Sparta Mountain – Take A Walk On The Wild Side

April 29th, 2016 No comments

Sparta Mt. illustrates several Christie DEP environmental crimes

Sparta Mt (Source: Sue Dorward)

Sparta Mt (Source: Sue Dorward,taken by John Paul Endress

The Christie DEP, NJ Audubon, and professional foresters are furiously engaged in a sophisticated multi-media PR campaign to convince the public that their Sparta Mountain plan is “Stewardship” – not logging – and that critics are ill informed (even the professors!)

Why such a strong reaction and aggressive and crazy pushback?

Their so called lush forest is nothing more than a green canopy with minimal undergrowth to attract and feed wildlife. Sunlight no longer penetrates. Browse is nonexistent. Many of the animals and birds no longer live there.

Many animals and birds no longer live there? Does NJA really believe that? Plants too? NJ Audubon is in bed with the crazies.

Given the attempt to obscure a public lands debate with claims about “science”, where are the evaluation Reports that show if all the prior “forest treatments” (Orwellian code for logging) worked?

Has NJ Audubon explained exactly why they de-designated Sparta Mt. as “High Conservation Value Forest” (HCVF)?

Has NJA CEO Eric Stiles explained his conservation U-Turn from minimize disturbance and maximize forest canopy cover to log core forest to create young forests?

I challenge anyone to take a walk on the Mountain – take a walk on the wild side! – and visit the sites that were previously logged and see for themselves whether this is “Stewardship” or clear cut logging. As you quietly approach these areas during your walk through the woods, consider whether this is an appropriate use of publicly owned Green Acres preserved land.

NJTV News did exactly just that and produced this excellent news story, including showing the aerial photos – watch it:

Here are some scenes of the crimes of the Christie DEP from the ground level, accompanied by an intro paragraph to explain the implications of the photo (shot on April 21, 2016):

1. Does this look like logging or “stewardship”?

The Christie DEP logging program is not limited to Sparta Mt. – it includes hundreds of additional acres in Weldon Brook WMA, Mahlon Dickerson Reservation, and Newark Watershed lands.

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2. Sensitive headwater streams will no longer be protected (c1 buffers)

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This is an “exceptionally ecologically significant” Category One (C1) trout production (TP) headwater stream. Notice that it has no defined stream bed and bank. Current DEP “Special Water Resource Protection Areas” regulations provide a 300 foot wide buffer protection. The DEP proposed to repeal and eliminate those protections. The new DEP “riparian zone” rules do not apply to headwater streams with no defined bed and bank.

3. Environmentally sensitive lands can be sewered and intensively developed (WQMP rollbacks)

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This is environmentally sensitive land that could not be provided sewer service under former DEP “Water Quality Management Planning” rules. But the Christie DEP eliminated those protections and now allow lands like these to be sewered.

4. Highlands forests can be more densely developed (Septic density standards rollbacks)

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These lands are protected by the Highlands Act and DEP’s septic density standards that strictly limit development in forests to 88 acre lot sizes. Christie DEP just proposed to rollback current septic density standards in forested lands in the Highlands Preservation area to just 23 acres.

5. Wildlife slaughtered (black bear hunt)

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Sparta Mountain is prime black bear habitat. We saw a young black bear in this area from about 100 feet. I didn’t get a chance to take a photo because I was trying to stop my dog from chasing him! The Christie DEP reversed prior policy and now promotes a bear hunt.

Hunters and the guns and ammo crowd are strongly supporting the logging plan because it is designed to increase the habitat and population of game species.

DEP serves their hunter clients because they depend on license fee revenue to support their salaries.

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The Transco Compressor Station and Gas Pipeline Dewatering Permit Is Not In the Public Interest

April 28th, 2016 No comments

DEP Must Deny Permit for Failure to Comply with Regulatory Requirements

It is not in the public interest to continue reliance on a fossil fuel infrastructure that will cook the planet

No justice – no equity

The public raised many valid concerns and criticisms of the proposed Transco gas pipeline compressor station – across a wide range of issues – at Tuesday night’s public hearing at Chesterfield Elementary School.

But today I want to focus briefly and narrowly on the specific regulatory requirements for the “temporary dewatering” permit that was the subject of the public hearing.

Under applicable DEP regulations (See: NJAC 7:19-2.3), it is the applicant’s (Transco) burden to demonstrate the following:

(d) The applicant shall discuss the geology, hydrogeology, and the expected impacts of the proposed diversion both on the resource and other users of the water resource.

[(e) – (f)]

(g) The applicant shall provide all information which establishes:

1. That the proposed diversion is in the public interest;

2. That the plans for the proposed diversion are just and equitable to the other water users affected thereby, and that the withdrawal does not adversely affect other existing withdrawals, either ground or surface; and

3. That the proposed diversion will not reduce the dry season flow of any river or stream so as to adversely affect the river or stream.

Based on those demonstrations by the applicant, DEP must make specific findings that the applicant satisfied his burden and complied with the regulations.

Taking those items very briefly in order:

1. There were many omissions, errors, inconsistencies and technical deficiencies noted in Transco’s various purported analyses of the expected impacts of the proposed diversion both on the resource and other users of the water resource.”

chest11I use the word “purported” because at the public hearing, Transco’s power point presentation merely asserted that various hydrological and technical analyses had been conducted, but those alleged analyses were not cited with specificity, i.e. by title, author, and date. They also are not cited in the Transco  permit application (the initial version or the amended version), so it’s unclear exactly what they are referring to or what DEP reviewed and approved.

The specific “expected impacts” were not defined, nor was the “resource”.

The impacts on the “resource” did not include consideration of hydro-modification impacts on wetlands systems or sensitive aquatic ecosystems, like vernal ponds or aquatic and aquatic dependent species.

The omission of impact on wetlands and consideration of the ecological impacts of diversion of up to 70 million gallons of water is in sharp contrast to the studies and impact assessments required for diversions under NJ DEP’s “Technical Memorandum 12-2 – Hydrogeologic Testing and Reporting Procedures in Support of New Jersey Water Allocation Permit Applications.

There were factual errors in the number of “other users of the water” (i.e. the number and location of residential wells) and there was no analysis of impacts on agricultural users and agricultural productivity.

The applicant and DEP failed to consider acid soils and groundwater and how adverse impacts would be avoided.

With all these deficiencies, it is hard to understand how DEP could write a draft permit and staff report that essentially approved the applicant’s flawed and incomplete technical work.

Maybe the uncertainty and risk of the applicant’s shoddy work is why DEP included this  remarkable permit condition, which appears to be intended to protect homeowners who rely on wells:

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That permit condition suggests that there are real problems and it is not enforceable anyway, e.g. how could DEP prove causality? How can DEP create a quasi-judicial dispute resolution process in a permit condition? Transco has good lawyers.

If there is any risk of a well going dry, DEP should deny the permit.

2. The applicant did not even attempt to provide required information which “establishes … (t)hat the proposed diversion is in the public interest”.

The application is completely silent on that point. The applicant does not even make a factually unsubstantiated assertion. It’s not even there.

Compounding the applicant’s failure to “establish that the proposed diversion is in the public interest“,  the DEP failed to make a finding at all.

DEP simply imposed a prospective permit condition that dodged the issue entirely, based on circular logic:

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It does not matter what the DEP did “historically” to signify establishment of the “public interest”.

My lawyer friends tell me that failure for a permit applicant to include required information or to conduct required analyses and for DEP to make regulatory findings are all fatal legal flaws.

They also tell me that DEP must have clearly expressed fact based regulatory criteria and standards upon which to base regulatory decisions. DEP permit decisions that fail to be based on promulgated regulations supported by criteria and standards are vulnerable to legal challenge as arbitrary and capricious or an abuse of discretion, or of being so vague that they violate due process rights.

I’ll note that the DEP dewatering permit regulations and the permit application forms do not provide anything at all about how to define and “establish” the public interest or how DEP evaluates a demonstration and concludes that an application is in the public interest.

Houston, we have a problem.

But beyond legal flaws, there are major policy flaws.

The dewatering permit supports a massive regional fossil energy infrastructure project that is not in the public interest because climate scientists are warning that we must keep at least 80% of known fossil reserves in the ground in order to avoid climate catastrophe and exceedence of the 2 degree C warming goal (which was actually adjusted downward to 1.5 degrees in the Paris climate accords).

The greenhouse gas emissions – on a cumulative and lifecycle basis – and climate impacts from this regional infrastructure project are not even considered by DEP in the various regulatory reviews of the compressor station or the NJNG SRL pipeline.

Recent science suggests that methane emissions are a significant and growing source and that methane has as bad or worse climate warming potential than coal as a fuel source.

The DEP simply ignored all this science and the deep greenhouse gas emission reduction goals of NJ’s Global Warming Response Act. We will not attain that goal of we keep building fossil infrastructure.

It is not in the public interest to continue reliance on a fossil fuel infrastructure that will cook the planet.

3. I heard nothing from the applicant on Tuesday night or in the permit application (the initial version or the amended version) or the DEP’s draft permit and staff report that provided facts and standards upon which to establish the “just and equitable” requirement with respect to other users.

A “just and equitable” analysis would have to be based upon and explicitly consider the public ownership of the State’s water resources and the DEP’s Trustee obligations established under the Water Supply Management Act to protect that resource for the people of the State, not an out of State corporation. Risks, impacts, benefits and costs and their distribution would need to be considered explicitly and heavily weighted in favor of the people of the state and the public interest.

This demonstration has the same technical flaws noted about impacts on residential wells and similar  legal flaws as the “public interest” demonstration.

For these reasons, the draft permit should be denied by DEP and not issued as a final permit until all of the above flaws and deficiencies are remedied.

Finally, Transco is basically saying “trust us, we’re experts”.

The next time the gas and pipeline industry geologists assure you there are no problems, look at this north jersey pipeline construction SNAFU – sinkhole:

And if you think they care about the environment, look at these construction shots:

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Residents and Officials Demand That Christie DEP Deny Permits To Kill Controversial Pipeline

April 27th, 2016 No comments

Tales From A Rigged Regulatory Regime – Chapter 13

Segments within Silos

Where’s Gov. Christie as NY’s Gov. Cuomo Kills Constitution Pipeline?

stormclouds gather over Chesterfield elementary school before pipeline hearing (4/26/16)

stormclouds gather over Chesterfield elementary school before pipeline hearing (4/26/16)

A large crowd packed the Chesterfield elementary school last night to demand that the Christie DEP deny a “dewatering” permit and kill the 28 mile “Southern Reliability Link” pipeline through the Pinelands and the compressor station in Chesterfield.

Many challenged DEP to follow the lead of NY Governor Cuomo’s Department of Environmental Conservation (DEC), who last friday denied a Clean Water Act Section 401 “Water Quality Certificate” that killed the massive proposed Constitution gas pipeline. Cuomo’s pipeline kill follows his ban on fracking in NY, huge wins for NY activists.

The elementary school location was the perfect institution and forum for the hearing – some brought their children or spoke passionately about intolerable risks to their kids – that illustrated the values of the community.

The turnout and testimony were impressive and signaled the Chesterfield – North Hanover – Bordentown community’s strong opposition, including local governments and State legislative leaders.

The community’s organized and rational opposition was a stark contrast to the absurdity of the DEP’s regulatory proceeding – a process I’ll call “segments within silos”.

Although the project has received other federal (FERC) and State (BPU) approvals, the Christie DEP could still kill the pipeline by denying required federal Clean Water Act approvals and State wetlands permits.

Despite the fact that Gov. Christie is a strong gas and pipeline supporter and his Energy Master Plan is driving the proliferation of gas pipelines and power plants across the State, activists must ramp up pressure on Governor Christie and his DEP Commissioner Bob Martin and demand that they enforce clean water laws.

Even in the likely event that DEP rubber stamps all the permits (dewatering, stream encroachment, and freshwater wetlands), a campaign targeted on DEP’s Clean Water Act WQ Certificate and permit powers will yield significant benefits.

First of all, that effort lays a foundation for administrative appeals of the permits at the Office of Administrative Law (OAL). This delays the finalization of permits.

Second, OAL decisions could then be challenged in court. In that regard, litigation has already been filed by PPA and Sierra Club.

Third, and perhaps strategically the most important, delays from appeals and litigation coupled with continued high profile public opposition could encourage the next round of candidates for Governor to pledge to exercise those powers and kill pipelines and fossil infrastructure, strengthen DEP regulations, and reverse the Christie Energy Master Plan in the next administration.

That’s exactly how we killed 15 proposed garbage incinerators and developed the nations most progressive State Solid Waste Plan and strongest recycling program under the Florio Administration in 1990.

I)  DEP’s abdication of role as Trustee of Water Resources – segments within silos

DEP began the hearing on the wrong foot, by explicitly warning the public to limit comments to just the compressor station (not the pipeline and the entire project) and to just the dewatering permit aspects of the compressor station (as opposed to other pending DEP permits and the broad impacts of the entire project, including the effects of climate change).

That is a gross attempt to narrow the scope of the public’s concern to a tiny segment of the entire project and to one small DEP silo instead of the multiple DEP permits and regulatory responsibilities. That is the epitome of bureaucratic silo decision-making.

[adding absurdity and insult to injury, DEP limited speakers to just 3 minutes, monitored by an obnoxious huge traffic light – green, yellow, RED – manned by of all people, The State Geologist!]

The entire project is a massive $2 billion regional fossil infrastructure project. It begins with the fracking fields of Pennsylvania, the PennEast pipeline, the NJNG “Southern Reliability Link” pipeline, the SJG Pinelands pipeline and the BL England power plant!

sign at Occupy Wall Street (10/7/11)

sign at Occupy Wall Street (10/7/11)

I called out the absurdity of that abuse and noted that it conflicted with the DEP’s legal duty under the Water Supply Management Act to serve as Trustee for the State’s water resources and to enforce requirements under the dewatering permit regulations that the applicant (Transco) establish that the water diversion is in the public interest.

The law directs DEP to act as Trustee for the people of the state – who own water resources in common – not serve the private interests of an out of state corporation.

II)  Next Steps

DEP extended the written public comment period on the dewatering permit until May 17, so get your cards and letters in to DEP. See this for comment info.

Next up is the freshwater wetlands permit, and that permit is key, because DEP will use it as the State’s Clean Water Act Section 401 Water Quality Certificate. In contrast to NY State DEC, who just used this certificate power, the DEP has what is known as a federally delegated wetlands program.

As a result of delegated status, DEP may be confused and legally vulnerable on this issue.

DEP’s freshwater wetlands permit rules conflate the State permit and the federal WQ certificate: (NJAC 7: 7A-2.1)

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

But the 401 certificate and a freshwater wetlands permit are two legally and technically distinct actions.

In addition, DEP’s wetlands rules: expressly prohibit project segmentation; require consideration of the ecological effects of disturbance and hydro-modification, including impacts from “Draining, ditching or otherwise causing the depletion of the existing groundwater or surface water so as to modify the existing vegetation, values or functions of the wetland“; and explicitly require compliance with NJ’s State Surface Water Quality Standards: (NJAC 7:7A-7.2)

(b) The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity: [1.-4.]

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

That provision can be used to force consideration of SWQS, including anti degradation polices (there are designated C1 and Pineland PL classified streams impacted); narrative and numeric criteria, and existing use protections.

Those interested in the power of C1 anti-degradation and “existing use” protections in NJ’s SWQS should Google and OPRA DEP’s revocation of a NJPDES discharge permit to Sydney Brook to serve a proposed development known as “Milligan Farms” in Clinton NJ.

[*Update: The Milligan Farms case turned on the NJ SWQS “existing use” protections for wood turtle (NJAC 7:9B –  1.5(a)6.) – which explains why the Corzine DEP later killed wood turtle protections – but not the SWQS requirement to protect “existing uses” which is a federal Clean Water Act mandate.]

Here is how NY State DEC resolved those water quality issues in denying a 401 WQ certificate: (strongly urge you to read the whole thing, it is a work of art!)

Constitution’s failure to adequately address these concerns limited the Department’s ability to assess the impacts and conclude that the Project will comply with water quality standards. Project construction would impact a total of 251 streams, 87 of which support trout or trout spawning. Cumulatively, construction would include disturbance to 3, 161 linear feet of streams resulting in a total of 5.09 acres of stream disturbance impacts. Furthermore, proposed Project construction would cumulatively impact 85.5 acres of freshwater wetlands and result in impacts to regulated wetland adjacent areas totaling 4, 768 feet for crossings, 9.70 acres for construction and 4.08 for acres for Project operation. Due to the large amount of new ROW construction, the Project would also directly impact almost 500 acres of valuable interior forest. Cumulatively, within such areas, as well as the ROW generally, impacts to both small and large streams from the construction and operation of the Project can be profound and could include loss of available water body habitat, changes in thermal conditions, increased erosion, and creation of stream instability and turbidity.

The wetlands rules have other restrictions we can emphasize and urge DEP to enforce – so activists must get up to speed on the wetlands permit issues similar to the great work on the dewatering permit.

III)  Resist the Rigged Regulatory Regime

In the meantime, see if you can wrap your head around this (from theFERC NEPA Environmental Assessment)

“As indicated in table 8, Transco has proposed placing aboveground facilities, including Station 203, the electrical substation, and valve site, within wetlands. The FERC’s Procedures prohibit locating aboveground facilities in any wetland (Section VI.A.6) without further justification. To date, Transco’s proposed Station 203’s footprint does not totally avoid wetlands and Transco has not requested a modification from FERC’s Procedures. […]

Transco’s compliance with the FERC Plan and Procedures during construction, employing the wetland construction techniques specified in the Procedures, and adherence to the CSP would minimize impacts on wetlands. Following restoration, those portions of the modified agricultural wetland temporarily impacted and restored would be monitored in accordance with our Procedures and/or in accordance with protocols specified by the NJDEP (whichever is most restrictive). Based on Transco’s consultation with NJDEP, revegetation of temporarily impacted emergent wetlands is expected to be sufficient mitigation. The NJDEP would be consulted regarding forested wetlands and mitigation options for these permanent impacts, as necessary.  (page 21, FERC Environmental Assessment)

What does this mean? Translation?

It means two things:

1) FERC’s  “prohibition” on location in wetlands is meaningless; and

2) DEP made commitments to Transco and green lighted the project months ago during pre-application meetings and discussions with Transco, months before there was any public awareness or opportunity to weigh in.

More to follow.

reesidents documented wildlife that would be harmed by pipeline project - aquatic and aquatic dependent species are protected as "existing uses" of waters of the State under SWQS and Xlean Water Act

residents documented wildlife that would be harmed by pipeline project – aquatic and aquatic dependent species are protected as “existing uses” of waters of the State under NJ’s SWQS and the federal Clean Water Act

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Dear Mayor Fulop

April 25th, 2016 No comments

You Need To Talk to Your So Called “Green” Friends

[With End Note]

I get regular email blasts from Mayor Fulop – obviously part of laying the groundwork for his run for Governor.

His note this morning on State Parks “Your Help Needed to Protect NJ’s Parks” was a great expansion in the scope of his leadership, from the good works defending Liberty State Park to threats to all of NJ’s State Parks.

Fulop correctly noted that “these irreplaceable assets are threatened by privatization, commercialization, and development” – but he left out the punch line: “as a result of Governor Christie’s “Sustainable Parks” policy”.

But Fulop got it wrong by ignoring the biggest threat to NJ’s State Parks – the diversion of their entire capital maintenance budget by the Keep It Green’s Open Space initiative!

Since Fulop is running for Governor, it is important that he a least get the facts right – and if he’s going to weigh in on environmental policy, he needs to know that some of his so called “green” friends and advisors can’t be trusted and are selfish ass covering bastards.

So I sent him this note:

Dear Mayor Fulop:

Thank you for your leadership on Liberty State Park, but are you aware that perhaps the biggest threat to our State Parks is the diversion of the entire State Parks capital maintenance budget to the Open Space fund by the recent Constitutional amendment?

Passage of the open space ballot prompted State Park Director Mark Texel to write this note to the Keep It Green Coalition that spent $700,000 or more promoting the ballot question:

As the Director of the NJ State Park Service now coping with the reality that our entire Parks capital budget will be completely eliminated beginning July 1, 2015 as a result of the YES vote I can say this is the darkest day I have faced in my professional career. Worse than Superstorm Sandy. 440,000+ acres of preserved open space, 52 historic sites, 39 parks — used by 8 million visitors each year — all managed by my agency and now with no funding plan in place for stewardship beginning in just 7 months. This is not a bad reality TV show. This is New Jersey’s Inconvenient Truth hidden from voters throughout this campaign.”

You need to talk to your so called “green” friends – they are misleading you. You break it, you own it.

Bill Wolfe

Bordentown, NJ

[End Note: Of course, I don’t expect a guy running for Governor to tell the whole truth, but I am not so politically constrained. Fulop failed to mention that the Governor’s Liberty State Park scheme was promoted by the accommodationist corporate planning group called NJ Future, who were bought and paid for by a Christie DEP $140,000 grant to prepare a privatization plan in secret. But NJ Future is not the only private group Christie’s DEP has outsourced work to and co-opted with State taxpayer money. There are others shamefully providing political cover in exchange for State money, including Sustainable NJ,  NJ Audubon Society, and American Littoral Society. Or that some of the environmental groups that jumped on the Save Liberty State Park bandwagon previously supported the Keep It Green diversion – the definition of self serving hypocrisy.

But the Christie Administration is not alone in these cynical co-optation tactics – EPA plays a similar game and with some of the same groups and people.]

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NJ DEP Has Know For YEARS that Up to 18% of NJ Homes Have High Lead Levels

April 22nd, 2016 No comments

With all the focus on lead growing out of the Flint Michigan and Newark Schools tragedies – including criminal charges filed against State regulators –  I thought the DEP data hidden in plain sight would be mined by intrepid reporters and NJ’s “environmental justice” advocates.

I was terribly wrong on both counts.

So here is the lead data, from DEP’s Private Well Testing Act Report (2008):

Lead samples in homes – A total of 5,523 (11%) of the homes had lead levels above the previous Ground Water Quality Standard of 10 μg/l. This number increased to 9,368 (18%) of homes that had lead levels above the new Ground Water Quality Standard of 5 μg/l. This indicates that many homes still have lead in their plumbing systems, since it is unlikely that it originated from the raw ground water supply.  (page 18)

DEP changed the data format of the most recent Private Well Testing Act report to frustrate understanding of statewide statistics like the above.

Take a look and see if you find this new format helpful or whether it obscures the data.

Welcome to transparent and accountable government in the age of Christie!

Neither US EPA nor NJ DEP have an enforceable drinking water standard – known as an “MCL” (“Maximum Contaminant Level”) – for lead.

EPA has a 15 ppb “action level” – this is NOT an MCL.

NJ DEP uses the lower 5 ppb groundwater quality standards for the PWTA data –

It is not reported how many of the homes that exceed NJ DEP’s 5 ppb GWQS also exceed EPA’s 15 ppb “action level” and it is not clear whether any such exceedence triggers mandatory followup sampling and corrective action.

Is this public health decision left up to the home buyer and seller?

Good questions to pose to NJ DEP.

[End note: on the EJ front, why should the family able to afford a home in rural Hunterdon County served by a well get more effective drinking water protection than a family that purchases a modest home in Irvington or Newark or Camden?

Why should renters of homes served by wells get less protection than homeowners?

Ask the environmental group who championed the PWTA.

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