New Jersey Environmental Lobby Newsletter - Summer 2016



New Jersey Environmental Lobby Newsletter

Senate Fails On Flood Hazard Area Rules -
In spite of over a year of work by environmental organizations and our allies in the Legislature, the New Jersey Senate failed to negate the Flood Hazard Area rules proposed by the Department of Environmental Protection (DEP).
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A "Solution" for Crumbling Transportation Infrastructure? -
Publication of this newsletter was delayed in order to report on the vote to replenish the Transportation Trust Fund (TTF) with an increase in the state gas tax. Because of the commuter train accident in Hoboken, the vote was postponed.
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NJ Loses the Opportunity to be the First with Offshore Wind Power -
For several years, we anticipated wind farms off the coast of New Jersey. There were at least three projects in conceptual stage and another firm planned to build a single transmission “spine” ...
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Relentless Developemnt Pressure of Highlands and NJ's Water Supply -
Since the passage of the Highlands Water Protection and Planning Act in 2004, special interests have tried to undermine the implementing rules....
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NJEL's Ongoing Campaign Against Plastic Pollution -
If it seems like years since Princeton resident Daniel Harris asked NJEL to become involved with a ban-the-bag campaign ...
Read More ...
Senate Fails On Flood Hazard Area Rules -
In spite of over a year of work by environmental organizations and our allies in the Legislature, the New Jersey Senate failed to negate the Flood Hazard Area rules proposed by the Department of Environmental Protection (DEP). As reported in previous newsletter issues, the rule changes would facilitate development while increasing flooding risk. The rules would decrease buffer areas that in many cases are already inadequate, allowing anchoring and filtering vegetation to be destroyed and decreasing the area available for absorbing rainwater. While this sounds as though it applies to coastal areas, there are many inland areas that are at risk of flooding by rivers and creeks. The impervious paving that accompanies development exacerbates flooding throughout the state.

Besides protecting property and life against the risks of flooding. buffers serve another critical function. Buffer vegetation catches the significant pollutants generated by agricultural, commercial, residential, and transportation (petrochemicals) activities. This keeps pollutants from entering the waters that provide drinking water, animal habitats, and recreation resources. The Pinelands and Highlands Regions are sources of drinking water for millions of people. Loosening rules that govern water resources, particularly in the face of the increasing severity of storms, is unjustified.

Quality standards are established for bodies of water according to their uses. These include, but are not limited to: drinking water supply; fish consumption; recreation; and, agricultural and industrial uses. According to the Association of New Jersey Environmental Commissions (ANJEC), more than 90% of our state’s waters fail to meet at least one quality standard for their designated uses.

To block the proposed rules both chambers of the Legislature passed a concurrent resolution, after which DEP had an opportunity to revise its proposal to comply with legislative intent. The next round of revisions was presented as improved because they focused on “mitigation,” of potential damage, but they still represent a rollback of clean water protections. In response, the New Jersey Assembly passed a second resolution against adoption of the rules.

According to the State constitution, a similar second vote by the Senate would have blocked the rules and would have been veto-proof. Despite months of intense lobbying and public comment by clean water advocates, Senator Sweeney, President of the Senate, failed to post the resolution for a vote.

We were particularly disappointed when other senators apparently accepted DEP’s argument. Even an editorial by former Governor Tom Kean, did not persuade Senator Sweeney to post the resolution for a vote. It is now up to local governing bodies to use their powers to mitigate flooding and protect water resources. Ordinances and codes governing construction and fill within floodplains, variance processes, and open space preservation are some of the tools that towns have. Unfortunately, floodwaters and the pollutants in them don’t stop moving when they reach a municipal border. In addition, the concept of “mitigating” future damage implies that the current impairments are an acceptable baseline, rather than problems that should be corrected with stricter rules.

A "Solution" for Crumbling Transportation Infrastructure? -
Publication of this newsletter was delayed in order to report on the vote to replenish the Transportation Trust Fund (TTF) with an increase in the state gas tax. Because of the commuter train accident in Hoboken, the vote was postponed until October 7. The controversial measure passed and was signed by Governor Christie on October 14. As most of the public is now aware, it imposes an increase of 23 cents in the state gasoline tax. Taxes on diesel fuel and nonmotor fuels will rise by lesser amounts. The taxes are projected to produce $2 billion a year, and the state funds could be matched by similar Federal amounts.

All gas tax receipts are already dedicated to the TTF but only a portion of diesel and other motor fuels taxes are dedicated. The intent is to place all of the tax receipts in the Fund. Voter approval of a constitutional amendment is required to dedicate revenue to a specific purpose and a public question about the increased tax will be on the November 8 ballot. Dedication of revenue protects it from being diverted to other uses. That was the fate of the Clean Energy Fund, which was intended to support clean energy projects. It is not a dedicated fund and it has been raided to plug deficits in the State’s General Fund.

Few dispute that New Jersey’s transportation infrastructure is in dire need of repair and upgrading. Experts have warned for years that replacement funding had to be found as the money provided by a disparate assortment of bonds, taxes, and NY/NJ Port Authority contributions was depleted. The Legislature and Governor Christie wrangled over a solution for months, while withdrawals from the TTF continued. In early July, the Governor issued an Executive Order to stop all construction that was being paid from the fund. At the height of the summer construction season, workers were idled and projects delayed.

The gas tax increase passed with bipartisan votes, but there was also bipartisan opposition. Much of it centered on cuts to other taxes that were included at the insistence of the Governor. These taxes currently generate revenue for the General Fund. They support state services and programs, including education, health care, and environmental protection. Critics are rightly concerned that departments and services that have been the subjects of budget cuts in previous years will now face more reductions. All together, the tax reductions are expected to reduce General Fund revenue by $200 million in this fiscal year and as much as $1.4 billion each year thereafter. A fact that much of the general public does not realize is that $500+ million in annual interest on existing transportation bonds also must be paid out of the General Fund.

There was particular opposition to the immediate reduction in the estate tax and its elimination in 2018. The estate tax will account for about $600 million of the lost tax revenue each year. New Jersey’s estate tax applies to estates in excess of $675,000, one of the lowest thresholds in the nation. For some time public officials have been concerned that high wealth residents relocate to other states with lower, or no, estate taxes, taking not only their estate taxes, but their income and sales taxes with them!

Data show that most of the estate tax is collected from estates valued between $675,000 and $2.5 million, so the burden is not exactly falling on the super-rich. Wealthier taxpayers usually have methods for sheltering their wealth from taxation and planning for estate and business succession The portrayal that the repeal will benefit taxpayers in general is specious, however. The fact is that only about 5% of taxpayers are subject to the estate tax. Tax changes that would most benefit low income taxpayers are only marginal—a reduction in the sales tax of less than a half per cent, and an increase in the earned income credit of 5 percentage points. This plan will reduce the money available in the General Fund, will do little for low and middle income taxpayers, and yet will be inadequate for the highway, bridge, and transit needs that have been delayed for years. Already, the increased revenue is spoken for, including $1 billion for an extension of the heavily used Hudson-Bergen Light Rail Line and $1 billion for an extension of the similarly popular River Line into Gloucester County. The latter will get cars off the congested highways running from Gloucester to Camden Counties.

There are fears about how the panel of political appointees with project selection power will allocate the TTF. Along with demands for greater transparency and public participation, there are calls to reduce the costs of infrastructure construction. New Jersey has the highest per mile road construction costs in the country. Other states use “design/build,” in which a project manager is procured through a competitive qualifications-based process. NJ DOT is not required to use this method. When projects involve multiple contractors, agencies, and jurisdictions, lack of coordination and control has led to delays and increased costs. The notorious case of the rebuilding of Route 35 after Super Storm Sandy was cited by legislators who want more accountability . A 13- mile stretch of Route 35 cost an astounding $27 MILLION per mile because of lack of coordination of the elements of the project. The State was obligated to pay $18 million to one contractor while his workers waited for gas lines to be relocated. Legislators are also calling for better tracking of costs during projects. As soon as cost overruns are forecast, there should be project reviews and possible alternatives identified. Senator Raymond Lesniak has been calling for consideration of “design/build” for NJDOT projects, and specifically for a re-start of a Rutgers study that is expected to recommend ways to reduce project costs. That study was halted by the Governor’s Executive Order. The Senator points out that $60,000 should have been found somewhere to complete a study that could save millions.

The replenishment of the TTF has solved an immediate problem, but a future Legislature and Administration must find a permanent solution when this plan expires in 8 years, and probably sooner.

NJ Loses the Opportunity to be the First with Offshore Wind Power -
For several years, we anticipated wind farms off the coast of New Jersey. There were at least three projects in conceptual stage and another firm planned to build a single transmission “spine” that could be used by multiple farms, saving capital costs and reducing the impact of transmission lines on the marine environment.

The economic viability of the projects depended upon Offshore Renewable Energy Credits, subsidies that would ultimately be included in rates. In 2010 legislation was passed to enable this financing mechanism but there was a years-long delay in creating its rules and procedures. In the meantime, wind turbines were installed off the coast of Rhode Island and are expected to begin generating electricity before the end of the year. The CEO of the developer, Deepwater Wind, cited state support of the project as the primary reason that Rhode Island will have the first offshore wind farm in the U.S.

There are hopeful signs that the offshore wind industry anticipates future opportunity in New Jersey, however. An industry supply chain association, Business Network for Offshore Wind, recently opened an office in New Jersey. Watch for the next edition of the NJEL newsletter, for a report on what else is new in offshore wind energy.

Relentless Developemnt Pressure of Highlands and NJ's Water Supply -
Since the passage of the Highlands Water Protection and Planning Act in 2004, special interests have tried to undermine the implementing rules. Upon his election, Governor Christie promised to repeal the Act. Although he has not accomplished that, he has tried to weaken it. That includes a proposal to change the rules about the septic density in the Preservation Area, that is, the number of septic systems that may be located there. The Preservation Area comprises 415,000 acres stretching across the 800,000+ acre region. It contains the streams, rivers, and reservoirs that provide the drinking water for the northern part of New Jersey. It has less residential and commercial development than the balance of the region (which is designated the Planning Region) and approximately one-third of it is totally undeveloped. The intent of the Highlands Act was to protect water resources by maintaining a low level of human activity. A major tool for accomplishing this is restrictions on the number of new septic systems. This is important because septic waste contains nitrates, which pollute groundwater. In the Preservation Area, the septic standard is an average of 1 system per 88 acres in forested areas and 1 system per 25 acres in non-forested.

On May 2, DEP proposed to decrease the required areas to 23 acres in forested areas and 12 and 11 acres in two different land-use zones of non-forested land. In effect, that would allow over 1100 new septic tanks in the Preservation Area. DEP claimed the proposal was justified by a statistical analysis performed by the U.S. Geological Survey, with data from almost 20,000 private wells tested in the Highlands prior to 2012. DEP touted its proposal for increased septic density as “science-based,” but other experts criticized the methodology of the study. Aside from the age of the data and previous questions about its reliability, when nitrate concentration in the Preservation Area is the subject of decision-making, the data should be from that area. However, almost half of the data was collected from wells in the Planning Area. The Planning Area has more residential, commercial, and agricultural activity than the Preservation Area and consequently has higher nitrate levels. The Highlands Act unequivocally states that the septic density standard must be “established at a level to prevent the degradation of water quality, or to require the restoration of water quality . . .” Using a “standard” that is skewed to a higher concentration, rather than representative of the essentially pristine waters of the Preservation Area, allows higher nitrate concentrations to be deemed acceptable.

While 1100 septic systems may seem inconsequential in an area of over 400,000 acres, the remaining buildable acreage is less than one-fifth of that and irregularly shaped. Systems would not be spread uniformly across the region. In other words, a septic tank would NOT necessarily be surrounded by 23, or 12, or 11 acres of land. They would likely be in closer proximity to each other. Of particular concern is that systems could be located close to reservoirs. Septic leakage is a major source of ground water pollution and siting them near drinking water sources carries a high risk. Further, DEP failed to consider the effects that the increase in impervious cover (regulated by the Highlands Act) and de-forestation would have on water quality. It similarly ignored the effect that disturbing contiguous forest land would have on wildlife, including threatened and endangered species.

The New Jersey Highlands Coalition mobilized opposition to the proposed rule, notifying advocacy organizations and communities about hearings, and organizing public rallies. The Coalition authored comments on behalf of 89 large and small organizations, presenting arguments against the proposed rule changes. The arguments focused on both the “science” that was manipulated by DEP and the actual requirements of the Highlands Act. The Coalition’s complete comments appear at: www.njhighlandscalition.oorg. Scroll down the homepage to the graphic “Save the Highlands Don’t Sacrifice Our Water Supply” and click on “Our Comments to NJDEP.”

Public Employees For Environmental Responsibility (PEER) also filed an administrative complaint under the Federal Information Quality Act. The Act requires that “official statistical reports must rely upon the best available data and have a high degree of reliability.”1 PEER’s complaint cited not only the inappropriate selection of data from outside the Preservation Area, but also flaws in the DEP’s Private Well Testing Program itself, from which the data was drawn. The USGS had 90 days to respond.

Opponents to the rule are not exclusively Highlands advocates and are not NIMBY residents. Newark Mayor Ras Baraka and Jersey City Mayor Steven Fulop called the rule changes threats to the reservoirs that supply their cities with clean water. Mayor Fulop launched an online campaign to encourage citizens to submit comments to DEP. Urban opposition to the rule changes culminated in a news conference at Liberty State Park on September 13, where the mayors and clean water advocates were joined by Reverend Fletcher Harper and members of Greenfaith, a coalition of diverse communities of faith. Calling the rollbacks “immoral,” Rev Harper stated that they would “put millions of people at risk, simply for the private gain of a few, and it something that is unacceptable to the faith communities of this State.” The public comment period is long over and DEP has made no move to adopt the final rules. We are hopeful that DEP has accepted the will of the public. Thanks to the Highlands Coalition, Mayor Fulop, and others who led this fight. NJEL’s Executive Director Noemi de la Puente provided comments at a public hearing on June 1.

NJEL's Ongoing Campaign Against Plastic Pollution -
If it seems like years since Princeton resident Daniel Harris asked NJEL to become involved with a ban-the-bag campaign, that’s because it is! In spite of dedicated work by our members and our lobbyist Noemi de la Puente, bills that were introduced in the Legislature did not make it to the floor of the legislative chambers for votes. Another measure was introduced during this year but most legislators do not seem to understand that plastic bag litter, and the saturation of our environment with all kinds of plastic waste, is a serious problem for our environment and human health.

While trying to convince legislators, NJEL and the Environmental Education Fund continued the campaign that has raised awareness across the state. Board members and volunteers have screened the documentary “Bag It” for the public and participated in forums and presentations with other organizations, schools, religious congregations, and local agencies. Noemi has been a leader in the NJ Think Outside the Bag Coalition, working with other sponsoring organizations and Sustainable Jersey communities at public outreach events. NJEL is sponsoring the Coalition’s web site, www.njthinkoutsidethebag.com, which has news about New Jersey and other jurisdictions, and information on the facts and myths surrounding plastic bags. Noemi has also launched a “post card campaign” to convince legislators that voters do care about this. At public events, residents can obtain post cards, preaddressed to their respective district legislators, and write a message asking them to curb single-use plastic bags. We are encouraged that although the State Legislature delays action, initiatives to curb plastic bags emerged on the local level. We expect that plastic bag pollution is going to be solved “from the bottom up,” that is, the public is going to drag elected officials toward a solution. While it takes time, that may be the best solution of all.

Note: The lack of action on bags is disappointing, but legislation was passed to ban plastic microbeads from personal care products in NJ. These enter our waterways after use of the products and they are non -biodegradable. The ban will not start phasing in until 2018, and the penalties for violations are very low, but it is a step toward improving our water and protecting the fish and wildlife that are ingesting them.

REMEMBER!

The New Jersey Environmental Lobby is your voice in Trenton. We are an independent, nonpartisan, nonprofit organization focused on the preservation and protection of a healthy environment for all our citizens. We need your support! JOIN NJEL and help us change the laws!

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