RIP Stream Protection Rule, RIP public rulemaking process

dsc_0006In May 2015 , the U.S. federal government’s Surface Mining Reclamation and Enforcement Office introduced the Stream Protection Rule that addresses the balance of interests between clean water and the needs of the coal industry. The indication was that this was based on new scientific information about the damaging effects of coal dust in water systems. I have not reviewed the underlying science (and the science is not the focus of this article) but note that it was considered later in public comments. The intent of the rule was to limit effluents coming from runoff from coal mining.

The Delaware River watershed and the Delaware Bay region was only peripherally affected by the legislation compared to other parts of the country. As a result, the local environmental organizations that  work with were only minimally involved in the legislative process. Some local people are concerned that coal runoff has adversely affected sturgeon that were once abundant in the Delaware River and bay. The federal rule making agency found no basis for that concern and did not consider the risk in this rulemaking process.

More than 18 months of public meetings, hearing and collection of public comments followed the introduction of this rule. As expected, there was both support and opposition. In general, the coal industry wants no additional regulation while environmentalists want rules to ensure clean water. 95,000 public comments on the rule were collected during this period. The federal rule making process moved forward as expected in the usual fashion by considering all of this massive public input. The discussion over extensive public comments are listed in the federal register and can be viewed at https://www.federalregister.gov/documents/2016/12/20/2016-29958/stream-protection-rule.

After about 18 months of public vetting, the Stream Protection Rule became law in December 2016 as a modest step in preserving the quality of our water system.

Today, February 1, 2017, the U.S. House of Representatives passed H.J.Res.38 – “Disapproving the rule submitted by the Department of the Interior known as the Stream Protection Rule”. In a single vote, these elected officials set aside all the work that had balanced the interests of industry and the environment and simply bullied their forced agenda on the affected citizens.

I am saddened to witness yet another defeat for the democratic process and a step back for our Delaware water system.

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Mid-Atlantic oil and gas drilling update

Puzzled by recent news about Mid-Atlantic oil and gas news? I am. The dramatic swings in position in the past decade have been difficult to follow. News reports say that today’s action by President Obama stabilize the situation for the foreseeable future and squelch offshore drilling here. Some reports say that today’s action may survive as the longest-lived impact of Obama’s presidency.

This article on Sierra Club’s web site does a good job explaining the progress on the issue up until March of this year. At that time it appeared that the administration supported offshore energy exploration here.

The bottom line seems to be that we won’t hear more about offshore drilling here on the mid-Atlantic coast. I am skeptical. We’ve gone to great lengths and pains to support our addiction to oil and gas. Only time will tell.

Chromium-6 in drinking water

Chromium-6 is a chemical that can cause cancer even at very low levels of exposure. The EPA says that most Americans are exposed to it in their drinking water. Many of us know about chromium-6 because of the movie about law clerk and environmental activist Erin Brokovich.

A new report issued this week brings fresh attention to the issue. CNN provided additional new coverage of the issue.

All three public water systems in Cumberland County NJ have tested positive for Chromium-6 at levels that exceed the nation’s toughest goals set by the state of California. The NJDEP responded by saying that NJ water meets the less restrictive federal safety standards.

chromium-6

Time to rethink the basis of environmental regulation

“You only have power over people as long as you don’t take everything away from them. But when you’ve robbed a man of everything, he’s no longer in your power — he’s free again”. – Alexander Solzhenitsyn

For all of our modern times, government has regulated environmental organizations with a combination of threats, intimidation, and fines. Overall, this system has been pretty effective in mooting the possibilities of most types of innovation and environmental improvement. Environmentalists with visions of improving their world are routinely knocked back into mundane roles through such government enforcement actions. We’ve seen several examples here in the New Jersey in recent years, even from the most powerful environmentalists in organizations like the Partnership for the Delaware Estuary, The Nature Conservancy and Rutgers University.

About a decades ago residential and business property owners in our own community began reporting that NJDEP officials were demanding payment of ‘offset credits’ simply because sea level rise had changed the nature of their structures from dry land to above water. This form of action is viewed by some local property owners as legalized government extortion. Government’s reaction to sea level rise has changed the fundamental possibility of future use of shorefront properties. Many of the properties here used to be 100% on dry ground in the 1950s are now 70% below the water line. Values have fallen dramatically and most owners are underwater financially as well as physically. This enforcement action effectively put a halt to our plans to open a nature observatory at Money Island. The costs of compliance extracted by government are simply too high to allow for shoreline development of non-profit ventures like a nature observatory.

Then in 2010 NJDEP Commissioner engaged in a battle against oyster reef restoration efforts including our own at Money Island. While some projects were relocated, ours were simply abandoned. We don’t have the manpower to relocate and we really need the living shoreline restoration efforts here. Likewise, we’ve faced resistance on dune restoration and it has been difficult or impossible to get permits for living shoreline restoration. In 2015 a group pf environmental organizations teamed up to push permitting through for some projects. But these are largely experimental projects; not the type of proven shoreline stabilization techniques that we badly need to implement sooner rather than later.

Lately I’ve been engaged in a battle to bring properties up to standards in modern wastewater handling. The local and county governments have a solid plan to bolster wastewater treatment facilities but that pan is not moving fast enough to satisfy the NJDEP. Instead of pushing and helping government implement their plans, the state has allowed the NJDEP to threaten property owners instead.

In 2014 the NJDEP issued a dubious water test report that was later admitted to be faulty in design and execution by its authors. The intent of the report was to prove that the septic systems of certain human residences were polluting the bay. The not-so-hilarious thing was that the report singled out specific abandoned homes with photographic evidence to support its conclusion. In fact, there is no such proof and dozens of other water test results before and after show bacteria level at normal expected and acceptable levels. Still homeowners are feeling the pressure because the cost of compliance often exceeds the value of their shore front homes. Some of these owners donated their properties to BaySave for the purpose of transmittal to the state or to find a resolution. I work with many levels of government and private enterprises and conclude that there is no immediate solution to bring government and residents into compromise. This is where the story gets more disturbing.

The NJDEP now sends letters threatening fines of up to $50,000 per day to these low-income and mostly unsophisticated local residents. I pointed out to the state officials that these residents are already financially ruined by sea level rise, have no other assets or income and that they have been praying for the state to take possession of their property or relocate them to offshore locations. The state offered to buy their houses for $20,000 to $30,000 but that’s not enough to pay off their existing mortgage debt let alone leave money to allow them to buy another home. These residents have no financial ability to comply and no reason to fear additional fines. Their properties are worthless (based on value less mortgage less taxes) and, for the most part, have not been occupied since superstorm Sandy. Some of the best minds in New Jersey’s think tanks – the NJ Bar Association, The NJ League of Municipalities, NJCPA, NJ Plansmart, for example –  have volunteered their help on this issue but have been unable to come up with a solution. It is unreasonable to expect NJ’s property owners to do this on their own,

In BaySave’s case, the NJDEP and various other government agencies have already issued fines, levies, liens and taxes that far exceed the property’s value. All of this happened long before we were involved. Volunteer efforts are focused on digging our way our of the hole to reestablish a sustainable shorefront resource for the community. That’s how BaySave came to own the properties; the previous owners simply couldn’t handle these government aggressions either from a financial or psychological perspective and they recognized that we stood a better shot at success. Some owners have chosen to make their donation public by filing the deed. Most have not, and prefer to keep their financial affairs private. If these owners do have other assets, they fear that these might be at risk if the New Jersey government chose to pursue prosecutions of alleged environmental violations. The smart decision was simply to donate their properties to an environmental organization. I expect these types of property donations will continue to come as long as government makes threats without offering viable solutions. We agree that the problem is financial but that’s as far as we get. I want to talk financial solutions while the NJDEP wants to continue to talk fines and enforcement.

My point is that in the past environmental regulation was based on a premise that property owners had something to lose. Now that a growing number of waterfront properties in New Jersey will have no net economic value, we need to rethink the strategy. The abandonment of property is a real and growing problem. Partnering with, rather than threatening environmental organizations is the path we need to follow.

Good news on local water quality

The Delaware River Basin Commission collects water samples periodically and publishes data about bacteria levels in the Delaware Bay. Four of the collection points are south of our location at Money Island NJ and are therefore could be affected by discharge from the bayshore communities in this local region. The primary factor of concern, especially in summer, is the level of e. coli bacteria, also known as fecal coliform. The data published on the State of New Jersey’s web site indicated that levels of fecal coliform have been minimal or not detected at all collection points in the Delaware bay south of us at Money Island.

This data is especially important because an improperly designed water quality test conducted in the summer of 2014 was misconstrued to imply that broken septic systems were contributing to fecal coliform levels in the Nantuxent Cove and in the bay around Money Island. Some environmentalists in the American Littoral Society and the Cumberland County Department of Health apparently misinterpreted last year’s report to mean that higher levels of reported bacteria were coming from human source discharge.  The test has since been discredited and its authors have disclaimed some of the methodology. All other tests prior to and after this have indicated a healthy level of fecal coliform in our waters.  The last comprehensive report on our water quality was published in 2012.

In general, the mid and lower bay region has lower levels of bacteria than water bodies further north.

The test result data is summarized in this table. For complete information, see the test results for each individual month.

Fecal Coliform Summary Data

Collection Points:
Mahon River Crossledge Joe Flogger Brown’s Shoal
June 2015 Not detected Not detected Not detected 1
July 2015 Not detected Not detected Not detected Not detected
August 2015 Not detected 1 Not detected Not detected
September 2015 7 Not detected Not detected Not detected

A fecal coliform level of 200 is considered to be the maximum safe standard for this test.