Locandro Agricultural Certification Approved

Reduced Permit Granted

Delaware Township residents who attended an April 10 public hearing on the Locandros’ agricultural water certification received leters from the DEP dated October 18, 2007, announcing that an agricultural certification had been issued, effective immediately, with expiration date of Sep. 30, 2012.

The Locandro farm on Sandbrook Headquarters Rd. was allotted a maximum 3 million gallons per month (mgm) and 18 million gallons per year (mgy). This represents one quarter of the amount the Locandros and County Ag. Agent Win Cowgill had filed for on their original 2004 application. The farm on Rt. 523 was allotted a maximum 2 mgm / 12 mgy. This is one half the amount on the 2004 application. The Locandros told the DEP Bureau of Water Allocation (BWA), in a private meeting on Feb. 21, 2007, that the reduced amounts meet their actual needs.

The original application was so far in excess of the amounts needed for irrigation that many residents had wondered, over the nearly three years that the certification was pending, whether the water could be taken offsite and sold for other purposes, such as bottled water, but according to a separate BWA Staff Report dated August 7, 2007, “Utilizing water for anything other than agricultural irrigation would require Department approval”.

At the April meeting, Hearing Officer Dr. Joseph Miri had declined to respond to comments or questions by residents, promising instead to issue a written report. When the report by the BWA Staff finally came in late October, many questions remained unanswered.

The Professional Hydrogeologist’s Response on Behalf of Delaware Township

Township Hydrogeologist Matt Mulhall attended the hearing representing Delaware Township, and in an April 23 letter to Dr. Miri, Mr. Mulhall wrote that at this time the Township is not opposing agricultural certification with the new diversion amounts of 3mgm and 18mgy for the Rt. 523 farm, and 2mgm and 12 mgy for the Sandbrook farm. However, he continued, “the Township Planning Board is concerned that aquifer testing has not been conducted to ensure that the aquifers beneath these two properties have sufficient capacity to provide the water needed for irrigation as well as drinking water to homes located nearby without resulting in any adverse impacts to existing users and/or natural resources”.

Mr. Mulhall was critical of the methodology used in the Staff Report. “Although we understand that the requirements for agricultural certifications are not as extensive as those required for water allocation permits, it is highly likely that if the methodology used by the NJDEP – Bureau of Water Allocation staff to evaluate adverse impacts to neighboring wells were used by an applicant for a water allocation permit, that NJDEP – Bureau of Water Allocation would find the application technically incomplete and deficient. First and foremost, it is highly unlikely if not improbable that the residential wells are continuously pumping at average rates of 12.5 or 12.3 gallons per minute”.

Mr. Mulhall remarked that the requested diversions had been reduced to 25 or 50 percent of the initial requests, and that “the potential for adverse impacts have been reduced”. But, he continued, “the only accurate method for evaluating if the aquifers have the capacity to meet the irrigation demands and to assess potential adverse impacts to other users and natural resources is through the conductance of aquifer tests.”

Mr. Mulhall concluded: “We respectfully request that proper aquifer testing be conducted to ensure that the aquifers beneath the properties have the capacities to transmit sufficient water to meet the irrigation demands as well as the drinking water demands of the nearby homes without resulting in adverse impacts to the aquifer, wells on other properties, or natural resources. The Township Planning Board will assist in this matter as necessary to ensure that the empirical data are collected to evaluate the concerns of residents and Township”.

The Hearing Officer’s Report

Dr. Miri’s Report dated October 4, sent to Michele Putnam and Fred Sickles, Director and Assistant Director, respectively, of the Division of Water Supply, commented approvingly on the same methodology that Mr. Mulhall had characterized as “incomplete and deficient”. Dr. Miri writes: “Environmental Specialist Du Brul indicated that based on the average lot size and the average domestic well pump capacity in the Punkin Hollow Farms area, the Department has concluded that impacts from the Punkin Hollow Farms wells would be no greater than the (existing) surrounding domestic wells”. Whether or not Dr. Miri read the letter from Delaware Township’s hydrogeologist, he must have foreseen that Ms. Putnam and Mr. Sickles would not.

In his Report, Dr. Miri answers a resident’s question about the possibility that the diversion would lead to higher levels of arsenic in domestic drinking water. Dr. Miri: “The Bureau indicated that without extensive long term testing it’s not possible to determine if the applicant’s withdrawal would result in raising or lowering arsenic levels in the region’s water sources or have no effect. BWA said it did not know the location of the ponds referred to, indicating it’s not possible to determine the extent to which the applicant’s withdrawal might impact them”.

The Hearing Officer continues: “In response to comments, BWA noted that the requirements to do environmental impact statements and aquifer pump tests do not apply to agricultural certifications”.

“The Bureau addressed comments relating to the typical exemption of farmers from drought restrictions and the impacts of the applicant’s pumping in a drought. In response to the former, BWA noted that agricultural users are exempt from drought restrictions, unless the governor specifically includes them in the order invoking the drought warning condition. In response to the later, BWA referred to its response to the comments on Aquifer Testing above”.

The Staff Report

Dr. Miri’s report is based on a report by BWA Environmental Specialist Chelsea DuBrul. Although her report is to serve as the basis of Dr. Miri’s decision on the allocation, Ms. De Brul bureaucratically avoids accountability, as in the following excerpt, where she comments on hydrogeologist Mulhall’s comments on her methodology: “19, Comment/Issue – It is likely that if the same methodology used by the NJDEP – Bureau of Water Allocation staff to evaluate adverse impacts to neighboring wells were used by an applicant for a water allocation permit, that the NJDEP – Bureau of Water Allocation would find the application technically incomplete.”

To which Ms. Du Brul replies : “Response: Water Allocation Permits are regulated under N.J.A.C. 7:19 and Agricultural Certifications are regulated under N.J.A.C. 7:20A, and therefore the standards that apply to Water Allocation Permits are different than the standards that apply to Agricultural Certifications. Therefore, the Department reviewed the applications and found them to be complete under N.J.A.C. 7:20A.”

Nowhere in her report does Ms. DuBrul mention that these criticisms were made by a professional hydrogeologist; Mr. Mulhall is cited anonymously. Nor does she reveal that the methodology Mr. Mulhall deemed incomplete and deficient was hers alone (though it was later adopted and legitimated by Dr. Miri).

And though Dr. Miri was aware of the hydrogeologist’s critique of Ms. DuBrul’s methodology, nevertheless he repeats her conclusions in his report to Ms. Putnam and Mr. Sickles, Director and Asst. Director of the Division of Water Supply.

Ms. Putnam and Mr. Sickles apparently passed Dr. Miri’s winnowings further up the chain of command to the person with ultimate responsibility to decide on the ag certification, BWA Chief Diane Zelaskus, P.E., at the Division of Water Supply. But Ms. Zelaskus’ letter to Interested Parties stresses only that the amount of water permitted under the ag certification is substantially lower than the original requests.

Ms. DuBrul completed her report by appending one more time the Staff Analysis, now dated August 8, 2007, explaining how in her view the nursery irrigation will use no more water than the maximum allowable housing subdivision. With that, the case was officially closed.

Safe or Dependable Yield

Several residents had asked whether there is enough water in the aquifers to provide the Locandros irrigation water, and provide domestic users with sufficient water, while also protecting natural resources. Nancy Bond in particular commented that state soil maps indicate that the aquifer underlying the Rt. 523 farm had a low yield. The August 8 Staff Report, under the heading “Safe Yield” cites the comment: “What is the safe yield of the well? Has sufficient information been provided with the applications to suggest that this diversion will not exceed the safe yield?”

The BWA Staff, rather than citing a number of gallons per unit time that the well could be expected to generate, instead paraphrased the standard definition: “The safe yield of a well is the quantity of water that the well can yield continuously during periods of below normal rainfall”.

A resident commented on this topic: “56. Comment / Issue: It is often stated that the projects will require monthly reports, verified with onsite inspections with a redundant metering system. It does not in any way directly monitor stream baseflow or wetlands or neighbors’ wells, which are the residents’ main concern. Perhaps “state-of-the-art” should include some monitoring of real site conditions”.

The BWA replied: “Pursuant to N.J.A.C. 7:20A-2.6, water use shall be maintained on a log which details daily and/or monthly hours of operation, or month end meter readings, and the results must be submitted to the Department annually. Also, see response to Questions #17 through 20”.

Limited Well Testing Required for Subdivision on Sandbrook Farm

Having secured the ag certification, the Locandros are moving ahead with plans to build 13 or 14 housing units on the Sandbrook farm. Under the authority granted in its Well-Testing Ordinance, the Township requires well–testing for the new lots in the subdivision. Neighbors were in theory encouraged to participate. However, the well-testing was conducted during Christmas holidays, and none did.

Domestic water consumption is calculated as 100 gallons per person per day, with four persons per unit. At this rate, a 14-unit subdivision would use up to 5,600 gallons per day. The ordinance requires pumping twice the estimated amount used by the subdivsion, or 11,200 gallons per day, and monitoring neighboring wells for drawdowns.

In addition to the water demands of the housing subdivision, the Locandros’ “farmette” on this property would keep the ag certification to divert 3mgm / 18mgy. The ag certification allows the Locandros to extract 100,000 gpd, or nine times the estimated amount of water for the subdivision. The required testing studies the impact of extracting 11,200 gpd; it does not address the extractions for combined uses of housing and irrigation, which may exceed 100,000 gpd.

Residents commented to the BWA that the Locandros had applied to subdivide the Sandbrook farm. Item 45 in the Staff Report reads as follows:

“Comment / Issue – There are currently for sale signs located on the Punkin Hollow II farm, and an application for subdivision has been submitted to the Delaware Township Board of Adjustment. It appears un-ethical that the Locandros are still requesting these water use permits, when their clear intent is to build houses on Punkin Hollow II farm.

“Response – The Department has been notified that the Punkin Hollow II farm may be sold. However, there are crops currently on the property that require irrigating, and hence the Agricultural Certification is still necessary”.

Even with the reduced amount, the BWA has still not allayed all the public’s concerns about water supply around the Sandbrook farm. Still, neighbors may take some comfort in knowing they have limited protection under State law. In response to a resident’s inquiry: “If a domestic well is lost as a result of the Punkin Hollow Farm, would they be held liable?”, the Staff Report comments that the Locandros, as holders of the water usage certification, are responsible for mitigation of damages to water uses in operation prior to the water usage certification being issued (emphasis added), caused as a direct result of the diversion. “The Department will determine whether or not the adverse impacts were a direct result of the certification holder”.