Posts Tagged ‘Clean Water’

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.

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.