EPA Comes Out Against Second DEP Water Rule

EPA Comes Out Against Second NJDEP Water Rule

EPA is using their oversight role to raise concerns to the NJDEP’s proposed Water Quality Management Planning (WQMP) rules. As part of their oversight role, they do not say things bluntly, but they have listed a serious of concerns with the rule proposal. These rules determine where sewers go, which determines land use policy. EPA stated the importance of the NJDEP to complete wastewater management plans across the State, however NJDEP has eliminated that plan. NJDEP’s proposal is a direct threat to New Jersey’s drinking water because it allows an extension of sewers, and therefore more development in environmentally sensitive areas. This will threaten our water supply, open space and will increase flooding and pollution. EPA very rarely sends letters on proposed rules, and by sending this letter this does show there are real problems with it. We had sent a letter to EPA previously, by they had already written these comments, which we are pleased to see.

“This is the second time EPA has come out against a DEP water rule because the Christie Administration keeps trying to rollback protections. In EPA speak, this is an alarm going off. The EPA’s letter is saying that the DEP is violating EPA’s programs and the Clean Water Act with this rule proposal. The EPA has raised serious concerns that the proposed Water Quality Management Planning rules threaten clean water, violate EPA’s grants requirements, and undermine protections of our waterways. They believe these rules will cause more pollution by extending sewers in environmentally sensitive areas and adding more point and non-point pollution,” said Jeff Tittel, Director of the New Jersey Sierra Club. “The EPA is saying the DEP is not doing any planning or protection when it comes to water quality. They are not requiring a state-wide plan, but the EPA is saying they need one nor are they requiring a drinking water analysis being done. The EPA believes the rule violates 208 program, anti-backsliding criteria and TMDLs, while going against conditions in EPA’s grants, which could impact funding. We had also sent a letter raising our concerns to the EPA after they sent this so we hope they will response to the additional issues we have raised.”

One of the major discrepancies listed in the EPA included, “We expect that the new WQMP rules will result in prompt completion of these long overdue wastewater management plansNJDEP proposes to eliminate the New Jersey Statewide Water Quality Management Plan from its water quality management planning program. Should the state eliminate the Statewide Plan, it will be necessary that each of the 12 New Jersey Area wide WQMPs include all necessary Plan elements and are consistent with one another, pursuant to 40 C.F.R. 130.6(e).” However, these rules do the opposite. The proposed rule allows for site specific amendments without consistency with the state-wide area plan, which violates the federal 208 Planning Process and the Clean Water Act. They actually remove consistency for extending sewers based on the area wide plans. Previously, if you weren’t consistent with an area wide plan, you could not get permitting. This means if the area did not have sewer service formerly and was proposed to have high density development, you may not get the permit for sewers based on stream encroachment. With the proposed rule, now you can get a permit even if you are not consistent with the plan.

“EPA is telling NJDEP that they have to do planning, but there is no planning at the DEP. Not only does the EPA want the DEP to complete their long over-due wastewater management plans, they have actually eliminated the 12-area wide plan and it is being done on a town to town basis. They are actually doing the opposite of what the EPA requires because they have weakening and rolling back planning. The DEP has completely given away its authority to local towns and sewerage authorities. Towns can now do amendments without the area wide plan, which is a death by a thousand cuts, which will add more development without looking at environmental impacts. Before if a town did not have an updated area-wide plan in place, you could not get site specific amendments. However, now towns can even extend sewers if the plan isn’t up to do-date with no enforcement or an environmental analysis,” said Tittel.

Another major concern in the EPA letter includes it impact on impaired waterways that require an appropriate clean-up. “In addition, CWA Section 303(d)(2) and 40 C.F.R. 130.7(d)(2) require states to incorporate their lists of impaired waters (303(d) lists) into their current WQMP. In the absence of a statewide WQMP, the biennial 303(d) list must be incorporated into each of the 12 Area wide WQMPs.” As a result, the WQMP proposal will add, not remove, pollutants, which violates the Total Maximum Daily Loads (TMDL) and anti-backsliding criteria because once there is a clean-up plan you cannot go backwards.

“We believe that these rules will add more pollution into impaired waterways which will violate TMDL and EPA is saying the same thing. Our concern is that many of our rivers such as the Passaic and Raritan could be impacted by this proposal, as well as many lakes because it will add development in environmentally sensitive areas leading to more sprawl and pollution. Major parts of the Passaic and Raritan clean-up plans for those impaired water bodies include absorption of pollutants from riparian buffers. This rule violates the TMDLS because it will extend sewers in environmentally sensitive areas. It also violates the anti-backsliding criteria of the Clean Water Act because once there is a clean-up plan you cannot go backwards,” said Tittel.

Another important point that EPA brought up included potential violation to EPA grant funding. The letter stated “EPA Region 2 has provided substantial grant funds to NJDEP to support water quality management planning efforts. This included over $1 million in American Recovery and Reinvestment Act of 2009 (ARRA) monies, which NJDEP then provided to counties in 2009 to support the development of wastewater management plans.” We believe WQMP rule violates the federal 208 Planning Process and the Clean Water Act because there is no consistency among state and federal plans. The proposed rule removes consistency for extending sewers based on the area wide plans. By extending sewers in environmentally sensitive and flood prone areas, this proposed rule will lead to development in headwater areas as well as eliminate important stream buffers. Under the DEP’s proposal, there are now areas that could have sewer extension that are prohibited under EPA grant requirements. These prohibited areas are environmentally sensitive like flood hazard areas or places where endangered species have habitat. We believe this violates the conditions of EPA grants requirements for sewer plants under section 208 of the plan.

“In their letter, the EPA is saying to NJDEP is violating their requirements under their grants and those plans are long overdue. They raise the concern that this rule could also violate the 208 Planning Process and Clean Water Act. The DEP’s proposal allows for site specific amendments without consistency with the state and federal plans, which will lead to more development in environmentally sensitive areas like the Pinelands and Highlands” said Jeff Tittel. “What is more concerning is that EPA’s letter says that New Jersey is violating its conditions of the EPA grants under Clean Water Act. With this proposal, there are now areas that could have sewer extension that are prohibited under section 208 of EPA’s grant requirements for sewer plants. These prohibited areas are environmentally sensitive like flood hazard areas or places where endangered species have habitat. Towns were given money under these grants to do appropriate planning and environmental analysis. Now that the DEP has removed this requirement, it means New Jersey could lose important funding.”

EPA said “An effective water quality management planning process can be used to protect healthy waters and watersheds, and also restore water quality where it is impaired and no longer meets state water quality standards.”

“The EPA is telling New Jersey that it needs to have an effective water quality planning program, but when you look at the proposed rules there is no effective planning process. However, they don’t address important issues to make our watersheds healthy like point and non-point source pollution. They have extending sewers in areas that are impaired, extended pollution in environmentally sensitive areas, and will not meet state-water quality standards,” said Jeff Tittel. “Since there is no planning in the watershed, there is no longer analysis of depletive use to extend sewers and its impact on water resources. Under these rules you no longer need to look at development’s impact on depletive use on water resources. This means that you can over pump groundwater, deplete aquifers, causing salt water intrusion in coastal areas, and cause drop in stream levels. Instead, you will see major water quality impacts because of the additional sewer discharge coming into our waterways from development.”

This is concerning given EPA’s statement that, “We support your proposal to retain the requirement for local septic management programs since this was an important condition of the EPA and National Ocean and Atmospheric Administration's January 2010 approval of New Jersey's Coastal Nonpoint Source Management Program...We look forward to the completion and implementation of these septic management programs across the State.”

“This is a tongue and cheek way of saying that we are glad you are not getting rid of a program you are required to have. However, the program they have in place is seriously flawed. It does not deal with point and non-point source pollution, and actually adds pollution to our waterways, while removing buffers, stream corridors, and adding more sewer plants in environmentally sensitive areas,” said Jeff Tittel. “Not only will this proposal add more pollution by extending sewers in the Pinelands, Highlands and nearby streams, it is not looking at water supply and pollution impacts. There is also no analysis on non-point source pollution for the extension of sewers and stormwater impacts. We are also concerned that the proposed new rule eliminates the mandatory pump out for septics and septic management districts. This is important because formally towns managed areas of septic like groundwater and wells. Without town involvement, it will lead to more failing septics and more contaminated wells. How can you have a management plan without pump outs? These rules should be called the ‘Dirty Water Rule for Developers’ because that is what this rule really is.”

An additional concern we brought up in our letter was that while they are allowing for more expansion in sewer service areas in the WQMP rule and getting around the Water Quality Planning Act, they are weakening the NJPDES CAP rule that will allow more sewer plant discharge. Another hypocrisy is that the Christie Administration said they can relax the WQMP rules because of Special Water Resource Protection Area (SWRPA) and the 300 ft. buffer in the Flood Hazard Rules, but they are actually eliminating those protections in a separate rule proposal. The proposed Flood Hazard changes will allow building within the 300-foot buffer and put a storm drain pipe directly into the stream or a septic system 50 feet from the stream. The EPA has also come out against the proposed Flood Hazard Rules.

“It is important that EPA has weighed in by these rules and clearly alarmed by them. They are telling the DEP that these rules fail to address non-point source pollution, fail to have consistency among plans, and violate TMDL and anti-backsliding criteria. They are additionally concerned that the DEP will lose grant funding by allowing amendments without updating the plan. Hopefully DEP will get the message and pull these rules down. If they don’t, then we hope the EPA will step in and block these rules from going forward or remove delegation of the Clean Water Act. The EPA also has the power of the purse; they can withhold funding from the state’s water programs until the rules are withdrawn,” said Jeff Tittel, Director of the New Jersey Sierra Club. “The Christie Administration has continued to side with polluters and developers over clean water. These proposed rules will cause major water quality impacts because of the additional sewer discharge coming into our waterways from development. The EPA must ask the DEP to withdraw these rules and the legislature needs to require oversight because these rules are a threat to open space, our streams, and reservoirs.”

EPA’s letter to the NJDEP concerning the WQMP rules as well as the Sierra Club’s letter to the EPA is attached.

• Download full text: New_Jersey_Sierra_Club_Letter_to_EPA_on_NJDEP_WQMP_Rule_Proposal.pdf