Archive for the ‘Clean Water’ Category

Regulations Are Not a Taking Under the Constitution!

Written by Mike Pisauro on April 3rd, 2013 in Clean Water, Highlands, land use, Regulation | No Comments »

Recently a member of the Highlands Council was quoted as saying that the Highlands Water Protection and Planning Act took people’s property without compensation in violation of the Fifth Amendment of the U.S. Constitution and Article 1 Paragraph 20 of the New Jersey Constitution.  According to a post in the EnviroPolitics Blog, Richard Vohden referred “to the devaluing of property values for those unable to subdivide or sell due to the law, Vohden said, “If that’s not a ‘taking,’ I don’t know what a taking is.””  The Council’s newest legal counsel has also repeated this sentiment.  These are very unfortunate statements and just wrong on the law.

f the Highlands Act has devalued the property why is it not a taking?  The Highlands Act, especially in the Preservation Area, required much more acreage to build on.  In essence it created minimum lots sizes, which are large.  It is this large lot sizes that some believe have taken their land.  This is what Vohden is referring.

To understand why Vohden and others making the same claim are wrong you must understand takings law.  The basis for takings laws can be found in the U.S and NJ constitutions.  The Fifth Amendment of U.S. Constitution provides, in part: “nor shall private property be taken for public use, without compensation.”  Article 1, Paragraph 20 of the New Jersey Constitution provides: “Private Property shall not be taken for public use without just compensation.”  New Jersey Courts have determined that the New Jersey Constitution and the U.S. Constitution protect this right equally.

The New Jersey Supreme Court and the Federal Courts have ruled that the 2004 Highlands Water Protection Act is not a takings.  But Vohden’s statement is repeated often enough by people affected by the Act.  I suspect that as we rebuild from Sandy, if we are to do it right, people along the coast of New Jersey may be saying the same thing.

When does a law or regulation take private property?  I would start out by noting that for many years legal scholars and courts did not believe that the Constitution protected against “taking” of property through regulation.  It was originally thought that the only taking the constitution protected against was a physical taking by the government.  That thinking has evolved and probably will continue to evolve.

Currently, the U.S. Supreme Court has held that regulations that impact property are not a taking just because the regulation may have an impact on the value of the property.  The Court has said in numerous cases, “Government hardly could go on if to some extent values incident to proper could not be diminished without paying for every such change in the general law.”  Everyone’s ownership of land is subject to the reasonable exercise of state’s authority.  At one point the Court would look to see if the regulation addressed a noxious and harmful uses of the property.  A property owner has never been able to use their property in a way to could harm another’s property.  If the regulation addressed a noxious or harmful use of the property than the courts would not find a taking even if the property had no use after the regulation.

When a regulation takes all value from a person, the Court has indicated that is a regulation that has the same effect as a physical taking and will require compensation under the Fifth Amendment with one exception.  The Court has said that a state could avoid payment when the regulation controls an aspect of ownership that was not part and never was part of the property’s bundle of rights.  A property owner could not flood his neighbor’s property so a regulations or a statute that prohibited such a use, even if that was the only use of the property would not be a taking.

When a regulation does not take all economic value from the property as a whole the court will take a look at whether the regulation substantially advances a legitimate state interest. If the legislation substantially advances a legitimate state interest than the Court is unlikely to find a taking.  The Supreme Court in Lucas v. South Carolina Coastal Commission set out some items to look at in these situations:

  • Degree of harm to public lands and resources or adjacent  private property
  • Social value of the claimants activities
  • Suitability of the activity to the area
  • Relative ease with which the alleged harm can be avoided through measures taken by the claimant or the government
  • Whether the use has be historically engaged in by surrounding properties.

In light of the criteria above, the Highlands Act clearly does not violate the criteria.  The Highlands Act was enacted to counter the damage that unrestrained growth was having on the State’s water supply.  This unrestrained growth was impacting not only the quality of water but the quantity as well.  There were no realistic alternatives to protect the water quality and quantity other than to protect the lands that recharged the waters.  I would also argue that historically development in the Highlands area was very spread out and low intensity.  It was only in recent years that development concentrated in the area.  To sort of wrap this up, the Highland Regional Master Plan requires land within the preservation area and not part of a sewer service area to have large lots.  Is that a taking?  Under current constitutional law, the answer is no.  Attacks against the Highlands Act have been unsuccessful in State as well as Federal Courts.

The lessons we have learned in the Pinelands and the Highlands may help guide us as we hopefully address our coastal region.  Hopefully the State will put into place regulations to protect the coastal region.  If that occurs I would suspect that we may hear the same false claims as in the Highlands.  Luckily no matter how many times it is said, mere regulation of property is not a taking.

2010 Report shows NJ Water Quality Not Improving

Written by Mike Pisauro on February 29th, 2012 in Clean Water | No Comments »

Yesterday, the Environmental Protection Agency approved New Jersey’s 303(d) list. (link)  The 303(d) list is required under the Federal Clean Water Act.  Every two years the DEP is required to submit to EPA a list of all the waters in the state that do not meet designated standards: drinking water supply, recreational use; aquatic life, fish and shellfish harvest and consumption; etc.  Every water body in the state should be designated for particular uses:  recreational, water supply, aquatic life, etc.  All waters should be meeting general aquatic life standards.  NJ is then supposed to use this list and prioritize the development of Total Maximum Daily Loads for affected waters.  In essence the maximum amount of a particular pollutant that a water can accommodate and still met water quality standards.

According to NJ’s 2010 Integrated Water Quality Monitoring and Assessment Report,  prepared in part to comply with 303(d), NJ has 18,000 miles of rivers and streams; more than 50,000 acres of lakes, ponds and reservoirs; 950,000 acres of wetlands; 260 miles of estuaries; 127 miles of coastline; and 450 square miles of ocean within its jurisdiction.  In order to comply with the requirements of the clean water act, NJ monitors its waters, except it does not monitor all of the waterways.

NJ’s list is very interesting and very disturbing.  Of the waters it does monitor the results are very telling.  Only 3% of NJ’s waters support all designated uses if you do not count fish consumption.  60% of our monitored waters are not clean enough to support aquatic life.  All waters in NJ are supposed to meet aquatic life designation but only 40% of the monitored waters do.  Shockingly only .only 48% of NJ’s waters are clean enough to meet the drinking water designation.  All of NJ’s waters are supposed to meet the recreational designation, but only 16% of the water does.  That means only 16% of waters in NJ are clean enough to swim in or boat in.

In an attempt to put a positive spin, the report says, “long-term trends in chemical water quality data show generally stable water quality conditions statewide, with improving conditions for some parameters and declining conditions for others.”   While I have not done a detailed comparison between the 2008 and 2010 report it would appear at first blush that there is a decline in water quality in NJ.

In short, NJ’s water quality is not good and it has not been getting better.  This stagnation or decline is despite NJ’s strong environmental laws and regulations.  While NJ’s water is not getting better the current administration is dismantling environmental protection.  There are two glaring examples, the recently enacted law delaying implementation of NJ’s Water Quality Management Plans and the pending extension of the Permit Extension of Act of 2008.  In its support of delaying the WQMP rules, DEP testified that they do not intend to enforce the regulations and will be seeking to amend the law.  In the meantime because of the delay, applications can come in based upon plans that may be decades old and the applicant is not required to prove that there is available water supply.  Also, these plans are not required to deal with septic systems.  These delays are despite the Reports acknowledgement that land use has one of the biggest impacts on water quality.

The State Legislature is in the process of passing another Permit Extension Act.  If this bill is passed permits and other approvals that would have expired on or after January 1, 2007 would be extended.  That extension could be as long as June 30, 2014.This would be third extension of permits since 2008.  The integrated report inadvertently spells out one of the issues with the Permit Extension Act.  According to the 2010 Integrated report, “if a TMDL is adopted in 2010 and permits are issued in 2011 with a three year compliance schedule, improvements might not be observed until 2014.”   Permits for discharges into our waterways are valid for up to 5 years.  This would mean that a permit issued in 2002 would be valid until June 30, 2015.  The discharger would not have to comply with any TMDL prepared after the issuance of the permit until the permit expires.  It could be up to 13 years before a discharger would be required to comply with a standard developed in 2003.  In short, TMDLs developed between 2002 and June 30, 2015 may have no effect in cleaning our water because of the Permit Extension Act.

As the Integrated Report makes clear, NJ’s environment needs serious attention.  We should be using this current economic situation to revise our regulations to ensure water quality in NJ will improve.  We should not be using it as an excuse to continue to degrade NJ’s water quality.  How much does dirty water cost our economy?  I suggest dirty water costs us more than we realize.

State, Regional and National focus attention on our Oceans.

Written by Mike Pisauro on June 22nd, 2009 in Clean Water, Federal, legislation, Ocean, Politics | No Comments »

June, as national ocean month, has been a fairly busy one. Two weeks ago the Governors of NY, NJ, DE, MD, and VA met in NY to create the Mid-Atlantic Regional Council on the Oceans. Governor Corzine has just appointed members to the NJ Coastal and Ocean Protection Council. President Obama also has created an inter-agency task force. These are all laudable steps on addressing the dire condition of the Oceans. They are long overdue steps.

In 2003 and 2004 the Pews Ocean Commission and the U.S. Commission on Ocean Policy issued their reports on the health of our oceans. Without going into great detail the cliff notes of these reports were that our oceans are in serious jeopardy and actions had to be taken to reverse course. It has been 5 to 6 years since those reports were issued and at least in NJ the course has not been reversed. There might be debate on whether the continued degradation of our oceans has been slowed, but it clearly has not been reversed. There is still a dead zone stretching along 100 miles of NJ’s coast. Fishing stocks are still declining. Pollution is still running off compromised watersheds further deteriorating the health of our ocean. At the same time there is a push to increase exploration for fossil fuels and to install new renewable energy off our coast.

In order to help NJ address the Pews and U.S. Ocean recommendations, the New Jersey Coastal Ocean Coalition issued a report called: Ocean Protection in New Jersey: A Blueprint for Success. After several years of lobbying, the COC successfully got passed and signed into law the Coastal Ocean Protection Council law. That law took effect on January 13, 2008. In part the law created a council to help the State look at the issues affecting the coast and how best to address the issues. It took over 18 months from the time Governor signed this legislation into law to when he made appointments to the council. It has been 18 months without the council working towards strategies on improving NJ’s regulation of the ocean and coastal environments. It has been six years since the Pews report called for coordinated approaches toward regulating this resource without any meaningful movement to correcting the problem.

When Governor Corzine, entered into the Mid-Atlantic Regional Council on the Oceans he said:
Any threat to these natural resources brings economic consequences that threaten jobs, local economies, and our economic well being. New Jersey is committed to working with our Mid-Atlantic partners to provide adequate safeguards and formulate a shared vision for the region’s future.

This is not a new sentiment, but one that the State asserted when the New Jersey’s Coastal Area Facility Review Act was passed in 1973. I hope that New Jersey and the surrounding states are seriously but addressing the multiple threats to our oceans.

We need a mechanism to coordinate policy with our neighboring states because as we all know the water along our coast does not stay within the jurisdiction of anyone state, but it moves. It is the plan that the Council will help the States examine the issues on the regional level and help the State address them in ways that are not counterproductive to each other.

Even more recently, the President created the Ocean Policy Task Force. One of the goals of the Task Force is to propose a national policy that will protect, maintain and restore the oceans, coastal and Great Lake ecosystems including the implementation of adaptive management; a way to coordinate interagency actions, and how to implement these proposals. The Task Force is also put together a recommendation for coastal and marine spatial planning. If I am reading this Memorandum right the goal for the Task Force is to take the recommendations of the U.S. Commission on Ocean Policy and to figure out how to implement it.

These are very important concepts that I hope are more than catchy phrases to government. If these are no more than words than there will not be an improvement. These words must the announcement of actual action. For NJ, they must implement the Coastal and Ocean Protection Council and allow the council to get to work. For the Mid-Atlantic Regional Council on the Oceans the States must look how many of their regulations both water and land based affect the oceans and how each State can compliment their neighbor’s work. Lastly, the Federal Task for can look at how to assist the States and Mid-Atlantic Regional Council on their missions as well as to provide a uniform framework across multiple agencies on how to cherish and protect this vital resource. We will see if actions do speak louder than words.

More promises on NJ's open space

Written by Mike Pisauro on January 18th, 2009 in Clean Air, Clean Water, Global Warming, Highlands, legislation, Politics, Sustainability | 1 Comment »

During this year’s State of the State speech, Governor Corzine stood before both houses of the legislature and spoke about the State’s commitment to open space. He said:

A second topic of vital concern is “open space,” and it’s a tough one. Not because we don’t want it, but because it’s a tough financing issue. Open space preservation has always been one of New Jersey’s priorities and which should be today, and it must be addressed before June 30th. It is my preferred approach that we put in place a long-term funding solution.

That said we need, at a minimum, an interim-bonding question for November’s ballot to extend the financing the voters approved in 2007.

On the face of it this is good news for the State’s open space program as that program is out of money. Unfortunately, this is not the first time that the Governor committed himself to open space preservation. He has on multiple occasions spoke on his and the State’s commitment to preserving open space. He has not followed through with his commitment. In fact he has on occasion worked against open space funding. In 2007 the legislature was moving strongly on passing legislation that would have created, with voter approval, a long term funding solution for open space. The Governor’s office stopped it and gave us a temporary solution instead, P.L. 2007 Ch. 119. When he signed P.L. 2007 Ch. 119, he promised that he would work with the legislature, during the lame duck session, to put in place a permanent solution. There was no leadership from the Governor’s office and his promise that during Nov and December 2007 a solution would be worked out did not occur.

Then on Sept. 5, 2008, Gov. Corzine issued Executive Order 114 regarding the Highlands. That E.O. provides that:

WHEREAS, in enacting the Highlands Act, the Legislature found and declared that, as a matter of wise public policy and fairness to property owners, a strong and significant commitment by the State is necessary to fund the acquisition of exceptional natural resource value lands; and

WHEREAS, it is vital that the Garden State Preservation Trust be reauthorized and that a statewide transfer of development rights program be considered to meet the open space and agricultural preservation needs of the Highlands Region and the State, and, in part, to address landowner equity issues in the Highlands Region.

Since September there has not been any direction from the Governor’s office on open space funding.

At the beginning of December, the Department of Environmental Protection released its draft Global Warming Response Act Recommendation. The Plan calls for funding of GSPT and calls for the legislature to

Reauthorize the Garden State Preservation Trust, and provide for incentives, technical assistance, and project facilitation, to continue and enhance conservation of the State’s natural assets.

I hope that the cumulative weight of all these promises forces the Governor and the Legislature to act and put in place a permanent solution for open space funding. New Jersey needs to actively preserve open space. Preserving open space is vital to the State of New Jersey for multiple reasons.

Over the last several years, NJ has been loosing open space at a rate of 16,600 acres per year. As we continue to lose space we increase sprawl, increase the time it takes for people to travel from home to work and back again. This increases everyone’s commuter costs and increases the amount of air pollution, including greenhouse gases, we emmitt.

As we continue to develop and put impervious cover over our lands, we diminish our ability to recharge our aquifers. New Jersey relies heavily on aquifers for its drinking water, especially in South Jersey. It is also one of the most important tools for preserving the drinking water from the Highlands, which supplies water to over half of new jerseyans.

As we loose more and more open space, one of our tools to address global warming is lost. From a global warming perspective the “estimated 1.5 million acres –one third of New Jersey’s dry land mass” which has been preserved provides for “substantial amount of carbon storage.” Open space, especially forest, act as a carbon sink.

Open space preservation is also important from an economic perspective. The eco-tourism industry in New Jersey provides close to $3.9 billion in economic benefits. Our natural resources also provide about $19 billion in economic benefits. In a time when property values are decreasing, it has been found that properties in close proximately to open space have a higher value than properties further away. Our open space funds also go to preserving farmland. Open space funds can be used to get people out of the flood plains so that we do not have to rebuild homes that have been destroyed by floods on multiple occasions. Open space is a multifunction tool in our economic engine.

In short, the Governor and the Legislature must keep their promises to putting in place a permanent funding solution for open space. It is too important economically and environmentally for us to allow this promise to be broken again. For more information on the campaign for open space, you can visit the Keep It Green Campaign’s website.

Appellate Division examines Highlands regulations

Written by Mike Pisauro on July 23rd, 2008 in Clean Water, Highlands | 1 Comment »

The Appellate Division recently issued an opinion upholding part of DEP’s Highlands Act rules while sending a part of it to the Office of Administrative Law for a hearing. The Court’s opinion can be found here. In May 2005, DEP adopted interm rules implementing the Highlands Act. Final rules were adopted by DEP in December 2006. The New Jersey Farm Bureau filled an appeal of these rules challenging the sections dealing with water allocation and the septic density.

Essentially the Farm Bureau alleged that the water allocation rules, as proposed by DEP, were not authorized by the statute. DEP’s rules provided that DEP may modify an existing water allocation permit if the permittee had been using less than 80% of the allocation over the five years or if “all practical water conservation measures are not undertaken.” NJAC 7:38-3.2. Before DEP may reduce an allocation DEP must provide a permittee with a public hearing on the reduction prior to the modification of the permit. The Farm Bureau argued that the authorizing statute, NJSA 13;20-32(d) provide DEP the authority to reduce an allocation only when, “measures to the maximum extent practicable are not implemented to reduce demand.”

First the Court noted that DEP could not modify an allocation solely because the permittee was using less than 80% of the allocation. The Court then went on to uphold the DEP’s regulations because the regulations were permissive not mandatory. It noted that “DEP ‘may’ reduce an approved water allocation if the actual usage has been less than 80% of the allocation for the previous five years.” And that before tDEP could modify the permit, the permittee has to be afforded a hearing on the modification. If a permittee could show that it has reduced demand “to the maximum extent practicable” then DEP could not reduce the permittee’s allocation. Therefore, the Court reasoned there was no conflict between the authorizing statute and the implementing rule.

The Court also made short work of the Farm Bureau’s other argument that the rules conflicted with the Water Supply Management Act by noting that the Highlands act specifically permitted the regulations to conflict with the Water Supply Management Act. NJSA 13:20-32(d).

Where the Farm Bureau did score somewhat of victory was its challenge to the septic density standard. The Highlands Act directs DEP to adopt a septic system density standard, in the preservation area, that will prevent the degradation of water quality or that is necessary to restore the water quality and that is protective of ecological uses. NJSA 13:20-32(e). The DEP regulations provided that on lots containing all forests a septic system would require 88 acre lots. On non-forested lots a septic system would require 25 acre lots. N.J.A.C. 7:38-3.4(b)(1) & (2). The Farm Bureau alleged that DEP should have used average recharge rates instead of recharge rates based upon a drought. They also argued that DEP’s assumption of the number of people per household was too high and DEP’s selection of ambient nitrate levels were too low. Therefore, the Farm Bureau argued that if DEP used better numbers in their calculations that the density requirements would be much lower.

The Court found that the Farm Bureau had raised sufficient questions as to the methodology used by DEP to arrive at the standards that a hearing before the office of administrative law should be held to create a sufficient record to determine whether DEP’s methodology could be found not to be arbitrary and capricious. In essence the Court found that DEP did not create a sufficient record in its rulemaking to allow the Court to defer to the agency’s expertise. In its opinion the Court directed DEP in the OAL hearing, “that this methodology has been used by any other agency with comparable regulatory authority.”

The remand by the Court is either an opportunity for DEP to back up its methodology with facts or an opportunity for the Farm Bureau to show that DEP’s methodology and resulting rule is not based upon science and the facts; therefore it is arbitrary and capricious.

Talk about Drugs and Water

Written by Mike Pisauro on April 16th, 2008 in Clean Water | No Comments »

Within the last week or so the issue of pharmaceuticals in the drinking water has gather some more attention. On Tuesday, April 15th, the United States Senate Committee on the Environment & Public Works held a hearing on the topic. David Pringle of New Jersey’s Environmental Federation testified before the committee. Somethings to note from that hearing are: that there are over 140 chemicals found in our drinking water including gasoline additivies, pesticides, and other chemicals. Some of these chemicals EPA believes to be cancer causing. Other chemicals we have no idea what the effects of the chemicals are.

EPA is over six years behind schedule in listing endocrine disrupting chemicals that it will test for. It has not established the testing protocols for some of those chemicals and it is not ready to require that these chemicals be monitored by the companies that provide our water. In response to a request from a committee member the EPA provided some information. Part of what they provided is very disturbing:

“while there is much information about the health effects of pharmaceutical products at the therapeutic doses provided in medication, there is still uncertainty about their potential effects on public health and aquatic life from long-term exposure to the low levels observed in water. In the absence of fully understanding the risks associated with low levels, it is difficult to move forward to require monitoring and/or treatment that carry significant cost . . .”

What a failure of government to do its basic job of protecting public health and safety. In the face of uncertainty the best course of action is to be proactive not wait until someone proves that these chemicals are doing harm. This is the basic tenant of the precautionary principle. Must we wait until its is proven without a shred of doubt that these chemicals singularly or in combination are causing an impact before we as a society decide to do something?

Hopefully the U.S. Congress will start to put the pressure of EPA to do its job. The New Jersey Department of Environmental Protection has at least started to address the problem. DEP has issued a bulletin outling how to dispose of unused medication. The issue of drugs in our water also came up in yesterday’s NJ Senate Environment and Assembly Environment and Solid Waste Joint Committee meeting concerning site remediation. (Of which I will write about shortly.)

A little drugs with your drink?

Written by Mike Pisauro on April 1st, 2008 in Clean Water | No Comments »

A couple of weeks ago the news reported that pharmaceuticals in varying amounts can be found in our waterways and in the drinking water we consume.  This has actually been known for some time.  These pollutants are having negative effects on the fish (including feminized male fish) and other wildlife that rely on the streams, lakes, bays and other waters of our State.   While it is claimed that the amounts of drugs in our waters are minute and do not have an effect on people, can we really afford the risk that further studies will prove them wrong?

 

These chemicals are in the waterways and aquifers throughout the United States and other countries.  Under the Clean Water Act and New Jerseys Water Pollution Act, I believe these chemicals are pollutants and the discharge of these chemicals into the waterways should be restricted.  Under the Clean Water Act (CWA), it is unlawful to discharge any pollutant into the waters of the United States.  33 U.S.C. 1311.  

  In order for the CWA to be applicable there must be a finding that a pollutant is being added to a water of the United States from a point source. 

Are pharmaceuticals a pollutant?

 

Under the Clean Water Act, a pollutant is defined as:

 “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, . . . and industrial, municipal, and agricultural waste discharged into water.”  33 U.S.C. 1262.    

 

Under the New Jersey’s Water Pollution Act, pollutant is defined very similar to that of the Clean Water Act but it is specifically noted to include both hazardous and nonhazardous pollutants.  Pharmaceuticals are clearly chemical or maybe in some cases biological materials.   Therefore, even though pharmaceuticals are intended to help us they are still a pollutant under both the CWA and NJ’s WPA.

  Are the pollutants being discharged from a point source?

These chemicals enter our waterways mainly through our toilets through our sewers, then to water treatment plants and are ultimately discharged into a stream or river.  We discharge these chemicals either when we “relieve ourselves” or when we flush unused medicines down the toilet.  Our bodies do not fully use the medicines we take and the excess is excreted.  Ultimately these chemicals enter our waterways through a point source- the publically owned treatment works. (POTW).  In its simplest terms follow the pipe from a water treatment plant to the nearest waterway and there is your point source.  Therefore, there is a discharge from a point source.

 

Once it has been determined that a point source needs to or is discharging a pollutant, that point source is required to obtain a permit from a governmental agency.  In the case of New Jersey that agency is the Department of Environmental Protection.  So far, DEP (nor is any agency) is not regulating this kind of discharge. There are no standards setting forth how much of each kind of drug is safe to discharge.   Also, most water treatment plants do not monitor or test for pharmaceuticals.  Even if a POTW is testing for the chemicals, removing pharmaceuticals from the water is difficult and expensive. 

 

Some areas are starting to look at one cause of the problem. For example, Puget Sound and Spokane have instituted a take back the drugs program which reduces or eliminates the flushing of drugs down the toilet.

 

It is somewhat sad to note that thirty-six years after then enactment of the Clean Water Act, we are finding more and more pollutants in our waterways, when the CWA provided, “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.”  33 U.S.C. 1251(a)(1).  As a nation we must begin to reduce the amount of any substance that enters our waterways.   Those substances that do enter our waterways we treat and eliminate before that water is discharged into our waterways.