WolfeNotes.com

Last day to submit comments on Highlands Regional Master Plan

In his classic on American government “The End of Liberalism” (1969), Cornell professor Ted Lowi presciently captured the essence of the monumental failure of the Highlands Regional Master Plan (RMP):
“Liberal governments can not plan. Planning requires the authoritative use of authority. Planning requires law, choice, priorities, moralities. Liberalism replaces planning with bargaining.”
The core failure of the RMP is its rank cowardice – the Council’s total failure to make choices and use the extraordinary powers delegated by the Highlands Act to preserve the region’s forests and water resources from politically powerful development and landowner interests.

To obscure this deep failure, the Council (and its collaborators) have engaged in all sorts of rhetorical sham and fraud. Shame on them for what Lowi correctly describes as a moral failing (I had the privilege to study under Lowi).
There is a term that fits the RMP perfectly – Potemkin Village – A Potemkin Plan.
Potemkin villages were fake settlements erected at the direction of Russian minister Grigori Potemkin to fool Empress Catherine II during her visit to Crimea in 1787. Potemkin, who led the Crimean military campaign, had hollow facades of villages constructed along the banks of the Dnieper River in order to impress the monarch with the value of her new conquests, thus enhancing his standing in the empress’s eyes.
A modern example of a Potemkin Village was NY City’s attempt to cover-up the desolation of the South Bronx. After President Carter toured the South Bronx in the late 1970’s, photographs of burned out buildings were splashed across the front pages of the nation’s newspapers. The South Bronx became a symbol of the urban crisis. To hide this embarrassment, particularly from white suburban commuters, NY City officials used federal highway funds to decorate the windows of abandoned buildings overlooking the Cross Bronx Expressway with fake blinds and flowers.
Since then, the word “Potemkin” has been used to describe similar frauds – attempts to create illusion to disguise an otherwise empty shell.

The Highlands are in deep trouble. Besieged by sprawl, the 800,000+-acre Highlands region is dying the death of a thousand cuts.
That’s why the Highlands Act mandated that the Council map “preservation zones where development shall not occur” and set strict land preservation and water resource standards based on cumulative impacts of all the development that had already occurred.
Outrageously, the Council and the RMP simply completely ignored these mandates.

In 2004, the Legislature passed the Highlands Act, declaring that
“the existing land use and environmental regulation system cannot protect the water and natural resources of the New Jersey Highlands against the environmental impacts of sprawl development“.
To govern land use across the quilt of 88 local jurisdictions, the Legislature created the Highlands Council and directed it to draft a Master Plan to safeguard the state’s drinking water supply; preserve critical forests, natural resources and farmlands. To make sure that the plan was implemented, the Legislature backed planning with sweeping powers to regulate water resources and limit new development.

After three years in the making, the Highlands Council has released its draft Master Plan for public comment. Unfortunately, this draft plan is long on rhetoric and short on effective protections.
The Council shrinks when it comes to laying out solutions. Rather than prepare a protective regional plan that encourages the public and municipalities to get behind it, the Council defers to politically powerful development and landowner interests and abdicates its key responsibilities under the Act. Examples include:
No Preservation in “Preservation Zones”
The most powerful tool in the Act requires the Council to designate preservation zones “where development shall not occur…” and base decisions on cumulative impacts caused by existing development. Yet, the draft plan fails to designate preservation zones or set enforceable standards in consideration of cumulative impacts, as mandated by the Act.

Instead, the draft plan promotes inappropriate cluster development, allows extension of water and sewer lines, weakens septic/groundwater standards, and encourages redevelopment in environmentally sensitive areas and already overburdened existing communities.
Trading Off Clean Water
The plan subverts the primary objective of water protection with a “balancing” test. In 40 different places, the draft seeks to “balance” development and environmental protection. The Act mandates preservation and does not authorize the Council to “balance” water resource protection and development. The Council got it completely wrong and used the failed State Plan and home rule based Municipal Land Use “balancing” framework. Yet the State Plan and MLUL were exactly what the Legislature had in mind when they found that: “the existing land use and environmental regulation system cannot protect the water and natural resources of the New Jersey Highlands against the environmental impacts of sprawl development”
No Remedy for Polluted and Over-Taxed Waters
There are hundreds of contaminated old industrial sites with toxic pollutants in groundwater. Over 65% of streams and rivers fail to meet Clean Water Act standards. Water quality already is “impaired” in 119 of 183 Highlands watersheds.110 of 183 watersheds are in water supply deficits. Yet absolutely nothing in the plan mandates toxic pollution cleanup, restoration existing water supply deficits, or already polluted waters.
Rather than prohibiting new water-intensive development in these watersheds and mandating restoration, the draft employs a sham “conditional water availability” method which allows new development in water deficit or polluted watersheds without requiring up-front restoration measures.
Weak-Kneed Standards
The Legislature envisioned the Council as a regional voice to lead and convince Planning Area towns to do the right thing. But the Council eschews this leadership role and misconstrues “voluntary” standards to mean weak standards.
The plan sets up a negotiation process with towns, instead of clear protective standards that towns should meet. There is so much discretion that virtually any project can be justified. Anyone who has worked on local land use knows exactly how lawyers and engineers for developers exploit any ambiguity – give an inch and they take the forest! This “just trust us” approach for the Highlands guarantees failure.
Ignoring Climate Change
In the Highlands, past is not prologue. One thing global warming science makes clear is that the future will not be like the past – droughts and floods will be more frequent and severe. We are already experiencing 50 to100-year interval droughts and floods in 5 to 10-year cycles.
Highlands streams and rivers completely dry up during summer months. Residential wells run dry. A woman from Ringwood testified at a public hearing that homes there must share water via garden hoses. Forced to conserve scarce water, this woman said that people post bathroom signs that say: “three pees per flush”. Water supply intakes on the Passaic River must be taken off line during the summer due to high pollution levels. The Wanaque reservoir has almost run dry several times in the last decade.
Despite these new climate dynamics, the plan relies on 50-year old stream flow statistics and assumes 30-year old DEP “safe yields” for reservoirs are protective. The plan also depends on flawed DEP estimates of wastewater treatment capacity and water allocations. By using reams of bad data, the master plan sets the Highlands on a course for steady deterioration and piecemeal destruction.

The Governor Must Lead

While providing some autonomy to the Highlands Council to plan responsibly, the Legislature recognized that the critical stakes merited a back-up. To assure protection of vital state interests, the Act vested the final authority with the Governor, who is authorized to veto any action by the Council. Unlike the Legislature, the Council may not over-ride the Governor’s veto.
Given the fatal flaws in the draft plan, it is time for all residents of the Highlands (and the other half of New Jersey that relies on the Highlands for water) to call on Governor Corzine to veto this plan and send the Council back to the drawing board.
In the meantime, if you want to take matters into your own hands, you can comment on the draft plan at http://www.highlands.state.nj.us/njhighlands/draft_nov_2007/final_rmp_color_for_printing.pdf

DEP Commissioner Jackson: cuts “do not make programmatic or fiscal sense.”

Governor Jon Corzine’s proposal to slash the Department of Environmental Protection (DEP) budget by an additional 13% reflects either ignorance of how the Department’s budget is structured, or a back door attempt to appease business interests and roll back environmental protections.
DEP receives 76% of its operating budget from federal funds, polluters fees, and enforcement fines. This is a longstanding funding practice based on a “polluter pays” policy.
That means that only 24% of DEP’s budget is paid for by taxpayers. This amounts to less than one half of one percent of the State budget. There are virtually no taxpayers savings realized by DEP cuts. Worse, cuts could jeopardize receipt of federal funds.
The strengths of this budget policy are that polluters bear the burden of DEP regulatory oversight, not the taxpayers. The drawbacks, however, are that critical and popular programs like State parks, forestry, fish & wildlife, flood control, science, air & water quality monitoring, global warming, and policy & planning are severely underfunded and neglected.
Last year, only $65.3 million of DEP’s budget was paid for by taxpayers – almost half of that, $30 million, went to operation of the State Parks system. That’s right – the entire state environmental protection budget paid by taxpayers was just $65.3 million.
This year’s proposed cuts are in addition to last year’s 3% cut and the loss of over 200 people.
The Corzine cuts are in addition to draconian cuts by the Whitman Administration that were never restored during the McGreevey/Codey years..
But at least Whitman was honest in justifying her anti-environmental cuts as an effort to make NJ “Open for Business” and advance a regulatory relief agenda for the business community.
In contrast, Corzine wants it both ways: to be seen as pro-environment and so he hides behind pro-environmental rhetoric – all hat and no cattle. (see: NEW JERSEY ENVIRONMENTAL BUDGET SHRINKS BUT TASKS GROW — New Corzine Initiatives Will Worsen Already Large State Environmental Deficitshttp://www.peer.org/news/news_id.php?row_id=836

Worse, cynically, Corzine knows that the hugely unpopular proposed closing of State Parks will prompt the Legislature to restore Parks cuts. So, he knows that this will result in other important program areas absorbing even deeper cuts. This is shortsighted and highly irresponsible.
Last year, DEP Commissioner Lisa P. Jackson made the polluter pays budget policy clear in testimony to the Senate Budget Committee. Jackson concluded:
“All of the areas covered by the General Fund [taxpayer supported] are broad based public functions for which it only makes sense for the state to support….Substantial cuts to areas of DEP that are supported by fees would likewise not make programmatic of fiscal sense” http://www.njleg.state.nj.us/legislativepub/govbudget2007-2008.asp
Jackson went on to recommend specific new sources of revenue to further reduce the taxpayer burden. Hundreds of millions of dollars could have been collected by DEP for so called “Natural Resource Damage” (NRD) injuries caused by toxic pollution. But NRD recoveries were strongly opposed by the business community. So, instead of pursuing this Jackson recommendation, Corzine caved in to the polluters and allowed the NRD statute of limitations to lapse, thereby stripping DEP of legal authority to recover these money damages to public resources. (see:NEW JERSEY FORFEITS HUNDREDS OF MILLIONS IN POLLUTION DAMAGES — Court Ruling Faults DEP for Failure to Enact Rules to Compensate Public http://www.peer.org/news/news_id.php?row_id=930
Make no mistake – proposed budget cuts at DEP provide virtually no taxpayer relief.
They are a thinly veiled back door attack on environmental protection under the guise of taxpayer relief.
DEP to Flood Victims: Protection “Cost Prohibitive”
$38 BILLION for tolls, $380 million for bond consultants, and NJ can’t find money to map where the flood risks are? http://www.nj.com/njvoices/index.ssf/2008/02/dep_to_flood_victims_protectio.html
As DEP Commissioner Jackson testified, such cuts do “not make programmatic or fiscal sense.”

Will DEP allow shore treasure to be destroyed?
[Update: see Star Ledger columnists’ belated take on the Tak – safely after the CAFRA permit was issued: Lifesaving station needs a rescue
http://blog.nj.com/njv_mark_diionno/2008/04/lifesaving_station_needs_a_res.html
The debate over a controversial beachfront development proposal in Long Branch escalated yesterday with the filing of an ethics complaint against a personal assistant to Department of Environmental Protection (DEP) Commissioner Lisa P. Jackson. A coastal permit to allow the development to move forward is now pending before DEP.

The case involves plans by developers to turn the historic Takanassee Beach Club property in Long Branch into a multi-unit residential complex. Historic buildings on the site date back to the U.S. Lifesaving Service, the forerunner of the U.S. Coast Guard. The proposed development and DEP permit have drawn considerable opposition by environmental, historic preservation, surfing, and local community groups.
NEW JERSEY AIDE GOT TOO CLOSE TO DEVELOPERS — Ethics Complaint Filed Against Personal Advisor to DEP Commissioner
Trenton — A top aide to the New Jersey environmental agency improperly worked to locate financing, provide coaching and smooth regulatory hurdles for a controversial beach-front development, according to a complaint filed today before the State Ethics Commission by Public Employees for Environmental Responsibility (PEER). The complaint requests investigation of a key state Department of Environmental Protection (DEP) official, who appears to have broken ethics rules against providing inside information and showing undue partiality to a permit applicant.
(Link to Full text of release and DEP emails with developer: http://www.peer.org/news/news_id.php?row_id=996
I drove out to Long Branch yesterday to get a feel for the place and issues involved. I was blown away by the rustic charm and majesty of the place. Surrounded by wall to wall shore development, it represents the last remaining link to the past. But in addition to environmental sensitivity and historical significance, preservation of the site could provide a very special public space, a rare and much needed resource along NJ’s over-developed coastline. Take a look and see if you agree:

This comment says it all – WHO WILL TAK THE BRIBE?

Can the Tak survive, or will it be absorbed by surrounding development?

Will the Tak become a beautiful public place at the beach, or just another gaudy private Idaho?

My thanks to John Weber and the great folks at Surfrider Foundation who have done excellent work in organizing opposition to the DEP CAFRA permit and provided the DEP emails.
Link: https://www.surfrider.org/surfrider_membership/join/membership3.cfm?CFID=318196&CFTOKEN=81147456
For those interested is working on the underlying problems at DEP, see:
NEW JERSEY SAYS SECRET MEETINGS KEY TO ENVIRONMENTAL POLICY — Petition for New Transparency Rules Rejected the Same Day Notice Is Published
http://www.peer.org/news/news_id.php?row_id=885
Public business done behind closed doors http://blog.nj.com/njv_bill_wolfe/2008/02/public_business_done_behind_cl.html

What are we telling our kids when we put them in these environments?

Take a look

*** Apologies – NJ.Com took down the photos, which were originally published on my “NJ Voices” column at NJ.Com. I was able to save the text, but not the photos. What assholes.

 

The issue of children’s exposure to toxic chemicals while at schools and day care centers has exploded as a political issue in New Jersey, as a result of several high profile cases reported by media. A series of tragedies across the state have exposed major flaws and breakdowns in DEP’s toxic site cleanup program (see:–

TOXIC SCHOOL SCANDAL SPOTLIGHTS WEAK NEW JERSEY LAW — Parents Get No Notice of Child’s Exposure in Deregulated State Clean-Up Program

In the most recent reaction – which again dodges the underlying toxic site cleanup issues – the Senate Environment Committee will hear a bill today (S 480) sponsored by Senator Robert Gordon (D/Bergen) http://www.njleg.state.nj.us/2008/Bills/S0500/480_I1.HTM

The bill is in response to last year’s extraordinary fiasco in Paramus’ West Brook Middle School. In a case that received national attention, in late May of 2007, the Bergen Record broke a story in which Paramus Public School officials knowingly failed to report the presence of the banned pesticides aldrin, dieldrin, and chlordane on the campus of Westbrook.

In response to outraged parents, the Mayor ordered the school closed, the Superintendent was fired for failing to notify parents and covering up the problem, and a Bergen Record reporter was arrested for taking soil samples at the site. http://centerforinvestigativereporting.org/blogs&start=120

Parents and day care operators are still reeling since the August 2006 “Kiddie Kollege” episode where 60 toddlers were exposed to poisonous toxic mercury vapors in a day care center located in a converted former mercury thermometer factory. The factory had failed to comply with a DEP cleanup order for over 12 years (see:

MERCURY-LADEN DAY-CARE CENTER IN NEW JERSEY IS NO ANOMALY — Lax State Brownfield Laws Make Tragedy an “Accident Waiting to Happen”

The Legislature and Governor were forced to respond – last January, Corzine signed a law, and issued a press release touting his reforms. See : Jan-11-07 Governor Corzine Signs Legislation to Improve Environmental Safety at Schools and Child Care Centers http://www.nj.gov/governor/news/news/approved/20070111.html

The Corzine law was a band aid on a gaping wound and failed to resolve the underlying flawed DEP toxic cleanup program – see:

CORZINE URGED TO CLOSE LOOPHOLES IN TOXIC School & DAY-CARE BILL — Conditional Veto CouldStrike Out Exemptions and Strengthen Safeguards

Soon thereafter, dozens of schools and more that 400 day care centers located on toxic sites – even Superfund sites – were disclosed in Paramus, Garfield, Union City, Trenton, Gloucester City, Allentown, Clifton, Camden, and scores of towns as a result a of major flaws in DEP toxic site remediation and NJ Schools Construction Corporation programs (See:

RADIOACTIVE SCHOOL SITE IS TIP OF NEW JERSEY TOXIC ICEBERG — Over 100 School Site approvals expedited under Secret Deal

The Garfield school was built on a toxic waste site and was undergoing active remediation of toxic chemicals in soils and groundwater when the school open last year. Vapor intrusion sampling had not been conducted – all without the knowledge of working class parents.

To prepare for the hearing, I thought I’d take a ride up to Bergen County and check out the West Brook Middle School, as well as another far more toxic contaminated school site in nearby Garfield.

The Garfield case was far worse than Paramus. Garfield, a disadvantaged “Abbott” district, had a middle school built on a toxic waste site. Amazingly, chemical vapors were still being extracted from soils when the school was opened last year – all without the knowledge of working class parents (See:

New Jersey Lacks Policy to Protect Public From Chemical Intrusion (Herald News) http://www.childproofing.org/news/archives/2007/09/september_24_-.htm

The Paramus and Garfield cases provide a strong contrast in toxic health risks to children in a wealthy suburban (Paramus) versus a working class disadvantaged community .

Take a look at the photo’s and compare the two schools, with respect to several attributes: including the surrounding neighborhood, the school facilities, the natural features, the overall ambiance.

Think about what the kids see and experience at these two school settings: What do the kids see? What are we telling them?

Toxic chemical vapors are being vacuumed out of soil to avoid migration directly into school building.

 

Compare what the Garfield kids experience to what the Paramus kids enjoy – I won’t even comment – let the pictures tell the story:

   Abundant nature to enjoy and explore at the schoolyard – not toxic industrial sites and polluted streams.

As Lincoln said:

“A house divided against itself can not stand”

Why can’t similar resources be found to monitor massive demolition and toxic site cleanup next to Garfield Middle School?

   Kids can enjoy a place for quite contemplation or moments of young love – but where does one find solace and privacy amidst the pavement of Garfield??

If you’ve gotten this far and are not ashamed, you’re not alive.

DEP does the people’s business – its internal workings should be able to withstand public scrutiny.
Today, I attended a public hearing at the Department of Environmental Protection (DEP) headquarters in Trenton. The hearing was DEP’s attempt to solicit public input into developing revised storm water management regulations. I applaud those efforts.

The hearing was fairly well attended by the usual suspects – government staffers; lawyers, lobbyists and engineers representing developers; and environmental advocates. There were only 3 citizens and no press in attendance. The hearing was announced publicly well in advance, open to the public, the discussions were recorded, and a DEP facilitator took extensive notes.
Nothing shady, secret, or inappropriate going on today during that meeting.
Just the opposite – there was an open and healthy exchange of viewpoints; participants were known to all; policy issues, alternatives, and upcoming decisions were transparent; and the discussions are all a matter of public record.
But this meeting is not my concern – it was what I saw after the meeting that disturbs me.
You see, the DEP building was literally crawling with lawyers, engineers, and lobbyists representing the chemical industry, developers, major air & water polluters, and other private interests that have huge economic stakes in the outcome of work that goes on inside the DEP building. This kind of access by private sector interests is a daily routine at DEP.
I don’t think the public has any idea how much access the developers and polluters have to DEP managers on a daily basis and how much influence these lobbyists have on the outcome of DEP decisions.
The DEP is supposed to be doing the people’s business so its internal workings should be able to withstand public scrutiny.

DEP’s decisions impact public health and environment. By law, DEP manages natural resources that are held in trust for the public. DEP s supposed to make decisions openly, based on science and law. But there is often a tremendous amount of discretion or judgment inherent in those decisions. Regulations are ambiguous and subject to interpretation and the science is almost always uncertain.
This is why access to DEP decision makers is such a critical issue.
We have tried to bring more transparency and openness to curb the special interest influence on DEP. Recently, we petitioned DEP to:
* 1) Provide public disclosure of meetings with regulated industry. DEP convenes closed-door meetings with lobbyists and designated insiders with no public attendance or publication of meeting agendas.
This request was denied by DEP Commissioner Jackson who claimed that meetings with regulated industries must stay confidential as a matter of “executive privilege and the deliberative process privilege”. The Commissioner claimed the substance and participants in those meetings are exempt from OPRA public records laws.
All visitors to DEP already sign in to a daily log that identifies the DEP staff person to be visited. Yet our OPRA request for that log was denied. What does DEP have to hide?
* 2) Publish the daily meeting calendars of top managers on the DEP website. The DEP Commissioner and top deputies routinely make decisions on enforcement and other pollution control policies in meetings with corporate lobbyists and executives, often from the same companies that are charged with violations.
Commissioner Jackson rejected that request on the grounds that it “implicates the privacy interests” of attendees. Tellingly, she also argued that revealing the “identity and the sequence of the persons with whom the Department senior staff consult could reveal the substance or direction or the mental processes of the Commissioner and Department staff”; and
* 3) Repeal a gag order and current Press Office policy that forbids DEP staffers answering questions posed by Media and the public. Under current DEP rules, agency scientists and other specialists are barred from speaking without prior approval from the agency Press Office.
Commissioner Jackson denied that request and maintained that any “issues” staff have should be raised within the management chain-of-command, noting that there are also whistleblower statutes. New Jersey whistleblower law does not, however, protect employee disclosures about threats to public health, manipulation of science or gross mismanagement, among other topics.
(for further details, see:
NEW JERSEY SAYS SECRET MEETINGS KEY TO ENVIRONMENTAL POLICY — Petition for New Transparency Rules Rejected the Same Day Notice Is Published
Trenton — The New Jersey Department of Environmental Protection has formally rejected a petition to give the public notice of its meetings with lobbyists and to post appointment calendars of its top officials, according to an agency ruling released today by Public Employees for Environmental Responsibility (PEER). The action by DEP Commissioner Lisa Jackson was dated the same day, July 2, 2007, the PEER petition for rulemaking was first published for public review in the July 2, 2007 New Jersey Register.
(for full report: http://www.peer.org/news/news_id.php?row_id=885
The New Jersey Election Law Enforcement Commission has rules which require disclosure of any communications by registered lobbyist with DEP managers. Why doesn’t DEP have similar rules?
This is a fundamental reform issue about whether the agency operates in the public interest, is perceived as objective, and makes decision based on science and law, and not political influence and access.
We all lose when special interests exploit the back door and revolving door at DEP.

<