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Sierra Club Submits Comments on DEP's Dirty Deal to Hide Dirty Water

Date : Fri, 20 Jul 2012 11:39:12 -0400

Hide Dirty Water

For Immediate Release
July 18, 2012 Contact Jeff Tittel, 609-558-9100

Dirty Deal to Hide Dirty Water: DEP Rolls Back Reporting Standards

The New Jersey Sierra Club has submitted comments opposing the DEP's proposed changes for designating waterbodies impaired under the Clean Water Act.The number of impaired waterways in New Jersey is growing at an alarming rate and instead of increasing protections for our waterways and cleaning up pollution, the DEP has proposed to weaken the criteria for including waterbodies on the 303(d) list, issued every two years.The July 2 Register includes proposed changes to the criteria to delist numerous waterways from the 303(d) list of impaired waterways under the Clean Water Act.Waterbodies would not be removed because they are no longer impaired, but because the criteria changed.Changes include removing a waterway that a Total Maximum Daily Load (TMDL) is being written for, even if it is not being implemented and excluding pollution from unknown and natural sources, such as arsenic.This is a major rollback to clean water protections and can have significant impacts on public health.

"This is a dirty deal for dirty water.The DEP is doing this to hide their failure to clean up New Jersey's waterways and even worse the the rollback of protections for our waterways and drinking water.Our waterways are becoming threatened by more pollutants and the DEP wants to weaken the listing criteria instead of cleaning up pollution.They eliminate science, testing, and methodology all to cover up their weakening of water protections and their failure to adequately protect New Jersey's waterways," *said Jeff Tittel, director of the NJ Sierra Club*. Under the federal Clean Water Act, states are required to report surface water quality to the USEPA every two years.The most recent data from 2010 found the number of limited use and impaired waterways in New Jersey grew by 9.8% in the last two years alone, according to an analysis prepared by the Sierra Club.The changes proposed in the Register would make more waterways appear safe only on paper.Waterbodies could be removed with no steps being taken to clean up or address the pollution entering, as long as DEP says they are working on the problem.However we have seen TMDLs for the Raritan and Passaic Rivers take over five years to be developed.Under these changes Berry's Creek in the Meadowlands, one of the most polluted streams in the state would be delisted because it is part of a TMDL.The Passaic River below Dundee Dam would be delisted.Both are Superfund sites.There are currently 36 EPA approved TMDLs in New Jersey waiting to be implemented.

"This is a report we have to make to EPA.It is the 303(d) list not the 303 delist. We believe DEP is violating the Clean Water Act and trying to cover up the deteriorating conditions of New Jersey's waterways," said Jeff Tittel. Naturally occurring toxins that impact our health would continue to pollute our waterways under these changes.The industry claims mercury is naturally occurring, although it mostly enters waterways from coal-burning power plants and industrial facilities.If ingested mercury can become a dangerous neurotoxin, and damage the brain and nervous system.Arsenic in our waterways would also go unreported.The toxin is naturally occurring but is also the result of human actions such as pesticide use or industrial operations.Although natural, arsenic is worse in areas of overdevelopment as high nitrates level push the arsenic out of the soil.Limestone geology is being used to delist contaminated waterbodies in Warren County. Waterways with unknown sources of pollution would be excluded from the impaired list.Local residents and recreational users would continue to be impacted by that pollution.This is alarming as the Integrated Water Quality found one of the top three sources of pollution in our waterways is non-point source pollution.The Elizabeth River is the most polluted river for non-point source pollution in the country and it would be delisted.

"They are eliminating testing and protocols so that they can weaken environmental protections without getting caught.But we will realize it every time we fish and swim, but more importantly it threatens the environment and drinking water supplies," said Jeff Tittel. If they do not have any updated information the waterway would be delisted, even if it was listed as impaired in the past. If the equipment used cannot detect for a certain standard, even if the stream is over it, it does not matter. We already have one third fewer monitoring stations then we are supposed to have and now this will be used as an excuse to exclude waterways.The changes would allow them to round down and include the margin of error so that streams exceeding limits would not be listed.They are testing above roadway crossings instead of below so that runoff and the impact of the roadway are not included.If the station is not properly recognized in the right location, within 200 feet of the GPS point, they invalidate the data.Testing is done outside the mixing zone, after discharge has fully merged into the main body, resulting in diluted readings.

"Changing the methodology makes it hard to compare the data from year to year.We have been able to chart the decline of our water quality over the past 40 years but these changes will make future data harder to compare," said Tittel."We were able to show that during the 1990's the sprawl line moved further west threatening the Highlands.Because of that we were able to secure more protections like Category one stream upgrades, stream buffers, and the Highlands Act.By changing these standards we are rolling back protections." They are no longer including macro-invertebrate data for the New York harbor area.Macro-invertebrates only live in clean water.Excluding this data and the TMDL will delist the New York Harbor area.

Protections Weakened for Barnegat Bay Because there is no nutrient standard set for inland waterways like estuaries and Bays, Barnegat Bay will be delisted.Where they have not adopted a standard they will not list any waters as being impaired, such as nitrogen along our coast.Also they are using a narrative which is not a firm standard.This is like saying you should not speed versus saying you get a ticket for exceeding 55 mph. The DEP contends because the Bay is under continuing studies they will not list any portion of the Bay or watershed as impaired, further delaying any TMDL, cleanup, or other action.Just this week the Rutgers Institute of Marine and Coastal Sciences (IMCS) released a report finding the Bay's health was much worse than previously projected as a result of nitrate and phosphorus pollution and eutrophication.The findings in the report would justify an impairment designation for the entire Bay now.Delays by the administration to adopt a TMDL are now just an excuse to protect polluters.

"The DEP is deliberately hiding behind studies so that they do not have to list the Bay as impaired or develop a cleanup plan.The IMCS report is the smoking gun; New Jersey now has enough information to declare the Bay impaired and start the TMDL process. DEP cannot delay action anymore as this report provides more than enough evidence that action needs to be taken now.They do not have anymore excuses and they should put the Bay on the list," said Jeff Tittel. "Figures do not lie, but DEP is trying to figure out a way to lie about the state of New Jersey's waterways." The Integrated Water Quality Report contains an Integrated List of Waters which measures water quality at the sub-watershed level for a designated use such as drinking water, recreation, and aquatic wildlife.If the water body does not meet those standards due to chemical contamination, it is placed on the List of Water Quality Limited Waters and a total maximum daily load (TMDL) is established as the maximum amount of a pollutant that the waterbody can receive to still meet water quality standards.Under these changes less waterbodies would be included on that list. Only 2.7% of New Jersey waterways are designated to meet all uses compared to 2002 when 10% met those standards.In 1996, 15% meet all uses.There is only one watershed in the entire state, the Flat Brook, that meets all uses.The rest are segments of certain streams. The drop in the quality of our waterways is precipitous and indicative of continuing degradation. This is part of the Christie administration's ongoing weakening of clean water protections.The Governor has basically gotten rid of the Drinking Water Quality Institute.The administration has not adopted standards for perchlorate and PFOA even though we have the science in place to adopt protections.They have downgraded and eviscerated the DEP Division of Science and have replaced it with the Science Advisory Board which is primarily made up of polluters and corporate interests.The DEP is holding closed door meetings with polluters to rewrite and weaken the stormwater, flood hazard area, category one, and stream buffer regulations.The administration has delayed adoption of the Water Quality Management Plans.This delay has allowed the DEP to rewrite the rules to allow for more sewer service areas in environmentally sensitive areas and more pollution into our waterways.The DEP Waiver rule would allow the Commissioner to waive compliance with over 120 agency programs. We are going to be asking the EPA not to approve New Jersey's 303d list based on this methodology.They are fixing the game so we need the EPA to come in and referee.

"This is Orwellian.New Jersey has a water pollution problem so we just change the way our waterways are monitored and testing instead of cleaning up the pollution.They do not like their score when it comes to water quality so they are trying to fix the game by changing the rules," said Jeff Tittel. The draft 303(d) list can be accessed here:<a>

Kate Millsaps
Program Assistant
NJ Chapter of the Sierra Club
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