany NY to support pipeline protesters and bring home their work.

Seeing that I was on the edge of the Adirondacks, I figured I’d head north, get in a hike before dark, and stealth camp there instead of going right back home.

I found a great spot in some private logging lands just off Slide Brook, a small tributary to the Boquette River just south of New Russia.

Just before dark, I met a man who hunted the property, who was out scouting. I was initially concerned that he’d demand I leave, but he was very friendly and we had a good conversation. He liked to hike, camp, fish and hunt. Told me about his 11 pound carbon fiber kayak he got from a local craftsman that he uses to fish interior ponds.

In one of several moments illustrating that you can’t get away from bad shit no matter how far you roam, he told me that Slide Brook had been hit hard by Sandy.

Next morning, I didn’t feel like going home and thought I’d head further north and visit Quebec. (see Quebec photos).

Ausable Chasm (8/13/15)

Ausable Chasm (8/13/15)

Lake Champlain, near Peru NY

Lake Champlain, near Peru NY

Spent the day in Quebec, but with no stealth camping opportunities in the City, decided to head south for the Maine border.

Found another spectacular stealth campsite just over the border near Jackman Maine.

Attean Pond

Attean Pond

Kennebunk River

Kennebunk River

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Not exactly what Thoreau saw:

saw a lot of logging in Maine woods

saw a lot of logging in Maine woods – Not exactly what Thoreau saw

Next day, continued into New Hampshire to see some of the Presidential Range.

White Mountain National Forest was far too crowded and no way was I prepared for any serious hiking (and I would never drive to the top of Mt. Washington, no less pay $28 to do it), but managed to find some nice short hikes along streams draining the mountain:

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And of course, had to see Bretton Woods

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Again found a great stealth campsite in National Forest land less than a mile off off Rt 118 near Warren NH.

sunrise in WHite Mountains, looking northeast toward Presidential Range

sunrise in WHite Mountains, looking northeast toward Presidential Range

In morning, headed west toward Vermont, thought I’d see the Green Mountains.

In another case of amazing serendipity (I seem to have a nose for this) I found a spectacular hike to Silver Lake, where I spent the afternoon. Hiked in with just a bottle of water and the dog, so sorry, no photos.

Got back to the car and was too pooped to hike back in with tent for the night, so figured ‘d find another stealth opportunity. But didn’t realize I was on the western edge of the mountains, not far from civilization.

As nightfall approached, I got shut out and ended up doing some urban camping along a railroad line, behind an abandoned factory in Whitehall NY.

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Just happened to be next to a rail switching yard, with a bunch of trains rolling thru most of the night – tremendously loud and scary – they even left me with some oil trains. Nothing like the smell of oil trains at sunrise – can’t seem to get away from this shit no matter where you go:

oil trains, near Whitehall NY

oil trains, near Whitehall NY

 

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Greetings From Quebec

August 20th, 2015 No comments

I had the chance to visit Quebec, a lovely city. I was so pleased by the friendly Canadian and Quebecois welcome. The streets were full of friendly people and the architecture and history were everywhere spectacular.

Here are some of the street scenes I saw there (shot on 8/12/15):

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A Climate Agenda for the Pinelands

August 20th, 2015 No comments

Time to Go On Offense Instead of Ad Hoc Pipeline Battles

Raise The Bar

State House Annex, Trenton, NJ (8/20/15)

State House Annex, Trenton, NJ (8/20/15)

Environmental groups today held a noontime press conference in Trenton to announce a new Pinelands campaign to stop the South Jersey Gas pipeline.

Emile DeVito of NJ Conservation Foundation made the most cogent remarks, calling out the pipeline as a “prohibited project” under the CMP and explaining the significance of maintaining the integrity of the CMP to preserve the Pines.

[Doug O’Malley, Environment NJ, had the best “streetfightin’ man” metaphor, calling Wittenberg’s action a “sucker punch”.]

Perhaps that campaign should have been kicked off months ago, to create some public and media pressure to prevent Executive Director Wittenberg from executing her mutiny.

Perhaps a public campaign could have bucked up friendly Pinelands Commissioners to get out in front of Wittenberg’s Machiavellian schemes.

Perhaps an intrepid political reporter could have injected the Pinelands pipeline abuse into Governor Christie’s national ambitions.

But alas, the deed is done – the only thing that can block it at this point is litigation.

So, the cliche’ “too little, too late” comes to mind with respect to today’s campaign kickoff announcement.

BUT, the campaign need not be in vain.

Pinelands activists could use the campaign to begin a grass roots effort to go on offense on the climate front.

As I’ve argued, with Gov. Christie in control of all things Trenton and firmly in denial on the climate front, any progress will need to come from the regional planning entities like the Pinelands Commission, Highlands Council, Meadowlands Commission, and Delaware River Basin Commission.

Such a grassroots supported and regional focused effort could lay the foundation for the next Gubernatorial and Legislative campaigns and begin to cultivate media traction and build local support.

It could also set the stage for the next Administration’s policy agenda and frame the key issues in NJ’s plan to comply with the Obama Clean Energy Plan, implement the Global Warming Response Act, and repeal/revise the Christie Energy Master Plan.

So, here is a talking point level agenda, based on testimony I’ve previously presented to the Pinelands Commission and written about in more detail here:

1) Moratorium on pipeline and fossil infrastructure pending update of  the Pinelands Comprehensive Management Plan  (CMP) regulations to provide adequate safeguards

Models:  Cuomo fracking moratorium and DRBC fracking moratorium

2) Update CMP to address climate change and energy policies

Model: Adirondack Park Agency Plan Energy Policy.

Basis: Pinelands Commission and other studies on climate impacts to pines forest and ecosystems

3) Update CMP to include lifecycle carbon analysis and at least 1/1 mitigation requirements to offset any new carbon emissions from any new development

I’m tired of playing defense – and We gotta start somewhere.

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