Gary J. Brower, Esq.
Attention: DEP Docket Number: 01-19-01
Office of Legal Affairs
NJ Department of Environmental Protection
Mail Code 401-04L; PO Box 402
401 East State Street, 7th Floor
Trenton, New Jersey 08625-0402
Re: NJBIA comments on DEP Docket Number: 01-19-01, PRN 2019-028 Surface Water Quality Standards (C-1 rule)
Dear Mr. Brower, Esq.,
On behalf of our member companies that provide more than 1 million jobs in the State and make us the largest statewide business association in the country, the New Jersey Business and Industry Association (NJBIA) respectfully submits the following comments on the Department’s Surface Water Quality Standards (C-1) rule proposal.
NJBIA recognizes the important role the Department plays in the protection of our surface water bodies and in moving the State forward to meet the goals of the federal Clean Water Act. We also recognize the importance category one (C-1) designations have in helping to achieve those goals. However, for the reasons set forth below, NJBIA believes this proposal is fundamentally flawed from both a substantive and procedural due process perspective. These flaws cannot be cured upon adoption. We urge the Department to withdraw the proposal, engage in meaningful stakeholder processes, examine the scientific and factual basis for each stream segment designation, more carefully articulate the economic and other impacts as required by law, and re-propose a new rule giving the public all the background material it needs to be able to adequately comment. Only by engaging in a withdrawal and re-proposal will the Department avoid the statutory and constitutional infirmities inherent in this proposal.
NJBIA also believes that not every stream segment that may technically qualify under the existing regulations for potential C-1 designation should be afforded that designation. C-1 designations are intended to preserve the State’s most pristine streams and to help ensure they continue to serve significant ecological, fisheries, or water supply purposes. Prior to this proposal, 44% of the State’s streams had a C-1 designation or higher (e.g. Outstanding Natural Resource Waters). This proposal would add another 3.2% of the streams to the C-1 category, making nearly half of the State’s surface waters C-1 or ONRW. While many of these streams deserve this designation, it is difficult to believe half of the State’s surface waters do.
Having a C-1 designation has substantial implications. The designation impacts development by placing 300-foot buffers on streams and limits additional water discharges. The designation not only places regulatory burdens on the specific designated stream segments but on all upstream tributaries in the same HUC 14 watershed (in the case of flood hazard regulations) and potentially on all upstream discharges (under the NJPDES program).
These additional regulatory obligations can impact development and redevelopment, even in areas where the State Plan and other appropriate governmental entities believe development is appropriate and even where substantial infrastructure and other investments have been made, such as transit hubs and urban downtowns. The proposal does not adequately consider the impacts of these changes and in many instances, as will be highlighted below, ignores those impacts. This is not a balanced rule and will hurt the State’s economic future. The potential impacts need to be reconsidered before designations go forward.
Stakeholder Process – We initially addressed this issue in our March 28, 2019 letter requesting an extension of comments (we incorporate that letter into our comments today). In that letter, we noted that the Department’s only stakeholder meeting was held on January 17, 2019 when the Department informed invitees of its plans on C-1 streams. The rule proposal was subsequently published on March 4, 2019. In order to be published on that date, it had to have been sent to the Office of Administrative Law by January 31, 2019. There was only two weeks between the stakeholder meeting and submittal. Given the internal review times, this means the rule was essentially drafted and ready to be proposed before the stakeholder meeting was even held. The Department did not allow itself the benefit of stakeholder input but rather rushed through this proposal. Had the Department engaged in a meaningful stakeholder process perhaps many of the substantive flaws and other procedural issues would never have materialized.
We note this lack of a substantive stakeholder process is in conflict with Executive Order No. 2 by Governor Christie, which was in effect at the time of the proposal’s publication, and Executive Order No. 63 by Governor Murphy, which governs all current rule proposals of the Department. While we appreciate the fact that the Department did accede to our request for an extension of the comment period, although not the full 90-days requested, the extension did not cure the problems caused by a lack of a stakeholder process nor the other fundamental problems with the proposal.
Lack of Available Information – Essential and relevant information was not provided during the public during the comment period and various supporting information was either improperly cited or did not support the factual or scientific basis for which it was offered. These process flaws are of significant concern to the regulated community and the public at large, and makes this proposal fundamentally flawed under the Constitution’s due process provisions and the Administrative Procedure Act.
It is essential to precisely know where a stream is located when it is proposed for designation as a C-1 stream segment. This information is vital to property owners who may be impacted by buffer requirements imposed under Flood Hazard Control Act rules and dischargers under the Water Pollution Control Act. Despite the absolute necessity of being able to discern where a C-1 designation starts and ends, the Department did not provide GIS mapping of the proposed stream segments. Static maps that were made available were not sufficiently detailed to determine property impacts and tributary stream inclusion. The Department did, just recently, make interactive maps available but it did so without any broad public notice and only by providing information to a small class of governmental entities. Even so, this information was provided 10 weeks into a 12-week comment period. Given this short time period to look at the “real” maps, we are not able to adequately comment on many aspects of the proposal. We do note, however, that many of our members have reported there are significant discrepancies between the static and interactive maps as well as the stream descriptions in the rule proposal. We cannot tell which ones are accurate and which ones are not. Thus, we are unable to adequately comment on the proposal or to know who is impacted and who is not. This is a fundamental flaw in the proposal.
Another significant issue with the rule’s process is the fact that, in several instances, links to background documents took the reader to a different data set or the data set did not support the proposition for which it was being cited. We did not have the time to document each instance of flawed or inadequate information being provided to the public. Ensuring the accuracy of this information is essential for the public to be able to adequately comment on the proposal. Without accurate information available to the public the proposal constitutionally flawed.
Flawed Supporting Data – The legal requirements for the Department to designate a stream as C-1 involves a series of scientific and factual findings. While in many cases the Department’s proposed stream designations are factually supported, in a number of instances they are not. We will comment on several of the more significant issues, but note that our members have alerted us to problems with data and substantiation even in undeveloped areas where C-1 designations may be appropriate.
South/North Branch of the Raritan – The rule proposes to designate several segments along the Raritan River as C-1. They all suffer from the same fundamental flaws. The Department concedes in its Rule Summary that the data used to make these designations were provided to the Department from a volunteer environmental organization. The use of non-professionals to develop complicated and subjective data and factual findings is unacceptable. The use of volunteers for certain purposes, such as non-binding planning, or factual support may be acceptable however, it is not acceptable as the primary basis for a regulatory mandate.
These stream segments are being designated because they presumably have exceptional aquatic communities and meet all the other criteria for that designation. The first step in this process is to determine that the stream segment has a non-impaired benthic macroinvertebrate community using the Department’s rapid bio-assessment protocol. If this step is confirmed, then the stream segment must have two of these four elements, 1) optimal habitat, 2) exceptional fish community, 3) compliance with water quality data, and 4) meet the impervious cover test. The Raritan designations were based on findings of non-impaired benthic macroinvertebrate communities and, largely, having optimal habitats and water quality. Making these determinations are highly complex and require substantive knowledge and experience. These determinations are not as simple as spotting an endangered species, which itself requires expertise, but making subjective determinations on river bank quality, ability to support species into the future, and meeting complex water quality standards.
The NJBIA does not believe that these subjective determinations can be made by a non-professional volunteer. These determinations require professional judgment, expertise, and experience. These findings cannot be delegated. In these instances the Department delegated its responsibilities to a volunteer advocacy organization without the knowledge or experience to make these findings. Of even more concern is that these volunteers are not adequately trained for the most basic analysis. It is our understanding that as little as one hour of training is all that is required for a volunteer to be authorizied to supply this information. Under any circumstances this is unacceptable and provides a presumption that the data provided does not meet the high standard need to form a basis for a stream designation. For this reason, none of the Raritan designations should be adopted.
Vineland – There are three streams that are of concern which are part of the Maurice River, lower Delaware section. The first two are Blackwater Branch and Burnt Mill Branches, which both cut through the City of Vineland’s industrial park. This area is already fairly well developed with large warehouses, processing facilities, food processors, refrigeration and freezer storage and a waste site. We question imposing a C-1 designation in this area given its already highly developed nature. More so, the Blackwater Branch was also part of a federal superfund site known as Vineland Chemical, which was a significant source of arsenic contamination of groundwater and surface waters. The stream bed has arsenic entering the main stem of the Maurice River and then also in Union Lake. We do not understand how a stream, whose entire stream bed was dug up and moved and which may still contain arsenic contamination, could be proposed for C-1 designation.
With respect to the Burnt Mill Branch, its habitat rating was sub-optimal and water quality as far as DO temperature, total phosphorous and TSS is listed as having insufficient data. Given what appears to be the insufficient data and sub-optimal habitat rating, this stream segment should not be listed as a C-1 stream. The Blackwater Branch and Burnt Mill Branch together appear to have four different NJPDES facilities that would be impacted. Both streams should be removed from the C-1 proposal.
The Little Robin Branch in Vineland, which is designated as a C-1 stream for its entire length, ignores the fact that a major portion of this stream is located underground and is piped through thousands of feet of downtown Vineland. This piped stream passes under numerous parking lots, as well as a Walgreens store and a Walmart parking lot and store. It should be noted the entire headwaters of the stream is piped underground. Given these conditions, the stream provides absolutely no habitat for fish, micro and macro invertebrates or any vegetation. The stream is also impacted by four NJPDES permit numbers. How can a stream in this condition meet the C-1 requirements?
Given the actual conditions of these streams in Vineland, the questionable data, and the likely impacts on development and redevelopment in an industrial and town setting area, these designations should not be adopted.
Cooper River – Only 1.3 miles of the Cooper River has been proposed for designation as C-1. The basis for the designation is the existence of the eastern pondmussel. This segment of the Cooper River is near its mouth where it meets the Delaware River. The area around this stream segment is mostly park and wetlands. If the designation were limited to the actual 1.3 mile areas we would have little concern. However, the regulatory reach of the rule proposal goes significantly further than this immediate area. As we noted, under the Flood Hazard Control Act all tributaries upstream of a C-1 water segment within the same HUC 14 are given a 300-foot buffer. In this particular case the upstream waters that would be impacted pass through densely populated and industrial areas of the City of Camden, and into highly populated and commercialized areas of Cherry Hill Township and Haddonfield Borough. Not only would these properties along the river and tributaries be subject to the 300-foot buffers, but NJPDES dischargers, from treatment plants and even stormwater, would be impacted. What is especially problematic, is that the Department does not acknowledge these potential upstream impacts. This will be discussed more in the Impacts comments below.
We also note that several CSOs discharge into the Cooper River upstream of the C-1 designated segment. What impact will a C-1 designation have on future upgrades of these CSOs and how will future stormwater impacts in Camden, Cherry Hill, and Haddonfield Borough be impacted?
We also question the need for a C-1 designation to protect the eastern pondmussel. It is obvious the pondmussel exists in this stream segment despite the fact that it is downstream of a highly developed and industrialized area and these conditions have been in place for over a century.
Impact Statements: The various statutorily required impact statements are inadequate and do not meet the law’s intent to fully inform the public of the potential economic, jobs, social, housing, and other impacts, nor does it show that these impacts were taken into account by the Department in its rule development and proposal. Many impacts are downplayed, many totally ignored, and others mischaracterized. For these reasons the rule proposal does not meet its legal threshold under the Administrative Procedure Act and should be withdrawn, reconsidered, and re-proposed.
The economic, smart growth, housing, and other impacts of the rule proposal may also be substantial and not easily discernable in reading the proposed rule or its summary. While the rule purportedly only changes the designation of 749 stream miles, its actual impact is far greater. Under the Flood Hazard Control Act all streams and tributaries flowing into C-1 stream segments that are within the same HUC 14 watershed are subject to the 300-foot riparian zone buffer. This adds potentially hundreds of additional stream miles to the rule’s impact as well as thousands of adjacent properties. The anti-degradation policies would also make it more difficult and costly, perhaps impossible, to discharge wastewater upstream of a C-1 stream segment. These impacts are not adequately identified or addressed in the rule proposal making it difficult, if not impossible, for the public to comment. This problem was exacerbated by the lack of GIS mapping of proposed stream impacts, as detailed above.
We have been told by members that many redevelopment projects, as well as affordable housing developments, will be put in jeopardy if this rule is adopted. None of these impacts are addressed or considered in the impact statements.
The rule proposal also states that development served by wastewater treatment plants will not be impacted because sewer service areas are generally outside of the riparian zone buffer areas.
This statement ignores the fact that while sewer service areas may largely be outside of the buffers, wastewater facilities that discharge into these waters may be impacted. It is very possible that a wastewater treatment plant may not have adequate capacity to service projected flows and the plants would not be able expand because of the stream’s C-1 designation. Under the Department’s rules, sewer service areas may have projected flows greater than current plant capacities. In these situations, plans are required to address flows, including plant expansions. There may also be cases where plant expansion is necessary to replace failing septic systems. This rule would prohibit such expansions and thus could prohibit development in an approved sewer service area or to replace failing septics. It would also prevent any future expansion of the sewer service area, no matter how beneficial this may be to the community or the State or consistent with sound planning.
The question is not if the sewer service area is in a C-1 buffer area, but rather if a wastewater plant servicing a sewer service area is discharging into a C-1 stream or upstream of the stream segment.
Has the Department analyzed the size of the sewer service areas and if their designated wastewater treatment plants have adequate capacity or a need to expand? Did the Department look to see if any sewer service areas are in designated centers or Planning Areas 1 or 2? The Department’s failure to mention this issue makes it nearly impossible for the public to adequately comment even in the 90-day period and it is a significant flaw in the rule summary.
Given the fact that it is the discharge, and not location of the sewer service area that will have the greatest impacts, the analysis provided by the Department of impacted plants is inadequate and likely undercounts impacted plants. We have been told by numerous members that they are aware of sewer plants that could be impacted by these rules because they discharge upstream of a proposed C-1 stream segment yet their potential impacts were not recognized, analyzed, or considered in the rule proposal or its impact statements. This is a fundamental flaw of this proposal necessitating its withdrawal and re-adoption with better analysis.
NJBIA has also been told by our members that many redevelopment projects may be impacted by this proposal. CSO upgrades in Camden are being jeopardized due to re-designation of the Cooper River. Redevelopment in Camden and other developed municipalities may be much harder to achieve, or even impossible. Some streams being re-designated run through downtown areas, one of which we know to be largely piped. At least three town centers are being impacted. Numerous properties will be subject to the rule. Are any of these properties in Economic Opportunity Zones? We are aware that redevelopment in Flemington, where an Economic Opportunity Zone has been established, has been put in jeopardy. These impacts are not adequately addressed or, in many instances, even considered in the impact statements.
Conclusion: The NJBIA has come to the conclusion that given the procedural and substantive flaws in this rule proposal, and its lack of legally mandated analysis as shown in the impact statements, that the Department should withdraw this proposal, re-engage with stakeholders, validate all factual supporting documentation for the proposal, and re-propose at that time. As currently proposed, this rule does not meet the constitutional standards of substantive or procedural due process nor the requirements of the Administrative Procedure Act. The proposal is also inconsistent with legislative intent as expressed in the Water Pollution Control Act and Administrative Procedure Act.
Vice President, Government Affairs
New Jersey Business & Industry Association